
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2092                                    DONNA SINGER,                                 Plaintiff, Appellee,                                          v.                               STATE OF MAINE, ET AL.,                                 Defendant, Appellee.                                  __________________                                JOHN LAFAVER, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Roy S. McCandless, with whom Charles  A. Harvey, Jr., and  Verrill            _________________            _______________________       _______        & Dana  were on brief for appellee State of Maine, Bureau of Taxation,        ______        and  appellants  John LaFaver,  David  Campbell,  Stephen Murray,  and        Elizabeth Dodge.            Joyce  A. Oreskovich, with  whom Claudia  C. Sharon,  and Sharon &            ____________________             __________________       ________        Oreskovich were on brief for appellee.        __________                                 ____________________                                    April 13, 1995                                 ____________________                      BOWNES, Senior Circuit  Judge.   Plaintiff-appellee                      BOWNES, Senior Circuit  Judge.                              _____________________            and defendants-appellants  were  employees of  the  State  of            Maine  Bureau of  Taxation ("Bureau")  when this  suit arose.            Defendants  were senior  management supervisors.1   Plaintiff            Donna  Singer was a tax  examiner in the  Collections Unit of            the  Enforcement Division.   Singer  was discharged  from the            Bureau  in November 1992, less  than a year  after she (along            with six other Bureau employees) filed both state and federal            age and sex discrimination claims against her employers.                        In February 1994,  after having received  right-to-            sue  letters  from both  the  Maine  Human Rights  Commission            ("MHRC")  and  the  Equal Employment  Opportunity  Commission            ("EEOC"), Singer filed suit in the district court against the            Bureau and these defendants  in their official and individual            capacities.  The  complaint alleged that defendants  violated            state  and federal law by  firing her in  retaliation for her            having  filed the  discrimination claims  against them.   The            complaint  also alleged, under 42  U.S.C.   1983,  that:  (i)            the process by which  Singer was terminated violated  her due            process  rights  under  the Fourteenth  Amendment;  and  (ii)            defendants  violated   her  Fifth  Amendment   right  against                                            ____________________                  1.  Defendant  John  LaFaver  was State  Tax  Assessor;            David Campbell  was Director  of the Administrative  Services            Division  of the Department  of Administrative  and Financial            Services;  Stephen Murray  was  Director  of the  Enforcement            Division;  and Elizabeth  Dodge  was Acting  Director of  the            Enforcement Division.                                         -2-                                          2            compelled self-incrimination by firing her  after she refused            to answer  questions asked  during an investigation  into her            conduct as a Bureau employee.  In  response   to  defendants'            motion for summary judgment on all counts, the district court            held first, that Singer's  cause of action under 42  U.S.C.              1983  was  barred  against  the  Bureau  and  the  individual            defendants in  their official capacities.   Second, the court            denied  defendants'  motion  for  summary   judgment  on  the            retaliation  claims.     Third,  the  court   held  that  the            individual defendants were entitled to qualified immunity  as            to the  Fourteenth Amendment claim, and  granted their motion            for summary  judgment.  Singer  does not appeal  this ruling.            Finally,  the court  denied  defendants'  motion for  summary            judgment with  respect to the Fifth  Amendment claim, holding            that  they were not entitled to qualified immunity.  The sole            issue  on  appeal  is  whether  defendants  are  entitled  to            qualified immunity on the Fifth Amendment claim.  We reverse.                                    I.  Background                                    I.  Background                                        __________                      On appeal from a denial of a defendant's motion for            summary  judgment, the court must view the facts in the light            most favorable  to the plaintiff.   Cotnoir v.  University of                                                _______     _____________            Maine  Sys.,  35 F.3d  6, 8  (1st  Cir. 1994)  (citing Febus-            ___________                                            ______            Rodr guez  v. Betancourt-Lebr n,  14  F.3d 87,  89 (1st  Cir.            _________     _________________            1994)).    Both  cases  turned  on  the  issue  of  qualified            immunity.                                             -3-                                          3                      In February 1992,  Singer joined  six other  Bureau            employees in filing age  and sex discrimination claims, first            with the MHRC,  and later with the EEOC.2   In a letter dated            April 29, 1992, addressed to defendants Campbell and LaFaver,            the MHRC requested information relating to the discrimination            complaint ("the  complaint"), and  asked that  certain Bureau            representatives  be  present  at  a  fact-finding  conference            scheduled for June  5, 1992.   Over the  next several  months            following the  filing of the complaint, the MHRC conducted an            investigation of  the claims  alleged therein.3   During this            period, certain  incidents occurred  which  caused Singer  to            feel that  she was  being "singled  out" for  questioning and            disciplinary action  in retaliation for her  involvement with            the complaint.                        The first  incident occurred on May  29, 1992, when            Singer  was  questioned  by  a  supervisor,  Frank  Hiscock,4            apparently for the first time  in her twenty-one year  career            with  the  Bureau,  about a  pattern  of  tardiness.   Singer            explained  that  unforeseeable tardiness  was  an unavoidable                                            ____________________            2.  Prior  to February 1992,  Singer had never  filed a union            grievance; she had, however,  filed a previous complaint with            the  MHRC, when  she  was "passed  over" for  the job  of tax            examiner in the early 1980's.            3.  The EEOC  held its own investigation  in abeyance pending            the outcome of the MHRC investigation.            4.  Hiscock is not a  party to this litigation, but was among            those whose  presence was requested at  the MHRC fact-finding            conference.                                         -4-                                          4            consequence of a disability  from which she had  suffered for            fifteen years  prior  to this  incident.   