Blackden v . Stanley, et a l . CV-02-475-M 12/31/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brian Blackden, Plaintiff

v. Civil N o . 02-475-M Opinion N o .

Phil Stanley, Jane Coplan, Dave O’Brien, Richard Gerry and the New Hampshire Department of Corrections, Defendants

O R D E R

Brian Blackden, a former employee of the New Hampshire

Department of Corrections (“DOC”), has sued in three counts. He

first asserts a federal claim under

, alleging

that defendants violated his First Amendment right to free speech

by subjecting him to various unfounded investigations, resulting

in his constructive discharge in retaliation for speaking out on

various issues related to his work at the New Hampshire State

Prison (“NHSP”) (Count I ) . He also asserts two state law claims:

that defendants violated his rights under the New Hampshire

Whistleblower’s Protection Act (Count I I ) , and are liable to him

under the common law for intentionally inflicting emotional

distress (Count I I I ) . Before the court is defendants’ motion for summary judgment. Plaintiff objects. For the reasons given

below, the motion for summary judgment is granted.

Summary Judgment Standard

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “To determine whether these criteria have been met, a

court must pierce the boilerplate of the pleadings and carefully

review the parties’ submissions to ascertain whether they reveal

a trialworthy issue as to any material fact.” Perez v . Volvo Car

Corp.,

(1st Cir. 2001) (citing Grant’s Dairy-

Me., L L C v . Comm’r of M e . Dep’t of Agric., Food & Rural Res.,

, 14 (1st Cir. 2000)).

Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, “genuine” means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.

2 Navarro v . Pfizer Corp.,

0 , 93-94 (1st Cir. 2001)

(quoting McCarthy v . Northwest Airlines, Inc.,

(1st Cir. 1995)).

In defending against a motion for summary judgment, “[t]he

non-movant may not rely on allegations in its pleadings, but must

set forth specific facts indicating a genuine issue for trial.”

Geffon v . Micrion Corp.,

9 , 34 (1st Cir. 2001) (citing

Lucia v . Prospect S t . High Income Portfolio, Inc.,

7 0 ,

174 (1st Cir. 1994)). When ruling upon a party’s motion for

summary judgment, the court must “scrutinize the summary judgment

record ‘in the light most hospitable to the party opposing

summary judgment, indulging all reasonable inferences in that

party’s favor.’” Navarro, 261 F.3d at 94 (quoting Griggs-Ryan v .

Smith,

1 2 , 115 (1st Cir. 1990)).

Background

The facts described by the parties are numerous, and the

history is complicated, but the material facts are not disputed.

Accordingly, the factual background will be briefly summarized

here, and referred to in greater detail later, as necessary.

3 Brian Blackden was employed by DOC from 1997 until his

resignation – which he characterizes as a constructive discharge

– on October 1 , 2002. He worked initially as an internal affairs

investigator in the Investigations Unit, but was subsequently

demoted to the position of sergeant in the Training Unit. His

demotion, effective January 4 , 2002, came about as part of a

negotiated settlement of several grievances he brought against

DOC, described in greater detail below.

During the course of his employment, Blackden engaged in the

following expressive conduct: (1) during the spring of 2001, he

discussed the “Edwards investigation”1 with defendants Dave

O’Brien,2 Richard Gerry,3 and Jane Coplan;4 (2) on June 2 1 , 2001,

Blackden advised Coplan of his concerns about how the Edwards

investigation was being handled by various NHSP and DOC

1 The Edwards investigation involved allegations of illegal activity conducted jointly by an inmate and an NHSP employee. 2 O’Brien was the Deputy Chief of the NHSP Investigations Bureau. 3 Until May 2001, Gerry served as administrator of security at the NHSP. In that position, he supervised the Investigations Unit. Between September 2000 and March 2001, he served as acting warden. 4 Coplan has been the warden of the NHSP since March 2001.

