Wagner v. Devine

Opinion

USCA1 Opinion

United States Court of Appeals

                                For the First Circuit

                                 ____________________


No. 96-2315



                          ROBERT WAGNER AND MARGARET WAGNER,



                               Plaintiffs, Appellants,



                                          v.



              PATRICIA DEVINE, KEVIN A. JOURDAIN, CHARLES E. MORAN, III,

               ARTHUR THERRIEN, JOHN E. WHELIHAN, THE CITY OF HOLYOKE,

           MASSACHUSETTS, THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,

           LOCAL 388, AND THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS,



                                Defendants, Appellees.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                 [Hon. Frank H. Freedman, Senior U.S. District Judge]
                                          __________________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________

                        Coffin and Cyr, Senior Circuit Judges.
                                        _____________________



                                 ____________________



            Stewart T. Graham, Jr., for appellants.
            ______________________

            John  H. Fitz-Gibbon with  whom Harry  L. Miles  was on  brief for
            ____________________            _______________

        appellees  Devine, Jourdain, Moran, Whelihan  and the City of Holyoke,

        Massachusetts.

            Lawrence  D.   Humphrey  for  appellees  Therrien,   International
            _______________________

        Brotherhood  of  Police  Officers, Local  388,  and  the International

        Brotherhood of Police Officers.



                                 ____________________



                                    August 1, 1997

                                 ____________________



COFFIN,  Senior  Circuit  Judge.   Appellant  Robert Wagner,
                        ______________________



          former chief of police in Holyoke, Massachusetts, claims that his



          First  Amendment freedom  of political  association was  violated



          when  members of  the city  council and  others subjected  him to



          severe harassment, ultimately  forcing him to resign,  because of



          his  political support  for  the  city's mayor.    He filed  this



          lawsuit  alleging federal  constitutional and state  law claims.1



          The  district  court  dismissed the  First  Amendment  counts for



          failure  to state a claim, and declined supplemental jurisdiction



          over the state law counts.   Because the First Amendment does not



          protect  a policymaking official such as appellant from criticism



          and harassment, we affirm.



                                I. Factual Background2
                                   __________________



               Appellant  Wagner was appointed Holyoke's chief of police in



          July 1991 by  then newly elected Mayor Hamilton.   Wagner asserts



          that four  members  of  the  City  Council  who  were  Hamilton's



                              
          ____________________



               1 The complaint  included a count for loss  of consortium on

          behalf  of Wagner's  wife, Margaret  Wagner.  Because  this claim

          survives or  fails with Robert  Wagner's state claims, we  do not

          address it separately. 



               2 We  note  that the  facts  alleged in  Wagner's  complaint

          provide  a  much  sketchier picture  of  the  defendants' alleged

          conduct than  the facts  described by counsel  at the  hearing on

          defendants' motion  to  dismiss.   In reviewing  a Rule  12(b)(6)

          dismissal,  we typically consider the "well-pleaded facts as they

          appear  in  the  complaint," see  Correa-Martinez  v.  Arrillaga-
                  __________________   ___  _______________      __________

          Belendez,  903 F.2d  49,  51 (1st  Cir.  1990) (emphasis  added).
          ________

          Because  we ultimately uphold  the dismissal, and  the additional

          facts are helpful in understanding the case, we draw the facts in

          this  section from  both  the  complaint and  the  hearing.   For

          purposes of  the motion  to dismiss, we  take the  allegations as

          true  and  grant  all reasonable  inferences  in  Wagner's favor.

          Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
          ______    _________



                                         -2-



political opponents engaged  in a campaign of  harassment against



          him  for  the  purpose  of  embarrassing  the  mayor and  forcing



          appellant to  resign.  He  contends that their criticisms  of his



          job  performance were  unfair  and  inaccurate,  and  that  their



          actions   were  motivated  solely  by  their  opposition  to  his



          political beliefs  and his political  support of the mayor.3   He



          further asserts  that  the president  of  the police  union,  and



          through  him the local  and international unions,  conspired with



          the council members to effectuate the plan to oust him.



