# United Stat es Court of Appeals For the First C ircuit No. 04-1574 No. 04-1741 ROBERT WAGNER,

Plaintiff, Appellant/Cross-Appellee,

__________ MARGARET WAGNER, Plaintiff,
v. CITY OF HOLYOKE, MASSACHUSETTS, Defendant, Appellee/Cross-Appellant, DANIEL SZOSTKIEWICZ; MARK COURNOYER;

STEPHEN DONOGHUE, Defendants, Appellees.

__________ ARTHUR MONFETTE; ARTHUR THERRIEN; DENNIS EGAN; THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS; LOCAL 409 OF THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS; LOCAL 388 OF THE INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS, Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge ]
Before Boudin, Chief Judge , Selya and Lynch, Circuit Judges .Stewart T. Graham, Jr. with whom Graham & Grahamwas on brief

for plaintiff,appellant/cross-appellee Robert Wagner. John H. Fitz-Gibbon with whom Harry L. Miles , Green, Miles, L ipton, White & Fitz-Gibbon , John C. Sikorski , Dorothy Varon and Robinson Donovan, P.C. were on brief for defendant, appellee/crossappellant City of Holyoke and defendants, appellees Daniel Szostkiewicz, Mark Cournoyer and Stephen Donoghue.

April 13, 2005-3- Per Curiam . In June 1998, Robert Wagner, a sergeant in the Holyoke Police Department, brought suit against the Cit y o f Holyoke, its former mayor, two of its former police chiefs and others for an al lege d campaign of retaliation undertaken against himduring the mid-1990s. Wagner claimed that he had been subjectedto disciplinary action, harassment andpublic humiliation becau se he had disclosed a variety of information--includi n g allegations of police misconduct--to newspapers a nd state and fed eral agencies. Wagner's initial complaint presented multip l e statutoryand common law claims, but the only ones of relevance here are those under 42 U.S.C. § 1983 (2000), for violation of the first and fourteenth amendments, and under the M assach usetts whistleblower statute, Mass. Gen. Laws ch. 149, § 185 (2002).

On motions for summary judgment, the district c ou rt grantedqual ifie d immunity to the individual defendants on the section 1983 claim and d ismi ssed the whistleblower claim because Wagner had failed to provid e written notice to his supervisor befo re fil ing suit (as this court had previously interpreted the statute to require). On the section 1983 claim against Holyoke, the c our t denied Wagner's motion for a partial directed verdict regarding particular incidents of speech that it had found worthy of first amendment protection. The section 19 83 cla im was presentedto the jury on two alternative theories: that Wagner had sufferedan "adv erse employment action" in retaliation for his1 Wagner also sought a declaratory judgment that certain police

department regulations violated the Massachusetts Declaration of Rights and the federal constitution. The district court initially granteda preliminary injunction to Wagner on two of the challenged regulations; these regulations were ultim a tely rewritten by the Hol yoke police department, mooting Wagner's challenge to th ei r constitutionality. -4- speech, and that he hadendured "severe harassment" for that speech. In June 2003, after a six-week trial, the jury found for the city on the former theory; it found for Wagner on the latter, awarding nominal damages of one dollar. The jury ruled for defendants on Wagner's remaining claims, none of whi ch are presently at issue. 1

Wagner appeals, claiming that the district court erred in granting qualified immunity to the individual section 1983 defendants, in denying his motion for a partial directed verdict, in dismissing his state whistleblower claim, in drafting various of its jury instructi ons, and i n declining to grant a new trial on damages for his "severe harassment" claim and in toto for his "adverse empl oym ent action" claim. The city cross-appeals, challenging the district court's award of attorneys' fees and costs to Wagner. Over the four years following his resignation as chief of police in September 1994, Wagner (who remained on the force in a subordinate capacity) received numerous suspensions and reprimands-
-some allegedly in response to various disclosures and public statements made by Wagner, but others for independent instances of-5-

insubordination or v i olations of departmental regulations. The district court found that Wagner had engaged in six categories of speech that were provisionally protected under the first amendment,
se e P ickering v. Bd. of Educ. , 391 U.S. 563 (1968), and that ultimatelyformed the basis for his claims at trial: (1) statements in 1996 and 1997 to a city councilman regarding discrimination, working conditions and illegal activity in the police department; (2) statements made to assist a fellow officer in filing formal complaints of discrimination; (3) statements to the state attorney general's office regarding police corruption; (4) comments made to
a local reporter for a set of three articles in February 1997; (5)
a complaint to the Massachusetts Committee Against Discrimination, filedby Wagner in May 1997, and a "rebuttal" filed by him in October of the same year; and (6) a written s ubmission to the Massachusetts Labor Relations Commission in May 1998.

Wagner claims that the district court should have granted
a directed verdict on the disciplines he suffered that corresponded to the last three of these categories of speech. He notes that a number of Holyoke officials testified that if he had not made these statements or released various doc umen ts associated with them he wouldnot have been disciplined, and he argues that this fact-- coupledwith the fact that the underlying speech was protected under the first two prongs of Pickering --entitled him to a directed verdict in his favor on those claims.-6- These incidents of Wagner's speech, however, also involvedthe disclosure of con fi dential material protected by departmental regulations and Massachusetts law, as well as breaches of the police department's chain of command. At trial, Holyoke claimedthat it was Wagner's acts of un lawful disclosure and insubordination that were the true grounds for disciplining him--or at least independent grounds that entitled the city to a defense under Mount Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977).