4 officials; (3) on June 26 or 2 7 , 2001, he gave Coplan a letter

discussing his concerns (Defs.’ Mot. Summ. J., Ex. E . ) ; (4) on

July 1 2 , 2001, he gave Coplan a second, more detailed letter, and

provided a copy to Phil Stanley5 (Defs.’ Mot. Summ. J., Ex. F . ) ;

(5) on October 10 and 2 4 , 2001, Blackden testified before the

Criminal Justice Committee of the New Hampshire House of

Representatives and discussed the Edwards investigation as well

as various other instances of alleged misconduct by DOC staff

members; (6) on August 2 5 , 2002, Blackden gave a taped interview

to the chair of the Criminal Justice Committee related to the

“Dematteo investigation”;6 and (7) in August and September of

2002, he testified informally at other legislative hearings and

spoke with individual legislators about the Dematteo

investigation and a variety of other topics.7

5 Stanley served as Commissioner of DOC. 6 The Dematteo investigation involved allegations that an inmate had set up a telephone fraud operation from inside the NHSP. 7 There is no question that some defendants were, contemporaneously, aware of each of the first five instances of Blackden’s expressive conduct. The last two, however, are a different matter. In his complaint, plaintiff asserts, on information and belief, that the substance of his August 2 5 , 2002, taped interview was communicated to Stanley and, perhaps, other defendants. (Compl. ¶ 59.) He makes a similar assertion, on information and belief, that Stanley became aware of the

5 According to plaintiff, the following acts by various DOC

personnel qualify as adverse employment actions taken in

retaliation for his having exercised his First Amendment rights:

(1) investigating whether he violated state law or DOC policy by

offering for sale over the internet (on eBay) certain uniform

patches he had designed and manufactured for the Investigations

Unit;8 (2) investigating whether he violated state law or DOC

policy when he used a blue light associated with law enforcement

on his personal vehicle while responding to an escape from the

NHSP;9 (3) investigating whether he violated DOC policy when he

informal testimony he gave to other legislators in August and September. (Compl. ¶ 61.) Those assertions, however, do not appear in plaintiff’s affidavit in support of his objection to summary judgment. Stanley admits that he received a transcript of Blackden’s taped interview at some point, but the record does not indicate when. (Stanley Dep. at 78.) Stanley denies that he ever learned about Blackden’s conversations with other legislators. (Stanley Dep. at 79.) 8 The “patch investigation” was initiated on June 1 8 , 2001, when another DOC staff member brought the eBay auction to Gerry’s attention. It culminated in a report, dated August 2 2 , 2001 (Defs.’ Mot. Summ. J., Ex. H ) , which included a finding that Blackden had violated two New Hampshire statutes and two DOC Policy and Procedure Directives (“PPDs”).

6 took several “shanks” from the NHSP evidence locker;10 (4)

assigning him menial make-work tasks, isolating him from DOC

staff, and ignoring him at staff meetings during the

winter/spring of 2001 and 2002; (5) investigating whether he

violated state law or DOC policy by slandering New Hampshire

State Trooper Michael Nolan;11 (6) initiating an investigation

into whether he had violated state law or DOC policy in the

issuance of a subpoena during the course of the Dematteo

investigation;12 (7) generally making his working environment so

states that “[i]t is clear that current policy 5.57 . . . was violated.” Plaintiff’s statement to the contrary in his affidavit (Blackden Aff. ¶ 20) is insufficient to create a triable question of material fact. 10 The “shank investigation” was initiated in October of 2001. It culminated in a report dated January 2 3 , 2002 (Defs.’ Mot. Summ. J., Ex. P ) , that included a finding that Blackden had violated two PPDs. That report, however, did not result in any further disciplinary action against Blackden. 11 The “slander investigation” was initiated in response to a request for a formal investigation from Captain Craig Wiggin of the New Hampshire State Police dated June 1 8 , 2002 (Defs.’ Mot. Summ. J., Ex. Q ) . It culminated in a report dated August 7 , 2002 (Defs.’ Mot. Summ. J., Ex. R ) , that included a finding that “[t]here was no substantial evidence that M r . Brian Blackden made any slanderous statements.” 12 The “subpoena investigation” was initiated in response to an August 1 6 , 2002, letter of complaint from Assistant Attorney General Michael Brown (Defs.’ Mot. Summ. J., Ex. S ) . Stanley, or some other DOC official, had previously asked Brown whether he had authorized a subpoena Blackden issued in the Dematteo

7 hostile, by means of repeated investigations and exaggerated

charges, that he had no reasonable choice but to resign.