               The complaint accuses  the council members of  harassing him



          by  means  of  unspecified  "actions,"  and  numerous  false  and



          defamatory statements.  At the  hearing on the motion to dismiss,



          appellant's counsel identified the challenged actions as follows:



               They   were  constantly  criticizing  him.    They  had

               subcommittees  that they were chairing and they had him

               up  to see the  council constantly, criticizing  him in

               everything he did  . . . . They tried  to eliminate his

               salary.   They reduced  his salary.   They reduced  his

               benefits.  They  refused to fund  programs that he  was

               pushing.



          Although the mayor  has sole authority under the  city charter to



          hire or  fire the police chief, the council  has power to set the



          salary and benefits  for the position.  According  to Wagner, the



          four defendant council members, aminority of the governing body, 

                              
          ____________________



               3  In his  appellate briefs,  Wagner  makes several  passing

          references to  a First Amendment violation based on his political

          speech, as well as on political affiliation, and he cites several

          speech cases  in support  of his arguments.   The  complaint, the

          hearing on  the  motion  to  dismiss, and  the  district  court's

          opinion all  reveal that this  case has been litigated  solely on

          the theory that defendants harassed and constructively discharged

          him based on his political beliefs and affiliation.  Our analysis

          is therefore confined to that context.        



                                         -3-



"led the charge" against him and secured the complicity of enough



          other councilors to accomplish their unlawful objectives.



               Wagner resigned in  September 1994.  He asserts  that he was



          forced  to do so  because the defendants'  actions and statements



          hindered,  undermined, and interfered with the performance of his



          duties, and thus constituted a constructive discharge.4



               This  lawsuit followed.  In addition to federal civil rights



          claims  under 42  U.S.C.    1983, which  assert violation  of his



          First  Amendment right to political association, Wagner alleged a



          state civil rights violation, and state law claims of defamation,



          tortious  interference  with contractual  relations, and,  in his



          wife's name, loss of consortium.   In response to the defendants'



          motion to  dismiss under Fed.  R. Civ. P. 12(b)(6),  the district



          court substantively  addressed only the  section 1983 count.   It



          ruled that "the alleged harassment which  Wagner sustained at the

                              
          ____________________



               4 Defendants contend that they  cannot be found liable for a

          constructive discharge because  only the mayor had  the authority

          to fire  Wagner.  Their argument cuts too narrowly.  Although the

          city council may not have had explicit authority to terminate the

          police chief, its authority  to set salary, benefits and  working

          conditions  gave  it  the  power  to  accomplish  a  constructive

          discharge. See, e.g., Vega v.  Kodak Caribbean, Ltd., 3 F.3d 476,
                     ___  ____  ____     _____________________

          480  (1st Cir. 1993) (constructive discharge occurs when "working

          conditions  [are] so intolerable[] that a reasonable person would

          feel  compelled to  forsake  his  job rather  than  to submit  to

          looming  indignities"); Aviles-Martinez v. Monroig, 963 F.2d 2, 6
                                  _______________    _______

          (1st Cir. 1992) (similar).  Of course, a minority  of the council
                                                   ________

          does not have such power, and a finding of constructive discharge

          would require some  showing that the challenged  conduct actually

          was  attributable to the  alleged discrimination.   See generally
                                                              ___ _________

          Scott-Harris v. City  of Fall River, Nos.  95-1950-1952, 95-2100,
          ____________    ___________________

          1997  WL 9102, at  *9-10 (1st Cir. Jan.  15, 1997), cert. granted
                                                              _____________

          sub nom  Bogan v. Scott-Harris,  65 U.S.L.W. 3809 (U.S.  June 10,
          ______________    ____________

          1997) (No. 96-1569).  In any event,  as we conclude infra, such a
                                                              _____

          discharge  would not  be  actionable if,  as  here, the  affected

          employee was a policymaker.  



