LaRou v. Ridlon

• Court: Court of Appeals for the First Circuit
• Decided: October 28, 1996
• Docket: 96-1229
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 96-1229



                                    CHARLES LAROU,



                                Plaintiff, Appellant,



                                          v.



                                    WESLEY RIDLON,

                      IN HIS OFFICIAL AND INDIVIDUAL CAPACITY AS

                            SHERIFF OF CUMBERLAND COUNTY,



                                 Defendant, Appellee.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

         

                                                     
                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Cyr and Lynch, Circuit Judges.
                                           ______________



                                                     
                                 ____________________


Stuart Tisdale for appellant.
             ______________

             William R. Fisher, with whom Monaghan, Leahy, Hochadel & Libby
             _________________            _________________________________

        was on brief for appellee.


____________________



                                   October 28, 1996

                                                     
                                 ____________________



CYR, Circuit Judge.  Appellant Charles LaRou challenges
                    CYR, Circuit Judge.
                         _____________



          the  district  court's  summary judgment  rulings  rejecting  his



          political discrimination claims against Cumberland County (Maine)



          Sheriff Wesley Ridlon.  We affirm the district court judgment.



                                          I
                                          I



                                     BACKGROUND1
                                     BACKGROUND
                                     __________



                    Approximately   two  years   after  LaRou   joined  the



          Cumberland  County Sheriff's  Department ("Department")  in April



          1989,  he was  designated "Lieutenant,  Programs Coordinator"  by



          Sheriff  Ridlon.  Previously, Ridlon  had told LaRou  that one of



          his new  responsibilities would be to  gather adverse information



          that might enable Ridlon to fire Sergeant Christopher  Muse, whom



          Ridlon considered a  political rival.2   LaRou responded that  he



          would  keep his eyes  open, but would not  participate in a witch



          hunt.  Despite repeated  requests from Ridlon, LaRou reported  no



          adverse information  about Muse.   Ridlon  nevertheless appointed



          LaRou to a captaincy and made him the Administrative Aide respon-



          sible  for inmate programs  and officer  training (Administrative



          Aide/Programs) in October 1991.         In November 1993,  howev-



          er, all three  captains in the Department,  including LaRou, were



          reassigned  to newly-created  "shift commander"  positions.   The



          transfer memo stated that the shift commander assignments were to



                              
          ____________________



               1The material  facts in genuine  dispute are related  in the

          light  most favorable to LaRou.   Velez-Gomez v.  SMA Life Assur.
                                            ___________     _______________

          Co., 8 F.3d 873, 875 (1st Cir. 1993).  
          ___



               2In 1990, Muse had  gone to Ridlon and informed  him that he

          planned to run against Ridlon in 1994.



                                          2



remain  in effect until further  notice.  LaRou  regarded his new



          night shift  commander assignment  as a temporary  demotion, even



          though he had been relieved of all training  program duties and a



          Ridlon  political supporter had been  appointed to succeed him as



          Administrative Aide/Programs.  LaRou was never told that he would



          or would not be redesignated Administrative Aide/Programs.  



                    In December  1993, Sergeant  Muse first informed  LaRou



          that he intended to run against Ridlon for the Democratic nomina-



          tion for  Sheriff.  Although LaRou  thereafter actively supported



          the  Muse campaign,  Ridlon  ultimately won  both the  Democratic



          nomination and, on June 14, 1994, a second term as Sheriff.  



                    In January 1995, while still serving as the night shift



          commander,  LaRou saw  a posting  for the  position  of "Programs



          Manager,"  which he believed  to be essentially  identical to his



          previous position of Administrative Aide/Programs.  LaRou prompt-



          ly contacted the Cumberland County Personnel Manager, who advised



          that  as far as Cumberland  County was concerned  LaRou was still



          the Administrative  Aide/Programs.  LaRou  did not apply  for the



          newly-posted position, however, because  he felt that it remained



          his  by  right and  that he  was being  forced  out by  Ridlon in



          retaliation for supporting Muse in the 1994 political campaign.



                    The district court  rejected LaRou's retaliation  claim



          relating to the November 1993 "demotion" to night shift commander



          as a  "chronological impossibility," given the  statement by Muse



          that  LaRou had been  the first person in  the department whom he



          had  told (in December 1993)  about his plan  to run for Sheriff,
                        ________


3



which was  after LaRou's November 1993 "demotion"  to night shift
                     _____         ________



          commander.3  Second,  the district court ruled  that the retalia-



          tion  claim  based  on  the wrongful  permanent  elimination,  in



          January   1995,  of  the  Administrative  Aide/Programs  position



          previously held by LaRou,  amounted to a mere restatement  of the



          November  1993 retaliatory  "demotion" claim,  and hence  was not



          actionable. 



