Filed: Jul. 16, 2015
Latest Update: Mar. 02, 2020
Summary: subsidy could not be claimed by both Bradstreet and McCue.summary judgment. Shafmaster v. United 13 States, 707 F.3d 130, 135 (1st Cir.retaliatory intent.the Mt. Healthy defense by pointing to two facts in the record.had not appealed the subsidy decision.the DEP proceed with enforcement actions.
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
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 Amendment-
protected 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
- 3 -
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.
- 4 -
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
- 5 -
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."
- 6 -
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."
- 7 -
(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
- 8 -
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.
- 9 -
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
- 10 -
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
- 11 -
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
- 12 -
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 non-
moving party while ignoring conclusory allegations, improbable
inferences, and unsupported speculation." Shafmaster v. United
- 13 -
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.
- 14 -
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
- 15 -
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).
- 16 -
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 inter-
departmental 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
- 17 -
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 present-
progressive tenses -- that it "looks like Agriculture is going to
give [McCue] up after all." And so, too, does Crowley's subsequent
- 18 -
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.
- 19 -
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
- 20 -
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
- 21 -
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.
- 22 -
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
- 23 -
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 earlier-
expressed 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.
- 24 -
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.
- 25 -
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.
- 26 -
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
- 27 -
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
- 28 -
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).
- 29 -
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
- 30 -
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
- 31 -
"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.
- 32 -
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.
- 33 -
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
- 34 -
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 post-
recusal 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 post-
recusal 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
- 35 -
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
- 36 -
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
- 37 -
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
- 38 -
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
- 39 -
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).
- 40 -
