The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of *

the Supreme Court of the United States, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 06-1860

ABRAHAM PHILIP,

Plaintiff, Appellant,

v.

JOHN CRONIN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Lynch, Chief Judge,

O'Connor, Associate Justice, *

and Torruella, Circuit Judge.

Daniel S. Sharp with whom Elaine Whitfield Sharp and Whitfield

Sharp & Sharp were on brief for appellant.

Mary O'Neil, Assistant Attorney General, with whom Martha

Coakley, Attorney General, was on brief for appellee.

August 7, 2008
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LYNCH, Chief Judge. The Office of the Chief Medical

Examiner of Massachusetts has had a troubled history. This lawsuit

is brought by a disgruntled former contract medical examiner, Dr.

Abraham Philip, against the administrator of that office, John

Cronin.

In November of 2000 the National Association of Medical

Examiners ("NAME") conducted an audit and filed a report critical

of the Office of the Chief Medical Examiner for Massachusetts

("OCME"). (OCME had requested the audit.) The report called

OCME's facilities "woefully inadequate" and detailed insufficient

staffing, unacceptable delays, and other difficulties in the

office.

In March of 2003, John Cronin was brought on as the Chief

Administrator of OCME and charged with improving the office,

including mending OCME's public reputation. During Cronin's

tenure, plaintiff Abraham Philip was employed as a medical examiner

under a ten-month contract starting on September 2, 2003. That

contract required Dr. Philip to "adhere to the highest ethical

standards and serve as a role model for all other OCME employees."

He had worked for the agency in the past.

Cronin terminated Dr. Philip's contract on March 3, 2004.

Dr. Philip sued Cronin in his personal capacity, claiming the

termination was in retaliation for two letters criticizing OCME

that Dr. Philip had sent to the governor and therefore violated his
It appears that although defendant claimed qualified 1

immunity as an affirmative defense in his answer to plaintiff's

complaint, he made no other effort to get a ruling on his qualified

immunity before trial. 

Cronin's remaining arguments before the district court

pertained to two state law claims brought by Dr. Philip. Dr.

Philip does not argue on appeal that there was any error in the

dismissal of those claims.

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First Amendment rights. Cronin denied that accusation and pointed

to several troubling incidents during Dr. Philip's employment as

the cause for the contract termination. 

The case went to trial. After the close of plaintiff's

evidence, and on defendant's motion, the trial judge entered a

directed verdict for Cronin. See Fed. R. Civ. P. 50(a). The judge

did so "essentially for the reasons and rationale set forth" in

defendant's memorandum of law in support of his Rule 50(a) motion.

Cronin, in his memorandum to the district court, had primarily

argued (1) that no reasonable fact finder could conclude that Dr.

Philip's critical speech regarding OCME was the motivating factor

in the termination of his employment, (2) that Dr. Philip's

employment would have been terminated regardless of his speech on

a matter of public concern, and (3) that Cronin was entitled to

qualified immunity. Of these rationales, we find the last -- 1

qualified immunity -- sufficient to sustain the trial court's Rule

50(a) judgment.
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I.

Dr. Philip was, depending on one's point of view, either

a constant complainer or a constant seeker of improvement in the

OCME. He freely used emails and memos to communicate his ideas to

Cronin. Cronin did meet with Dr. Philip at least twice in January

2004, for a couple of hours each time, to discuss these

suggestions. Many of Dr. Philip's concerns had been highlighted in

the NAME report from two years earlier. As to Dr. Philip's new

ideas, Cronin did follow up on some.

Starting in February 2004, there was a series of

incidents which had later consequences. The first incident

involved the contamination of a death certificate. On February 13,

2004, a funeral home brought a death certificate back to OCME

because it had not been properly signed; because the autopsy had

been conducted by Dr. Philip, Cronin sent an administrative

assistant, Leslie Ward, to obtain Dr. Philip's signature on the

certificate.

Dr. Philip, in the midst of another autopsy, did not want

to be interrupted and essentially told Leslie Ward to tell the

funeral home to wait an hour until he took a break. She relayed

that message to Cronin; at Cronin's request, Leslie Ward's

supervisor, Deirdre Ward, went down to see Dr. Philip, bearing the

unsigned certificate and a request that he sign it. This time Dr.

Philip did sign it, but in doing so got blood on the certificate.
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Dr. Philip testified that he placed the bloody certificate on a

table to deal with later, but that the technician took it away

while Dr. Philip was finishing his autopsy. (Deirdre Ward told

Cronin that Dr. Philip had handed the bloodied certificate directly

to her.) Deirdre Ward brought the certificate to Cronin and told

him it had been "dripping with blood" when she received it. Cronin

told Deirdre Ward to place it into a sleeve, recognizing the bloody

certificate to be a biohazard. Cronin then explained what happened

to Dr. Richard Evans, the Chief Medical Examiner. According to

Cronin, Dr. Evans was shocked and disgusted by Dr. Philip's

unprofessional behavior.