                                          II
                                          II



                                      DISCUSSION
                                      DISCUSSION
                                      __________



          1.   The Standard of Review
          1.   The Standard of Review
               ______________________



                    We review a  grant of summary judgment  de novo, Velez-
                                                            __ ____  ______



          Gomez, 8 F.3d at  874-75, and will  affirm it if "the  pleadings,
          _____



          depositions,  answers to interrogatories, and admissions on file,



          together  with  the affidavits,  if any,  show  that there  is no



          genuine  issue as to any material fact, and that the moving party



          is entitled to judgment as a matter of law."  Fed.R.Civ.P. 56(c).



          As  a  nonpolicymaking governmental  employee,  LaRou  could only



          avert summary judgment on his political discrimination claim    



                    by pointing to evidence in the record  which,

                    if  credited, would  permit  a rational  fact

                    finder  to conclude that  the challenged per-

                    sonnel action   occurred and  stemmed from  a

                    politically  based discriminatory  animus....

                    Without   more,    a   nonmoving   plaintiff-

                    employee's unsupported and speculative asser-

                    tions regarding political discrimination will

                    not be enough to survive  summary judgment.



          Rivera-Cotto v. Rivera, 38  F.3d 611, 614 (1st Cir.  1994) (cita-
          ____________    ______



          tions omitted).    

                              
          ____________________



               3We do not reach this ground.



                                          4



5



2.   The 1993 Retaliation Claim 
          2.   The 1993 Retaliation Claim
               __________________________



                    LaRou  claims  on  appeal  that Ridlon  (i)  knew  Muse



          planned to oppose Ridlon in  the 1994 primary, see supra note  2,
                                                         ___ _____



          (ii) Ridlon  originally promoted LaRou with  instructions to find



          grounds  for  dismissing Muse,  and  (iii)  LaRou ultimately  was



          "demoted" for failing to  provide Ridlon with adverse information



          about Muse and for forming instead a successful working relation-



          ship  with Muse.  The 1993 retaliation claim fails, however, even



          assuming  Ridlon caused LaRou to be "demoted" based on a retalia-



          tory motive, since  LaRou was engaged  in no protected  political



          activity at the time.         The   First    Amendment   protects



          nonpolicymaking  public employees  from  discrimination based  on



          their political beliefs  or affiliation.   Branti v. Finkel,  445
                                                     ______    ______



          U.S. 507 (1980).  See also Romero-Barcelo v. Hernandez-Agosto, 75
                            ___ ____ ______________    ________________



          F.3d 23, 34 (1st Cir. 1996).  The plaintiff-employee in a politi-



          cal retaliation case "must bear the threshold burden of producing



          sufficient direct  or circumstantial  evidence from which  a jury



          reasonably  may  infer   that  [his]  constitutionally  protected



          conduct  . . . was a `substantial' or 'motivating' factor behind"



          the adverse  employment action  taken by the  defendant official.



          Acevedo-Diaz v.  Aponte, 1  F.3d 62,  66 (1st  Cir.  1993).   The
          ____________     ______



          burden  then shifts  to the  defendant official  to  articulate a



          nondiscriminatory basis  for the  adverse employment  action, and



          prove  by a preponderance of the evidence that the adverse action



          would have been taken  regardless of any discriminatory political



          motivation.   Id.   See also Mt.  Healthy City Sch.  Dist. Bd. of
                        ___   ___ ____ ____________________________________


6



Educ. v. Doyle, 429 U.S. 274, 287 (1977).  
          _____    _____



                    Under the Mt. Healthy burden-shifting analysis, LaRou's
                              ___________



          retaliation claim falters at the outset.  In similar circumstanc-



          es, see  Correa-Martinez v. Arrillaga-Belendez, 903  F.2d 49 (1st
              ___  _______________    __________________



          Cir. 1990), we rejected a political discrimination  claim that an



          administrator had been  constructively discharged from  the judi-



          cial branch of the Commonwealth  of Puerto Rico due to  his prior



          association  with a former judge who held political views at odds



          with the defendant officials.  We explained that    



                    a politically charged atmosphere . . ., with-

                    out more, provide[s] no  basis for a  reason-

                    able  inference  that defendants'  employment

                    decisions  about  plaintiff  were tainted  by
                                      _________

                    their disregard of  plaintiff's first  amend-
                                        ___________

                    ment rights.  Absent a  constitutionally pro-

                    tected  aspect, a "close relationship" with a

                    third party is  insufficient .  . .  notwith-

                    standing  that  consideration  of  the  third
                                                       ___  _____

                    party's  political  beliefs may  have entered
                    _______  _________  _______

                    into the decisionmaking calculus.



