Delaney v. Town of Abington , 890 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2308
TOM DELANEY,
Plaintiff, Appellant,
v.
TOWN OF ABINGTON; DAVID MAJENSKI; CHRISTOPHER J. CUTTER;
KEVIN F. SULLIVAN,
Defendants, Appellees,
MASSACHUSETTS ATTORNEY GENERAL,
Interested Party, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges
John J. Hightower, for appellant.
Deborah I. Ecker, with whom Joseph S. Fair and KP Law, P.C.
were on brief, for defendant-appellees.
Todd M. Blume, Assistant Attorney General of Massachusetts,
with whom Maura Healey, Attorney General of Massachusetts, was on
brief, for interested party Massachusetts Attorney General.
May 4, 2018
BARRON, Circuit Judge. This appeal arises out of a
lawsuit Tom Delaney brought against the Town of Abington,
Massachusetts and leaders of the Abington Police Department
(Department) -- Chief David Majenski, Deputy Chief Christopher
Cutter, and Lieutenant Kevin Sullivan. Delaney brought a variety
of federal and state law claims in which he alleged that, while he
was an officer in the Department, the defendants retaliated against
him for (1) filing reports with the Massachusetts Office of
Attorney General (AG Office) that raised concerns about a traffic
ticketing policy that he contends that the Department had adopted
and (2) engaging in union activity.
The District Court granted summary judgment to the
defendants on all of Delaney's claims, and Delaney now appeals
that ruling as well as the District Court's order granting the AG
Office's motion to quash a subpoena. We affirm.
I.
According to Delaney's complaint, in January 2013 he was
informed about what he characterizes as the Department's "Money
Ticket Quota System." Delaney contends that this system required
patrol officers to issue more money citations than warnings.
At the Department's police roll call on May 29, 2013,
Delaney approached his supervisor to register his concern that
this "system" was unlawful under Newton Police Association v.
Police Chief of Newton, 828 N.E.2d 952 (Mass. App. Ct. 2005). In
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that case, the Massachusetts Appeals Court held that a police
chief's order "directing officers assigned to traffic enforcement
. . . to issue traffic violation citations to traffic offenders,
and to cease issuing written warnings" ran afoul of a state
statute, Mass. Gen. Laws ch. 90C, § 3(A)(1), which "confer[s]
independence on officers assigned to traffic enforcement duty" as
to whether or not to issue tickets or warnings. Newton, 828 N.E.2d
at 953-54. Delaney also told his supervisor at that time that he
did not want to follow the alleged ticketing system and handed him
a copy of Department Rule 7.0, which the parties agree concerns
compliance with unlawful orders.
Delaney later filed a report with the AG Office in which
he set forth his concerns about the lawfulness of the ticketing
system. He first filed the report on April 7, 2014, and later
refiled the same report on October 14, 2014, apparently because
the AG Office lost the report after he filed it the first time.
Delaney alleges that, in retaliation for these filings, the
defendants subjected him to a number of adverse employment actions.
Delaney separately alleges that, following his election as
president of the patrolmen's union in April 2014, the defendants
retaliated against him for his union activity.
On May 1, 2015, Delaney brought this suit in state court
in Massachusetts. His complaint sought relief for two claims under
§ 1983 based on retaliation for the exercise of his First Amendment
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rights in connection with, respectively, the concerns that he had
raised with the AG Office regarding the ticketing system and his
union activity. He also brought Massachusetts law claims pursuant
to the Commonwealth's whistleblower statute, Mass. Gen. Laws ch.
149, § 185, and the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12 §§ 11H, 11I. Finally, he brought a Massachusetts
common law claim for intentional infliction of emotional distress.
The defendants removed the case to federal court in the
District of Massachusetts. During discovery, Delaney subpoenaed
the AG Office for documents concerning whether that office had
told Majenski about the report that Delaney had filed with it.
After the AG Office complied with this subpoena, Delaney filed a
subpoena to depose the office, which it moved to quash. The
District Court granted the motion to quash.