Cronin investigated and took statements from four

employees involved in the incident, who confirmed the events

outlined. Dr. Philip's autopsy assistant was not questioned about

the incident. Cronin then consulted his superiors at the Executive

Office of Public Safety ("EOPS"), EOPS Undersecretary Robert Hass

and EOPS Chief of Staff Jane Tewksbury. They discussed the written

statements and the range of possible disciplinary actions. Dr.

Evans also provided his views. 

In Cronin's view, the lack of signature on the original

certificate was not directly Dr. Philip's fault, but Dr. Philip's

response was inappropriate. Dr. Philip had larger administrative

and safety responsibilities, and the group decided some discipline

was appropriate. The decision was made to suspend Dr. Philip for
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one day to "get his attention and make him realize that he need[ed]

to be part of this recovery of this medical/legal system that [OCME

was] looking to build from a professional ground up." The

suspension was brief in light of the staffing shortage at OCME.

Cronin's superiors instructed Cronin to convey that disciplinary

decision to Dr. Philip.

That same day, February 25, Cronin met with Dr. Philip to

hear his version of events. This effort was unsuccessful. Dr.

Philip became agitated and left Cronin's office in anger, yelling

at him. As Dr. Philip left, Cronin handed him a disciplinary

action letter, dated February 25, 2004, that read:

Please let this correspondence serve to notify

you that as a result of your actions on Friday

February 13, 2004 at approximately 12:30pm,

you are suspended without pay for one day.

Your suspension is to be served on Thursday

March 4, 2004.

The events, as described by four witnesses,

reveal that you abruptly accepted a death

certificate for your signature while you were

performing an autopsy on a homicide victim.

You then, without comment, handed the document

back to Ms. Deirdre Ward with "blood dripping

from it". A copy of the soiled document is

attached.

Your actions exposed a co-worker to a

potentially hazardous situation without any

explanation. The document was also rendered

"destroyed" thereby causing embarrassment and

inconvenience to this office, the funeral home

that transported the document, the burial

agent that signed the original for burial of

the decedent back in January 2004, and the

Natick Town Hall Clerk's office.
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Please understand that your actions are very

disturbing and are determined to be completely

unacceptable.

Any future occurrence of unprofessional or

unacceptable behavior will result in immediate

termination of your contracted services

pursuant to the Terms and Conditions of the

contract you have endorsed with this office.

At trial, Dr. Philip acknowledged he knew he was on shaky

ground in terms of his continued employment once he got this

letter. Dr. Philip's view of the incident was that he should not

have been asked to sign a certificate while he was in the midst of

an autopsy, that he believed he was given no choice but to sign the

certificate immediately, that the funeral home could have waited an

hour for him to take a preplanned break, or that some other medical

examiner could have been found to sign in his place. 

Cronin, on the other hand, testified that he had not

viewed Dr. Philip as a discipline problem before the bloody autopsy

report, although Dr. Philip had made a number of negative comments

to Cronin, derisively calling him a "control freak" and "Mr.

Administrator." Cronin explained that no one other than Dr. Philip

and Dr. Evans could have signed the certificate; that Cronin was

attempting to provide polite and quick service to the funeral home

to help repair OCME's negative bureaucratic reputation; that

Deirdre Ward was instructed to ask, not command, Dr. Philip to sign

the certificate; and that neither Deirdre Ward nor Leslie Ward, to
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the best of Cronin's knowledge, violated standard operating

procedures by entering the autopsy suite.

The next incident concerns emails about evidence from a

child homicide prosecution, including the "urinate/fart" email. 

On February 25, Jackie Faherty, general counsel for OCME, informed

Dr. Philip that a court had issued an order requiring his notes

relating to the death and autopsy of a child homicide victim be

preserved. Dr. Philip was working on a report for the case, but

the charts were in Faherty's possession. On February 27, Dr.

Philip replied to Faherty that he was working on the draft of his

report and needed the entire case folder that was in her

possession. 

On February 29, an Assistant District Attorney ("ADA")

handling the child homicide case emailed Dr. Philip informing him

that the court had ordered preservation of all of Dr. Philip's

records in the case and asking about the report. By email, dated

March 1, Dr. Philip replied to the ADA:

I finalized the report on [name redacted], a

few corrections have to be made, which my

secretary will do early this morning. My

problem is I cannot find the original charts

on this case, to check if everything else is

okay. The last I heard the file was with

Jackie Faherty, and she locked it in her

office and has been away on Thursday and

Friday. 

