United States Court of Appeals

For the First Circuit 

No. 14-1922 

CARL D. McCUE, 

Plaintiff, Appellant, 

v. 

SETH BRADSTREET, III, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. Jon D. Levy, U.S. District Judge] 

Before 

Barron, Circuit Judge, 

and Souter,* Associate Justice.**

David G. Webbert, with whom Max R. Katler and Johnson, Webbert 

& Young, LLP, were on brief, for appellant. 

Janet T. Mills, Attorney General, with whom Christopher C. 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. ** Judge Lipez, one of the three panel members initially 

assigned to hear this appeal, recused shortly before oral argument. 

The remaining two panel members, Justice Souter and Judge Barron, 

heard arguments without a third member. We conclude that, as a 

quorum of the initial three-member panel, we are authorized to 

decide this case under 28 U.S.C. § 46(d). See Wal-Mart Stores, 

Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 100 n.* (2d Cir. 2005); 

Murray v. Nat'l Broad. Co., 35 F.3d 45, 46-47 (2d Cir. 1994). 
Taub and Susan P. Herman, Assistant Attorneys General, were on 

brief, for appellee. 

July 16, 2015 
- 3 - 

BARRON, Circuit Judge. In this appeal, a Maine dairy 

farmer seeks to reverse a summary judgment ruling that rejected 

his First Amendment retaliation claim against the former 

Commissioner of the Maine Department of Agriculture. The suit 

alleges that, while in office, the Commissioner used the state's 

regulatory apparatus to retaliate for the First Amendmentprotected conduct that the farmer engaged in to resolve an earlier 

business dispute between the two men. 

Complicating the dairy farmer's claim, though, are not 

only longstanding concerns that his farm had failed to comply with 

state agricultural and environmental regulations, but also the 

Commissioner's decision soon after taking office to recuse himself 

from regulatory matters involving the farmer. The District Court 

noted each of these aspects of the case in awarding summary 

judgment against the farmer. And we agree with the District Court 

that, in consequence of those features of the case, the farmer 

failed to make a sufficient showing to survive summary judgment 

with respect to the three adverse regulatory actions that the 

Department was alleged to have taken after the Commissioner's 

purported recusal. 

Unlike the District Court, however, we conclude that 

there is a genuine issue of material fact with respect to whether 

the Commissioner's retaliatory intent was a substantial or 

motivating factor in the one alleged adverse action that occurred 
- 4 - 

prior to the recusal -- namely, the alleged decision by the 

Department of Agriculture to allow the state Department of 

Environmental Protection to exercise regulatory power against the 

farmer. We reach this conclusion because the District Court failed 

to provide a sufficient ground for its conclusion that, even though 

the record provided a basis from which a reasonable jury could 

conclude that the Commissioner's retaliatory intent was a 

substantial or motivating factor in bringing about that particular 

change in the Department of Agriculture's enforcement posture in 

May 2006, the Department was sure to have made that decision then 

anyway. And the Commissioner has not identified any other basis 

for affirming the District Court on that point. 

That said, it is not clear what damages, if any, follow 

from this one discrete respect in which we hold that a jury could 

reasonably infer that a First Amendment violation occurred. And 

that is particularly true given that we conclude that the 

Commissioner's retaliatory intent was not a substantial or 

motivating factor in the three separate regulatory actions the 

Department took against the farmer in the months that followed. 

But as the parties do not address whether any damages may be 

attributed to that single, earlier adverse regulatory action, we 

do not hazard to resolve the damages issue on our own. We thus 

reverse the grant of summary judgment in part and remand for 

further proceedings. 
- 5 - 

I. 

Carl McCue is the dairy farmer who brings the suit. He 

is also the appellant. He had a long history of alleged violations 

of Maine agricultural and environmental regulations, which we 

briefly recap. 

According to government inspectors and public 

complaints, McCue would overfill his manure storage pits, which 

would then sometimes leak. He would also spread too much 

manure -- sometimes up to six inches deep -- on fields sloping to 

a nearby protected waterway. Waterlogged manure runoff was 

sometimes so great that it would cause visible discoloration in 

the nearby stream. One inspection of his farm by authorities also 

found thirteen dead cows lying in one of McCue's fields. 

Seth Bradstreet, III, is a potato farmer and McCue's 

neighbor. He is the appellee. He was, at the time that McCue 

contends is critical, the state's Commissioner of Agriculture and 

thus the head of the Maine Department of Agriculture (DOA). 

The origins of the tensions between the two men may be 

traced to at least October 2004. At the time, the two were not in 

contact with one another as regulator and regulated party. 

Bradstreet was not even then in the Maine state government. The 

two men were instead parties to a private business deal. 

Specifically, McCue had leased land from Bradstreet to grow corn 
- 6 - 

for his cows, as McCue ran a very large dairy farm and Bradstreet 

had farm land available to lease for such a purpose. 

The troubles between the two men began a year later, in 

October 2005. That was when a dispute broke out between them in 

connection with that lease. McCue told Bradstreet that he was 

claiming a crop subsidy from the United States Department of 

Agriculture (USDA) related to crops that were grown on the leased 

land. Bradstreet, however, also intended to claim the subsidy on 

the basis of his ownership of the land. And it appears that the 

subsidy could not be claimed by both Bradstreet and McCue. The 

record indicates that, in the event of a dispute over a crop 

subsidy, a local committee set up to administer the USDA's crop 

subsidy program makes the initial award determination. The 

disappointed party then may appeal up to the USDA. 

Bradstreet admits that, upon learning of McCue's 

intention to pursue the subsidy, he became "very upset." In 

particular, Bradstreet admits that, in a phone conversation with 

McCue, he threatened to "ruin" and "bury" McCue and "put [him] out 

of business" in consequence of McCue's pursuit of the subsidy. 

Bradstreet, who the complaint alleges was also the chairperson of 

the local committee that would adjudicate the subsidy dispute in 

the first instance, admits that he continued by saying: "Go to the 

state committee. Do what you got to do. Appeal it. Damn it. 