Following discovery, the District Court granted the
defendants' motion for summary judgment as to all claims. Delaney
v. Town of Abington, 211 F. Supp. 3d 397, 407-08 (D. Mass. 2016).
Delaney now brings this appeal, in which he challenges both the
summary judgment ruling and the order granting the motion to quash.
II.
We start with Delaney's challenge to the District
Court's grant of summary judgment as to the two claims that he
brings under § 1983 for retaliation against him for exercising his
First Amendment rights -- the first of which concerns his filings
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with the AG Office and the second of which concerns his union
activity. Our review is de novo. See Sánchez-Figueroa v. Banco
Popular de P.R., 527 F.3d 209, 213 (1st Cir. 2008). We must draw
all inferences in favor of the nonmoving party, id. at 211, and
then determine whether the District Court was right that there is
"no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A.
To prove that a public employer violated the First
Amendment rights of a public employee by subjecting him to an
adverse employment action in retaliation for engaging in protected
speech, the employee first must show that he "spoke as a citizen,"
Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007) (quoting
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)), and "that the
speech was on a matter of public concern." Id. If the public
employee can make that showing, then "[t]he question becomes
whether the relevant government entity had an adequate
justification for treating the employee differently from any other
member of the general public." Id.; see also Pickering v. Bd. of
Educ. of Twp. High School Dist. 205, Will Cty., Ill., 391 U.S.
563, 568 (1968). The Supreme Court has made clear that "[t]his
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
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employer, but the restrictions it imposes must be directed at
speech that has some potential to affect the entity's operations."
Garcetti, 547 U.S. at 418.
Even if the public employee can succeed in showing that
the public employer lacked such a justification, however, the
public employee must still show a causal connection between the
alleged retaliatory action and the protected expression. To do
so, the public employee must demonstrate "that the protected
expression was a substantial or motivating factor in the adverse
employment decision." Curran, 509 F.3d at 45. In the event that
the public employee makes that showing, the defendant may then
avoid liability by showing that it would have undertaken the
adverse employment action regardless of the plaintiff's protected
conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 287 (1977); Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d
121, 131 (1st Cir. 2004).
Finally, it is important to emphasize that not every
action that an employer takes that a public employee may dislike
constitutes the kind of adverse employment action that can ground
a First Amendment retaliation claim. Rather, the adverse
employment action must be "one that 'affect[s] employment or
alter[s] the conditions of the workplace.'" Morales-Vallellanes
v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (alterations in
original) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
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U.S. 53, 61–62 (2006)). Such an action "typically involves
discrete changes in the terms of employment, such as 'hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant
change in benefits.'" Id. (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)).
B.
The District Court granted summary judgment to the
defendants as to the first of Delaney's two § 1983 First Amendment
retaliation claims because Delaney failed to show that there is a
genuine issue of material fact about whether his filing of the
reports with the AG Office were "a substantial or motivating factor
in the adverse employment decision[s]" that he alleged had been
taken against him. Curran, 509 F.3d at 45. In so ruling, the
District Court considered two separate time periods -- the one
that ran from when Delaney first filed the AG Office report, in
April 2014, to when he re-filed the report, in October 2014, and
the one that followed this re-filing. We consider each of these
periods separately in reviewing the District Court's ruling as to
this § 1983 claim.
1.
The District Court determined that Delaney identified no
basis in the record from which a jury could reasonably find that,
during the first time period, the defendants knew that he had filed
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the report with the AG Office. Because "one cannot have been
motivated to retaliate by something he was unaware of," Medina-
Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013), Delaney
must show that the District Court erred in so ruling. But he has
not done so.
Delaney first attempts to show that a jury reasonably
could infer that the defendants knew as of April 9 that he had
filed the report with the AG Office by pointing to comments that,
according to his deposition testimony, Majenski had made to him in
a meeting that occurred on that day. In that testimony, Delaney
alleges that Majenski told him at this meeting that "people have
come against me [Majenski] and they may win the battle but I always
win the war."