Blackden was the subject of one other DOC investigation, the

initiation of which he concedes to have been warranted. That

investigation was prompted by: (1) a September 2 7 , 2001,

confrontation with his step-daughter’s boyfriend, which led to

his arrest; and (2) an investigation by the Belknap County

Sheriff’s Department into allegations that he had sexually abused his step-daughter.13

As a result of the September 27 incident and the Belknap

County investigation, Blackden was suspended with pay, effective

October 3 , 2001. He filed a grievance challenging the

suspension. On October 1 1 , as a result of the patch and blue-

investigation. (Stanley Dep. at 8 0 , 84.) Brown had not, and filed a formal complaint. That investigation, which was concluded after plaintiff resigned, culminated in a report dated November 1 2 , 2002 (Defs.’ Mot. Summ. J., Ex. T ) , that included a finding that “[t]he preparation and issuing of the subpoena did not follow the procedures established by Investigations for the Department.” 13 While plaintiff concedes that an investigation of the September 27 incident was warranted, he also argues that “defendants made retaliatory use of that investigation.” However, he does not explain what he means by “retaliatory use.”

8 light incidents, Blackden was demoted from the position of

Internal Affairs Investigator to the position of Corrections

Counselor/Case Manager. He appealed his demotion. After

Blackden was arrested in connection with the September 27

incident, his suspension with pay was converted into suspension

without pay.

On October 3 0 , 2002, Blackden filed a petition for

injunctive relief in the New Hampshire Superior Court, seeking to

have his pay restored during his period of suspension.14 While

Blackden’s state petition did not mention First Amendment

retaliation, it included allegations that defendants retaliated

against him, by initiating the patch and blue-light

investigations, in violation of the New Hampshire Whistleblower’s

Protection Act. On December 1 9 , 2001, Blackden entered into an

agreement settling both the appeal of his demotion and the

grievance related to his suspension. The terms of settlement

included the following:

14 As it turns out, many paragraphs of plaintiff’s complaint in this case are close paraphrases of paragraphs in his state pleadings.

9 The disciplinary letter of demotion will be withdrawn. The suspension without pay pending the outcome of the arrest of M r . Blackden by the Strafford, NH Police Department will be vacated. Mr. Blackden will accept a voluntary demotion to Sergeant. Mr. Blackden agrees to assignment as Sergeant to a Department of Corrections facility which has a vacancy with preference for: 1 ) Concord, 2 ) Laconia, 3 ) Second Shift. Mr. Blackden agrees to complete a Field Officer Training Program as directed by the Warden of the facility where he will be assigned. Mr. Blackden agrees to file no appeals of any kind to either the demotion or the suspension without pay. Mr. Blackden further agrees to dismiss any and all lawsuits which he has filed regarding either of these grievances, specifically, he will cause Civil Action N o . 01-E-0393 to be dismissed. Mr. Blackden further agrees to file no action against the State of New Hampshire, Department of Corrections, [its] employees or officers resulting from the above-referenced grievances. This document will be maintained in a separate correspondence file in the Bureau of Human Resources and not maintained in M r . Blackden’s personnel file.

(Defs.’ Mot. Summ. J., Ex. N.) On January 8 , 2002, Blackden

moved for a voluntary nonsuit with prejudice in his state court

action.

10 Discussion

I. The Section 1983 Claim

Defendants move for summary judgment on plaintiff’s § 1983

First Amendment claim on grounds that they took no adverse

employment action against him and that plaintiff has failed to

identify a genuine issue of material fact regarding retaliatory

motive, which is an essential element of a First Amendment

retaliation claim. Defendants further argue that: (1) any claims

against Gerry and Stanley based upon actions they took before

October 3 0 , 2001, are barred by the res judicata doctrine; (2)

any claims related to plaintiff’s suspension and demotion are

barred by the doctrine of release; (3) as a matter of law, the

three investigations concluded after October 3 0 , 2001 – the

shank, slander, and subpoena investigations – cannot serve as the

basis for a retaliation claim because plaintiff did not suffer

any adverse employment consequences as a result of those

investigations; (4) plaintiff alleged no facts that link either

O’Brien or Coplan to any of the actions he claims to have been

retaliatory. Defendants also argue that the court should decline

to exercise jurisdiction over plaintiff’s state law claims and,

11 in the alternative, that they are entitled to judgment on the

merits of those claims.