Actions like that, you shouldn't be in business." 
- 7 - 

In December 2005, the local committee awarded Bradstreet 

the subsidy. McCue then appealed that determination up the line 

within the USDA. McCue did so in hopes of securing the subsidy 

for himself. 

A few months later, on March 27, 2006, while McCue's 

USDA appeal was still pending, Bradstreet became the Maine 

Commissioner of Agriculture and the head of the DOA. Shortly 

thereafter, in April of 2006, McCue prevailed in his USDA appeal. 

As a result, on April 26, 2006 -- only a month after Bradstreet 

had taken the reins at the DOA -- the USDA demanded that Bradstreet 

repay approximately $7,000 in crop subsidies. 

According to McCue, over the next several months, the 

DOA -- with Bradstreet at the helm -- took four adverse regulatory 

actions that sprang from Bradstreet's earlier-expressed desire to 

take action against McCue for McCue having availed himself of the 

USDA's appeals process. Specifically, McCue contends that: 

(1) In early May 2006, the DOA decided to stop protecting 

McCue from the regulatory authority of the Maine Department of 

Environmental Protection (DEP), as the DOA allegedly had been doing 

for a number of years despite concerns about McCue's failure over 

that time to comply with statutory and regulatory requirements for 

which the DEP had licensing and enforcement power. 

(2) On June 27, 2006, DOA and DEP officials informed 

McCue that his farm was being placed under "strict scrutiny." 
- 8 - 

(3) In November and December 2006, the DOA revoked 

McCue's provisional Livestock Operations Permit, which he needed 

under state law to operate his dairy farm. See Me. Rev. Stat. 

tit. 7, § 4205; 01-001 Me. Code R. ch. 565, § 8(1). 

(4) And, finally, in December 2006, the DOA denied 

McCue's request for a variance that would have enabled him to 

spread manure from his cows on his fields during the winter months. 

See Me. Rev. Stat. tit. 7, § 4207 (prohibiting spreading absent a 

variance). 

In the wake of these actions, the DEP licensed McCue, 

inspected his property, and issued several notices of violation of 

his license conditions. The DEP sent copies of those notices to 

the federal Environmental Protection Agency (EPA). The EPA, citing 

the DEP's licensing, inspection, and enforcement actions, then 

began administrative and judicial proceedings against McCue in 

December 2006 and January 2007. Those EPA proceedings resulted in 

McCue losing his farm. 

In response to the four alleged adverse actions, McCue 

brought this suit for damages against Bradstreet in federal 

district court in Maine under 42 U.S.C. § 1983.1 He claimed 

 1 That statute provides: "Every person who, under color of 

[state law], subjects, or causes to be subjected, any citizen of 

the United States or other person within the jurisdiction thereof 

to the deprivation of any rights, privileges, or immunities secured 

by the Constitution and laws, shall be liable to the party injured 
- 9 - 

Bradstreet had violated his First Amendment rights through the 

adverse actions the DOA took. 

To win on that First Amendment damages action, McCue was 

required to show "that [he] engaged in constitutionally protected 

conduct, and that this conduct was a substantial or motivating 

factor for the adverse . . . decision." Padilla-García v. 

Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000). Even assuming McCue 

could succeed in making that showing, however, he still would not 

necessarily win. And that is because Bradstreet would then have 

"the opportunity to establish that [the DOA] would have taken the 

same action regardless of the plaintiff's [protected 

conduct] -- commonly referred to as the Mt. Healthy defense." Id. 

(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 

U.S. 274, 287 (1977));2 see also Acevedo-Diaz v. Aponte, 1 F.3d 

62, 67 (1st Cir. 1993) (stating that "the burden of persuasion 

itself passes to the defendant[]" to make out the Mt. Healthy 

defense "once the plaintiff produces sufficient evidence from 

which the fact finder reasonably can infer that the plaintiff's 

 

in an action at law, suit in equity, or other proper proceeding 

for redress . . . ." 42 U.S.C. § 1983. 

2 Padilla-García, 212 F.3d at 74-78, applied this two-step 

framework in the context of public employment, where it originated. 

In Collins v. Nuzzo, 244 F.3d 246, 251-52 (1st Cir. 2001), we 

applied the same framework in the context of government licensing 

and regulation. 
- 10 - 

protected conduct was a 'substantial' or 'motivating' factor 

behind [the adverse action]" (emphasis removed)). 

Before the case went to trial, Bradstreet moved for 

summary judgment. In ruling on that motion, the District Court 

accepted the parties' stipulation that McCue's appeal to the USDA 

of the subsidy determination was constitutionally protected 

speech. The District Court thus ruled that McCue had met one 

element of a retaliation claim by showing that he had engaged in 

"protected conduct." Acevedo-Diaz, 1 F.3d at 66-67. The District 

Court also concluded that McCue satisfied another of the elements 

of such a claim. That was because the District Court ruled that 

all four of the DOA's actions about which McCue complains qualified 

as "adverse" actions because they would "deter a reasonably hardy 

individual from exercising his constitutional rights." Barton v. 

Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (original alterations and 

quotation marks omitted). 

The District Court then proceeded to address the only 

point of dispute that is before us in this appeal: the role, if 

any, that Bradstreet's purported desire to retaliate for McCue's 

protected conduct played in the alleged adverse actions against 

McCue. To that end, the District Court first considered whether 

McCue had raised a genuine issue of material fact with regard to 

whether retaliation for McCue's protected conduct was a 

substantial or motivating factor in any of the four adverse 
- 11 - 

regulatory actions to which McCue claims the DOA subjected him. 

The District Court then considered whether, even if McCue could 

make that showing, Bradstreet could nonetheless conclusively make 

out the Mt. Healthy defense in response by showing that a 

reasonable jury would be required to conclude from the record that 

those actions would have occurred even if McCue had not engaged in 

protected conduct. In performing this two-step analysis, the 

District Court decided to examine each of the four alleged adverse 

regulatory actions independently. 

