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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
____________________
appellees

whom Harry L. Miles


_______________

Devine, Jourdain, Moran, Whelihan

was on

brief

and the City of Holyo

Massachusetts.
Lawrence D.
Humphrey
_______________________

for

appellees

Therrien,

Internatio

Brotherhood

of

Police

Officers, Local

388,

and

the Internatio

Appellant

Robert Wagner,

Brotherhood of Police Officers.

____________________

August 1, 1997
____________________

COFFIN,

Senior Circuit Judge.


______________________

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

First

when

Amendment freedom

members of

of political

the city

council and

severe harassment, ultimately

his

political support

lawsuit

The

alleging federal

district

failure

for

court

the

violated

others subjected

forcing him to resign,

city's mayor.

First

him to

because of

He filed

constitutional and state

dismissed the

this

law claims.1

Amendment

counts for

to state a claim, and declined supplemental jurisdiction

over the state law counts.

protect

association was

Because the First Amendment does not

a policymaking official such as appellant from criticism

and harassment, we affirm.

I. Factual Background2
__________________

Appellant

July 1991 by

Wagner was appointed Holyoke's chief of police in

then newly elected Mayor Hamilton.

Wagner asserts

that four

members

of

the

City

Council

who

were

Hamilton's

____________________

1 The complaint
behalf

of Wagner's

survives or

included a count for loss


wife, Margaret

fails with Robert

Wagner.

of consortium on

Because

this claim

Wagner's state claims, we

do not

address it separately.

2 We
provide

note
a

that the

much

conduct than

appear

the facts
to

Because

of

the

Wagner's

dismiss.

complaint

defendants' alleged

described by counsel

at the

In reviewing

hearing on

a Rule

12(b)(6)

we typically consider the "well-pleaded facts as they

in the complaint," see


__________________
___

Belendez,
________

alleged in

sketchier picture

defendants' motion
dismissal,

facts

903 F.2d

49,

51 (1st

we ultimately uphold

Correa-Martinez
_______________
Cir.

v.

Arrillaga__________

1990) (emphasis

the dismissal, and

added).

the additional

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


this

section from

purposes of
true

and

both

the motion
grant

the

complaint and

to dismiss, we

all reasonable

the

take the

inferences

in

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


______
_________

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hearing.

For

allegations as

Wagner's favor.

political opponents engaged

him

for

the

appellant to

job

purpose

resign.

performance were

actions

were

He

embarrassing

and

the

mayor and

solely

inaccurate,

by

and his political

that

harassment against

contends that their criticisms

unfair

motivated

political beliefs

further asserts

of

in a campaign of

the president

their

and

forcing

of his

that

to

his

support of the mayor.3

He

of

opposition

their

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

by

means

of

unspecified

defamatory statements.

the council members of

"actions,"

At the

and

harassing him

numerous

false

and

hearing on the motion to dismiss,

appellant's counsel identified the challenged actions as follows:

They

were

constantly

subcommittees
up

to see the

benefits.

They

council constantly, criticizing


. . . . They tried

They reduced
They

him.

had

that they were chairing and they had him

everything he did
salary.

criticizing

his salary.

refused to fund

him in

to eliminate his
They reduced

his

programs that he

was

pushing.

Although the mayor

hire or

has sole authority under the

fire the police chief, the council

salary and benefits

for the position.

city charter to

has power to set the

According

to Wagner, the

four defendant council members, aminority of the governing body,

____________________

In his

appellate briefs,

references to

Wagner

makes several

passing

a First Amendment violation based on his political

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


speech cases
hearing on
opinion all

in support
the

motion

of his arguments.
to

reveal that this

dismiss, and

The
the

complaint, the

district

case has been litigated

court's

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.

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

other councilors to accomplish their unlawful objectives.

Wagner resigned in

forced

to do so

hindered,

September 1994.

because the defendants'

He asserts

that he was

actions and statements

undermined, and interfered with the performance of his

duties, and thus constituted a constructive discharge.4

This

claims

First

lawsuit followed.

under 42

U.S.C.

In addition to federal civil rights

1983, which

assert violation

of his

Amendment right to political association, Wagner alleged a

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

tortious

interference

with contractual

wife's name, loss of consortium.

motion to

dismiss under Fed.

court substantively

relations, and,

in his

In response to the defendants'

R. Civ. P. 12(b)(6),

addressed only the

the district

section 1983 count.

It

ruled that "the alleged harassment which

Wagner sustained at the

____________________

4 Defendants contend that they


constructive discharge because
to fire

Wagner.

cannot be found liable for a

only the mayor had

the authority

Their argument cuts too narrowly.