There are some other very bizarre events going

on in the office with weird accusations being

levelled against me. So when you arrange with

Jackie Faherty to hand over the file to me,
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please insist that a witness be present in the

room to prevent weird charges of having

urinated on the chart or farted while working

on the chart being levelled against me by the

head honcho who runs this agency. 

(emphasis added).

Dr. Philip explained his statements in the email as

reflecting his reaction to what he felt was the earlier unfair

discipline imposed on him for the bloody death certificate.

The ADA was concerned about this email and contacted

Cronin, who, in turn, contacted Faherty. Faherty expressed concern

that the email might well be a discoverable document, which could

become public. If so, it would greatly embarrass the agency.

On March 2, Faherty left the main case file on Dr.

Philip's chair and so informed him by email. In response, Dr.

Philip sent her this email, dated March 2:

Note my fervent prayers to you in what I

thought was plain english was to hand over the

files in the presence of a witness, and

arrange to have a witness present while

completing the autopsy report and checking the

file. I was down in the autopsy rooms and

evaluating a brain when some one sneaked in

and left the files on my chair. In order to

avoid any contamination of the file, they have

been left out on the table in the corridor,

till a witness can be arranged. 

This email also caused concerns.

That same day, Faherty took these emails and her concerns

to Cronin, and later that day they went to Dr. Philip's office to

deliver the child homicide file in person. Cronin testified that
-10-

he "put the file on [Dr. Philip's] desk and said finish your work,

please," though he also described becoming upset at Dr. Philip's

antagonistic response. Dr. Philip testified that Cronin threw the

file on Philip's desk in a threatening manner, told him to finish

the work, and that "enough was enough."

Meanwhile, on March 1, Dr. Philip had sent a letter to

then-Governor Mitt Romney that criticized OCME on numerous grounds,

which were not limited to the issues NAME had identified earlier.

The letter opens "I write to alert you to serious deficiencies in

the [OCME]." It appears that this letter was sent after Dr. Philip

sent the urinate/fart email.

On March 2, 2004, after he sent the urinate/fart email,

Dr. Philip circulated a memo internally via email; he sent the same

memo to the governor on March 3 (but with a cover letter bearing

the date of March 1). This is the "Joshua memo." Dr. Philip's

cover letter to the governor explained he was writing "to alert

[the governor] to serious issue [sic] regarding organ procurement."

The Joshua memo arose out of Dr. Philip's concerns about what he

believed was an inappropriate organ harvesting procedure. He had

declined to harvest organs from a candidate donor using this

procedure on January 30, 2004; Dr. Evans eventually approved the

use of the procedure on that candidate, contrary to Dr. Philip's

express recommendation. The Joshua memo called for more open

discussion about the legal and ethical implications of this
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procedure "so that everybody is comfortable with the decisions

taken."

The decision to terminate Dr. Philip's contract was made

at a March 3 meeting comprised of EOPS Undersecretary Hass, Chief

of Staff Tewksbury, Dr. Evans, Cronin, and perhaps one or two

others. Cronin testified the group discussed "the latest round of

bizarre activity" by Dr. Philip and his deteriorating behavior at

the agency. Cronin testified that the discussion touched on the

Joshua memo and the two letters Dr. Philip had sent to the

governor, but these items were not the "thrust" of the conversation

and did not inform their primary discussion or final decision.

Rather, "the focus of the discussion" was Dr. Philip's behavioral

issues, especially "Dr. Philip's behavior within the office place

related to [the] email that he had sent to [the] assistant district

attorney." This behavior was considered in light of the bloody

death certificate incident. Chief of Staff Tewksbury took the

position that Dr. Philip had to go. That was the general consensus

and final decision of the group.

Cronin agreed with the contract termination decision; his

only reservation was that the office was already understaffed and

they could not afford to lose another examiner. Cronin believed he

had no discretion, after the group decision, not to terminate Dr.

Philip's contract. He spoke with OCME's human resources director

and asked her to prepare a termination letter. He told her the
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letter should focus on Dr. Philip's breach of his contractual

obligation to meet the highest standards of conduct.

The letter terminating Dr. Philip's contract is dated

March 3, 2004, and states:

On February 25, 2004, you were notified that

any occurrence of unprofessional or

unacceptable behavior would result in the

immediate termination of your contracted

services pursuant to the Terms and Conditions

of the contract you endorsed with the Office

of the Chief Medical Examiner. Due to

continued instances of misconduct, your

contract is hereby terminated for cause,

effective immediately.