As to the first of the four alleged adverse actions, the 

District Court began its analysis as follows. The District Court 

concluded that there was a genuine issue of material fact as to 

whether retaliation for McCue's protected conduct was a 

substantial or motivating factor in the DOA's alleged decision in 

May 2006 to allow the DEP to exercise regulatory power against 

McCue. In so ruling, the District Court pointed to the fact that 

the DOA's decision to let the DEP exercise such authority was made 

very soon after Bradstreet had taken office and had learned that 

McCue had successfully appealed the USDA's initial decision to 

award the subsidy to Bradstreet. The District Court found that 

this timing, coupled with Bradstreet's earlier statements 

promising to "ruin" McCue and the fact that Bradstreet's recusal 

from McCue-related matters came later, provided a sufficient basis 
- 12 - 

in the record from which a reasonable jury could find for McCue on 

this first step of the inquiry. 

Nevertheless, the District Court went on to rule that no 

reasonable jury could find for McCue as to that adverse regulatory 

action. And that was because the District Court ruled that 

Bradstreet had succeeded at the second step of the inquiry by 

conclusively making out the so-called Mt. Healthy defense. 

Specifically, the District Court ruled that, with respect to this 

May 2006 decision, a reasonable jury would have had to find that 

the DOA would have made the same decision even if McCue had not 

made his appeal of the subsidy to the USDA. 

The District Court then turned to a consideration of the 

three other adverse regulatory actions that McCue claims 

subsequently occurred. As to each of these later-made actions, 

the District Court concluded that -- in part because Bradstreet 

had by then purported to recuse himself from any matters involving 

McCue -- no reasonable jury could find that retaliatory intent was 

a substantial or motivating factor in the DOA's decisionmaking. 

And, in any event, the District Court also ruled that, given 

McCue's long record of regulatory noncompliance, a reasonable jury 

would have to find that the DOA would have taken those three 

actions anyway. 

McCue now timely appeals from this grant of summary 

judgment. He contends that the District Court erred in finding 
- 13 - 

that the record supplied no basis from which a reasonable jury 

could find that McCue's "constitutionally protected conduct . . . 

was a substantial or motivating factor" for the DOA's three actions 

taken after Bradstreet recused himself from McCue-related matters. 

Padilla-García, 212 F.3d at 74. McCue also contends with respect 

to all four actions that the District Court erred in finding that 

Bradstreet had conclusively "establish[ed] that [the DOA] would 

have taken the same action[s] regardless of [McCue's protected 

speech] -- commonly referred to as the Mt. Healthy defense." Id. 

(citing Mt Healthy, 429 U.S. at 287). 

II. 

Because we are reviewing an award of summary judgment to 

the defendant, McCue need not show that he is entitled to prevail 

on his constitutional claim in order to succeed in his appeal to 

us. Instead, we may affirm the grant of summary judgment against 

McCue only if we, like the District Court, conclude that "the 

record shows there is no genuine dispute as to any material fact 

and the moving party is entitled to judgment as a matter of law." 

McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014), cert. denied, 

135 S. Ct. 1183 (2015). In making that determination, moreover, 

"[o]ur review of the district court's grant of summary judgment is 

de novo, drawing all reasonable inferences in favor of the nonmoving party while ignoring conclusory allegations, improbable 

inferences, and unsupported speculation." Shafmaster v. United 
- 14 - 

States, 707 F.3d 130, 135 (1st Cir. 2013) (internal citations and 

quotation marks omitted). 

III. 

In evaluating the record with this standard in mind, we 

follow the District Court's lead. We thus focus first on the DOA's 

alleged decision in May 2006 to turn McCue over to the DEP for 

regulatory enforcement. We then consider the three other alleged 

adverse regulatory actions -- each of which occurred months later 

-- that McCue contends also were taken in violation of the First 

Amendment. Finally, we consider McCue's contention that the 

District Court erred in considering each of these four actions in 

this "compartmentalize[d]" manner and thus that we should not 

repeat the mistake by considering them only one-by-one. 

A. 

The first adverse action that McCue attributes to 

retaliation for his protected conduct is the DOA's alleged decision 

in May 2006 to stop protecting McCue from DEP regulation. We agree 

with the District Court that a reasonable jury could find that 

McCue had made the requisite showing that such retaliation was a 

substantial or motivating factor for such a decision. We disagree, 

however, with the District Court's further conclusion that, on 

this record, a reasonable jury would be compelled to conclude that 

the DOA would have made that May 2006 decision even if McCue had 

not engaged in the protected conduct. 
- 15 - 

1. 

To explain why we believe the District Court was right 

to conclude that, as an initial matter, a jury could find that 

McCue had shown that retaliation was a substantial or motivating 

factor in the DOA's May 2006 decision, we need to lay a bit of 

groundwork. We explain first why we believe the record could 

reasonably support a finding that the relevant enforcement posture 

of the DOA did in fact shift soon after Bradstreet took the helm 

at the DOA. We then explain why we believe the record also provides 

support -- relatively weak though it is -- for a reasonable 

inference that such a shift may be attributed to Bradstreet's 

desire to retaliate against McCue for appealing the USDA crop 

subsidy rather than to a simple (and wholly warranted) desire to 

bring McCue into compliance with prevailing legal requirements. 

The record does supply evidence from which a jury could 

infer that, before Bradstreet came on the scene at the DOA, the 

Department had a policy in place of protecting McCue from DEP 

regulation. There is no doubt that, up until that time, McCue was 

hardly a model farmer. To the contrary, the record shows that 

McCue's farming practices had long generated concern about the 

farm's egregious failures to comply with Maine's agricultural and 

environmental regulations. These concerns stretched back to at 

least the year 2000, and, in fact, the record shows complaints 

about those practices dating back as far as 1985. Yet, despite 
- 16 - 

McCue's seemingly poor history of compliance, the record provides 

a basis from which a jury could conclude that the DOA had all the 

while protected McCue from DEP enforcement actions until at least 

May of 2006, and thus until after Bradstreet took over at the DOA, 

which did not occur until late March of that year. 

In so concluding, we recognize that there is -- as 

Bradstreet contends -- evidence in the record that shows that the 

DOA and the DEP made some efforts to clamp down on McCue before 

Bradstreet took up his post at the DOA. In that regard, it does 

appear that in the late summer of 2005, the DOA worked with the 

DEP in taking action against McCue. 

