STEARNS, District Judge.
John Corbin, a correctional officer employed by the Plymouth County Sheriff's
The facts, in the light most favorable to Corbin as the nonmoving party, are as follows.
On or about January 9, 2008, Corbin was working his regular shift with fellow officer John Gillis, supervising inmates inside a housing unit at the Plymouth Jail. Defs.' SOUF ¶¶ 12, 19. Christopher Flynn, a selectman for the town of Bridgewater, was escorted into the unit by Sergeant Danette Britto as part of a tour of the Jail.
Britto later told Gillen and Moniz that Corbin stated to Flynn that, "This place sucks," that he hated the current Sheriff, Joseph McDonald, and that McDonald "sucks." Id. On January 15, 2008, Assistant Deputy Superintendent Michael Duggan interviewed Flynn about his conversation with Corbin. Id. ¶ 16. Flynn verified Britto's statement that Corbin had told him that he hated his job and that he hated Sheriff McDonald, and that the Sheriff "didn't know what he's doing." Id. Flynn denied, however, that Corbin had used the word "sucked" in describing McDonald. Id.
On January 17, 2008, Corbin was interviewed by Department investigators. Id. ¶ 17. Corbin denied making pejorative comments about McDonald to Flynn, although during the interview he referred to the Sheriff as a "moron." Id. On January 18, 2008, the Department suspended Corbin without pay, pending further investigation.
On January 22, 2008, Corbin called Tamara Race, a reporter for the local Quincy Patriot Ledger newspaper. Id. ¶ 22; Compl. ¶ 14. In an article published on January 24, 2008, Race wrote that Corbin believed that he had been suspended because he had "bad-mouth[ed] Sheriff Joseph McDonald in a private conversation." Defs.' Mot. for Summ. J., Ex. M. Race quoted Corbin as follows: "`I expressed my distaste for the current administration,' he said. `I said there was no leadership, and that it was total chaos and a complete circus.' ... Corbin said he believes Flynn shared parts of the conversation with special Sheriff Gerald Pudolsky, prompting the disciplinary action.'" Id. Corbin contends that Race misquoted him and, in any event, he intended his remarks to be off-the-record. Compl. ¶¶ 14-15; Defs.' SOUF ¶ 25.
On January 30, 2008, Corbin was formally suspended without pay for thirty days. Defs.' SOUF ¶ 29. As reasons, the Department cited Corbin's "disrespectful and unprofessional" encounter with Flynn, the reference to the Sheriff as a "moron" in the interview with investigators, the telephone conversation in which Corbin called the special Sheriff an asshole, and his failure to cooperate fully with the investigation. Id. Corbin was also ordered to undergo a fitness for duty evaluation prior to returning to work. Id. ¶ 30.
Corbin invoked his right to arbitrate both the thirty-day suspension and the order that he submit to a psychological evaluation. Id. The arbitrator found that although Corbin had violated the Department's regulations by acting in a disrespectful and insubordinate manner, he deserved only a six day suspension. The arbitrator also found that the Department had improperly ordered Corbin to undergo the evaluation as there was no "real question about his health to justify [it]."
Corbin returned to work without incident until April of 2008. On April 24, 2008, Corbin was cited for not making all of the required hourly rounds of his unit and for failing to record the rounds in the unit logbook. Defs.' SOUF ¶¶ 32-36.
Summary judgment is appropriate when "the movant shows 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). "To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). If this is accomplished, the burden then "shifts to the nonmoving party to establish the existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [nonmoving party]." Id.
The nonmoving party "must adduce specific, provable facts demonstrating that there is a triable issue." Id. (internal quotation marks omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphases in original). "Trialworthiness requires not only a `genuine' issue but also an issue that involves a `material' fact." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995).