Plaintiff counters that: (1) defendants’ conduct after

making the settlement agreement, which constituted a breach of

the implied covenant of good faith and fair dealing, creates a

genuine issue of material fact that precludes granting summary

judgment based upon the settlement agreement; (2) res judicata

does not apply because the state court action was based upon a

much narrower claim than this action, and because the resolution

of that action was based upon the settlement agreement, which

defendants subsequently breached; (3) under the standard

applicable to First Amendment retaliation claims, defendants’

actions were severe enough to qualify as “adverse employment

actions;” and (4) the suspicious timing of defendants’ actions is

evidence of retaliatory motivation sufficient to prevent summary

judgment.

A. The Relevant Law

In order to prevail on his claim of retaliation for

exercising First Amendment rights, plaintiff must prove that: (1)

12 he engaged in speech on a matter of public concern; (2) his

interest in speaking and the public interest in hearing what he

had to say outweigh any legitimate interest on the government’s

part in the efficient performance of its public function; and (3)

the protected speech was a motivating factor, or at least a

substantial factor, in an adverse employment action against him.

See Nethersole v . Bulger,

5 , 18 (1st Cir. 2002)

(citations omitted).

However, even if plaintiff establishes all three elements of

a First Amendment retaliation claim, defendants may still prevail

by “demonstrat[ing], by a preponderance of the evidence, that the

adverse employment action would have obtained regardless of the

protected conduct engaged in by the plaintiff.” Id. at 19

(citing M t . Healthy Sch. Dist. Bd. of Educ. v . Doyle,

(1977)). Among other things, “[t]he ‘Mt. Healthy

defense’ ensures that a plaintiff-employee who would have been

dismissed in any event on legitimate grounds is not placed in a

better position merely by virtue of the exercise of a

constitutional right irrelevant to the adverse employment

action.” Guilloty Perez v . Pierluisi,

3 , 59 (1st Cir.

13 2003) (quoting Acevedo-Diaz v . Aponte,

2 , 66 (1st Cir.

1993)).

In their motion for summary judgment, defendants do not

contest the first two elements of plaintiff’s claim, and do not

mount a M t . Healthy defense.15 Rather, they argue only that

plaintiff has failed, in two ways, to create a triable issue on

the third element. Specifically, defendants argue that they took

no adverse employment action against plaintiff and that even if

they had, plaintiff has failed to produce adequate evidence of a

retaliatory motive.

B. The Effect of 2001 Settlement Agreement

The first order of business is to determine which allegedly

retaliatory actions by defendants are properly litigated in this

case. The key here i s , of course, the December 2001 settlement

agreement. As noted, plaintiff argues that he is not bound by

his agreement because defendants acted in bad faith after

15 Indeed, because defendants argue that they took no adverse employment action against plaintiff, the M t . Healthy defense i s , in their view, flatly inapplicable because they are not trying to “explain away” any adverse employment action as having been inevitable in light of factors other than plaintiff’s protected conduct.

14 entering into the agreement. Plaintiff’s argument fails for two

reasons.

First, the covenant of good faith and fair dealing implied

in every New Hampshire contract was not breached because the 2001

settlement agreement did not “ostensibly allow to or confer upon

the defendant[s] a degree of discretion in performance tantamount

to a power to deprive the plaintiff of a substantial proportion

of the agreement’s value.” Centronics Corp. v . Genicom Corp.,

(1989). To the contrary, plaintiff received

considerable value upon execution of the agreement: the

disciplinary letter of demotion was removed from his file and the

suspension without pay was vacated.16 Moreover, the discretion

defendants exercised in initiating the slander and subpoena

investigations was not discretion given them under the settlement

agreement; that discretion was part of DOC’s inherent authority

as plaintiff’s employer. In sum, it does not appear that the

implied covenant of good faith and fair dealing, as described in

Centronics, provides plaintiff with any basis for avoiding his

16 Having his pay restored counts as substantial value because, as plaintiff concedes, that relief was the sole objective of his suit in state court. (Pl.’s O b j . to Summ. J. ¶ 11.) 15 obligation under the agreement not to bring suit over DOC’s

response to the patch and blue-light incidents. (And plaintiff

nowhere suggests that he has tendered return of the consideration

he obtained under the agreement as a precondition to seeking

recision.)