But while Delaney contends that this statement fairly
permits the inference that Majenski knew that Delaney had filed
the AG Office report, we do not see how that is so. Majenski's
alleged statements make no reference to the AG Office report, and
Delaney himself acknowledges in his complaint that Majenski made
the statements directly in response to Delaney having told him at
that same meeting (without reference to the report) that Delaney
had stopped adhering to the ticketing system.
Nor does Delaney point to anything in the record to
suggest that there was any practice whereby reports like the one
that he filed with the AG Office ordinarily, once filed, would
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have been provided to the Town by that office by the time of this
April 9 meeting. In fact, the record shows that the defendants
learned of Delaney's re-filing of the report only because Delaney
himself thereafter gave it to the Town Manager.
Thus, these statements by Majenski -- which do not by
their terms reference the report and which were made in response
to Delaney's comments that also did not refer to that report --
provide no basis for a reasonable inference that any of the
defendants knew that Delaney had filed it. Accordingly, the record
evidence concerning these statements provides no basis for
overturning the District Court's ruling as to this claim.
Delaney also points to the fact that the record shows
that he was assigned by a supervisor to program a fax machine on
April 7. He contends that a jury could have reasonably inferred
that the defendants knew that he had filed the report from the
fact of this assignment, which he appears to contend in and of
itself constitutes an adverse employment action.
In pressing this argument, Delaney relies on Noviello v.
City of Boston, 398 F.3d 76 (1st Cir. 2005), for the proposition
that an adverse employment action carried out in close temporal
proximity to a public employee's protected expression may suffice
to support an inference that there is a causal link between the
protected expression and the act of retaliation. See id. at 86.
But in Noviello -- and in other cases addressing the role that
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temporal proximity may play in establishing a causal link between
protected conduct and an act of retaliation -- the record
independently provided a basis from which a jury could reasonably
conclude that the employer knew of the employee's protected conduct
at the time that the adverse employment action allegedly occurred.
The temporal proximity was thus deemed sufficient in those cases
to provide a basis for inferring causation in light of the
employer's knowledge of the protected conduct rather than to
provide a basis for inferring that the employer had knowledge of
the protected conduct. Id.; see also Collazo v. Bristol-Myers
Squibb Mfg., Inc., 617 F.3d 39, 50 (1st Cir. 2010) (holding that
temporal proximity was relevant to the causation analysis where
defendant knew of employee's protected conduct); Davignon v.
Hodgson, 524 F.3d 91, 106-07 (1st Cir. 2008) (same). Thus, this
line of cases does not help Delaney in arguing for the proposition
that the employer's knowledge of the protected expression may be
inferred from the temporal proximity of an adverse employment
action.1 Nor do we see anything about the circumstances of this
case that would lead us to conclude that the defendants' knowledge
1Moreover, there is a substantial body of out-of-circuit
precedent that rejects that very proposition. See Equal Emp't
Opportunity Comm'n v. EmCare, Inc., 857 F.3d 678, 683 (5th Cir.
2017); Alexander v. Wis. Dep't of Health & Family Servs., 263 F.3d
673, 688 (7th Cir. 2001); Raney v. Vinson Guard Serv., Inc., 120
F.3d 1192, 1197 (11th Cir. 1997).
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of the AG Office report could reasonably be inferred merely from
the fact that Delaney was assigned to program the fax machine when
he was.2
2.
We turn next to the time period that followed Delaney's
re-filing of the report with the AG Office in October 2014. As
the District Court noted, the defendants acknowledged that Delaney
had delivered a copy of that report to the Town Manager on the
same day that he re-filed it with the AG Office. Thus, the
defendants did not dispute below -- nor do they dispute on appeal
-- that they had knowledge of the report at the time of the
retaliation that Delaney contends that they engaged in during this
time period.
But, even though the defendants knew during this period
that Delaney had filed the report with the AG Office, the District
Court still ruled that Delaney had failed to meet his burden of
showing a genuine issue of material fact as to whether the
defendants had retaliated against him for filing that report. And,
here, too, we agree.