Specifically, the record shows that the DEP and the DOA 

had jointly inspected McCue's property in August 2005. And, as 

shown in an August 26 letter to a local activist, it appears the 

two agencies had jointly decided at that time to "develop[] a set 

of short term corrective actions as well as more substantial longer 

term changes to insure the discharge [into a stream bordering 

McCue's farm] that occurred this spring will not be repeated." 

Further, the record shows that on August 29, 2005, the DEP sent a 

letter to McCue issuing a notice of violation of Maine 

environmental law prohibiting the discharge of pollutants (such as 

manure) into bodies of water without a permit. See Me. Rev. Stat. 

tit. 38, § 413(1). 
- 17 - 

But far from conclusively showing that the DOA had 

decided to allow the DEP to take enforcement action against McCue 

before Bradstreet took over the Department, the record also 

contains evidence suggesting the exact opposite. In particular, 

the record provides support for a conclusion that this DEP 

enforcement action in August 2005 catalyzed a severe interdepartmental conflict between the DOA and the DEP. And, in 

addition, the record provides support for the conclusion that the 

two departments soon thereafter resolved the dispute over the DEP's 

taking action against McCue through a joint agreement that provided 

that the DOA, alone, would take the lead on all enforcement against 

McCue and that the DEP enforcement actions would "evaporate." By 

February 22, 2006, moreover, an email from a DEP official, James 

Crowley, showed that Crowley at that time thought the DEP "can't 

'take over' the case, for enforcement or unilateral licensing, 

unless requested to do so from Agriculture." 

Thus, far from showing conclusively that the DOA had 

given the green light to the DEP's exercise of regulatory power as 

early as August of 2005, the record also supports the contrary 

conclusion: that the DOA was still protecting McCue from DEP 

enforcement by that month's end. And the record also provides 

support for the further conclusion that the DOA had maintained 

this protective posture until after Bradstreet came on board. That 

is because there is nothing in the record to indicate that any 
- 18 - 

such agreement between the DOA and the DEP to block the DEP from 

asserting its authority was no longer in effect when Bradstreet 

arrived at the DOA. The record thus does not preclude a reasonable 

jury from concluding that the DOA continued to prevent the DEP 

from exercising regulatory power against McCue up until Bradstreet 

took office. 

This background concerning the state of play at the time 

that Bradstreet took over at the DOA matters for the following 

reason. There are several emails from May of 2006 -- and thus 

after Bradstreet took over -- that are in the record and that 

indicate that the DOA had by that time stopped interceding with 

the DEP on McCue's behalf. In particular, an email from Crowley, 

the DEP official, dated May 10 noted that it "looks like 

Agriculture is going to give [McCue] up after all." And Crowley's 

emails from May 30 and 31 to a local community activist confirmed 

that the DOA had "handed [McCue] over" to the DEP for licensing 

and enforcement. 

Given these emails, a reasonable jury could infer that 

a shift in the DOA's enforcement posture relative to the DEP had 

occurred in May 2006 -- or, in other words, only once Bradstreet 

had taken over at the DOA. Crowley's May 10, 2006, email comports 

with that conclusion by indicating -- in the present and presentprogressive tenses -- that it "looks like Agriculture is going to 

give [McCue] up after all." And so, too, does Crowley's subsequent 
- 19 - 

email at month's end speaking in the past tense about how McCue by 

that time had been "handed over." Hence, the record does not 

compel a finding that the alleged May 2006 shift within the DOA of 

which McCue complains had occurred prior to Bradstreet taking 

office. And thus the record does not require the conclusion that 

the shift occurred too early for it to have been due to 

Bradstreet's desire to retaliate against McCue. See Collins v. 

Nuzzo, 244 F.3d 246, 252 (1st Cir. 2001) (concluding that plaintiff 

seeking business license had not shown retaliation because "[t]he 

statements attributed to [a city councilor and defendant] were in 

1991, before [the plaintiff] filed a lawsuit" and engaged in 

protected conduct (emphasis added)). 

2. 

With the timing of the shift out of the way, we come, 

then, to the next issue. And that issue is whether the record 

supplies sufficient support for a reasonable jury to conclude that 

McCue has made his required showing that retaliation was a 

substantial or motivating factor in bringing about this alleged 

May 2006 shift in the DOA's regulatory enforcement posture toward 

the DEP. As to this issue, we, like the District Court, conclude 

that the record does provide the basis for a reasonable inference 

to that effect. Three pieces of evidence, viewed cumulatively, 

lead us to this conclusion. 
- 20 - 

The first piece of evidence is Bradstreet's concession 

that he became "very upset" and threatened to "ruin" and "bury" 

McCue and "put [him] out of business" when he learned in late 

October 2005 that McCue would challenge him for the crop subsidy. 

Of course, we do not simply presume that the threats Bradstreet 

expressed toward McCue as a private businessman became his official 

retaliatory intent in late March 2006 when Bradstreet took the 

reins at the DOA. After all, government officials ought to leave 

their private prejudices at the door upon ascending to public 

office. 

But in declining to adopt such a presumption about 

Bradstreet's mindset towards McCue as Commissioner and head of the 

DOA, we need not doubt the possibility of Bradstreet's persisting 

retaliatory intent. In this case, after all, such intent was 

expressed strongly and in terms that announced Bradstreet's 

intention to take adverse action against McCue in the future. 

Thus, Bradstreet's concession about the statements he made in late 

October 2005 about what he intended to do to McCue supplies at 

least a foundation, in light of the evidence that follows, for 

inferring that Bradstreet harbored a retaliatory intent as 

Commissioner in early May 2006. 

The second piece of evidence is the close proximity in 

time between April 26, 2006 -- the moment Bradstreet received the 

first letter from the USDA notifying him that McCue had prevailed 
- 21 - 

in his appeal and demanding repayment of about $7,000 in crop 

subsidies -- and the DOA's alleged shift in enforcement policy, 

first referenced on May 10, 2006. There was a time-lag of less 

than two weeks between the moment Bradstreet learned that he had 

lost the USDA subsidy dispute (about which he had previously 

threatened to "bury" McCue) and the Crowley email documenting that 

the DOA would hand McCue over to the DEP for the possible exercise 

of licensing and enforcement authority. 