          Id. at 58 (citation omitted).  As we stressed in Correa-Martinez,
          ___                                              _______________



          the plaintiff  is  required to  show  that "a  causal  connection



          exists linking defendants' conduct,  as manifested in the adverse



          employment  decision, to  plaintiff's politics."   Id.   See also
                                                             ___   ___ ____



          Aviles-Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992) (plain-
          _______________    _______



          tiff-employee must show causal  connection between his  political



          affiliation and the adverse treatment). 



                    LaRou claims he was  "demoted" to night shift commander



          because  he did  not  abide by  Ridlon's  instructions to  gather



          information which would enable  Ridlon to fire Muse.   LaRou does



          not  claim, however,  nor does  the  record indicate,  that LaRou


7



provided Muse with political support prior to his alleged  "demo-



          tion" in November 1993.  Although Ridlon and Muse had had politi-



          cal differences as early as 1990, as of  November 1993 Ridlon and



          LaRou had  not; and LaRou does  not claim that he  then knew Muse



          intended to oppose Ridlon.4  Thus,  for aught that appears in the



          record, LaRou's relationship with  Muse in November 1993 was  not



          political.          LaRou himself  asserts that  he chose not  to



          provide Ridlon with adverse information about Muse because he and



          Muse had developed a  successful professional relationship, which



          resulted in many  noteworthy advances in officer-training  proce-



          dures.   Conspicuously absent  is any  suggestion that  LaRou was



          motivated by  Muse's political plans,  affiliation, or  beliefs.5



          Since the record does  not disclose that LaRou was engaged in any



          protected political  activity, the alleged "demotion" in November



                              
          ____________________



               4At  his deposition, LaRou was asked whether he and Muse had

          ever discussed Muse's political  campaign prior to LaRou's "demo-

          tion" in November, 1993.  After stating that it was "most likely"

          that such a conversation occurred, LaRou explained:



                    I was moved out in  November of '93 and  that

                    was very early  - very early.   And if  there

                    was  ever any  mention  of  it, it  certainly

                    wasn't a strategic  mentioning because  there

                    was no  strategy at  that time.   That's very

                    early.   So  there may  have been  a sideline

                    comment,  there may have been a joke made.  I

                    really couldn't say.   Nothing jumps up at me

                    of a conversation or anything, but I wouldn't

                    doubt that  it happened.  It  could have hap-

                    pened.



          LaRou Dep. at 88.  



               5In  his affidavit,  LaRou  indicates that  he undertook  to

          scrutinize Muse's job performance for Ridlon, but later developed

          a close working relationship with Muse.  



                                          8



1993 did  not give rise to a  cognizable political discrimination



          claim even assuming Ridlon's  adverse employment action was based



          on his political differences with Muse, and he took those differ-



          ences out on LaRou.  See Correa-Martinez, 903 F.2d at 58.  
                               ___ _______________



          3.   The 1995 Job Posting
          3.   The 1995 Job Posting
               ____________________



                    LaRou attempts to  assert a discrete  retaliation claim



          in  connection  with the  January 1995  posting of  the "Programs



          Manager"  position.   Up  until that  time,  LaRou says,  he  had



          believed that  his November 1993  "demotion" to night  shift com-



          mander was merely temporary, and that he would be returned to his



          former position some  day.  He adds  that the position title  was



          changed at the time of the posting in January 1995 to justify his



          final removal, and that  his "permanent" loss of the  position in



          1995  was in retaliation  for his support of  Muse's 1994 bid for



          Sheriff.   The 1995  retaliation claim nonetheless  fails because



          LaRou was subjected to no cognizable adverse employment action as



          a result of the simple posting of the "Programs Manager" position



          in January 1995.   See Connell v. Bank of  Boston, 924 F.2d 1169,
                             ___ _______    _______________



