USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1229
CHARLES LAROU,
Plaintiff, Appellant,
v.
WESLEY RIDLON,
IN HIS OFFICIAL AND INDIVIDUAL CAPACITY AS
SHERIFF OF CUMBERLAND COUNTY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Cyr and Lynch, Circuit Judges.
______________
____________________
Stuart Tisdale for appellant.
______________
William R. Fisher, with whom Monaghan, Leahy, Hochadel & Libby
_________________ _________________________________
was on brief for appellee.
____________________
October 28, 1996
____________________
CYR, Circuit Judge. Appellant Charles LaRou challenges
CYR, Circuit Judge.
_____________
the district court's summary judgment rulings rejecting his
political discrimination claims against Cumberland County (Maine)
Sheriff Wesley Ridlon. We affirm the district court judgment.
I
I
BACKGROUND1
BACKGROUND
__________
Approximately two years after LaRou joined the
Cumberland County Sheriff's Department ("Department") in April
1989, he was designated "Lieutenant, Programs Coordinator" by
Sheriff Ridlon. Previously, Ridlon had told LaRou that one of
his new responsibilities would be to gather adverse information
that might enable Ridlon to fire Sergeant Christopher Muse, whom
Ridlon considered a political rival.2 LaRou responded that he
would keep his eyes open, but would not participate in a witch
hunt. Despite repeated requests from Ridlon, LaRou reported no
adverse information about Muse. Ridlon nevertheless appointed
LaRou to a captaincy and made him the Administrative Aide respon-
sible for inmate programs and officer training (Administrative
Aide/Programs) in October 1991. In November 1993, howev-
er, all three captains in the Department, including LaRou, were
reassigned to newly-created "shift commander" positions. The
transfer memo stated that the shift commander assignments were to
____________________
1The material facts in genuine dispute are related in the
light most favorable to LaRou. Velez-Gomez v. SMA Life Assur.
___________ _______________
Co., 8 F.3d 873, 875 (1st Cir. 1993).
___
2In 1990, Muse had gone to Ridlon and informed him that he
planned to run against Ridlon in 1994.
2
remain in effect until further notice. LaRou regarded his new
night shift commander assignment as a temporary demotion, even
though he had been relieved of all training program duties and a
Ridlon political supporter had been appointed to succeed him as
Administrative Aide/Programs. LaRou was never told that he would
or would not be redesignated Administrative Aide/Programs.
In December 1993, Sergeant Muse first informed LaRou
that he intended to run against Ridlon for the Democratic nomina-
tion for Sheriff. Although LaRou thereafter actively supported
the Muse campaign, Ridlon ultimately won both the Democratic
nomination and, on June 14, 1994, a second term as Sheriff.
In January 1995, while still serving as the night shift
commander, LaRou saw a posting for the position of "Programs
Manager," which he believed to be essentially identical to his
previous position of Administrative Aide/Programs. LaRou prompt-
ly contacted the Cumberland County Personnel Manager, who advised
that as far as Cumberland County was concerned LaRou was still
the Administrative Aide/Programs. LaRou did not apply for the
newly-posted position, however, because he felt that it remained
his by right and that he was being forced out by Ridlon in
retaliation for supporting Muse in the 1994 political campaign.
The district court rejected LaRou's retaliation claim
relating to the November 1993 "demotion" to night shift commander
as a "chronological impossibility," given the statement by Muse
that LaRou had been the first person in the department whom he
had told (in December 1993) about his plan to run for Sheriff,
________
3
which was after LaRou's November 1993 "demotion" to night shift
_____ ________
commander.3 Second, the district court ruled that the retalia-
tion claim based on the wrongful permanent elimination, in
January 1995, of the Administrative Aide/Programs position
previously held by LaRou, amounted to a mere restatement of the
November 1993 retaliatory "demotion" claim, and hence was not
actionable.
II
II
DISCUSSION
DISCUSSION
__________
1. The Standard of Review
1. The Standard of Review
______________________
We review a grant of summary judgment de novo, Velez-
__ ____ ______
Gomez, 8 F.3d at 874-75, and will affirm it if "the pleadings,
_____
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact, and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
As a nonpolicymaking governmental employee, LaRou could only
avert summary judgment on his political discrimination claim
by pointing to evidence in the record which,
if credited, would permit a rational fact
finder to conclude that the challenged per-
sonnel action occurred and stemmed from a
politically based discriminatory animus....
Without more, a nonmoving plaintiff-
employee's unsupported and speculative asser-
tions regarding political discrimination will
not be enough to survive summary judgment.
Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994) (cita-
____________ ______
tions omitted).
____________________
3We do not reach this ground.
4
5
2. The 1993 Retaliation Claim
2. The 1993 Retaliation Claim
__________________________
LaRou claims on appeal that Ridlon (i) knew Muse
planned to oppose Ridlon in the 1994 primary, see supra note 2,
___ _____
(ii) Ridlon originally promoted LaRou with instructions to find
grounds for dismissing Muse, and (iii) LaRou ultimately was
"demoted" for failing to provide Ridlon with adverse information
about Muse and for forming instead a successful working relation-
ship with Muse. The 1993 retaliation claim fails, however, even
assuming Ridlon caused LaRou to be "demoted" based on a retalia-
tory motive, since LaRou was engaged in no protected political
activity at the time. The First Amendment protects
nonpolicymaking public employees from discrimination based on
their political beliefs or affiliation. Branti v. Finkel, 445
______ ______
U.S. 507 (1980). See also Romero-Barcelo v. Hernandez-Agosto, 75
___ ____ ______________ ________________
F.3d 23, 34 (1st Cir. 1996). The plaintiff-employee in a politi-
cal retaliation case "must bear the threshold burden of producing
sufficient direct or circumstantial evidence from which a jury
reasonably may infer that [his] constitutionally protected
conduct . . . was a `substantial' or 'motivating' factor behind"
the adverse employment action taken by the defendant official.
Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993). The
____________ ______
burden then shifts to the defendant official to articulate a
nondiscriminatory basis for the adverse employment action, and
prove by a preponderance of the evidence that the adverse action
would have been taken regardless of any discriminatory political
motivation. Id. See also Mt. Healthy City Sch. Dist. Bd. of
___ ___ ____ ____________________________________
6
Educ. v. Doyle, 429 U.S. 274, 287 (1977).
_____ _____
Under the Mt. Healthy burden-shifting analysis, LaRou's
___________
retaliation claim falters at the outset. In similar circumstanc-
es, see Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49 (1st
___ _______________ __________________
Cir. 1990), we rejected a political discrimination claim that an
administrator had been constructively discharged from the judi-
cial branch of the Commonwealth of Puerto Rico due to his prior
association with a former judge who held political views at odds
with the defendant officials. We explained that
a politically charged atmosphere . . ., with-
out more, provide[s] no basis for a reason-
able inference that defendants' employment
decisions about plaintiff were tainted by
_________
their disregard of plaintiff's first amend-
___________
ment rights. Absent a constitutionally pro-
tected aspect, a "close relationship" with a
third party is insufficient . . . notwith-
standing that consideration of the third
___ _____
party's political beliefs may have entered
_______ _________ _______
into the decisionmaking calculus.
Id. at 58 (citation omitted). As we stressed in Correa-Martinez,
___ _______________
the plaintiff is required to show that "a causal connection
exists linking defendants' conduct, as manifested in the adverse
employment decision, to plaintiff's politics." Id. See also
___ ___ ____
Aviles-Martinez v. Monroig, 963 F.2d 2, 5 (1st Cir. 1992) (plain-
_______________ _______
tiff-employee must show causal connection between his political
affiliation and the adverse treatment).
LaRou claims he was "demoted" to night shift commander
because he did not abide by Ridlon's instructions to gather
information which would enable Ridlon to fire Muse. LaRou does
not claim, however, nor does the record indicate, that LaRou
7
provided Muse with political support prior to his alleged "demo-
tion" in November 1993. Although Ridlon and Muse had had politi-
cal differences as early as 1990, as of November 1993 Ridlon and
LaRou had not; and LaRou does not claim that he then knew Muse
intended to oppose Ridlon.4 Thus, for aught that appears in the
record, LaRou's relationship with Muse in November 1993 was not
political. LaRou himself asserts that he chose not to
provide Ridlon with adverse information about Muse because he and
Muse had developed a successful professional relationship, which
resulted in many noteworthy advances in officer-training proce-
dures. Conspicuously absent is any suggestion that LaRou was
motivated by Muse's political plans, affiliation, or beliefs.5
Since the record does not disclose that LaRou was engaged in any
protected political activity, the alleged "demotion" in November
____________________
4At his deposition, LaRou was asked whether he and Muse had
ever discussed Muse's political campaign prior to LaRou's "demo-
tion" in November, 1993. After stating that it was "most likely"
that such a conversation occurred, LaRou explained:
I was moved out in November of '93 and that
was very early - very early. And if there
was ever any mention of it, it certainly
wasn't a strategic mentioning because there
was no strategy at that time. That's very
early. So there may have been a sideline
comment, there may have been a joke made. I
really couldn't say. Nothing jumps up at me
of a conversation or anything, but I wouldn't
doubt that it happened. It could have hap-
pened.