According  to  the            defendants, the Bureau had no previous knowledge or record of            Singer's disability  and the  decision to question  her about            her tardiness was in no way connected to her involvement with            the complaint.                        For her  part, Singer maintains that  her tardiness            had never before been  an issue; that, prior to the filing of            the complaint, her tardiness  had been neither documented nor            questioned by any supervisor;  and that, when she  was tardy,            she  always made  up the  time at  the end  of the  day.   In            response to  the supervisor's  request, Singer arranged  with            her  attorney   and  doctor   to  provide  the   Bureau  with            documentation  of  her  medical   condition.    The  attorney            informed defendant LaFaver of Singer's  disability soon after            the May incident,  and the doctor  prepared the statement  in            early  June.  By  error, however, the  doctor's statement was            not sent to the Bureau at that time.                        On October  16, 1992,  Singer was again  confronted            with the  issue  of  tardiness  by  a  new  supervisor,  Mark            Hathaway,5  a  former  co-worker,  who  stated  that  he  was            unaware of  her disability  and  that there  was no  doctor's            confirmation  of  her  condition  on file  with  the  Bureau.                                            ____________________            5.  Like  Hiscock, Hathaway is not a party  to this suit, but            his attendance  at the MHRC fact-finding  conference was also            requested.                                         -5-                                          5            Singer's   attorney   subsequently   enclosed  the   doctor's            statement with  a letter  to defendant Murray,  dated October            21, 1992.                      Singer's  belief  that she  had  been targeted  for            discipline because  of her  involvement in the  complaint was            buttressed  by  her  discovery  that,  some  time  after  the            complaint was  filed, defendant Campbell, in  a memorandum to            Sawin Millet,  Commissioner of the State  of Maine Department            of Administrative  and  Financial Services,  had referred  to            Singer as one of the "troublemakers" at the Bureau.                      In  late  August  1992,  an  incident  ("the  TRACE            incident") occurred, which prompted the Bureau to investigate            Singer's  conduct as  a Bureau employee.   To  understand the            TRACE incident, it  is necessary to know  more about Singer's            job.    A  tax  examiner  in  the  Collections Unit  monitors            delinquent taxpayer accounts and contacts these  taxpayers in            an  effort to collect the taxes owed.  Each examiner services            many  hundreds of  accounts.   Information  relating to  each            account, along with information  regarding contacts made  and            actions taken by the examiner, are recorded in a computerized            system  known as  TRACE.   The examiner's  first step  in the            collection  process is  to attempt  to make  personal contact            with the taxpayer, by telephone or in writing.   In the event            the  examiner is unsuccessful in her  attempts to collect the            taxes, the  next step is to  issue a levy demand  against the                                         -6-                                          6            taxpayer, which notifies the  taxpayer that the debt  must be            paid within ten days, and outlines the actions to be taken if            payment  is not  received within  that time.   These  actions            include,  but are  not limited  to, involuntary  wage levies,            liens, seizure of property, and public disclosure of the debt            in court.  If  the debt is not  paid in response to  the levy            demand, the  state  is  allowed to  take  possession  of  the            taxpayer's assets in lieu of payment.                      By law and Bureau policy, employees are required to            maintain the confidentiality of all taxpayer records.  Bureau            policy   requires  that   each  employee  sign   a  statement            acknowledging   both   the    responsibility   to    maintain            confidentiality and  that the unauthorized disclosure  of tax            information  could  result  in immediate  dismissal  and  the            imposition of penalties under state and federal law.   Singer            signed confidentiality statements in 1985 and 1987.                      The TRACE  incident began when  a Bureau supervisor            received an anonymous telephone call from a woman who accused            a  Bureau  clerk of  discussing her  tax account  outside the            Bureau.   The accusation was apparently unfounded.  The clerk            had recently  experienced a number  of problems with  a woman            who had  become involved  with  her estranged  husband.   She            suspected that  the anonymous caller  was the same  woman and            that  the call  had been  made in  order  to cause  the clerk            trouble  with the Bureau.   Having identified the  woman as a                                         -7-                                          7            delinquent taxpayer whose active account had been assigned to            Singer, the clerk and another employee talked to Singer about            the situation.                        Singer  herself had  no personal  relationship with            the suspected caller and  did not know her.   Singer gathered            from  the conversation that the clerk  was very upset because            she thought that  she might be fired as  a consequence of the            anonymous call.  Singer  looked up the name  of the woman  in            the  TRACE system  and  noted  the  status  of  the  account.            Singer's conversation with the clerk later resumed.  When, in            the   course  of  relating  another  incident  involving  the            suspected caller, the  clerk mentioned the city  in which the            woman lived,  Singer realized  that this information  did not            comport with the address listed for that account in the TRACE            system, the  address at which Singer  tried unsuccessfully to            contact the woman a year ago, when she had last worked on the            account.  Singer then  asked for and received from  the clerk            the correct address and telephone number for the woman.                      When Singer returned to her work station, she again            called  up  the woman's  account  on  the  TRACE system,  and            recorded the following message: "[The woman] called in to try            to get [the clerk]  in trouble.  The complaint  was unfounded            and that of a  personal nature between them."   Singer argues            that it was  not at all unusual to record  such a message and            that  she did so simply  to notify other  employees who might                                         -8-                                          8            have dealings with  the account  that the  woman might  cause            problems.                        