To be sure, five months passed between the initiation of 

McCue's USDA appeal in December 2005 and the decision to allow the 

DEP to pursue McCue that Crowley's May 10, 2006, email had 

referenced. That lag might be too much, in this case, on its own 

to support a reasonable inference that retaliation was the 

substantial or motivating factor in the DOA acting as it did. But 

Bradstreet did not take office until March 27, 2006. The closeness 

in time between Bradstreet's taking office, learning that he had 

lost the appeal, and the decision regarding the DEP's authority 

vis-à-vis McCue thus does offer some circumstantial evidence from 

which a jury could infer that Bradstreet used his newfound 

regulatory power as soon as he could to make good on his earlier 

stated intention to "bury" McCue. See Guilloty-Perez v. Pierluisi, 

339 F.3d 43, 57 (1st Cir. 2003) (finding under the circumstances 

of that case that "proximity in time between the protected activity 

and the alleged retaliation is circumstantial evidence of 
- 22 - 

motive"); Acevedo-Diaz, 1 F.3d at 69 (noting that "[m]ere temporal 

proximity" on its own was insufficient to establish substantial or 

motivating causation in the circumstances of that First Amendment 

retaliation claim, but "timing . . . may be suggestive of 

discriminatory animus" in conjunction with other evidence 

(citations and quotation marks omitted)). 

The third and final piece of evidence in McCue's favor 

on this point is what the record shows -- and fails to show -- 

about who made the decision to allow the DEP to pursue McCue and 

why that decision was made. We start with the question of who 

made it. 

Bradstreet correctly points out that the record contains 

no direct evidence that shows Bradstreet was responsible for the 

decision in late May to allow the DEP to take enforcement action 

against McCue. But Bradstreet's deputy, Ned Porter, stated that 

the decision to hand McCue over to the DEP would have come from 

high in the DOA hierarchy, and Porter did not recall making that 

decision himself or communicating it to someone else. Porter did 

state that he had no reason to believe Bradstreet made the 

decision. But Porter was unable to identify who did make it. A 

reasonable trier of fact could thus infer that Bradstreet played 

a role in that decision. 

As to why that decision was made, the record contains no 

direct contemporaneous evidence showing the actual reason. 
- 23 - 

Crowley, the DEP official, and Porter, the DOA deputy commissioner, 

each stated in affidavits and depositions that their understanding 

in May 2006 was that the DOA allowed DEP enforcement against McCue 

because of McCue's long history of noncompliance with the DOA and 

DEP regulations and thus not because of Bradstreet or his 

retaliatory intent. And there is no doubt that the record supplies 

a basis for concluding that action undertaken for that entirely 

legitimate reason would have been warranted. Concerns about 

McCue's farming practices were serious and well known. 

But such post-hoc recollections, unsupported by 

contemporaneous evidence about why the decision was in fact made, 

need not compel the fact-finder on this record to conclude that 

the later-stated reason was the actual reason for the DOA's action. 

After all, neither Crowley nor Porter could identify who exactly 

made the decision in question, and the evidence does provide a 

basis for concluding that someone high up in the DOA made the 

decision. Moreover, the head of the DOA at that time -- Bradstreet 

-- had just learned that McCue had prevailed in the dispute between 

them. And it was that very dispute that had occasioned Bradstreet 

to make the earlier statements to McCue that seemed to promise 

retaliation. Cf. Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 

1991) ("[W]hat an actor says is not conclusive on a state-of-mind 

issue. Notwithstanding a person's disclaimers, a contrary state 

of mind may be inferred from what he does and from a factual mosaic 
- 24 - 

tending to show that he really meant to accomplish that which he 

professes not to have intended."). 

Thus, in light of all the facts of this case, we conclude 

the District Court was right on this first step. A reasonable 

trier of fact could conclude that Bradstreet retained an earlierexpressed retaliatory intent after he took office, and this intent 

was a substantial or motivating factor in the DOA's decision in 

May 2006 to allow the DEP to assert its enforcement and licensing 

authority over McCue. 

3. 

Still, there remains the possible Mt. Healthy defense. 

This defense ensures that a plaintiff is not put "in a better 

position as a result of the exercise of constitutionally protected 

conduct than he would have occupied had he done nothing." Mt. 

Healthy, 429 U.S. at 285. To succeed in making out that defense 

to the degree necessary to win on summary judgment, Bradstreet 

would need to show that the record would compel a reasonable jury 

to conclude by a preponderance of the evidence that the DOA would 

have taken the same adverse action against McCue even if McCue had 

not engaged in protected conduct. See Padilla-García, 212 F.3d at 

74. The District Court concluded that Bradstreet had met his 

burden of showing just that. But we disagree. 

The District Court supported its conclusion regarding 

the Mt. Healthy defense by pointing to two facts in the record. 
- 25 - 

Neither of these facts, however, compels a reasonable fact-finder 

to conclude that the decision by the DOA in May 2006 to allow DEP 

enforcement would have occurred even absent McCue's protected 

conduct. 

First, the District Court relied on evidence concerning 

some joint action that the DOA and the DEP had taken regarding 

McCue before Bradstreet came to the DOA. The record shows, as we 

have mentioned earlier, the two departments carried out a joint 

inspection of McCue's property in August 2005. The District Court 

then relied on evidence supporting the conclusion that, following 

that inspection, the two departments had jointly decided to 

"develop[] a set of short term corrective actions as well as more 

substantial longer term changes to insure the discharge [into the 

stream near McCue's property] that occurred this spring will not 

be repeated." (Second alteration in original.) The District Court 

concluded that this evidence showed the DOA was already in the 

process of letting the DEP exercise its authority to bring McCue 

into compliance well before Bradstreet came on the scene at the 

DOA. 