Wagner attempts to u nder mine this argument by claiming that the disclosures and disobedience were not "independent" acts that could support disciplinary action, but were r ather part and parcel of his speech. We disagree. While individuals are entitled to speak on matters of public concer n free fr om the threat of retaliation (at leas t if their speech is protected under Pickering ), this doe s not entitle those same individuals to use whatever methods or instrumentalities they see fit to convey their message. If the use of such inappropriate means of expression-- rather than the speech itself--prompts disciplin e, t here is no first amendment violation. This is the very essence both of Pickering 's third-prong inquiry into whether the protected speech
was a "substantial or motivating fac tor" behind an adverse employment action, and of the Mount Healthy defense, which asks if the plaintiff would have been disciplined even in the absence of-7-

his protected speech. See O'Connor v. Steeves , 994 F.2d 905, 913 (1st Cir.), cert. denied , 510 U.S. 1024 (1993).

The documents disclosed by Wagner included arrest
re port s, an internal affairs report concerning a fellow officer, and20-year-old personnel do cume nts. His actions bypassed the department's well-established chain of command. These infractions mayor may not have been the true reasons (or independent reasons) for Wagner's discipline at the hands of his superiors, but they certainly could not be discounted to such an extent as to require
a directed verdict for Wagner. Notwithstanding the snip pet s of testimonyWagner p oin ts to that suggest that his discipline was driven by his speech itself, the evidence was by no means enough to conclusively establish such causation--let alone preclude a defense under Mount Healthythat Wagner would still have been disciplined, regardless of his speech, for other improprieties incidental to that speech. The district court's denial of a directed verdict was not error, nor (for the same reason) was i ts denial of Wagner's motion for a new trial on his "adverse employment action" claim after the jury had found against him.

Turning to the issue of qualified immunity, we agree with both Wagner and the district court that, taking the fact s in the light most fav orable to Wagner, the disciplines he endured could have made out a first amendment violation. Nonetheless, as a shieldto "all but the plainly incompetent," Malleyv. Briggs , 475-8-

U.S. 335, 341 (1986), qualified immunity is meant to protect any action by a government officia l with a colorable argument for consti tutionality. Such immunity can be overcome only if the constitu tion al right at issue is clearly established anda reasonable official would have known that his actions violated that right. See Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).

The general right invoked by Wagner--to engage in speech
on matters of public concern with ou t retaliation--was clearly establishedprior to 1994. But qualified immuni ty req uires that the general right be placed in a reasonably specific context; and given the facts surrounding Wagner's discipline, this is not a case in which reasonable officers, in light of clearly established law,

" must h ave known that [they were] acting unconstitutionally." Dirrane v. Brookline Police Dep't , 315 F.3d 65, 71 (1st Cir. 2002).

To the contrary, 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 Wag ner regardless of the content of his speech, consistent with the protections of the first amendment. Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available. See Ringuette
v. City of Fall River , 146 F.3d 1, 5 (1st Cir. 1998).-9- Little need be said about Wagner's rem aini ng claims of
error. We have previously interpreted the Massachusetts whistleblower statute to preclude suits filed by municipal employees without prior written notice to their supervisors. See Dirrane , 315 F.3d at 73. Section 185(c)(2)(C) of the statute, which eliminates the notice requirement when disclosure is made to provide evidence of a crime, is irrelevant: Wagner makes no claim that the disclosure at issue here--his filing of suit--was for the purpose of providing criminal intelligence, and Wagner admits that he did not serve written notice on his supervisor before bringing suit. The reasoni ng of our prior decision in Dirrane , which is binding on the panel, thus precludes Wagner's whistleblower claim.

Wagner's claim s of error in the jury instructions also fail. We perceive no error whatever in the district court's definition of "adverse employment action." Nor do we believe that its definition of "severe harassment," if it was indeed error, was anymore than harmless: there is no reasonable likelihood that the jury, having awarded only one dollar to Wagner for his own employment-related stress (supported by medical testimony), would have given himmor e if the focus had been clearly broadened to cover family-related concerns.

We also see no manifest injustice or inconsistency in the jury's award of nominal damages for Wagn er's "severe harassment" claim: we agree with the dis trict cour t that it was a plausible-10-

interpretation of the evidence for the jury to find that Wagner had sufferedharassment sufficient to make out a first amendment claim, but that his actual damages derived from such a claim (which were contested at trial) were de minimis . This is not a case in which undisputed evidence compelleda finding of substantial damages.

On cross-appeal, H o lyoke seeks to vacate the district court's award of $72,840 in attorneys' fees and costs. Where, as here, a plaintiff has succeeded in his section 1983 claim--even if only for nominal damages--he is a "prevailing party" under the relevant statute, 42 U.S.C. § 1988 (2000), and may be entitled to such fees as the district court finds appropriate given the proportionate success he has achiev ed. " We review fee awards deferentially, according substantial respect to the trial court's informeddiscretion. We will disturb such an award only for mistake of law or abuse of discretion." Coutin v. Young & Rubicam P.R., Inc. , 124 F.3d 331, 336 (1st Cir. 1997) (internal citation omitted). The dist rict court ordinarily must provide reasons for its award and those reasons must be legally sound, see Coutin , 124 F.3dat 337, but the court below fulfilled its duty in this regard. Wagner may well have made a greater fee request than was meri ted given his limited success at tri al, bu t the district court compensatedfor this excess andwe do not believe its calculus was-11-

erroneous--let alone so clearly erroneous as to constitute an abuse of discretion.

Affirmed .