LaRou Dep. at 88.
5In his affidavit, LaRou indicates that he undertook to
scrutinize Muse's job performance for Ridlon, but later developed
a close working relationship with Muse.
8
1993 did not give rise to a cognizable political discrimination
claim even assuming Ridlon's adverse employment action was based
on his political differences with Muse, and he took those differ-
ences out on LaRou. See Correa-Martinez, 903 F.2d at 58.
___ _______________
3. The 1995 Job Posting
3. The 1995 Job Posting
____________________
LaRou attempts to assert a discrete retaliation claim
in connection with the January 1995 posting of the "Programs
Manager" position. Up until that time, LaRou says, he had
believed that his November 1993 "demotion" to night shift com-
mander was merely temporary, and that he would be returned to his
former position some day. He adds that the position title was
changed at the time of the posting in January 1995 to justify his
final removal, and that his "permanent" loss of the position in
1995 was in retaliation for his support of Muse's 1994 bid for
Sheriff. The 1995 retaliation claim nonetheless fails because
LaRou was subjected to no cognizable adverse employment action as
a result of the simple posting of the "Programs Manager" position
in January 1995. See Connell v. Bank of Boston, 924 F.2d 1169,
___ _______ _______________
1179 (1st Cir.), cert. denied, 501 U.S. 1218 (1991)6 ("Most cases
____ ______
involving a retaliation claim are based on an employment action
____________________
6Although Connell involved ADEA claims rather than 1983,
_______
its analysis is persuasive. The fundamental meaning of "adverse
employment action" should remain constant regardless of the
particular enabling statute, given their similar anti-
discriminatory purpose. Indeed, in Blackie v. State of Maine, 75
_______ ______________
F.3d 716, 725 (1st Cir. 1996), a case involving the Fair Labor
Standards Act, this court observed generally that "[i]n a
retaliation case, as in virtually any other discrimination case
premised on disparate treatment, it is essential for the plain-
tiff to show that the employer took a materially adverse employ-
ment action against him."
9
which has an adverse impact on the employee, i.e., discharge,
demotion, or failure to promote."); see also Rutan v. Republican
___ ____ _____ __________
Party of Illinois, 497 U.S. 62, 75 (1990); Welsh v. Derwinski, 14
_________________ _____ _________
F.3d 85, 86 (1st Cir. 1994).
We first examine the particular retaliatory action
relied upon by the plaintiff employee to determine whether it had
the requisite adverse effect. Id.; cf. also Blackie v. State of
__ __ ____ _______ ________
Maine, 75 F.3d 716, 725 (1st Cir. 1996) (noting that "determining
_____
whether an action is materially adverse necessarily requires a
case-by-case inquiry.") (Fair Labor Standards Act case). Even
assuming, without deciding, that the generous definition of
"adverse employment action" propounded in Blackie likewise
_______
applies here, LaRou cannot bring the present claim within it.7
Under Blackie, LaRou might make out a retaliation claim were he
_______
to demonstrate that Ridlon had refused to promote (or transfer)
him to the Programs Manager position posted in 1995, or refused
to consider him for the position despite a duty to do so.
Although LaRou contends that the mere posting of the
____________________
7In Blackie, we stated:
_______
Typically, the employer must (1) take some-
thing of consequence from the employee, say,
by discharging or demoting her, reducing her
salary, or divesting her of significant re-
sponsibilities; or (2) withhold from the
employee an accoutrement of the employment
relationship, say, by failing to follow a
customary practice of considering her for
promotion after a particular period of ser-
vice.
Id. (citations omitted).
__
10
Programs Manager position in 1995 adversely affected his employ-
ment because at the time he still "believed" he would be returned
to his prior position as Administrative Aide/Programs, he offers
no evidence which would enable a rational trier of fact to find
that this "belief" was based on anything but conjecture. Simi-
larly, he proffers no evidentiary foundation for the stated
belief that his transfer to shift commander in November 1993 was
temporary.
LaRou baldly attests in his affidavit that he was told
the transfer to shift commander was to be temporary, without
identifying, either by name or position, the source of the
hearsay statement. Thus, the unattributed statement is incompe-
tent, see Fed. R. Civ. P. 56(e) (affidavit "shall set forth such
___
facts as would be admissible in evidence"), since it is inadmis-
sible hearsay, see Fed. R. Evid. 801(d)(2) (out-of-court state-
___
ment offered for truth of matter asserted not hearsay if attrib-
utable to party-opponent or agent). See also Woodman v.