In  the course  of  recording the  message,  Singer            noticed a "CP  code" on the  system that alerted  her to  the            fact  that the  taxpayer was  listed on  another part  of the            system as  owing additional taxes.   According to  Singer, it            was  part  of her  job as  an  examiner to  consolidate these            accounts  and inform the  taxpayer of the  total amount owed.            In order  to  do that,  it was  necessary to  enter into  the            system a request  for a  levy demand.   According to  Singer,            under  these  circumstances,   in  which  the   examiner  has            previously  tried and  failed to  establish contact  with the            taxpayer,  and  must now  notify  the taxpayer  of  the total            amount  of the consolidated debt,  a levy demand  is the only            means   of   notification    available   to   the   examiner.            Accordingly, in  addition to  updating the address  and phone            number, Singer entered the following TRACE message: "Going to            have  [the accountant] send a Levy Demand on all because they            also owe for a CP under 1983."                         The clerk somehow learned of the TRACE message, was            upset by it, and reported it to her supervisor, Brian Mahany.            When  Singer learned  that  the  clerk  was upset  about  the            message, she asked to speak with Mahany about it  in order to            explain to  him what she had  done and why.   Although Singer            believed she  had  done  nothing  unusual  or  inappropriate,                                         -9-                                          9            Mahany made it clear that he thought otherwise.  After asking            her to remove  the message, which was impossible  because the            messages entered  are permanent, Mahany  instructed Singer to            add the following message: "If this lady should call with any            complaint, give call to  a supervisor."  He then  took action            to  freeze  the  levy  demand  and  reported  the  matter  to            defendants Dodge and Murray.   The Bureau's  position is that            Singer's conduct in this  regard was subject to investigation            and  possible discipline  because  Singer:   (i) removed  the            account from its predetermined position in the TRACE system's            chronological  order  of  priority  without  first attempting            personal contact  with the taxpayer; (ii)  entered a personal            message on the TRACE system and took official action  against            a taxpayer  for personal reasons;  and (iii) issued  the levy            demand  out of the normal sequence in which such action would            have been taken in the ordinary course of Bureau business.                      Singer's position is that the Bureau's response  to            the TRACE  incident is another  indication that she  had been            targeted for  discipline because of her  participation in the            MHRC  complaint.    She  argues  that  her  conduct  was  not            inappropriate because neither the message nor the actions she            took  were  personal,  unusual,  or  extreme.    Furthermore,            affidavits  sworn  by co-workers  indicate  that:   (i)  such            messages were  frequently entered into  the system, sometimes            by supervisors; (ii) at the time of the TRACE incident, there                                         -10-                                          10            were no written rules  governing such messages; and  (iii) at            the time of the incident,  the decision when to issue  a levy            demand was discretionary with the tax examiner.                       On August 27, 1992, Singer was called to a  meeting            with defendant  Dodge and  Supervisor Mahany, at  which Dodge            questioned  her about  the  TRACE incident.   Dodge  took the            position that  Singer's actions were related  to the personal            life  of a Bureau  employee, rather  than to  official Bureau            business, and therefore were inappropriate.  Singer explained            that the message was  neither personal nor unusual,  and that            her decision to issue the levy  demand had nothing to do with            the  clerk's  problems with  the  caller.   Unsatisfied  with            Singer's explanation  for her conduct, Dodge  informed Singer            that the investigation would  continue.  According to Singer,            Dodge  also asked  Singer  to provide  her  with examples  of            similar messages that had been entered into the TRACE system.                      A  meeting to  investigate  the matter  further was            scheduled  for  October  2, 1992.    On  September  30, 1992,            Singer's   attorney   called  defendant   Dodge   to  request            permission to attend the meeting.  Singer wanted her attorney            present because she  felt certain that she  was being singled            out  for  disciplinary action  in  retaliation  for the  MHRC            complaint.   The request  was granted,  but the  attorney was            unable to attend the  meeting for other reasons.   Present at            the  meeting  for   the  Bureau  were   Supervisor  Hathaway,                                         -11-                                          11            Personnel  Manager  Pat Beaudoin,  and defendants  Murray and            Dodge.   Singer was  present, represented by  Roger Parlin of            the Maine  State Employees  Association ("MSEA").   Parlin is            not an attorney.                      At the outset of  the meeting, Dodge announced that            its purpose  was to discuss  an incident related  to Singer's            work.  She  then questioned Singer  about the TRACE  incident            and Singer answered all  the questions put to her.   Although            the  record is not  clear as to exactly  what happened at the            conclusion  of   the  questioning,  it   does  establish  the            following: (i) Parlin  tried to ascertain whether it  was the            Bureau's  position  that  Singer  had broken  the  law;  (ii)            although Murray  stated that  the meeting was  a fact-finding            session  and not  a criminal  investigation, both  Singer and            Parlin believed  there to be  a threat  of criminal  charges;            (iii) Parlin  had in  his possession  copies of TRACE  screen            printouts,  which   had  been  redacted  so   as  to  exclude            confidential  taxpayer  information,   and  which   contained            messages  similar  to  the one  for  which  Singer was  under            investigation  that had been entered into the system by other            Bureau employees;6 (iv) at  some point, the defendants became                                            ____________________            6.   The record  also indicates  that, in  the course  of her            questioning of  Singer, Dodge  herself displayed  a similarly            redacted printout  of  the  TRACE  screen  at  issue  in  the            investigation, in full view of Parlin.                                         -12-                                          12            aware that Parlin had these documents  in his possession; and            (v) Parlin, followed by Singer, left the meeting abruptly.                      