                                         -4-



hands  of a  minority of  the city  councilors and  a subordinate



          police  officer was  not  of sufficient  degree to  constitute 'a



          constitutionally  significant  burden   on  [Wagner's]  political



          association right.'"   Memorandum and Order at 5 (quoting Agosto-
                                                                    _______



          de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir. 1989)
          ____________    ____________



          (en banc)).
           __ ____



               The  court also concluded  that, even if  the harassment had



          been sufficiently  severe to  implicate constitutional  concerns,



          Wagner's  First  Amendment  claim still  would  fail  because the



          police chief's position  was one for which  political affiliation



          is an  appropriate requirement.   Public employees who  hold such



          positions, the  court  ruled,  are not  protected  by  the  First



          Amendment from partisan attacks on their job performance.  Having



          dismissed  the federal  claims, the  court  declined to  exercise



          supplemental  jurisdiction over the remaining state law causes of



          action and dismissed them as well.



               The  Wagners then  filed this  appeal.   Our  review of  the



          district  court's Rule  12(b)(6) dismissal is  de novo.   Romero-
                                                         __ ____    _______



          Barcelo v. Hernandez-Agosto, 75 F.3d  23, 28 n.2 (1st Cir. 1996).
          _______    ________________



          We may affirm a dismissal for failure to state a claim only if it



          clearly appears that,  on the facts alleged, the plaintiff cannot



          recover  on any  viable theory.    Correa-Martinez v.  Arrillaga-
                                             _______________     __________



          Belendez, 903  F.2d 49, 52 (1st Cir. 1990).  Because the district
          ________



          court's ruling that the  First Amendment does not  protect Wagner


-5-



from  politically motivated  discrimination is  both  correct and



          dispositive, we turn to that issue first.5



                                    II. Discussion
                                        __________



               The Supreme  Court more  than twenty  years ago  established



          that the First Amendment provides protection for public employees



          from  adverse job  action  based  solely  on  partisan  political



          affiliation.  See Elrod v.  Burns, 427 U.S. 347 (1976) (plurality
                        ___ _____     _____



          opinion);  Branti  v.  Finkel,  445 U.S.  507  (1980);  Rutan  v.
                     ______      ______                           _____



          Republican Party,  497 U.S.  62 (1990).6   The protection  is not
          ________________



          universal,  however.  In its precedent-setting case examining the



          constitutionality of the  patronage system, the Court  recognized



          the  competing First Amendment interest of the in-power political



          party  "to  insure   that  policies  which  the   electorate  has



          sanctioned  are effectively implemented," Elrod, 427 U.S. at 372.
                                                    _____



          The Court therefore  allowed patronage practices to  continue for



          those  employees who, inter alia, make policy or occupy positions
                                _____ ____



          of confidence.  Id.; Branti, 445 U.S. at 517-18.7
                          ___  ______

                              
          ____________________



               5 Wagner contends  that the district court's  other holding,

          that   the  harassment  he   suffered  was  not  constitutionally

          significant, was based on a misreading of the complaint.  We need

          not, and therefore do not, take up this issue.



               6  The   Supreme  Court   addressed  politically   motivated

          discharges in Elrod and Branti,  extending its reasoning to other
                        _____     ______

          forms of employment discrimination in Rutan. 
                                                _____



               7  At  various points  in  this  opinion,  we use  the  term

          "policymaker" as a shorthand reference for the several categories

          of employees for whom partisan affiliation  is an appropriate job

          criterion.   Such employees  are "'involved in  policymaking, the

          communication of political  ideas, or  sensitive tasks  connected

          with the policymaking function,' Vazquez Rios v. Hernandez Colon,
                                           ____________    _______________

          819 F.2d 319,  322 (1st Cir. 1987), []or 'occupy[] positions of .

          . . unusually intimate propinquity to government leaders,' id. at
                                                                     ___