Second, even if Centronics did offer some support for

plaintiff’s effort to avoid the settlement agreement, defendants’

decisions to initiate the slander and subpoena investigations do

not amount to bad faith. Both investigations were begun in

response to specific inquiries from reliable third parties, the

New Hampshire State Police and the Attorney General’s office.

That the subpoena investigation was begun more than a year after

the subpoena in question was issued does not demonstrate

defendants’ bad faith, because, by plaintiff’s own admission, it

was initiated no more than two weeks after defendants received a

letter from Assistant Attorney General Brown complaining about

the subpoena’s issuance. The fact that Brown’s letter was

prompted by an inquiry from DOC is similarly unavailing to

plaintiff. In the summer of 2002, DOC’s attention was drawn to

the Dematteo file, which included the fifteen-month-old subpoena,

16 by the slander accusation which was directly precipitated by

Blackden’s own actions, i.e., counseling Pauline Smith (a

Dematteo victim) to contact Michael Kelley, who contacted Trooper

Nolan, who reported the alleged slander to Captain Wiggin, who

wrote the letter of complaint to DOC. (See Defs.’ Mot. Summ. J.,

Ex. Q.) In short, the undisputed factual record can support no

reasonable inference that any defendant investigated the Dematteo

subpoena in bad faith.

Because plaintiff remains bound by the 2001 settlement

agreement not to bring suit against DOC based upon the grievances

he had filed to that point, and because those matters have

already been fully litigated and resolved (barring further suit

under principles of res judicata), the only DOC actions that may

be litigated here are those that took place after settlement,

i.e., DOC’s decisions to investigate the slander and subpoena

matters and the alleged constructive discharge.17

17 Plaintiff has also alleged that shortly after the settlement agreement was reached, defendants began treating him poorly by isolating him, ignoring him, and assigning him to make- work tasks. That allegation, however, it too vague and conclusory to survive summary judgment.

17 C. Defendants Took No Adverse Employment Actions

The next order of business is to determine which of

defendants’ actions qualify as “adverse employment actions.”

Defendants argue that plaintiff suffered no adverse employment

action because none of the three investigations that were

concluded after the settlement agreement resulted in any

disciplinary action against him. Plaintiff counters that the

charges against him were groundless and that merely being

subjected to investigation constituted an adverse employment

action. He also argues that the groundless investigations

contributed substantially to his constructive discharge.

According to plaintiff, because the severity standard for adverse

employment actions in First Amendment retaliation cases is lower

than that applied in Title VII suits, “[t]he actions by

defendants all qualify, either alone or in aggregation, as

adverse employment actions.” (Pl.’s O b j . to Summ. J. ¶ 19.)

In Blackie v . State of Maine,

(1st Cir. 1996),

the court of appeals set out the general principles to be applied

18 in determining whether an employer’s act qualifies as an adverse

employment action for purposes of a retaliation case.18

Typically, the employer must either (1) take something of consequence from the employee, say, by discharging or demoting [him], reducing [his] salary, or divesting [him] of significant responsibilities, see Crady v . Liberty Nat. Bank & Trust Co.,

3 2 , 136 (7th Cir. 1993); Connell [v. Bank of Boston], 924 F.2d [1169,] 1179 [(1st Cir. 1991)], or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering [him] for promotion after a particular period of service, see, e.g., Hishon v . King & Spalding,

9 , 75-76 (1984).

Blackie,

(parallel citations omitted).

Determining whether an employee has suffered a material adverse

employment action “necessarily requires a case-by-case inquiry.”

at 725 (citing Welsh v . Derwinski,

5 , 86 (1st Cir.

1994); 2 LEX K . LARSON, EMPLOYMENT DISCRIMINATION, § 34.04 (2d ed.

1994)).

18 While Blackie was a retaliation case brought under the Fair Labor Standards Act, that opinion sets out the standards applicable to retaliation claims in general.

. Moreover, the court of appeals has held that “[t]he fundamental meaning of ‘adverse employment action’ should remain constant regardless of the particular enabling statute.” Larou v . Ridlon,

, 662 n.6 (1st Cir. 1996). Thus, there is no merit to plaintiff’s argument that a diminished standard applies to First Amendment retaliation claims, and, in any event, all three of the cases plaintiff cites as illustrations of the “diminished standard” actually meet the test set out in Blackie.