___ ____ _______
Haemonetics Corp., 51 F.3d 1087, 1094 (1st Cir. 1995).
_________________
The only competent record evidence indicates that the
November 1993 "demotion" was permanent. According to Frank
Amoroso, Cumberland County Jail Administrator, the 1993 realign-
ment of the three captains was part of an overarching plan. The
Administrative Aide/Programs position was to be eliminated and
with it one captaincy and replaced with a Programs Manager
position. Moreover, Amoroso explained the plan to the three
captains, including LaRou, at a staff meeting, and requested
11
their input. Thus, LaRou proffers no competent evidence to
remove the 1995 job posting claim from "the realm of speculative,
general allegations." See Kauffman v. Puerto Rico Telephone Co.,
___ ________ _________________________
841 F.2d 1169, 1173 n.5 (1st Cir. 1988).
LaRou asserts that he called the personnel director
after seeing the Programs Manager position posting, and was told
that, as far as Cumberland County was concerned, he was still the
Administrative Aide/Programs. This statement cannot help LaRou,
however, since he concededly knew that the newly posted Programs
__________ ____ ____ ___ _____ ______ ________
Manager position encompassed his former position of Administra-
_______ ________ ___________ ___ ______ ________
tive Aide/Programs, yet he elected not to apply for the newly
___ __ _______ ___ __ _____
posted position. In these circumstances, reliance on the person-
nel director's statement, indicating merely that no official
change of status had been noted in LaRou's personnel file, is
patently insufficient to generate a trialworthy issue.
Absent some competent evidentiary basis for the stated
belief that the 1993 transfer was merely temporary, at the very
least LaRou plainly bore the responsibility to apply for the
posted position which he knew encompassed his former position.
Failing which, we are at a loss to understand how the 1995
posting alone could be found to have been "retaliatory." Even
assuming the newly posted position were LaRou's by right, he does
not explain how Ridlon could be found to have acted out of a
retaliatory motive simply in posting the position in 1995, absent
any evidence that Ridlon knew LaRou claimed his former position
or was interested in the newly posted position. Without such
12
evidence, it was incumbent upon LaRou to alert the appropriate
decisionmakers to his interest in, or claim to, the posted
position.8 Thus, LaRou failed to generate a trialworthy claim
that Ridlon harbored an actionable retaliatory motive in posting
the programs manager position in 1995.
Finally, given the unchallenged evidence that LaRou
elected not to apply for the newly posted position in 1995, he
cannot point to a plausible dispute that Ridlon engaged in an
"adverse employment action" simply by posting the programs
manager position. See Boarman v. Sullivan, 769 F. Supp. 904,
___ _______ ________
910-11 (D.Md. 1991); cf. also Sinai v. New England Tel. and Tel.
__ ____ _____ ___ _______ ____ ___ ____
Co., 3 F.3d 471, 474 (1st Cir. 1993), cert. denied, 115 S. Ct.
___ _____ ______
597 (1994) (Title VII); Sherpell v. Humnoke Sch. Dist. No. 5 of
________ _______ ____ _____ ___ _ __
Lonoke Cty., 750 F. Supp. 971, 980 (E.D. Ark. 1990), aff'd, 985
______ ____ _____
F.2d 566 (8th Cir. 1991) (finding that "there could be no `ad-
verse employment action' by defendant until plaintiff applied for
a job") (Title VII discrimination and retaliation claims). We
accordingly hold that the mere posting of a position does not
constitute an "adverse employment action" even though the posi-
tion posted is known to encompass a prior position from which the
plaintiff was demoted or transferred, provided the plaintiff
____________________
8Although LaRou claims to have sent a letter to the person-
nel director explaining why he was not applying for the newly
posted position, it is not included in the record on appeal. See
___
Real v. Hogan 828 F.2d 58, 60 (1st Cir. 1987)("If [the record]
____ _____
proves inconclusive, it is the appellant who must bear the brunt
of an insufficient record on appeal."). See also Moore v.
___ ____ _____
Murphy, 47 F.3d 8, 10-11 (1st Cir. 1995); United States v.
______ ______________
Mottolo, 26 F.3d 261, 264 n.3 (1st. Cir. 1994).
_______
13
received proper notice of the posted position and elected not to
apply.
The district court judgment is affirmed, without costs
___ ________ _____ ________ __ _________ _______ _____
to either party.
__ ______ _____
14