                                         -6-



Our circuit has since faced a long line of cases raising the



          issue  of political discrimination  in employment, most  of which



          have  focused  on whether  the  particular position  held  by the



          plaintiff  employee fell inside  or outside the  First Amendment-



          protected  sphere.  See,  e.g., Agosto-de-Feliciano, 889  F.2d at
                              ___   ____  ___________________



          1212 & n.1, 1218 (noting "first wave" of cases involving outright



          dismissals,  and adopting  standard for evaluating  "second wave"



          cases   involving  discriminatory   conduct   falling  short   of



          discharge).  This case presents an interesting departure from the



          norm.   Both  parties accept  that Wagner's  job as  police chief



          sufficiently  elevated him in  the Holyoke hierarchy  that, under



          the principles  we have just outlined, he could be fired based on



          political affiliation.  



               Wagner,  however, contends  that  he  was  subjected  to  an



          impermissible constructive  discharge because  only the mayor  --



          the  official  who  hired  him  and  for  whom  he  served  as  a



          policymaker  -- may  fire  him  based  on  political  affiliation



          without violating the First Amendment.  This is so, he maintains,



          because  the Elrod-Branti exception  was designed to  ensure that
                       _____ ______



          the  policies of  a new  administration  -- "policies  presumably



          sanctioned by  the electorate," Elrod,  427 U.S. at 367  -- would
                                          _____



          not   be  undercut  by  the  obstructive  tactics  of  opposition



          incumbents.    This  rationale   provides  no  justification  for



          opponents of a new administration  -- such as the defendants here
          _________


____________________



          324." Correa-Martinez, 903 F.2d at 56 n.6.
                _______________



                                         -7-



-- to  harass the  administration's supporters.   Their  conduct,



          Wagner argues, is therefore unconstitutional.



               Wagner's  analysis ignores the  reality of precedent.   Both



          Supreme  Court  and  First Circuit  caselaw  have  recognized the



          applicability  of the Elrod-Branti  dichotomy outside the context
                                ____________



          of a new administration's  patronage practices.  The  conflict in



          Rutan,  where the  Supreme Court  held  that the  First Amendment
          _____



          forbids  government  officials  from  basing  less-than-discharge



          actions  such as  hiring, promotion,  and  transfer on  political



          affiliation and  support, did not  arise amidst the seating  of a



          new administration.    At  issue  was the  implementation  of  an



          executive  order proclaiming a  hiring freeze,  with "exceptions"



          allegedly made based on political affiliation.  In referring back



          to  Elrod and  Branti  in the  opinion's  opening paragraph,  the
              _____      ______



          majority  broadly described  those  cases  as  protecting  public



          employees  from discharge "solely for not being supporters of the



          political   party  in  power,  unless  party  affiliation  is  an



          appropriate requirement for  the position involved," 497  U.S. at



          64.  That decision indicates  that the First Amendment protection



          against  patronage practices,  as  well  as  the  exceptions  for



          certain categories  of highly  placed  employees, apply  whenever



          public employees are at odds politically with their superiors and



          thus subject to politically discriminatory behaviors.



               Our decision in Romero-Barcelo, 75 F.3d  at 33-34, brings us
                               ______________



          even closer to the present context.  In rejecting a former Puerto



          Rico governor's allegations that he had suffered severe political


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discrimination  during a  murder  investigation  because  of  his



          association with the out-of-power New Progressive Party (NPP), we



          stated:



               The Supreme  Court has  held that  the First  Amendment

               "protects  nonpolicymakers  from being  drummed  out of

               public   service  on  the   basis  of  their  political

               affiliation or advocacy of ideas."  . . .   But Romero-

               Barcelo most assuredly qualified as an NPP policymaker.

               . . . Thus, the district court correctly found no First

               Amendment  protection for "a politician whose rights to

               freedom of speech, freedom of  association, and freedom

               'to disassociate  [oneself] from unpopular  views' have

               been injured by other politicians seeking  to undermine

               his  credibility  within  his own  party  and  with the

               electorate."