Concerned  that  Singer had  disclosed confidential            taxpayer   records   to    union   representatives    without            authorization,  in   violation  of  law  and  Bureau  policy,            defendants  Murray  and  LaFaver attempted  to  recover  from            Parlin and the  MSEA any confidential Bureau records in their            possession.  In one  such attempt, a letter to the MSEA Chief            Counsel dated  October 14, 1992,  LaFaver stated that  he had            reviewed  the matter  with  the State  Attorney General,  who            shared  his view that  "this situation appears  to involve an            extremely serious breach of  taxpayer confidentiality."   The            MSEA  maintained   throughout  that  it  did   not  have  any            confidential taxpayer information.                      Meanwhile,  in  letters  to defendants  Murray  and            Dodge, dated  October 21 and October  27, 1992, respectively,            Singer's attorney  stated that she understood  Singer to have            been  threatened  with  criminal  charges at  the  October  2            meeting, and asked to  be advised of the nature and status of            those charges.  In  both letters, the attorney made  it clear            that  Singer  would  not  be  allowed  to  meet  with  anyone            concerning criminal  charges without benefit of  counsel.  In            the letter of  October 27,  the attorney also  said that,  in            order  to advise her client, she needed to know the questions            that would be asked  at the next investigatory meeting.   The                                         -13-                                          13            Bureau did  not respond  to these requests  for clarification            regarding  the threat of  possible criminal charges perceived            by Singer and her representatives.                       The Bureau scheduled  another meeting for  November            10, 1992, in order  to ask additional questions.   The Bureau            was represented  at  this  meeting  by the  same  people  who            attended  the  October  2   meeting:    Supervisor  Hathaway,            Personnel Manager Beaudoin, and defendants  Murray and Dodge.            Singer  was  present,  represented  by  Robert McLaughlin,  a            different  MSEA  representative,  who  is  not  an  attorney.            Singer's  attorney  was  present,  but  was  not  allowed  to            participate.  At  the outset  of this meeting,  prior to  any            questioning,  McLaughlin asked  to  know the  purpose of  the            meeting, whether it was a criminal investigation, and whether            he  could tape the meeting.  Defendant Dodge replied that the            meeting  pertained only  to alleged  work-related misconduct,            that it was not a criminal investigation,  that no one at the            Bureau was empowered to conduct a criminal investigation, and            that the meeting could not be taped.                      Before proceeding with  the questioning,  defendant            Dodge told Singer that it would be to her advantage to answer            the  questions.  Singer was  neither advised of,  nor was she            asked to  waive, her Fifth Amendment  privilege against self-            incrimination.   She was not  told that there  would or would            not  be a criminal investigation  in the future;  nor was she                                         -14-                                          14            informed whether the answers  she gave at this  meeting could            be used against  her in a subsequent criminal  proceeding, or            that  she would  be  fired  if  she  refused  to  answer  the            questions put to her at this meeting.                      The first  two questions  asked whether Singer  had            provided Parlin  with TRACE screen printouts  or other Bureau            documents.    When  Singer  did not  answer  these  questions            pursuant  to  the  whispered  instructions of  her  attorney,            McLaughlin was  reminded that the attorney was not allowed to            participate  in the  meeting.   Singer's  attorney  thereupon            requested and received  a copy  of the five  questions to  be            asked, and met outside  privately with Singer and McLaughlin.            When   the   investigatory  meeting   reconvened,  McLaughlin            announced that he would not  allow Singer to answer questions            one through four (which asked whether Singer had disclosed to            Parlin  or to  anyone else  TRACE screen  printouts  or other            Bureau documents) because they were  not job related.   After            repeating  her  previous  admonition  that  it  would  be  to            Singer's advantage to answer,  defendant Dodge asked the five            questions.   The record  indicates that McLaughlin  would not            allow  Singer to answer questions one through four.  There is            no  indication  that   Singer  verbally  invoked  her   Fifth            Amendment  privilege at  any  time during  the  meeting.   In            answer  to the last question (whether  Singer agreed with the            MSEA  Chief  Counsel that  Murray  had given  a  TRACE screen                                         -15-                                          15            printout to Parlin at  the October 2 meeting)  Singer replied            that defendant Dodge, rather  than defendant Murray, had done            so.  Before the meeting adjourned, McLaughlin stated that the            MSEA had nothing confidential in its possession.                      On November  16 and  17, 1992, McLaughlin  spoke by            telephone with Personnel Manager Beaudoin.  McLaughlin stated            that Singer's attorney had reviewed the criminal statutes and            determined that admissions made by  Singer could subsequently            be  used  against her.   He  added  that Singer  would answer            questions presented in  writing if they  were related to  the            original  incident,  but  that  the questions  asked  at  the            November 10 meeting would not be answered.                        On November 19,  1992, defendant LaFaver  delivered            to Singer a  letter informing her that  the investigators had            concluded as follows: (i) Singer had ordered the  levy demand            for  personal reasons, an inappropriate activity constituting            misconduct;7 (ii)  she had given confidential  documents to a            person   not  entitled  to  possess  them,  an  inappropriate            activity   constituting   gross  misconduct;8   (iii)  Singer            refused both to  acknowledge this misconduct and to  give any            reassurances  that it  would not  be repeated;  and (iv)  the                                            ____________________            7.   According to the Bureau's report of the investigation, a            document  separate and  apart  from  LaFaver's  letter,  this            conduct constitutes grounds for disciplinary action.             8.     According  to   the  Bureau's  report,   this  conduct            constitutes grounds for dismissal.                                         -16-                                          16            Bureau could no longer  trust Singer with confidential Bureau            records.   As  a result,  Singer  was immediately  placed  on            administrative  leave,  and  dismissed  from  the  Bureau  on            November 24, 1992.  