"Public employees do not lose their First Amendment rights to speak on matters of public concern simply because they are public employees." Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007). To be protected, the plaintiff-employee's speech must be on a matter of public concern, and the employee's interest in expression must not be outweighed by the government's interest as an employer in promoting the efficient delivery of its services.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-148, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). "[T]he greater the value of the subject of the speech to the public, the more the balance tilts towards permitting the [government] employee to express himself." Guilloty Perez v. Pierluisi, 339 F.3d 43, 53 (1st Cir.2003). An employee's First Amendment interests are entitled to the greatest weight "where he is acting as a whistleblower in exposing government corruption." Conaway v. Smith, 853 F.2d 789, 797 (10th Cir.1988). "An employee who makes an unprotected statement is not immunized from discipline by the fact that this statement is surrounded by protected statements." Waters, 511 U.S. at 681, 114 S.Ct. 1878.
Corbin and defendants agree that Corbin was suspended primarily because
Corbin's First Amendment claim fails as a matter of law for two reasons. In the first instance, the remarks to Flynn (whatever the value of their content) were made in the performance of Corbin's duties as a correctional officer and were therefore not protected speech. Corbin, it will be recalled, testified that he was frequently called upon to speak to visitors during jail tours and that in doing so he spoke as a representative of the Department. See fn. 4, supra.
In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court, in effect, carved an exception out of the First Amendment for work-related speech. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421, 126 S.Ct. 1951. The Court in Garcetti distinguished between an employee speaking "as a citizen addressing a matter of
In the second instance, there is nothing in the substantive content of Corbin's "speech" (whether by his version or that of the other witnesses) that penetrates the realm of public concern. In Curran, a case very much on point, an off-duty Essex County correctional officer used the Essex County Correctional Officers Association website to post a statement accusing the Essex County Sheriff "of using political favoritism rather than merit in making personnel decisions as to non-policymaking employees." 509 F.3d at 40, 46. The First Circuit held that there was "public interest value" in the contents of the posting. Id. at 46. The Court contrasted this protected speech with prior comments that Curran had "made in the course of his duties within the Department, to his superiors, and during a discussion of official Department policy." Id. at 45-46. The latter comments were unprotected, as they involved internal complaints about the management of the Department that did not rise to matters of public concern. Id. at 46. See also Jordan, 428 F.3d at 73 (discussions of "internal working conditions" are not matters of public interest); Rosado-Quinones v. Toledo, 528 F.3d 1, 5 (1st Cir.2008) (accusations about officers in police department that were personal in nature did not "implicate the ability of [law enforcement] personnel to carry out their responsibility to the public, i.e., the provision of competent law enforcement services" and thus did not elevate the comments to matters of public concern.). Here, Corbin's insulting and disparaging remarks about the Sheriff (a "moron" whom he "hated") and the intensity of his dislike of his job with the Department had even less relevance to any meaningful public discourse. See Meaney v. Dever, 326 F.3d 283, 289 (1st Cir.2003) (an employee's expression of frustration with a superior does not qualify as a matter of public concern).
The Supreme Court, in a series of decisions beginning with Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), has declared it a violation of the First Amendment for government officials to take adverse actions — at least of a certain level of severity and with certain exceptions — against government employees based on their political party affiliation.
Corbin claims that he was wrongly suspended in May of 2008 for displaying a bumper sticker on his personal car supporting McDonald's election opponent. Corbin concedes that he has "no proof" that either Gillen or Moniz knew of the bumper sticker before issuing the suspension, or that either defendant was motivated by his political affiliation. Defs.' SOUF ¶ 39. Corbin relies solely on the proximity of the two events. (The bumper sticker was placed on the car in April of 2008). This is insufficient. See Maymi v. Puerto Rico Ports Auth., 515 F.3d 20, 28 (1st Cir.2008) ("The mere fact that an adverse action was taken after an employee exercises First Amendment rights is not enough to establish a prima facie case."). More importantly, Corbin does not contest that he violated Department regulations regarding the making and recording of hourly rounds, which was the reasonable explanation given by the Department for the imposition of discipline. See Def's SOUF ¶ 37.
For the foregoing reasons, defendants' motion for summary judgment is ALLOWED.
SO ORDERED.