2 In so concluding, we note that the record does not make
clear when on April 7 Delaney filed the AG Office report or at
what time on that same day he was asked to program the fax machine.
We note as well that we do not mean to suggest that the fax machine
assignment would qualify as an adverse employment action, as we
have no need to address that question.
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In challenging that ruling, Delaney points to an email
that he received from a police sergeant -- who is not a defendant
in this case -- that was copied to Majenski, Cutter, and Sullivan.
The email concerned Delaney's use of profanity while fielding an
incoming 911 call on October 17 after Delaney repeated the caller's
profanity over the air to the responding officers.
Delaney contends that the email constituted an adverse
employment action because it amounted to a reprimand. And, because
his supervisors knew at the time that he had filed the report with
the AG Office, Delaney argues that the jury could reasonably infer
that the email was sent in retaliation for his having filed that
report.
But, even if such a causal inference would be reasonable,
we have previously explained that isolated "comments by [a]
supervisor that were critical of plaintiff's job performance" are
"without more . . . too trivial to deter a person of ordinary
firmness from exercising First Amendment rights." Barton v.
Clancy, 632 F.3d 9, 30 (1st Cir. 2011) (citing McKee v. Hart, 436
F.3d 165, 170-71 (3d Cir. 2006)). And, given the nature of the
email, we conclude that it is too mild to constitute the kind of
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adverse employment action that could ground a First Amendment
retaliation claim.3
Delaney also points to the fact that, in May 2015 -- and
thus, again, after the defendants knew he had filed the report --
Majenski assigned Delaney to the role of Police Prosecutor, a role
that, under Massachusetts law, meant that Delaney could prosecute
certain criminal cases. See Mass. R. Crim. P. 2(b)(13). Delaney
contends that this assignment constitutes an adverse employment
action because the record shows that he did not want this position
and that this assignment forced him to forego the chance to obtain
certain types of overtime pay and to work weekends. He thus
contends that the causal link that he must show to demonstrate
retaliation for his protected expression may be inferred from the
fact of this assignment.
But, even assuming that this assignment constitutes an
adverse employment action, it occurred some seven months after the
defendants knew that Delaney re-filed his report. Given that
substantial passage of time, as well as the absence of any other
supporting evidence of causation, we cannot conclude that Delaney
has provided a sufficient basis from which a jury could reasonably
3 The email instructed Delaney that while "[i]t is important
to reiterate the demeanor of the calling party especially if there
is an Officer Safety issue[,] [f]or future practice I would advise
you to state over the air something along the lines such as, '[t]he
calling party is using profanities towards police.'"
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conclude that there was a causal connection between his filing the
report with the AG Office and the defendants' decision to make
this assignment. See Calero-Cerezo v. U.S. Dep't of Justice, 355
F.3d 6, 25 (1st Cir. 2004) ("Three and four month periods have
been held insufficient to establish a causal connection based on
temporal proximity.").
Finally, Delaney points to his suspension in December
2015. But, the same concern about the absence of a reasonable
basis for concluding that there was a causal link between his
filing of the report and his assignment to the role of police
prosecutor leads us to reject his argument that his suspension was
causally related to his filing of the report. For, while a
suspension may constitute an adverse employment action, Delaney's
suspension occurred some seven months after his assignment to the
role of police prosecutor -- and fourteen months after defendants
knew that he had re-filed the report. As Delaney alleges nothing
other than the fact that the suspension occurred after the
defendants knew of his filing of the report to support the
inference of a causal link, the fact of his suspension provides no
basis for overturning the grant of summary judgment dismissing
Delaney's claim.
3.
For these reasons, we agree with the District Court that
there is no "genuine dispute as to any material fact," Fed. R.
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Civ. P. 56(a), as to whether Delaney suffered retaliation in
violation of the First Amendment because of the filings he made
with the AG Office. We therefore affirm the District Court's
determination that the defendants are entitled to a grant of
summary judgment as to this § 1983 claim.4
C.
We turn next to Delaney's challenge to the District
Court's grant of summary judgment as to his other § 1983 claim.