As you are aware, your contract required you

to demonstrate high standards of conduct.

Explicit in your duties was a requirement that

you adhere to the highest ethical standards

and serve as a role model for all other OCME

employees. Your conduct on or about March 1st

and 2nd, 2004, which included unprofessional

and inappropriate communications with members

of the OCME and a district attorney's office

do not comport with this requirement and

constitute a breach of your contract.

Chronologically, Dr. Philip's contract was terminated

less than seventy-two hours after his March 1 letter to the

governor, his release of the Joshua memo on March 2, and his March

3 transmittal of the Joshua memo to the governor. Dr. Philip bases

his First Amendment claims on these documents. He argues the

letters were discussed during the March 3 termination meeting, as

Cronin admitted, and were things of consequence. Cronin testified

there were two reasons for the termination: the bloody death

certificate and the urinate/fart email. From this, Dr. Philip
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argues that the termination letter was inconsistent and that

qualified immunity cannot be granted in the face of inconsistent

reasons from the defendant.

II.

Our review of the grant of judgment for defendant at

trial is de novo. Acevedo-Feliciano v. Ruiz-Hernández, 447 F.3d

115, 121 (1st Cir. 2006). We take all facts and inferences in

plaintiff's favor. Id.

After the trial in this case, the Supreme Court shed

further light on First Amendment claims brought by public employees

in Garcetti v. Ceballos, 547 U.S. 410 (2006). As we have

recognized, Garcetti somewhat modifies the prior test articulated

under Pickering v. Board of Education, 391 U.S. 563 (1968). Curran

v. Cousins, 509 F.3d 36, 44-45 (1st Cir. 2007).

If the court decides, as the trial court did here, that

the "employee spoke as a citizen on a matter of public concern,"

then under Garcetti, we consider whether there was "adequate

justification":

The question becomes whether the relevant

government entity had an adequate

justification for treating the employee

differently from any other member of the

general public. This consideration reflects

the importance of the relationship between the

speaker's expressions and employment. A

government entity has broader discretion to

restrict speech when it acts in its role as

employer, but the restrictions it imposes must

be directed at speech that has some potential

to affect the entity's operations.
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Id. at 45 (quoting Garcetti, 547 U.S. at 418).

To prove retaliation, plaintiff must also establish a

causal connection between the speech and the adverse employment

action, here that Dr. Philip's speech was the substantial or

motivating factor in his firing. Torres-Rosado v. Rotger-Sabat,

335 F.3d 1, 11 (1st Cir. 2003); see also Curran, 509 F.3d at 45.

In addition, where a plaintiff seeks the relief of

monetary damages against state officials, as here, plaintiff must

overcome the qualified immunity defense of those officials, a

defense which protects their reasonable judgments. Dirrane v.

Brookline Police Dep't, 315 F.3d 65, 69 (1st Cir. 2002). This case

raises both the Garcetti doctrine and the doctrine of qualified

immunity.

A. First Amendment Claim

It is undisputed that Dr. Philip's speech in the Joshua

memo was on a matter of public concern. To the extent that the

district court entered a directed verdict on the basis that no jury

could reasonably conclude that the Joshua memo was a substantial or

a motivating factor in the decision to terminate Dr. Philip's

contract, we disagree. We discuss the point for its value in

future cases. 

A trial judge faced with a motion for a directed verdict

must take the evidence in the light most favorable to the
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plaintiff, including drawing all inferences in plaintiff's favor.

Acevedo-Feliciano, 447 F.3d at 121.

The test is not what the jury verdict is likely to be.

Here, taking all the evidence in plaintiff's favor, we think there

was sufficient evidence of a causal and a motivating relationship

between the First Amendment protected speech and the termination

for the retaliation claim to survive a Rule 50(a) motion. 

There is a great deal of temporal proximity here between

the protected conduct and the employer's action. Cf. DeCaire v.

Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (evidence of temporal

proximity may be sufficient to make out a prima facie case of

retaliation for exercise of rights protected under Title VII). 

Defendant Cronin testified that at the March 3 meeting where the

decision to terminate Dr. Philip's employment was made, the March

1 letter from Dr. Philip to the governor and the Joshua memo were

discussed. Cronin and the other participants were certainly aware

of these letters at the March 3 meeting. Further, the termination

letter itself refers to Dr. Philip's "conduct on or about March 1

and 2," although it specifically notes his "unprofessional and

inappropriate communications with members of the OCME and a

district attorney's office" in connection with those dates. While

the evidence was strong that it was Dr. Philip's behavior with

respect to the bloody death certificate and the urinate/fart email

which caused his dismissal, we cannot say that no reasonable jury
Dr. Philip also relies on a supposed inconsistency 2

between Cronin's testimony about why Dr. Philip was fired and the

reasons stated in the letter of termination. We see no

inconsistency. 