          1179 (1st Cir.), cert. denied, 501 U.S. 1218 (1991)6 ("Most cases
                           ____  ______



          involving a retaliation  claim are based on  an employment action

                              
          ____________________



               6Although Connell  involved ADEA claims rather  than   1983,
                         _______

          its analysis is  persuasive.  The fundamental meaning of "adverse

          employment  action"  should  remain  constant  regardless  of the

          particular   enabling   statute,   given   their   similar  anti-

          discriminatory purpose.  Indeed, in Blackie v. State of Maine, 75
                                              _______    ______________

          F.3d 716, 725 (1st  Cir. 1996), a case  involving the Fair  Labor

          Standards  Act,  this  court  observed  generally  that  "[i]n  a

          retaliation case,  as in virtually any  other discrimination case

          premised  on disparate treatment, it is  essential for the plain-

          tiff  to show that the employer took a materially adverse employ-

          ment action against him."



                                          9



which  has an  adverse impact on  the employee,  i.e., discharge,



          demotion, or failure to promote.");  see also Rutan v. Republican
                                               ___ ____ _____    __________



          Party of Illinois, 497 U.S. 62, 75 (1990); Welsh v. Derwinski, 14
          _________________                          _____    _________



          F.3d 85, 86 (1st Cir. 1994).  



                    We  first  examine  the  particular  retaliatory action



          relied upon by the plaintiff employee to determine whether it had



          the requisite  adverse effect.  Id.; cf. also Blackie v. State of
                                          __   __  ____ _______    ________



          Maine, 75 F.3d 716, 725 (1st Cir. 1996) (noting that "determining
          _____



          whether an  action is  materially adverse necessarily  requires a



          case-by-case inquiry.")  (Fair Labor  Standards Act case).   Even



          assuming,  without  deciding,  that  the  generous definition  of



          "adverse  employment  action"   propounded  in  Blackie  likewise
                                                          _______



          applies here, LaRou  cannot bring the  present claim within  it.7



          Under Blackie, LaRou might  make out a retaliation claim  were he
                _______



          to demonstrate that Ridlon  had refused to promote (or  transfer)



          him to the Programs  Manager position posted in 1995,  or refused



          to consider him for the position despite a duty to do so.  



                    Although LaRou  contends that  the mere posting  of the



                              
          ____________________



               7In Blackie, we stated:
                   _______



                    Typically, the  employer must (1)  take some-

                    thing of consequence from the  employee, say,

                    by  discharging or demoting her, reducing her

                    salary, or  divesting her of  significant re-

                    sponsibilities;  or  (2)  withhold  from  the

                    employee  an  accoutrement of  the employment

                    relationship,  say, by  failing  to follow  a

                    customary  practice  of  considering her  for

                    promotion after a  particular period of  ser-

                    vice.



          Id. (citations omitted).
          __



                                          10



Programs Manager position in  1995 adversely affected his employ-



          ment because at the time he still "believed" he would be returned



          to his prior position  as Administrative Aide/Programs, he offers



          no evidence which would  enable a rational trier of  fact to find



          that this "belief" was  based on anything but conjecture.   Simi-



          larly,  he  proffers no  evidentiary  foundation  for the  stated



          belief  that his transfer to shift commander in November 1993 was



          temporary. 



                    LaRou baldly attests in his  affidavit that he was told



          the transfer  to shift  commander  was to  be temporary,  without



          identifying,  either  by name  or  position,  the source  of  the



          hearsay statement.  Thus,  the unattributed statement is incompe-



          tent, see Fed. R.  Civ. P. 56(e) (affidavit "shall set forth such
                ___



          facts  as would be admissible in evidence"), since it is inadmis-



          sible hearsay,  see Fed. R. Evid.  801(d)(2) (out-of-court state-
                          ___



          ment  offered for truth of matter asserted not hearsay if attrib-



          utable  to  party-opponent  or  agent).    See  also  Woodman  v.
                                                     ___  ____  _______



          Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir. 1995).
          _________________



                    The only  competent record evidence  indicates that the



          November  1993  "demotion" was  permanent.    According to  Frank



          Amoroso, Cumberland  County Jail Administrator, the 1993 realign-



          ment of the three captains was part of an overarching  plan.  The



          Administrative Aide/Programs position was to be eliminated    and



          with it one  captaincy     and replaced with  a Programs  Manager



          position.    Moreover, Amoroso  explained the  plan to  the three



          captains,  including LaRou,  at  a staff  meeting, and  requested


11



their  input.   Thus,  LaRou  proffers no  competent  evidence to



          remove the 1995 job posting claim from "the realm of speculative,



          general allegations."  See Kauffman v. Puerto Rico Telephone Co.,
                                 ___ ________    _________________________