In this claim, he alleges that the defendants impermissibly
retaliated against him for his protected union activity. He
appears to premise this claim on an email that Cutter, who was the
Department's deputy chief, sent Delaney after Cutter met with
4The District Court did not address Delaney's additional
allegation that the defendants created a hostile work environment
and thereby "isolated [him] from his peers." But, Delaney presses
this contention merely by listing a series of incidents (often
without citation to directly supporting parts of the record), of
which some occurred prior to his filing of the report in April,
and others occurred well after the defendants knew that he had
refiled the report. Because Delaney makes no developed argument
concerning causation, this basis for challenging the grant of
summary judgment as to this § 1983 retaliation claim fails. The
District Court also did not address Delaney's separate contention
that it erred in granting summary judgment to the defendants as to
this § 1983 retaliation claim because the record provides a basis
from which a jury could reasonably find that the defendants ignored
their own harassment policies and conducted a "sham" investigation
into his allegations regarding the ticketing policy. But, on
appeal, Delaney contends that the defendants acted in this way in
order to "cover up" what he contends was the town's "illegal"
ticketing policy without asserting that the defendants did so in
order to retaliate against him for having filed the AG Office
report. Thus, this challenge fails on causation grounds as well.
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Delaney in Delaney's role as president of the patrolmen's union
and that Delaney contends left him "embarrassed, dejected, and
humiliated." The email stated, in relevant part:
As you know, during a meeting with the Chief
involving union issues, I felt that your
actions towards me were verging on insolent
and disrespectful. I cautioned you on this
behavior, telling you to be "careful" in your
conversation and actions; that you were being
insubordinate, and you responded that ......
[sic] I need to be "careful" . . . . You are
more than welcome to state your opinions and
facts but you should always do it in a
respectful manner. You have the rights to not
agree with what is being said, but according
to the rules of this department you don't have
the rights to be disrespectful when doing it.
We agree with the District Court that this email was
"exceedingly mild." Because "not every critical comment -- or
series of comments -- made by an employer to an employee provides
a basis for a colorable allegation that the employee has been
deprived of his or her constitutional rights," McKee, 436 F.3d at
170-71; see also Barton, 632 F.3d at 30, we affirm the grant of
summary judgment to the defendants as to this claim.5
5 Insofar as Delaney means to argue that the defendants
created a hostile work environment that isolated him from his peers
not only in retaliation for his filing the report with the AG
Office but also for his union activity, that basis for challenging
the grant of summary judgment as to his § 1983 claim based on his
union activity fails largely for the reasons that his hostile work
environment allegation failed to provide a basis for reversing the
grant of summary judgment as to his § 1983 claim based on his
filings of the AG report. See supra at n.4. We note, moreover,
that Delaney does not explain in his briefing to us which of the
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III.
Where, as here, all federal claims in a case premised on
federal question jurisdiction have been resolved against the
plaintiff, "the Supreme Court has instructed that . . . 'the
balance of factors to be considered under the pendent jurisdiction
doctrine -- judicial economy, convenience, fairness, and comity
-- will point toward declining to exercise jurisdiction over the
remaining state-law claims.'" Wilber v. Curtis, 872 F.3d 15, 23
(1st Cir. 2017) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988)). Nevertheless, because we conclude that none
of Delaney's challenges to the District Court's grant of summary
judgment as to his three pendent Massachusetts law claims presents
a substantial legal question, we retain jurisdiction over these
claims and affirm the District Court's grant of summary judgment
to the defendants as to each of these claims. See id.Our review is de novo. Sanchez-Figueroa, 527 F.3d at
213. In undertaking it, we construe all inferences in the favor
of the nonmoving party. Id. at 211.
many actions that he lists in support of alleging that the
defendants created a hostile work environment were taken because
of his union activity. And while one of those listed actions does
appear to be clearly related to Delaney's union activity, Delaney
does not argue in any developed way that this one incident alone
suffices to create a genuine issue of triable fact as to whether
the defendants created a hostile work environment. Thus, this
challenge to the summary judgment ruling as to this § 1983 claim
fails, too.