19 In this case, plaintiff was not subjected to any adverse

employment action. It is uncontested that none of the three

investigations that were concluded after plaintiff agreed to

settle his demotion and suspension grievances led to any

reduction in salary, benefits, or status. Moreover, the two

investigations that began after the settlement agreement, the

slander and subpoena investigations, were initiated in direct

response to charges made by the New Hampshire State Police and

the Attorney General’s Office, respectively. Because plaintiff

has produced no evidence to suggest that defendants would not

have investigated other employees under similar circumstances,

his argument that he should not have been investigated amounts to

a claim that he should have been given special dispensation as a

result of having exercised his First Amendment rights, which

claim runs directly counter to the Supreme Court’s direction in

M t . Healthy.

(explaining that an employee’s

exercise of First Amendment rights should not prevent his

employer from taking actions in the normal course). Thus, none

of the three post-settlement investigations, standing alone, was

a material adverse employment action.

20 Plaintiff fares no better when those three investigations

are considered collectively. As noted above, plaintiff’s vague

and conclusory allegations that he was isolated, ignored, and

given make-work tasks are insufficiently specific to create

triable issues of fact adequate to defeat defendants’ motion for

summary judgment. Accordingly, the only possible adverse

employment action plaintiff can claim is a constructive discharge

based upon the results of the shank investigation, the slander

investigation, and the initiation of the subpoena investigation.

“The phrase ‘constructive discharge’ usually describes

harassment so severe and oppressive that staying on the job while

seeking redress – the rule save in exceptional cases – is

‘intolerable.’” Reed v . MBNA Mktg. Sys., Inc.,

7 , 33

(1st Cir. 2003) (quoting Keeler v . Putnam Fiduciary Trust Co.,

, 9-10 (1st Cir. 2001)). Defendants’ initiation of the

slander and subpoena investigations did not constitute severe and

oppressive harassment that prevented plaintiff from staying on

the job while seeking redress. Both investigations were

undertaken in response to specific complaints from outside DOC,

made by law enforcement agencies of the State of New Hampshire.

21 While plaintiff asserts that neither investigation was warranted,

and takes issue with the adverse conclusion of the subpoena

investigation, there are no facts in the record from which a

reasonable jury could determine that defendants improperly

“ginned up” the complaints that spurred the two investigations,19

and there is no legal or factual basis for contending that it was

improper for defendants to respond to the complaints they

received in the way that they did, i.e., by initiating the

slander and subpoena investigations. Because DOC responded in an

objectively reasonable manner to the complaints it received, no

reasonable person in plaintiff’s position would have felt that

defendants’ actions made his working conditions so intolerable

that he had to resign. Thus, Blackden was not constructively

discharged and, as a consequence, suffered no adverse employment

action.

19 As noted above, Assistant Attorney General Brown’s letter of complaint, which prompted the subpoena investigation, was preceded by an inquiry directed to him from DOC officials. But, as also noted, DOC’s renewed interest in the Dematteo investigation did not come out of the blue; it resulted from a chain events that began with Blackden’s own informal counseling of Pauline Smith.

22 D. Defendants Had No Retaliatory Motive

Even if defendants’ decisions to initiate the slander and

subpoena investigations did somehow qualify as adverse employment

actions or created a workplace that rendered Blackden’s

resignation a constructive discharge, plaintiff has not created a

triable issue of fact on the question of defendant’s retaliatory

motivation in taking those actions. The “question of motivation,

though usually one for the factfinder, can be resolved by the

court on a summary judgment or Rule 50 motion if the plaintiff’s

evidentiary showing is insufficient.” Guilloty Perez,

(citing Torres-Rosado v . Rotger-Sabat,

, 12-13

(1st Cir. 2003); Lewis v . City of Boston,

0 7 , 220 (1st

Cir. 2003)). Plaintiff bears the burden of proving that

“protected conduct was a motivating factor in the adverse

employment action.” Guilloty Perez,

6 . That burden

of proof may be met by circumstantial evidence. See

at 55-

56. Often, circumstantial evidence of retaliatory motivation

takes the form of “close temporal proximity” between an

employee’s protected conduct and his employer’s adverse

employment action. Nethersole, 287 F.3d at 20 (quoting Hodgens

v . Gen. Dynamics Corp.,

5 1 , 168 (1st Cir. 1998)).