Although the letter also informed  Singer            that she  had a  right to meet  with LaFaver on  November 23,            1992, to discuss her dismissal, Singer did not do so.                          As  has been  stated, Singer  and six  other Bureau            employees had filed  discrimination complaints with the  MHRC            and  the EEOC  in February  1992.   In November  1993, Singer            received  right-to-sue  letters  from  both  agencies.     On            February  8, 1994, she filed  in the district  court the suit            giving rise to this appeal.                        We  now turn to the only issue before us on appeal,            the question  whether the individual defendants  are entitled            to qualified immunity as to the   1983 Fifth Amendment claim.                               II.  Standard of Review                               II.  Standard of Review                                    __________________                      To  the extent  a  district court  order denying  a            claim  of qualified immunity turns on an  issue of law, it is            an  appealable final decision within the meaning of 28 U.S.C.               1291.   Mitchell  v. Forsyth,  472  U.S. 511,  530 (1985);                       ________     _______            Cotnoir v. University of Maine Sys., 35 F.3d at 9.             ___________________________________                      Where  a qualified immunity  defense is asserted by            pre-trial motion, the usual summary judgment standards apply.            Amsden v. Moran,  904 F.2d  748, 752 (1st  Cir. 1990),  cert.            ______    _____                                         _____                                         -17-                                          17            denied, 498 U.S. 1041  (1991).  Accordingly, summary judgment            ______            is  proper only  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 a            judgment as a matter of law."  Fed. R. Civ. P. 56(c).                                                           III.  Discussion                                   III.  Discussion                                         __________                                A.  Qualified Immunity                                A.  Qualified Immunity                                    __________________                                          1.                                          1.                                          __                      It  is undisputed  that Singer was  discharged from            the  Bureau, in part, for her refusal to answer the questions            asked of her at the November 10 meeting.  Defendants make two            arguments on  appeal.  First,  they argue that  their actions            did not violate Singer's  Fifth Amendment rights according to            established  precedent at the time  of these events.  Second,            they argue that there was  no clearly-established right of  a            public  employee  to   refuse  to  answer  employment-related            questions  where:  (i) the employer did  not seek a waiver of            the   employee's   Fifth   Amendment   right   against  self-            incrimination; (ii)  the employee did not  actually claim the            Fifth Amendment privilege;  and (iii) the employee's  answers            were  never  used  against   her  in  a  subsequent  criminal            prosecution.                                            -18-                                          18                      Qualified   immunity   shields   public   officials            performing discretionary functions "from liability  for civil            damages  insofar as  their conduct  does not  violate clearly            established statutory  or constitutional  rights  of which  a            reasonable person  would have known."   Harlow v. Fitzgerald,                                                    ______    __________            457 U.S. 800,  818 (1982).   The right  alleged to have  been            violated must have  been clearly established  at the time  of            the alleged violation, id., and "[t]he contours  of the right                                   ___            must be  sufficiently clear that a  reasonable official would            understand  that  what  he  is doing  violates  that  right."            Anderson v. Creighton, 483 U.S. 635, 640 (1987).            ________    _________                      The  qualified  immunity  analysis focuses  on  the            objective reasonableness of the  defendant's actions.  "[T]he            relevant question is whether a reasonable official could have            believed  his  actions  were   lawful  in  light  of  clearly            established law and the information the official possessed at            the  time  of  his   allegedly  unlawful  conduct."    Febus-                                                                   ______            Rodr guez, 14 F.3d at 91 (quoting McBride v. Taylor, 924 F.2d            _________                         _______    ______            386,  389  (1st Cir.  1991))  (other citation  omitted).   In            Mitchell  v. Forsyth, 472  U.S. 511, 526  (1985), the Supreme            ________     _______            Court  characterized the  qualified  immunity  defense as  an            entitlement to "immunity from suit rather than a mere defense                            __________________            to liability . . . . "                        In applying these principles to a recent  qualified            immunity   determination,  the  Supreme  Court  stated:    "A                                         -19-                                          19            necessary  concomitant  to the  determination of  whether the            constitutional right  asserted  by a  plaintiff  is  `clearly            established'  at   the  time  the  defendant   acted  is  the            determination   of  whether  the  plaintiff  has  asserted  a            violation  of a  constitutional right  at all."   Siegert  v.                                                              _______            Gilley,  500 U.S.  226,  232 (1991).   We  subsequently cited            ______            Siegert  for  the  proposition  that  "before  even  reaching            _______            qualified immunity, a court of appeals must ascertain whether            the appellants have asserted  a violation of a constitutional            right at  all."  Watterson v.  Page, 987 F.2d 1,  7 (1st Cir.                             _________     ____            1993).   Thus, as a predicate to the objective reasonableness            inquiry,  "a  plaintiff  must  establish  that  a  particular            defendant  violated  the   plaintiff's  federally   protected            rights."  Febus-Rodr guez, 14 F.3d at 91 (citations omitted).                      _______________                      Applying these principles,  the threshold  question            in  our qualified  immunity  analysis is  whether Singer  has            established  that  defendants  violated her  Fifth  Amendment            right against self-incrimination.   There is no indication in            the record that Singer  at any time actually stated  that she            was refusing to answer  questions on Fifth Amendment grounds.            Instead, she  simply remained  silent  on the  advice of  her            attorney   and   union   representative.9       Under   these                                            ____________________            9.   