But we do not believe such evidence is as conclusive as 

the District Court believed it to be. A letter from a regulator 

to an activist promising to work toward bringing McCue into 

compliance need not compel the conclusion that the DOA would 

actually turn McCue over to the DEP for licensing and enforcement. 
- 26 - 

Further, as we have noted, after the DEP sent its August 29 letter 

to McCue issuing a notice of violation with respect to water 

discharge regulations, the DOA and the DEP appear to have reached 

a joint agreement. The record suggests, moreover, that this 

agreement provided that the DOA, alone, would take the lead on all 

enforcement and the DEP enforcement actions would "evaporate." 

Thus, rather than conclusively showing that the DOA 

would have made the May 2006 decision even if McCue had not 

appealed the subsidy determination, the record provides a basis 

from which a reasonable jury could find that a modus vivendi 

between the DOA and the DEP had been reached before Bradstreet 

took office. And the record also provides support for the 

inference that this pact remained in place when Bradstreet arrived 

at the DOA, thereby ensuring (absent some change) that the DOA 

would serve as the gatekeeper for any action by the DEP against 

McCue -- a gatekeeping role by the DOA that, the record also 

provides a basis to conclude, had to that point kept the DEP from 

striking out on its own. Thus, the record does not 

show -- conclusively -- that the DOA had already freed up the DEP 

and thus that the May 2006 decision to let the DEP assert 

regulatory power over McCue would have occurred even if McCue had 

never engaged in the protected conduct that he contends led 

Bradstreet to retaliate against him. 
- 27 - 

The District Court, in ruling for Bradstreet, also noted 

that Shelley Doak, a DOA official, stated in an affidavit that 

when she became head of the manure management program in September 

2005, the DOA was "under increasing pressure to take measures to 

address" McCue's manure problems. But this evidence, too, is not 

conclusive with respect to the Mt. Healthy defense. 

"[I]ncreasing pressure" could lead to enforcement 

against McCue, encouragement for McCue to take greater steps toward 

compliance while still tolerating significant noncompliance by 

him, or no enforcement of any kind. Nor is there any indication 

in the record that would compel a fact-finder to conclude that 

such "increasing pressure" in September 2005 ultimately led the 

DOA -- at some point prior to Bradstreet becoming Commissioner -- 

to break the no-enforcement agreement with the DEP that a jury 

reasonably could find the DOA had earlier reached. Thus, the 

record evidence concerning Doak's statements about increasing 

pressure on the DOA to take action against McCue also does not 

suffice to show that Bradstreet is entitled to summary judgment on 

the basis of a Mt. Healthy defense as to this adverse action. 

Although the District Court relied solely on the two 

facts discussed above, Bradstreet urges us to uphold the District 

Court on an alternative, broader ground for finding the Mt. Healthy 

defense conclusively proved -- namely, that the DOA would have 

taken that May 2006 action anyway because of McCue's egregious 
- 28 - 

noncompliance with applicable regulations. But, having considered 

that argument, we do not find that it provides a sufficient 

alternative basis for affirming the District Court. 

The Mt. Healthy defense, at the summary judgment stage, 

requires Bradstreet to show that the record would compel a 

reasonable jury to find that the adverse action would have occurred 

anyway, not merely that such action would have been warranted 

anyway. To hold otherwise would expand the Mt. Healthy defense 

beyond its rationale. The purpose of the Mt. Healthy defense is 

to ensure that a plaintiff is not put "in a better position as a 

result of the exercise of constitutionally protected conduct than 

he would have occupied had he done nothing." Mt. Healthy, 429 

U.S. at 285. That is, this defense to a First Amendment 

retaliation claim is concerned with what would have happened 

anyway. But focusing only on what regulators could have 

done -- rather than what regulators would have done -- can have 

the effect of wrongly excusing First Amendment retaliation even 

where the plaintiff would not have suffered adverse action absent 

his protected conduct. 

Here, the distinction between "could have" and "would 

have" matters as follows. The record indicates that regulatory 

action against McCue would have been just as warranted before 

Bradstreet took over at the DOA as it was after. Concerns about 

McCue's farm were not new. They were longstanding. Nor were they 
- 29 - 

newly serious. The standing concerns about past violations were 

themselves substantial. Yet the record provides a basis from which 

a jury could reasonably conclude that the decision to take the 

adverse action involving the DEP did not occur until May 2006 -- 

and thus only after Bradstreet came to the DOA and learned of his 

loss in McCue's USDA appeal. 

Bradstreet must thus explain why a reasonable jury would 

have to conclude that McCue's problematic farming practices alone 

would have triggered the May 2006 decision to free up the DEP to 

take action when they had not triggered such action before. But 

that showing is not an easy one for Bradstreet to make on this 

record. The DOA possessed enforcement discretion. And the record 

evidence at least suggests that, until Bradstreet arrived at the 

DOA, the DOA had a long history of protecting McCue in particular 

from DEP enforcement notwithstanding the apparent grounds that the 

DOA had for assuming a more aggressive posture earlier. Thus, in 

light of the record, Bradstreet has not made the showing that he 

must to support a grant of summary judgment based on the Mt. 

Healthy defense. Cf. Travers v. Flight Servs. & Sys., Inc., 737 

F.3d 144, 148-50 (1st Cir. 2013) (denying summary judgment because 

employer's policies "left room for judgment and discretion" with 

regard to whether to punish plaintiff employee's actions, and 

employer had not shown that it "would" have fired employee even if 

it could). 
- 30 - 

True, Doak and another DOA official in affidavits state 

that McCue, in their experience, was the worst offender in Maine 

when it came to noncompliance with manure regulations. And 

Crowley, a DEP official, agreed. But there is no indication in 

the record that these officials came to that judgment only after 

Bradstreet took office. Thus, even if these statements are 

credited, it would remain an open question whether the DOA would 

have turned McCue over to the DEP as it did in May 2006 if McCue 

had not appealed the subsidy decision. And, as the record permits 

a reasonable fact-finder to conclude that a pass had been given to 

McCue up to the time of Bradstreet's arrival, the question would 

remain as to why things changed so soon after Bradstreet took 

office -- and, in particular, whether they changed for an 

impermissibly retaliatory reason when the change occurred in May 

of 2006. 