Although the

city council may not have had explicit authority to terminate the
police chief, its authority
conditions

gave

it

the

to set salary, benefits and


power

discharge. See, e.g., Vega v.


___ ____ ____
480

accomplish

constructive

Kodak Caribbean, Ltd., 3 F.3d 476,


_____________________

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

conditions
feel

to

working

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

compelled to

looming

forsake

his

job rather

than

to submit

to

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
was

showing that the challenged

attributable to the

alleged discrimination.

Scott-Harris v. City of Fall River, Nos.


____________
___________________
1997

WL 9102, at

*9-10 (1st Cir. Jan.

sub nom Bogan v. Scott-Harris,


______________
____________
1997) (No. 96-1569).

conduct actually

See generally
___ _________

95-1950-1952, 95-2100,

15, 1997), cert. granted


_____________

65 U.S.L.W. 3809 (U.S.

In any event,

June 10,

as we conclude infra, such a


_____

discharge

would not

be

actionable if,

as

here, the

affected

employee was a policymaker.

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hands

police

of a

minority of

officer was

constitutionally

not

the city

of sufficient

significant

association right.'"

councilors and

burden

degree to

on

a subordinate

constitute 'a

[Wagner's]

political

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

been sufficiently

Wagner's

First

severe to

Amendment

police chief's position

is an

that, even if

implicate constitutional

claim still

court

would

was one for which

appropriate requirement.

positions, the

the harassment had

ruled,

fail

concerns,

because the

political affiliation

Public employees who

are not

protected

by

hold such

the

Amendment from partisan attacks on their job performance.

dismissed

the federal

supplemental

claims, the

court

declined to

First

Having

exercise

jurisdiction over the remaining state law causes of

action and dismissed them as well.

The

Wagners then

filed this

appeal.

district

court's Rule

12(b)(6) dismissal is

Our

review of

de novo.
__ ____

the

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,

recover

on any

Belendez, 903
________

on the facts alleged, the plaintiff cannot

viable theory.

Correa-Martinez v.
_______________

F.2d 49, 52 (1st Cir. 1990).

court's ruling that the

Because the district

First Amendment does not

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Arrillaga__________

protect Wagner

from

politically motivated

discrimination is

both

correct and

years ago

established

dispositive, we turn to that issue first.5

II. Discussion
__________

The Supreme

Court more

than twenty

that the First Amendment provides protection for public employees

from

adverse job

affiliation.

opinion);

See Elrod v.
___ _____

Branti
______

Republican Party,
________________

universal,

action

v.

solely

on

partisan

political

Burns, 427 U.S. 347 (1976) (plurality


_____

Finkel,
______

497 U.S.

however.

based

445 U.S.

62 (1990).6

507

(1980);

Rutan
_____

The protection

v.

is not

In its precedent-setting case examining the

constitutionality of the

the

patronage system, the Court

recognized

competing First Amendment interest of the in-power political

party

"to

sanctioned

insure

policies

which

the

electorate

has

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


_____

The Court therefore

those

that

allowed patronage practices to

continue for

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

harassment

that the district court's


he

suffered

was

not

other holding,

constitutionally

significant, was based on a misreading of the complaint.

We need

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

The

Supreme

Court

discharges in Elrod and Branti,


_____
______

addressed

politically

motivated

extending its reasoning to other

forms of employment discrimination in Rutan.


_____

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
criterion.

Such employees

communication of political

is an appropriate job

are "'involved in
ideas, or

policymaking, the

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

have

of political discrimination

focused

on whether

the

particular position

plaintiff

employee fell inside

protected

sphere.

See,
___

in employment, most

or outside the

of which

held

by the

First Amendment-

e.g., Agosto-de-Feliciano, 889


____ ___________________

F.2d at

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

dismissals,

cases

involving

discharge).

norm.

and adopting

standard for evaluating

discriminatory

conduct

"second wave"

falling

short

of

This case presents an interesting departure from the

Both

sufficiently

the principles

parties accept

that Wagner's

elevated him in

job as

the Holyoke hierarchy

police chief

that, under

we have just outlined, he could be fired based on

political affiliation.

Wagner,

however, contends

that

he

was

subjected

to

an

impermissible constructive

the

official

policymaker

discharge because

who

hired

him

and

for

-- may

fire

him

based

on

without violating the First Amendment.

because

the

the Elrod-Branti exception


_____ ______

policies of

sanctioned by

not

be

a new

incumbents.

