
USCA1 Opinion

	




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