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The first of these three claims alleges that the
defendants violated the Massachusetts whistleblower statute, which
provides that "[a]n employer shall not take any retaliatory action
against an employee because the employee . . . [d]iscloses, or
threatens to disclose to a supervisor or to a public body an
activity, policy or practice of the employer . . . that the
employee reasonably believes is in violation of a law." Mass.
Gen. Laws ch. 149, § 185(b)(1). The District Court granted summary
judgment to the defendants as to this claim because Delaney failed
to comply with § 185's requirement that he had previously "brought
the activity, policy or practice in violation of a law . . . to
the attention of a supervisor of the employee by written notice
and ha[d] afforded the employer a reasonable opportunity to correct
the activity, policy or practice." Id. at § 185(c)(1) (emphasis
added).
Delaney contends that he provided the required written
notice by giving his supervisor a copy of Department Rule 7.0 when
he first complained to him about the ticketing policy and by
telling him verbally at that time that he was opposed to the
alleged policy. But, even reading the record in the light most
favorable to Delaney, we agree with the District Court that "[n]o
stretch of the imagination can transform an oral remonstration and
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a copy of a generic department rule into a 'written notice' of an
objectionable 'policy or practice in violation of a law.'"6
To be sure, as Delaney points out and as the District
Court recognized, there is an exception to the written notice
requirement. If the employee's disclosure is "for the purpose of
providing evidence of what the employee reasonably believes to be
a crime," then the employee need not first provide his or her
employer written notice. Id. at § 185(c)(2).
But while Delaney contends that the District Court erred
in ruling that the exception does not apply here, we do not agree.
Insofar as Delaney contends that this exception applies because he
could have reasonably believed that the ticketing policy was
unlawful or illegitimate, he is mistaken. The exception applies
only if the report concerns criminal -- rather than merely unlawful
or illegitimate -- conduct. Mass. Gen. Laws ch. 149, § 185(c)(2).
Moreover, we agree with the District Court that it was not
reasonable for Delaney to believe that, in establishing the new
ticketing policy, the defendants violated the Massachusetts anti-
bribery statute, Mass. Gen. Laws ch. 268A, § 2(b), which is the
6 Delaney does separately contend that his supervisor
"admitted that, if he received information form [sic] Delaney that
the orders were illegal, he would have passed the information to
Majenski or [Cutter] to follow-up." But, as the District Court's
conclusion recognized, that fact does not bear on whether the
notice that Delaney himself provided was in writing.
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only criminal statute that he identified to the District Court as
one that the ticketing policy violates.7
In contending that the District Court erred in this
regard, Delaney points to our decision in United States v. Devin,
918 F.2d 280 (1st Cir. 1990). But there, we affirmed a conviction
for racketeering based on a violation under chapter 268A, § 2(b),
in which a private actor made weekly cash payments and gave
expensive liquor to police officers to make traffic tickets
"vanish" and other favors. Id. at 284. Here, by contrast, Delaney
makes no allegation of cash payments by third parties or quid pro
quo exchanges of any kind. Thus, Devin in no way shows that it
would be reasonable to believe that the alleged ticketing quota
system ran afoul of the bribery statute.
Delaney also cites to Wagner v. City of Holyoke, 241 F.
Supp. 2d 78 (D. Mass. 2003), aff'd sub nom. Wagner v. City Of
Holyoke, Mass., 404 F.3d 504 (1st Cir. 2005). But Wagner too, is
of no help to Delaney's contention that he reasonably believed the
bribery statute had been violated, as that case did not address
7 Delaney's contention that he could reasonably have believed
that the defendants had violated Massachusetts General Laws
chapter 268, § 13B, which prohibits the "[i]ntimidation of
witnesses, jurors and persons furnishing information in connection
with criminal proceedings," fares no better. For, even if we were
to assume this doubtful contention had merit, it is waived because
he did not raise it below. Me. Green Party v. Me., Sec'y of State,
173 F.3d 1, 4 (1st Cir. 1999).
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what may constitute a violation of that statute. See id. at 97-
99.