This

by

political

opponents of a new administration


_________

as

affiliation

ensure that

-- "policies

427 U.S. at 367

obstructive

rationale

served

--

This is so, he maintains,

administration

the

he

was designed to

the electorate," Elrod,


_____

undercut

whom

only the mayor

provides

tactics

no

of

presumably

-- would

opposition

justification

for

-- 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

Supreme

Court

applicability

analysis ignores the

and

First Circuit

of the Elrod-Branti
____________

of a new administration's

reality of precedent.

caselaw

have

Both

recognized the

dichotomy outside the context

patronage practices.

The

conflict in

Rutan,
_____

where the

Supreme Court

forbids

government

actions

such as

affiliation and

officials

from

support, did not

At

issue

and

First Amendment

less-than-discharge

transfer on

political

arise amidst the seating

was the

implementation

of a

of

an

hiring freeze,

with "exceptions"

allegedly made based on political affiliation.

In referring back

to

order proclaiming a

that the

basing

hiring, promotion,

new administration.

executive

held

Elrod and
_____

majority

employees

political

Branti
______

in the

broadly described

those

cases

opening paragraph,

as

protecting

the

public

from discharge "solely for not being supporters of the

party

in

power,

appropriate requirement for

64.

opinion's

That decision indicates

unless

party

affiliation

the position involved," 497

is

an

U.S. at

that the First Amendment protection

against

patronage practices,

certain categories

of highly

as

well

placed

as

the

exceptions

employees, apply

for

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


______________

even closer to the present context.

at 33-34, brings us

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
"protects
public

Court has

held that

nonpolicymakers
service

on

the

the First

from being
basis

affiliation or advocacy of ideas."

of

Amendment

drummed
their

. . .

out of

political
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


'to disassociate

association, and freedom

[oneself] from unpopular

been injured by other politicians seeking


his

credibility

within

his own

party

views' have
to undermine
and

with the

electorate."

75 F.3d at 34 (citations omitted).

659,

661 (1st

Cir. 1996)

Cf. Larou v. Ridlon, 98 F.3d


___ _____
______

(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

political

opponents

viewpoints

and

minority

to

the

exert

constituents.

members of

the

Holyoke

equally legitimate

right

pressure

on

behalf

of

Indeed,

like

the

mayor,

City

Council

of

their

the

represented

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

policy,

matters

of

individuals will be caught

and

the

unfortunate

fact

in the crossfire is "an

that

some

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


____________

competing

public

First Amendment

of cases struck a balance between the

interests

by excluding

employees from constitutional protection.

policymaking

See, e.g., id.


___ ____ ___

at

1215 (quoting

Elrod
_____

Amendment interests

F.2d

1331,

1334

to

the effect

on both

(7th

that

sides"); Pieczynski
__________

Cir.

1989)

(noting

Policymakers, as front-line representatives

were

hired

partisan

to

implement,

"there are

can be

attacks against their

expected

v. Duffy,
_____

"the

First

875

balance").

of the policies they

to

face

efforts by outsiders

stinging

seeking to

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

insiders.

because of

Wagner

was in

in different

least when

within their

particularly

the division of power over

and city council, both

albeit

vulnerable position

his job between the mayor

of whom possessed municipal

ways --

to terminate

the political pressure

authority --

his employment.

exerted by those in

authority,8 the First Amendment does

At

power is

not provide a

shield for those whose positions are politically sensitive.

We

add

circumstances.

that

the

this

comment

of

appellant's

particular

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


____

harassment and criticism

level

about

constructive

Amendment violation

-- we

by political opponents

discharge

quail at the

constituted

prospect of

rising to

First

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

their

opponents

had

by claims

of

unhappy politicians

transgressed

the

constitutional and unconstitutional fair play.

does not, we fear, lend itself

boundary

that

between

Partisan politics

to the rulemaking authority of

Marquess of Queensberry.

We therefore conclude that, because there is no dispute that

appellant

one,

Wagner's position as

the district

court

police chief was

properly

held that

he

a policymaking

had no

First

Amendment right to be free from discriminatory treatment based on

his politics.

the

other

This conclusion makes it

issues

surrounding

his

unnecessary to consider

First

Amendment

claims,

including

the

adequacy

of

his

allegations,

the

scope

of

legislative immunity, and whether the allegedly improper

motives

of

council

a four-member

minority

of

fifteen-member

provide a basis for municipal liability.

dismissal

of the

state law

claims

city

In these circumstances,

also is

appropriate.

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


________
________

The judgment of the district court is affirmed.


_______________________________________________

See
___

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