          75 F.3d at 34 (citations omitted).   Cf. Larou v. Ridlon, 98 F.3d
                                               ___ _____    ______



          659,  661 (1st  Cir. 1996)  (noting as  a general  principle that



          "[t]he First Amendment protects nonpolicymaking public  employees



          from  discrimination   based  on   their  political   beliefs  or



          affiliation"); Correa-Martinez, 903 F.2d at 56-57 & n.6 (same).
                         _______________



               Our conclusion in Romero-Barcelo stemmed from  a recognition
                                 ______________



          that an administration's need to assure that it can implement the



          people's will  is  matched by  the  equally legitimate  right  of



          political   opponents  to  exert  pressure  on  behalf  of  their



          viewpoints  and  constituents.    Indeed,  like  the  mayor,  the



          minority  members of  the  Holyoke  City  Council  represented  a



          portion of the electorate, and they therefore share the rationale



          that they  were pursuing objectives sanctioned by  the voters who



          supported them.  The democratic process envisions a give-and-take



          in  matters  of  policy,  and  the  unfortunate  fact  that  some



          individuals will be caught  in the crossfire is "an  all too real


-9-



by-product of  our long-standing  organization of political  life



          into two or more parties," Agosto-de-Feliciano, 889 F.2d at 1217.
                                     ___________________



               The Elrod-Branti line  of cases struck a balance between the
                   ____________



          competing  First Amendment  interests  by excluding  policymaking



          public  employees from constitutional protection.  See, e.g., id.
                                                             ___  ____  ___



          at  1215 (quoting  Elrod  to  the effect  that  "there are  First
                             _____



          Amendment interests  on both  sides"); Pieczynski  v. Duffy,  875
                                                 __________     _____



          F.2d  1331,  1334   (7th  Cir.  1989)  (noting   "the  balance").



          Policymakers, as front-line representatives  of the policies they



          were  hired  to  implement,  can be  expected  to  face  stinging



          partisan  attacks against their  efforts by outsiders  seeking to



          persuade the electorate (and fellow legislators) to make them the



          insiders.    Wagner  was in  a  particularly  vulnerable position



          because of  the division of power over  his job between the mayor



          and city council, both  of whom possessed municipal  authority --



          albeit  in different  ways --  to terminate  his employment.   At



          least when  the political pressure  exerted by those in  power is



          within their  authority,8 the First Amendment does  not provide a



          shield for those whose positions are politically sensitive.



               We   add   this   comment   about   appellant's   particular



          circumstances.  Were appellant's argument to be accepted -- i.e.,
                                                                      ____



          that  harassment and criticism  by political opponents  rising to



          the  level  of  a  constructive  discharge  constituted  a  First



          Amendment violation  -- we  quail at the  prospect of  judges and

                              
          ____________________



               8 There is no allegation, for example, that the city council

          lacked authority to reduce, or even eliminate, the police chief's

          salary, or that improper procedures were followed. 



                                         -10-



juries  being inundated  by claims  of  unhappy politicians  that



          their   opponents   had   transgressed   the   boundary   between



          constitutional and unconstitutional fair play.  Partisan politics



          does not, we fear, lend itself  to the rulemaking authority of  a



          Marquess of Queensberry.



               We therefore conclude that, because there is no dispute that



          appellant  Wagner's position as  police chief was  a policymaking



          one,  the district  court  properly  held that  he  had no  First



          Amendment right to be free from discriminatory treatment based on



          his politics.   This conclusion makes it  unnecessary to consider



          the  other  issues   surrounding  his  First  Amendment   claims,



          including  the  adequacy   of  his  allegations,  the   scope  of



          legislative immunity, and whether the allegedly improper  motives



          of  a four-member  minority  of  a  fifteen-member  city  council



          provide a basis for municipal liability.  In these circumstances,



          dismissal  of the  state law  claims  also is  appropriate.   See
                                                                        ___



          McIntosh v. Antonino, 71 F.3d 29, 33 n. 3 (1st Cir. 1995).  
          ________    ________



               The judgment of the district court is affirmed.
               _______________________________________________


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