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could have concluded there was no causal relationship with the

March 1 letter and the Joshua memo. Dr. Philip had made a number

of highly critical comments about the agency before March 1, but on

March 1, March 2, and March 3, he made critical comments to persons

outside of OCME, unlike his earlier behavior. A jury could have

concluded that it was this going outside the agency with his

criticisms that was at least a motivating factor in Dr. Philip's

firing. It was also possible for a jury to conclude that there 2

was an overreaction to Dr. Philip's exercise of poor judgment in

his urinate/fart email, despite the prior discipline, which is best

explained as retaliation for his protected speech.

B. Qualified Immunity

Regardless, we have no doubt that Cronin, the sole

defendant in this case, is entitled to qualified immunity. Such

immunity provides a shield "to all but the plainly incompetent or

those who knowingly violate the law." Malley v. Briggs, 475 U.S.

335, 341 (1986). "We use a three-part test to determine whether an

official is entitled to qualified immunity": "whether the

plaintiff's allegations, if true, establish a constitutional

violation," "whether the right was clearly established at the time

of the alleged violation," and "whether a reasonable officer,
We also bypass here defendant's Mt. Healthy defense, 3

raised in his memorandum before the district court. See = Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

-17-

similarly situated, would understand that the challenged conduct

violated that established right." Suboh v. Dist. Attorney's

Office, 298 F.3d 81, 90 (1st Cir. 2002).

We will take it as clearly established here that a public

employee has limited First Amendment rights of speech on matters of

public concern under Garcetti, Pickering, and a host of other

cases, and that on plaintiff's version of the facts, a First

Amendment violation is stated. See Saucier v. Katz, 533 U.S. 194,

201 (2001) (violation of constitutional right is threshold question

in qualified immunity analysis).3

Nonetheless, even if a constitutional right is clearly

established, the defendant is entitled to qualified immunity so

long as a reasonable official in Cronin's position could believe,

albeit mistakenly, that his conduct did not violate the First

Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982);

Dirrane, 315 F.3d at 69. This is an objective test: Cronin is

entitled to immunity so long as he reasonably could have believed

on the facts before him that no violation existed. Dirrane, 315

F.3d at 69.

The evidence at trial was that the contract termination

decision was made not by Cronin alone, but in conjunction with

Cronin's superiors at the Executive Office of Public Safety.
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Cronin could quite reasonably believe that this

collective decision did not violate Philip's First Amendment

rights. By the time plaintiff rested at trial, it was clear that

these decisionmakers had reasons unrelated to Dr. Philip's

protected speech to fire him, and he admitted that he had committed

the acts of concern. Before March 3, Dr. Philip had already

engaged in inappropriate behavior in exposing people to risk with

the bloody death certificate. He had been warned that further

inappropriate conduct could lead to immediate termination, yet

within days, he behaved inappropriately again. He did not accept

responsibility for his actions, but rejected it angrily when asked

to explain himself. Not only was the email to the ADA intemperate

and unprofessional, but it also posed a risk of further

embarrassing an office trying to regain its reputation for

professionalism and confidence. See Flomenbaum v. Commonwealth,

___ N.E.2d ___, 2008 WL 2655561, at *4-5 (Mass. July 9, 2008)

(upholding "for cause" removal of Chief Medical Examiner on

evidence of incidents which in the view of the EOPS Secretary "had

damaged the integrity and reputation of [OCME], and which could

have been avoided"). 

Further, Cronin could reasonably conclude that

terminating Dr. Philip's contract would curtail the potential for

further harm to the office. "Even if this reasoning were mistaken,

it would not have been egregiously so and, accordingly, qualified
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immunity is available." Wagner v. City of Holyoke, 404 F.3d 504,

509 (1st Cir. 2005); see also id. ("Wagner's broad range of

complaints (some consisting of unprotected and antagonistic

speech), coupled with his disregard of confidentiality protocols

and his disobedience in following the department's chain of

command, would have permitted a reasonable superior officer to

believe that he was entitled to discipline Wagner regardless of the

content of his speech, consistent with the protections of the first

amendment."); Dirrane, 315 F.3d at 71 (reasonable police officer

would not necessarily have known he was acting unconstitutionally

in transferring officer who made repeated and disruptive

allegations of wrongdoing against his fellow officers, submitted a

"morass" of complaints, and had shown poor judgment).

III.

On this basis, the judgment is affirmed.