Moreover, at oral  argument, Singer stated  that she was            not coerced at the November 10 meeting.                                         -20-                                          20            circumstances, it would appear that there  is a real question            as  to whether  Singer  actually asserted  a Fifth  Amendment            violation.                        In  her brief, Singer states that "a constitutional            violation occurs when an  employee is penalized for remaining            silent."  Appellee's Brief at 21.  In their brief, defendants            state that Singer did  not invoke the Fifth Amendment  at the            November  10 meeting, but  instead refused to  respond to the            questions  asked   because   they  were   not  job   related.            Appellants'   Brief   at   25.      These   brief  references            notwithstanding,  the  parties have  not  argued before  this            court the question whether  the Fifth Amendment requires that            one who seeks to invoke its protection must explicitly  claim            the  privilege,  as distinct  from  simply  exercising it  by            remaining  silent  in the  face of  potentially incriminating            questions.  Under the  circumstances, we will assume, without            deciding,  that Singer  invoked  the privilege  against self-            incrimination.                                          2.                                          2.                                          __                      As  recently  explained  by  retired  Supreme Court            Justice Powell,  the inquiry whether  the right at  issue was            clearly established  properly focuses "not upon  the right at            its  most general or abstract level,  but at the level of its            application to the specific conduct being challenged."  Wiley                                                                    _____            v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (quoting Pritchett               _____                                            _________                                         -21-                                          21            v.  Alford, 973 F.2d 307,  312 (4th Cir.  1992)).  "Moreover,                ______            `the manner in which this [clearly established] right applies            to the actions of the official  must also be apparent.'"  Id.                                                                      ___            (quoting Maciariello  v. Sumner, 973 F.2d 295,  298 (4th Cir.                     ___________     ______            1992)) (citations omitted) (alteration  in original).   "[I]f            there is a `legitimate question' as to whether  an official's            conduct  constitutes a constitutional violation, the official            is entitled  to qualified immunity."   Id. (quoting Tarantino                                                   ___          _________            v. Baker, 825 F.2d 772, 775 (4th Cir. 1987)).                _____                      We think  that this perspective gives  a clear view            of the qualified immunity issue.                  B.  The Fifth Amendment Rights of Public Employees                  B.  The Fifth Amendment Rights of Public Employees                      ______________________________________________                      The Fifth Amendment states that no person "shall be            compelled in  any  criminal  case  to be  a  witness  against            himself."    U.S. CONST.  amend. V.    The Supreme  Court has            addressed the  Fifth Amendment rights of  public employees in            the Garrity line of  cases.  See  Garrity v. New Jersey,  385                _______                  ___  _______    __________            U.S. 493 (1967); Gardner  v. Broderick, 392 U.S.  273 (1968);                             _______     _________            Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,            ______________________________    __________________________            392  U.S. 280 (1968).  See also Lefkowitz v. Turley, 414 U.S.                                   ___ ____ _________    ______            70 (1973); Lefkowitz v. Cunningham, 431 U.S. 801 (1977).                       _________    __________                      In  Garrity, police  officers were  compelled under                          _______            the threat  of termination to  answer incriminating questions            in   the  course  of  an  investigation  into  traffic-ticket                                         -22-                                          22            "fixing."  Prior to questioning, each  officer was warned, in            accordance with a state statute, as follows:                       (1) that  anything he said  might be used                      against   him   in  any   state  criminal                      proceeding; (2) that he had the privilege                      to  refuse to  answer  if the  disclosure                      would  tend to  incriminate him;  but (3)                      that if he refused  to answer he would be                      subject to removal from office.            Garrity, 385 U.S. at 494.            _______                      The  officers were not  asked to  sign a  waiver of            immunity and  there was no immunity  statute applicable under            the circumstances.   The officers answered  the questions and            some  of  these answers  were used  against  them in  a later            criminal proceeding.   The Court concluded  that the officers            had  been  forced to  choose  between losing  their  jobs and            incriminating   themselves,  and  held   that  their  coerced            statements, "obtained under  threat of removal from  office,"            could  not  be  used  against  them  in  subsequent  criminal            proceedings.  Id. at 500.                          ___                      Gardner and  Uniformed Sanitation Men  both involve                      _______      ________________________            public employees (in Gardner,  a police officer; in Uniformed                                 _______                        _________            Sanitation  Men,  municipal  sanitation  workers)   who  were            _______________            unconstitutionally "confronted with  Hobson's choice  between            self-incrimination and forfeiting [their] means of livelihood            .  . . .  "   Gardner, 392  U.S. at  277; see  also Uniformed                          _______                     ___  ____ _________            Sanitation  Men, 392  U.S.  at 284.    In Gardner,  a  police            _______________                           _______            officer, who  was subpoenaed  to appear  before a grand  jury                                         -23-                                          23            investigating   alleged  bribery  and  corruption  of  police            officers,  was advised as  follows:  (i) that  the grand jury            intended to  ask him questions concerning  the performance of            his  official  duties;  (ii)  that he  had  a  constitutional            privilege against self-incrimination; and  (iii) that by  law            he  was  required to  sign a  waiver of  immunity or  else be            fired.  