Finally, Delaney relies on Larch v. Mansfield Municipal
Electrical Department, 272 F.3d 63 (1st Cir. 2001). But, Larch
addressed neither the criminal statute that Delaney believed was
violated, M.G.L. 268A, § 2, nor the exception to the written
reporting requirements that Delaney invokes. See Larch, 272 F.3d
at 67-69. Thus, we affirm the grant of summary judgment as to
this first pendent claim.
Delaney's second pendent claim alleges that the
defendants violated his rights under the Massachusetts Civil
Rights Act. Mass. Gen. Laws Ann. ch. 12 §§ 11H, 11I. But, in
light of the grounds of our affirmance of the District Court's
rejection of Delaney's § 1983 claims, this claim necessarily
fails. See Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002).
That leaves only one other pendent claim -- Delaney's
claim for intentional infliction of emotional distress. Because
we agree with the District Court that the misconduct that he
alleges does not rise to a level that a reasonable jury could
consider "atrocious" and "utterly intolerable in a civilized
community," Polay v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014),
we affirm the grant of summary judgment as to this claim, too.
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IV.
Finally, we consider Delaney's challenge to the District
Court's grant of the AG Office's motion to quash a deposition
subpoena. Motions to quash are governed by Federal Rule of Civil
Procedure 45, which provides that a district court must "quash or
modify a subpoena that: . . . requires disclosure of privileged or
other protected matter." Fed. R. Civ. P. 45(d)(3)(A)(iii).
The burden to demonstrate that a privilege applies
"rests with the party resisting discovery." FDIC v. Ogden Corp.,
202 F.3d 454, 460 (1st Cir. 2000). Our review is only for abuse
of discretion, Bogosian v. Woloohojian Realty Corp., 323 F.3d 55,
66 (1st Cir. 2003),8 and "we may reverse a district court 'only
upon a clear showing of manifest injustice, that is, where the
lower court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party.'" Saldana-Sanchez
v. Lopez-Gerena, 256 F.3d 1, 8 (1st Cir. 2001) (quoting Ameristar
Jet Charter, Inc. v. Signal Composites, Inc., 244 F.3d 189, 192
(1st Cir. 2001)).
8 Delaney's motion to compel dealt only with his request to
depose the AG Office. On appeal, however, Delaney purports to
challenge both the motion to quash his request for a deposition
and also the AG Office's assertion of privilege as to some
documents it gave in response to Delaney's request for documents.
But, as he did not challenge the assertion of privilege with regard
to the request for documents below, that argument is waived. Maine
Green Party, 173 F.3d at 4.
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Even if we were to assume prejudice, however, we see no
basis for finding an abuse of discretion. Below, the AG Office
argued that a deposition would be duplicative, given the discovery
materials already produced. The District Court then granted the
AG Office's motion to quash while stating:
The Attorney General's (AG) Office represents
that it previously provided plaintiff with
'all non-privileged documents [120 pages of
records] in its possession' as requested in
Schedule A of the Rule 30(b)(6) deposition
subpoena, along with a privilege log of the
withheld documents. The court has no reason
to doubt the AG's claims of privilege, and, as
a nonparty, governmental entity, the Office
has gone above and beyond its obligations.
In now challenging that order, Delaney's only argument
addressing duplication appears to rest on the assertion that a
deposition would entitle him to inquire into matters not disclosed
in the documents that he received during discovery. But, the
materials not disclosed in the documents he received during
discovery were, as the AG Office stated in its privilege log,
privileged. And Delaney never challenged the AG Office's assertion
of privilege regarding those documents. Moreover, to the extent
Delaney premises his argument on the notion that he would have
asked for other information than was contained in those privileged
documents during a deposition, that argument fails to persuade
because he does not identify any such information that he would
have sought.
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Thus, Delaney has identified no way in which the District
Court abused its discretion in denying the motion to quash.
Accordingly, his challenge to this ruling fails.
V.
For the foregoing reasons, the District Court's decision
is affirmed.
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