23 However, while close temporal proximity “may give rise to an

inference of causal connection . . . that inference is not

necessarily conclusive where . . . the inference is considerably

weakened by other facts in the record.” Lewis, 321 F.3d at 219

(citations and internal quotation marks omitted).

Here, there is no close temporal proximity between any of

plaintiff’s protected conduct and the initiation of either the

slander or subpoena investigations.20 According to plaintiff,

the slander investigation was initiated in June 2002. In June

2002, plaintiff’s most recent protected conduct was his October

2 4 , 2001, testimony before the House Criminal Justice Committee.

The subpoena investigation was begun, according to plaintiff, on

September 4 , 2002. At that time, the most recent protected

conduct of which defendants were aware was his October 2 4 , 2001,

20 Plaintiff devotes several paragraphs of his objection to summary judgment to establishing the close temporal proximity between: (1) his confrontation and correspondence with Coplan and the initiation of the patch and blue-light investigations; and (2) his testimony before the House Criminal Justice Committee and his suspension, his demotion, and the initiation of the shank investigation. However, for the reasons given above, none of the foregoing employment actions are at issue here.

24 legislative testimony.21 Because the slander and subpoena

investigations were initiated eight and ten months after

plaintiff’s last protected conduct that was known to defendants,

plaintiff has not established close temporal proximity between

protected conduct and any adverse employment action. Because an

alleged temporal proximity is the only evidence plaintiff relies

on to establish retaliatory motivation for the slander and

subpoena investigations, and because no reasonable jury could

conclude that the timing of those investigative decisions gives

rise to an inference of a causal connection between plaintiff’s

testimony and the decisions to investigate the slander and

subpoena accusations, plaintiff has failed, as a matter of law,

to establish the essential element of retaliatory motive.

E. The M t . Healthy Defense

Furthermore, even if plaintiff were able to establish

retaliatory motivation, the undisputed factual record supports a

21 Plaintiff has produced no evidence that any defendant knew of either his August 25 taped interview or his informal legislative testimony, prior to the start of the subpoena investigation. Thus, plaintiff’s expressive conduct in 2002 could not be found by a reasonable fact-finder to have motivated defendants’ decision to initiate the subpoena investigation.

25 complete M t . Healthy defense.22 The facts are clear - defendants

initiated the blue-light investigation in response to a specific

complaint from the Town of Loudon’s Police Chief, and a

reasonable jury could not find that they would not have done so

absent the protected conduct engaged in by plaintiff. Similarly

defendants initiated the slander and subpoena investigations

based upon specific complaints from outside DOC, and would have

done so regardless of the protected conduct engaged in by

Blackden. It is difficult to imagine how defendants could have

avoided conducting the slander and subpoena investigations, given

the specific complaints they had received from the New Hampshire

State Police and the Attorney General’s Office. To conclude, if

plaintiff were able to establish retaliatory motivation, which on

this record he cannot, defendants would still be entitled, on the

undisputed factual record, to a M t . Healthy defense. They have

produced evidence that would compel a reasonable jury to conclude

by a preponderance that defendants would have investigated the

blue-light, slander and subpoena matters even without a

retaliatory motive. Plaintiff has presented no evidence

22 As noted above, defendants themselves do not mount a M t . Healthy defense because they do not concede that they took any material adverse employment action against Blackden.

26 undermining that complete defense, or putting any material issue

of fact in dispute.

Because plaintiff has failed to produce evidence from which

a reasonable jury could conclude that he was subjected to an

adverse employment action, or that defendants acted with

retaliatory motivation, and because defendants have established

undisputed facts demonstrating that they would have initiated the

slander and subpoena investigations independent of any

retaliatory motivation, defendants are entitled to judgment as a

matter of law on plaintiff’s § 1983 First Amendment retaliation

claim. Accordingly, their motion for summary judgment is granted

with respect to Count I .

II. The State Claims

Count I is plaintiff’s only federal claim. Under the rule

stated in Camelio v . Am. Fed’n,

(1st Cir.

1998), the court declines to exercise supplemental jurisdiction

over plaintiff’s remaining state law claims, which are dismissed

without prejudice.

27 Conclusion

For the reasons given, defendants’ motion for summary

judgment (document n o . 8 ) is granted in full. The Clerk of the

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 3 1 , 2003

cc: Michael K. Brown, Esq. Michael J. Sheehan, Esq.

28