          841 F.2d 1169, 1173 n.5 (1st Cir. 1988). 



                    LaRou  asserts that  he  called the  personnel director



          after seeing  the Programs Manager position posting, and was told



          that, as far as Cumberland County was concerned, he was still the



          Administrative Aide/Programs.  This  statement cannot help LaRou,



          however, since he concededly knew  that the newly posted Programs
                            __________ ____  ____ ___ _____ ______ ________



          Manager position encompassed  his former position of  Administra-
          _______ ________ ___________  ___ ______ ________



          tive Aide/Programs, yet  he elected  not to apply  for the  newly
                              ___  __ _______  ___ __ _____



          posted position.  In these circumstances, reliance on the person-



          nel  director's  statement, indicating  merely  that no  official



          change of status  had been  noted in LaRou's  personnel file,  is



          patently insufficient to generate a trialworthy issue.  



                    Absent some competent evidentiary  basis for the stated



          belief that the 1993  transfer was merely temporary, at  the very



          least  LaRou plainly  bore the  responsibility to  apply for  the



          posted position  which he  knew encompassed his  former position.



          Failing  which,  we are  at  a loss  to  understand how  the 1995



          posting  alone could be found  to have been  "retaliatory."  Even



          assuming the newly posted position were LaRou's by right, he does



          not explain  how Ridlon could  be found  to have acted  out of  a



          retaliatory motive simply in posting the position in 1995, absent



          any evidence that Ridlon  knew LaRou claimed his  former position



          or was interested  in the  newly posted position.   Without  such


12



evidence, it was  incumbent upon LaRou  to alert the  appropriate



          decisionmakers  to  his interest  in,  or  claim to,  the  posted



          position.8   Thus, LaRou failed  to generate a  trialworthy claim



          that Ridlon harbored an  actionable retaliatory motive in posting



          the programs manager position in 1995. 



                    Finally,  given the  unchallenged  evidence that  LaRou



          elected not  to apply for the  newly posted position  in 1995, he



          cannot point to  a plausible  dispute that Ridlon  engaged in  an



          "adverse  employment  action"  simply  by  posting  the  programs



          manager position.   See Boarman  v. Sullivan, 769  F. Supp.  904,
                              ___ _______     ________



          910-11 (D.Md. 1991); cf. also Sinai v.  New England Tel. and Tel.
                               __  ____ _____     ___ _______ ____ ___ ____



          Co., 3  F.3d 471, 474 (1st  Cir. 1993), cert. denied,  115 S. Ct.
          ___                                     _____ ______



          597  (1994) (Title VII); Sherpell v. Humnoke  Sch. Dist. No. 5 of
                                   ________    _______  ____ _____ ___ _ __



          Lonoke  Cty., 750 F.Supp. 971,  980 (E.D. Ark.  1990), aff'd, 985
          ______  ____                                           _____



          F.2d  566 (8th Cir. 1991)  (finding that "there  could be no `ad-



          verse employment action' by defendant until plaintiff applied for



          a  job") (Title VII  discrimination and retaliation  claims).  We



          accordingly hold that  the mere  posting of a  position does  not



          constitute an  "adverse employment action" even  though the posi-



          tion posted is known to encompass a prior position from which the



          plaintiff  was  demoted  or transferred,  provided  the plaintiff



                              
          ____________________



               8Although  LaRou claims to have sent a letter to the person-

          nel director explaining  why he  was not applying  for the  newly

          posted position, it is not included in the record on appeal.  See
                                                                        ___

          Real v.  Hogan 828 F.2d 58,  60 (1st Cir. 1987)("If  [the record]
          ____     _____

          proves  inconclusive, it is the appellant who must bear the brunt

          of  an insufficient  record  on appeal.").    See also  Moore  v.
                                                        ___ ____  _____

          Murphy,  47 F.3d  8,  10-11 (1st  Cir.  1995); United  States  v.
          ______                                         ______________

          Mottolo, 26 F.3d 261, 264 n.3 (1st. Cir. 1994).
          _______



                                          13



received  proper notice of the posted position and elected not to



          apply.



                    The district court judgment is  affirmed, without costs
                    ___ ________ _____ ________ __  _________ _______ _____



          to either party. 
          __ ______ _____


14