Thus, drawing all reasonable inferences from the record 

in McCue's favor, we do not conclude that the record compels a 

reasonable trier of fact to find that McCue would have been turned 

over to the DEP for enforcement in May 2006 even absent McCue's 

protected conduct. The record indicates that such an action by 

the DOA may have been likely, and that is precisely because of 

what the record shows about concerns regarding McCue's egregious 

farming practices. But the record could also be reasonably read 

to indicate that, in line with historical precedent, no such change 
- 31 - 

in the DOA's regulatory posture would be forthcoming at that time. 

It thus "remains plausible that the pre-existing retaliatory 

motive tipped the scales" when the DOA decided in May 2006 to let 

the DEP proceed with enforcement actions. Travers, 737 F.3d at 

148. 

B. 

There remain three other adverse regulatory actions 

about which McCue complains. As to these, the District Court 

concluded that, unlike the first action just considered, no 

reasonable trier of fact could conclude that Bradstreet's 

retaliatory intent was a substantial or motivating factor in any 

of them. And that is in part because, by then, Bradstreet had 

recused himself from all future McCue-related matters. Here, we 

agree with the District Court. 

The record shows that on or about May 25 -- when 

Bradstreet learned that McCue had asked for a meeting with 

Bradstreet to clear the air -- Bradstreet told his deputy, Ned 

Porter, that he would be recusing himself from anything related to 

McCue because of a soured business relationship he had had with 

McCue in the past. 

The timing of the recusal is significant. Unlike the 

change in DOA policy in May 2006, Bradstreet's recusal on or about 

May 25 clearly preceded the other three adverse actions: the 

meeting in late June 2006 at which McCue was told he was under 
- 32 - 

"strict scrutiny," the DOA's revocation of McCue's provisional 

Livestock Operations Permit in November and December 2006, and the 

DOA's denial of McCue's application for the winter-spreading 

variance in December 2006. 

Although McCue does not dispute that Bradstreet told 

Porter he was recusing himself from McCue-related matters on or 

about May 25, 2006, McCue contends that the recusal does not 

insulate Bradstreet from liability for the remaining adverse 

actions. McCue explains that "[t]he horse (Bradstreet's 

retaliatory animus) was already out of the barn when the barn door 

was alleged closed by the recusal." McCue thus argues that 

Bradstreet's employees at the DOA would predictably have tried to 

do what they knew the boss wanted, even after the boss's formal 

recusal. Or, at least, he contends a jury reasonably could so 

find. 

But we do not agree such an inference would be reasonable 

on this record. We have already concluded that the record would 

permit a reasonable inference, despite the absence of any direct 

supporting evidence, that Bradstreet's retaliatory intent played 

a substantial or motivating role in a change in DOA enforcement 

policy in May 2006. But the record does not provide similar 

support for the further inference McCue contends a jury could also 

make as to the post-recusal actions. 
- 33 - 

McCue identifies no statement in the record by anyone 

within the DOA -- or by anyone else -- indicating that McCue had 

ever suggested to any of his employees that they take action 

against McCue, let alone that they do so because of what McCue had 

done to him in appealing the subsidy. Nor, despite McCue's 

contention to the contrary, does the way in which Bradstreet 

communicated the recusal require a different conclusion. 

As the District Court noted, a reasonable trier of fact 

certainly could infer that when Porter told McCue at the June 27 

meeting that Bradstreet was recused for "hard feelings" that "could 

not be worked out," other DEP and DOA officials, also present at 

the meeting, learned about the "hard feelings" reason for 

Bradstreet's recusal. But that inference is not enough. Evidence 

that Bradstreet explained to others why he did not want to 

participate in regulatory decisions about McCue -- presumably for 

fear that his impartiality in making such decisions might be 

questioned -- hardly constitutes evidence that Bradstreet wished 

to communicate to others that they should make decisions about 

McCue on the basis of the same "hard feelings" that Bradstreet 

harbored. We thus do not think that a reasonable trier of fact 

could infer that Bradstreet's means of recusing himself amounted 

to a subtle but effective signal to staff to go after McCue, or 

that the DOA officials then acted in conformity with their 

understanding that their boss wanted them to do so. 
- 34 - 

McCue cites Travers v. Flight Servs. & Sys., Inc., 737 

F.3d 144 (1st Cir. 2013), for the proposition that a trier of fact 

could infer that DOA employees would try to carry out the 

retaliatory desires of their boss. In Travers, a CEO had, 

allegedly, repeatedly told several underlings to "get rid" of an 

employee because of how much money the employee's lawsuit, the 

protected conduct in that case, was costing the company. Id. at 

145. We concluded that "[a] rational juror could conclude that 

such strongly held and repeatedly voiced wishes of the king, so to 

speak, likely became well known to those courtiers who might rid 

him of a bothersome underling." Id. at 147. 

But Travers offers McCue no help. In fact, Travers shows 

what McCue is missing. Unlike in Travers, McCue has offered no 

evidence of Bradstreet expressing a desire to go after McCue to 

any of his staff, much less connecting that desire to protected 

conduct or expressing those views strongly or repeatedly. 

Bradstreet's only statement betraying his desire to cause McCue 

harm occurred in a private setting before Bradstreet had taken 

office. And the record indicates that the only one within earshot 

was McCue himself. 

Moreover, the record shows that once in office, far from 

seeming to do all that he could to ensure that McCue would be 

"bur[ied]," Bradstreet recused himself from matters involving 

McCue -- albeit potentially only after an initial, unexplained 
- 35 - 

decision regarding DEP licensing and enforcement had been made. 

Thus, Bradstreet's reference to past "hard feelings" in carrying 

out his recusal does not permit the sort of reasonable inference 

regarding the connection between the boss's retaliatory intent and 

decisions made by lower-level employees that we permitted in 

Travers. 

Nor is this a case in which it would be reasonable to 

infer that some illegitimate reason for taking action must have 

been a trigger for what the DOA did in taking these three postrecusal actions. The explanation for the DOA officials taking the 

three post-recusal actions against McCue is not hard to fathom. 