After  he refused to testify and  to sign the waiver,            the  officer  was   given  an   administrative  hearing   and            discharged  pursuant to  a  provision of  the  New York  City            Charter, solely for his refusal to  waive his Fifth Amendment            rights.   Gardner,  392  U.S. at  274-75.   Noting  that  the                      _______            officer  "was  discharged from  office,  not  for failure  to            answer relevant questions about  his official duties, but for            .  . . failure to relinquish the protections of the privilege            against  self-incrimination,"  id.  at  278, the  Court  held                                           ___            unconstitutional both the officer's dismissal for his refusal            to  waive  his  immunity   and  the  Charter  provision  that            authorized it.                       Significantly,   the  Court   in  Gardner   and  in                                                        _______            Uniformed  Sanitation Men  preserved  the right  of a  public            _________________________            employer to ask job-related questions of the employee:                        If appellant, a policeman, had refused to                      answer questions  specifically, directly,                      and narrowly relating to  the performance                      of  his  official  duties, without  being                      required  to  waive  his   immunity  with                      respect to the use  of his answers or the                      fruits thereof in a  criminal prosecution                      of himself, the  privilege against  self-                                         -24-                                          24                      incrimination would not  have been a  bar                      to his dismissal.            Gardner,  392  U.S.  at  278  (citation  omitted);  see  also            _______                                             ___  ____            Uniformed Sanitation Men, 392 U.S. at 284.            ________________________                      Justice  Powell  concludes  that the  "language  in            these  cases   suggests   that  the   right   against   self-            incrimination  is  not violated  by  the  mere compulsion  of            statements, without a compelled waiver of the Fifth Amendment            privilege  or the  use  of compelled  statements against  the            maker in a criminal proceeding."  Wiley v. Doory, 14  F.3d at                                              _____    _____            996 (citation omitted); see also Wiley v. Mayor of Baltimore,                                    ___ ____ _____    __________________            --- F.3d ---, 1995 WL 85433, 3 (4th Cir. 1995); accord Hester                                                            ______ ______            v. City  of  Milledgeville, 777  F.2d 1492,  1494 (11th  Cir.               _______________________            1985); Gulden  v. McCorkle,  680 F.2d  1070,  1074 (5th  Cir.                   ______     ________            1982),  cert.  denied,   459  U.S.  1206   (1983);  Uniformed                    _____  ______                               _________            Sanitation Men Ass'n v.  Commissioner of Sanitation, 426 F.2d            ____________________     __________________________            619, 627 (2nd Cir. 1970), cert. denied, 406 U.S. 961 (1972).                                      _____ ______                      In  United States  v. Indorato,  628 F.2d  711, 716                          _____________     ________            (1st Cir.),  cert. denied, 449  U.S. 1016 (1980),  this court                         _____ ______            summarized  the Garrity  line  of cases  in similar  fashion,                            _______            noting the two features common to Garrity and its progeny:                                               _______                      (1)  the  person  being  investigated  is                      explicitly told that failure to waive his                      constitutional   right    against   self-                      incrimination   will    result   in   his                      discharge  from  public employment  (or a                      similarly severe sanction imposed  in the                      case of private citizens); and  (2) there                      is  a  statute  or   municipal  ordinance                      mandating such procedure.                                         -25-                                          25            (Footnote omitted).                      In Indorato,  appellant,  a state  trooper who  had                         ________            been convicted of conspiracy, theft and perjury, contended on            appeal that his statements in response to questions asked  by            his superior  officers during an investigation  of the events            which gave  rise to the  charges were coerced,  and therefore            inadmissible against him at  trial under the Fifth Amendment.            Indorato, who  was not  in custody  at the  time he made  the            statements,  was   not  advised   of  his  rights   prior  to            questioning and was not threatened with dismissal for refusal            to answer the questions asked of him.                        Relying on Garrity, Indorato argued that the threat                                 _______            of dismissal  was nevertheless  implied because he  was being            questioned by superior  officers and was well  aware that the            departmental rules governing  the state  police provided  for            the  dismissal of  officers who  refused to  obey  the lawful            orders  of superior  officers.   Under  these  circumstances,            Indorato  viewed  himself  as having  been  put  in  the same            position as the officers in Garrity.                                        _______                      In  rejecting Indorato's  argument, we  stated: "In            this  case, there  was no  explicit `or  else' choice  and no            statutorily  mandated firing  is involved.   We do  not think            that  the subjective  fears  of defendant  as  to what  might            happen  if he  refused  to answer  his superior  officers are            sufficient   to   bring  him   within   Garrity's  cloak   of                                                    _________                                         -26-                                          26            protection."  Indorato,  628 F.2d  at 716.   In holding  that                          ________            there was  no Fifth  Amendment violation on  these facts,  we            said:                      Here,   defendant   did  not   claim  the                      privilege.  He was not told that he would                      be dismissed if he  failed to answer  the                      questions asked.    He was  not asked  to                      sign a waiver of  immunity.  There was no                      statute  mandating dismissal  for refusal                      to   answer   hanging   over  his   head.                      Defendant, here, was  not, as in Garrity,                                                       _______                      put  between the rock  and the whirlpool;                      he was standing safely on the bank of the                      stream.            Id. at 717 (citation and internal quotation marks omitted).              ___                      Singer, like Indorato, did not explicitly claim the            privilege;  was not told that  she would be  dismissed if she            failed to answer the questions asked of her; was not asked to            sign  a waiver  of  immunity; and  had  no statute  mandating            dismissal  for refusal  to  answer hanging  over her  head.10            Accordingly, Singer  was not  put "between  the rock and  the                                            ____________________            10.  In Indorato, we said that the language used in the state                    ________            police departmental rules, which  provided that a trooper may                                                                      ___            be tried and upon  conviction may be subject to  dismissal or                                          ___            other  disciplinary  action  for  violation   of  the  rules,            "suggests  that   dismissal  would  not   have  automatically            followed defendant's invocation of the  [F]ifth [A]mendment."            Indorato, 628 F.2d at 716.              ________                      As stated  in the text,  here, there is  no statute            mandating   dismissal  for   refusal  to   answer  questions.            Moreover, the language  used in the  Bureau's confidentiality            statement  suggests that  dismissal  would not  automatically            follow  an employee's  invocation  of  the  Fifth  Amendment:            "Unauthorized disclosure of any tax information may result in                                                            ___            immediate dismissal and imposition of penalties prescribed by            Maine  and Federal  statutes."   Appendix p.  00080 (emphasis            added).                                         -27-                                          27            whirlpool," as were  the plaintiffs  in the  Garrity line  of                                                         _______            cases.  Instead,  like Indorato, she was "standing  safely on            the bank of the stream."                        Therefore, we must agree with defendants that their            actions  did  not  amount  to   a  violation  of  a  clearly-            established  Fifth Amendment  right under  Supreme Court  and            First Circuit precedent  at the  time of these  events.   See                                                                      ___            also In re  Grand Jury  Proceedings, 835 F.2d  375, 376  (1st            ____ ______________________________            Cir.  1987) (the  Fifth Amendment  "does not shield  a person            from every  adverse social or economic  consequence which may            flow from  testifying," and  is not violated  where a  public            employee who has been granted immunity is required to testify            before  a  grand   jury  investigating  illegal   activities)            (citation omitted);  O'Brien v.  DiGrazia, 544 F.2d  543, 546                                 _______     ________            (1st Cir.  1976) (Fifth  Amendment rights of  police officers            dismissed  for  refusing  to  complete  a required  financial            questionnaire as part of  an investigation into their alleged            relationship with organized  crime were not  violated because            the  "privilege is  not infringed  when public  employees are            dismissed  for  failing  to  answer  questions `specifically,            directly, and  narrowly relating to the  performance of their            official duties .  . .  . '"   (quoting Uniformed  Sanitation                                                    _____________________            Men, 392 U.S. at 284) (other citation omitted)), cert. denied            ___                                              _____ ______            sub  nom. O'Brien  v.  Jordan, 431  U.S.  914 (1977);  accord            ___  ____ _______      ______                          ______            Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,            ______________________________    __________________________                                         -28-                                          28            426  F.2d at 627 ("The proceeding here involved no attempt to            coerce  relinquishment  of  constitutional   rights,  because            public employees do not have an absolute constitutional right            to  refuse to  account for their  official actions  and still            keep their jobs . . . .").                      In  view of  the  divergence of  opinion among  the            circuits with respect to the various issues that circumscribe            the Fifth Amendment rights of public employees, we agree with            the defendants that the law in this area was unsettled at the            time of these events and remains so today.11                        When viewed  at the  level of their  application to            the  specific conduct  being  challenged  here,  neither  the            contours of the Fifth Amendment right itself, nor the  manner            in  which  that  right  applies   to  the  actions  of  these            defendants are at all  apparent.  Thus, whatever else  may be            said  of  the law  governing  the Fifth  Amendment  rights of            public  employees  in  these  circumstances,  it  cannot   be            maintained that it was then or is now clearly established.                        We cannot conclude that  defendants knew or  should            have  known that  their  actions  violated Singer's  clearly-                                            ____________________            11.  See  Justice Powell's review of the  federal law in this                 ___            area in Wiley v. Doory, 14 F.3d at 998 ("Today, approximately                    _____    _____            six  years after  Doory's  alleged conduct,  the law  remains            unsettled."); and  in Wiley  v. Mayor  of Baltimore,  1995 WL                                  _____     ___________________            85433 at 4  ("We recognize that,  in cases involving  private            citizens,  there  is  some   inconsistency  in  the  circuits            regarding  whether or  not  a Fifth  Amendment violation  can            occur when the fruits of coerced questioning are not used.").                                         -29-                                          29            established  Fifth Amendment  rights.   Indeed,  it could  be            reasonably argued that under the applicable law, there was no            Fifth Amendment violation at all.   Accordingly, we hold that            defendants  are entitled  to qualified immunity  as to  the              1983 Fifth Amendment claim.                                  IV.  Conclusion                                    IV.  Conclusion                                       __________                      For  the  foregoing reasons,  the  district court's                                                    the  district court's                                                    _____________________            order  denying summary  judgment to  defendants on  the Fifth            order  denying summary  judgment to  defendants on  the Fifth            _____________________________________________________________            Amendment claim is reversed.  No Costs.            Amendment claim is reversed.  No Costs.            ___________________________   ________                                         -30-                                          30
