United States Court of Appeals

For the First Circuit

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 & Graham was on brief

for plaintiff,appellant/cross-appellee Robert Wagner.

John H. Fitz-Gibbon with whom Harry L. Miles, Green, Miles,

Lipton, 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
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Per Curiam. In June 1998, Robert Wagner, a sergeant in

the Holyoke Police Department, brought suit against the City of

Holyoke, its former mayor, two of its former police chiefs and

others for an alleged campaign of retaliation undertaken against

him during the mid-1990s. Wagner claimed that he had been

subjected to disciplinary action, harassment and public humiliation

because he had disclosed a variety of information--including

allegations of police misconduct--to newspapers and state and

federal agencies. Wagner's initial complaint presented multiple

statutory and 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 Massachusetts

whistleblower statute, Mass. Gen. Laws ch. 149, § 185 (2002).

On motions for summary judgment, the district court

granted qualified immunity to the individual defendants on the

section 1983 claim and dismissed the whistleblower claim because

Wagner had failed to provide written notice to his supervisor

before filing suit (as this court had previously interpreted the

statute to require). On the section 1983 claim against Holyoke,

the court 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 1983 claim was

presented to the jury on two alternative theories: that Wagner had

suffered an "adverse employment action" in retaliation for his
1Wagner also sought a declaratory judgment that certain police

department regulations violated the Massachusetts Declaration of

Rights and the federal constitution. The district court initially

granted a preliminary injunction to Wagner on two of the challenged

regulations; these regulations were ultimately rewritten by the

Holyoke police department, mooting Wagner's challenge to their

constitutionality.

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speech, and that he had endured "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 which 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 instructions, and in declining to grant a new trial on

damages for his "severe harassment" claim and in toto for his

"adverse employment 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
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insubordination or violations of departmental regulations. The

district court found that Wagner had engaged in six categories of

speech that were provisionally protected under the first amendment,

see Pickering v. Bd. of Educ., 391 U.S. 563 (1968), and that

ultimately formed 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,

filed by Wagner in May 1997, and a "rebuttal" filed by him in

October of the same year; and (6) a written submission 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 documents associated with them he

would not have been disciplined, and he argues that this fact--

coupled with 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.
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These incidents of Wagner's speech, however, also

involved the disclosure of confidential material protected by

departmental regulations and Massachusetts law, as well as breaches

of the police department's chain of command. At trial, Holyoke

claimed that it was Wagner's acts of unlawful 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 undermine this argument by claiming

that the disclosures and disobedience were not "independent" acts

that could support disciplinary action, but were rather part and

parcel of his speech. We disagree. While individuals are entitled

to speak on matters of public concern free from the threat of

retaliation (at least if their speech is protected under

Pickering), this does 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 discipline, there 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 factor" 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
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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

reports, an internal affairs report concerning a fellow officer,

and 20-year-old personnel documents. His actions bypassed the

department's well-established chain of command. These infractions

may or 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 snippets of

testimony Wagner points 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 Healthy that 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 its 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 facts in the

light most favorable to Wagner, the disciplines he endured could

have made out a first amendment violation. Nonetheless, as a

shield to "all but the plainly incompetent," Malley v. Briggs, 475
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U.S. 335, 341 (1986), qualified immunity is meant to protect any

action by a government official with a colorable argument for

constitutionality. Such immunity can be overcome only if the

constitutional right at issue is clearly established and a

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 without retaliation--was clearly

established prior to 1994. But qualified immunity requires 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 have 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 Wagner 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).
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Little need be said about Wagner's remaining 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 reasoning of our prior decision in Dirrane, which is

binding on the panel, thus precludes Wagner's whistleblower claim.

Wagner's claims 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

any more 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 him more 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 Wagner's "severe harassment"

claim: we agree with the district court that it was a plausible
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interpretation of the evidence for the jury to find that Wagner had

suffered harassment 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 compelled a finding of substantial damages.

On cross-appeal, Holyoke 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 achieved. "We review fee awards

deferentially, according substantial respect to the trial court's

informed discretion. 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 district court ordinarily must provide reasons for

its award and those reasons must be legally sound, see Coutin, 124

F.3d at 337, but the court below fulfilled its duty in this regard.

Wagner may well have made a greater fee request than was merited

given his limited success at trial, but the district court

compensated for this excess and we do not believe its calculus was
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erroneous--let alone so clearly erroneous as to constitute an abuse

of discretion.

Affirmed.