Rather, there was clearly a legitimate predicate for them. McCue 

had generated great concern about an egregious record of 

noncompliance with agricultural and environmental regulations. 

And each adverse action following the early-May change in 

enforcement policy came further and further in time from McCue's 

protected conduct. That passage of time further erodes any basis 

for inferring the retaliation was a substantial or motivating 

factor in what the DOA did post-recusal. 

Thus, any such inference concerning the DOA's postrecusal conduct would necessarily rest on just the kind of 

unsupported speculation that is not enough to overcome a motion 

for summary judgment. See Shafmaster, 707 F.3d at 135 (noting 

that, in reviewing a grant of summary judgement, we "draw[] all 
- 36 - 

reasonable inferences in favor of the non-moving party while 

ignoring conclusory allegations, improbable inferences, and 

unsupported speculation" (internal citations and quotation marks 

omitted)). We therefore conclude, like the District Court, that 

no reasonable trier of fact could conclude on this record that 

Bradstreet's retaliatory intent played a substantial or motivating 

role in the three, post-recusal adverse actions about which McCue 

complains. 

C. 

We close by considering one final argument that McCue 

makes. He contends that the District Court erred by 

"compartmentaliz[ing]" its analysis of the four adverse actions, 

as if they were discrete judgments. In consequence, McCue 

contends, the District Court mistakenly examined only whether 

Bradstreet's retaliatory intent substantially caused or motivated 

each action on its own, such that each was itself taken in 

violation of the First Amendment. Instead, McCue argues, the 

District Court should have considered the four actions as an 

interrelated whole. 

More specifically, McCue argues that the decision in 

early May 2006 to change the DOA's enforcement policy against McCue 

started a "chain of causation" that led directly to the later 

adverse actions in June, November, and December such that they, 

too, could each be deemed an adverse retaliatory action taken in 
- 37 - 

violation of the First Amendment. But McCue is less than clear in 

explaining the nature of that casual chain. 

To the extent McCue means to argue that Bradstreet's 

retaliatory purpose at the outset of his tenure must have been 

communicated to other DOA officials -- and thus was in that way a 

substantial or motivating factor in the subsequent, post-recusal 

regulatory decisions -- McCue is wrong. As we have just explained, 

unlike in Travers, the record here simply is devoid of any support 

for such a speculative inference about what directions to 

underlings must have been given within the DOA either before or 

after May 2006. 

And to the extent that McCue means to identify some other 

chain of causation from the first action to the last, he does not 

spell out what that linkage might be. For example, he does not 

identify anything in the record to suggest that any decision by 

the DOA in May of 2006 to allow the DEP to take enforcement actions 

against McCue would have sent the signal that was the substantial 

or motivating factor within the DOA to take the subsequent actions 

against McCue. 

To the extent the record does supply evidence of the 

basis for the DOA having taken those other actions, moreover, such 

evidence relates only to McCue's own prior practices on his farm 

-- and concerns about their egregious nature -- as well as to the 

pressure to do something about them from other agencies and 
- 38 - 

concerned citizens. The record thus provides no basis for 

concluding that DOA officials acted out of a felt need to get in 

line with a prior decision by the DOA that concerned what the DEP 

would be permitted to do. Nor does the record contain evidence 

indicating that the subsequent decisions somehow depended on the 

first one, such that they, too, would violate McCue's First 

Amendment rights. Thus, we are left with a record that shows that 

there was one discrete respect -- and only one -- in which a 

reasonable jury could find that retaliation was the substantial or 

motivating factor for an adverse regulatory action by the DOA. 

There remains the wholly separate issue of whether any 

damages flowed from the one adverse action that we conclude a jury 

reasonably could find had been taken in violation of McCue's First 

Amendment rights -- namely, the May 2006 decision. It is by no 

means clear that any damages did follow from this May 2006 

decision. McCue did, after all, have a record of generating 

substantial concerns about his regulatory noncompliance. And the 

record shows the DOA took a number of subsequent regulatory actions 

against McCue and that these actions were taken without retaliatory 

intent being a substantial or motivating factor for them. 

But we do not attempt to resolve the damages issue here. 

The District Court had no occasion to undertake the causal inquiry 

that would pertain to the determination whether any damages might 

be attributable to a DOA decision in May 2006 to hand McCue over 
- 39 - 

to the DEP. Rather, the District Court concluded -- erroneously, 

in our view -- that even absent McCue's protected conduct, a jury 

would be required to find that the DOA would have made the same 

decision it made in May 2006 regarding DEP enforcement even if 

McCue had not engaged in protected conduct. And Bradstreet, for 

his part, contends only that retaliatory intent was not the 

substantial or motivating factor for any of the four adverse 

actions about which McCue complains or, alternatively, that the 

DOA would have taken all four of those actions even if McCue had 

never appealed the subsidy. Bradstreet thus makes no argument 

that he is entitled to summary judgment on the alternative ground 

that no harm flowed from the first adverse action McCue purports 

to identify, even assuming that Bradstreet's retaliation was a 

substantial or motivating factor in the DOA taking it. We thus 

leave it to the parties on remand to contest -- and the District 

Court to resolve -- whether any damages might be due if a jury 

were to find that the May 2006 decision regarding the DEP violated 

the First Amendment, notwithstanding that the record shows that 

none of the other actions about which McCue complains did. 

IV. 

We affirm the District Court's conclusion that 

Bradstreet is entitled to summary judgment with respect to three 

of the four regulatory actions about which McCue complains in his 

First Amendment suit. But we also hold that a reasonable trier of 
- 40 - 

fact could conclude that Bradstreet's retaliation for McCue's USDA 

appeal was a substantial or motivating factor in the DOA's alleged 

decision in May 2006 to allow the DEP to exercise its regulatory 

power over McCue. And we further hold that Bradstreet has not 

shown that a reasonable trier of fact would be compelled to 

conclude that decision would have been made even if McCue had never 

appealed the USDA subsidy Bradstreet initially received. As a 

result, we reverse the District Court's grant of summary judgment 

in part and remand for further proceedings. We award no costs 

under Federal Rule of Appellate Procedure 39(a)(4).