

                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                                                                              
&amp; 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 &amp;                                                                              
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
