Paul Campagna v. Commonwealth of Massachusetts Department of Environmental Protection

United States Court of Appeals
For the First Circuit
No. 02-1801
PAUL CAMPAGNA,
Plaintiff-Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Defendant,
DAVID HOWLAND; DEIRDRE DOHERTY CABRAL; MARY HOLLAND;
EDWARD KUNCE; ALAN WEINBERG; AND DAVID B. STRUHS,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Caroline Carrithers for appellant.
Timothy M. Jones, Assistant Attorney General, with whom Thomas
F. Reilly, Attorney General, were on brief for appellees.
July 3, 2003

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1Campagna sued David Howland, Deirdre Doherty Cabral, Mary
Holland, Edward Kunce, Alan Weinberg, and David Struhs (apparently
misidentified in the pleadings as "David Struh"). Campagna
initially named the DEP as a defendant in his § 1983 claim, but
later assented to its dismissal from the suit.
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HOWARD, Circuit Judge. Paul Campagna ("Campagna"), an
employee of the Massachusetts Department of Environmental
Protection ("DEP") and DEP-certified septic system inspector,
claims that six DEP employees1 subjected him to a retaliatory
administrative proceeding that deprived him of his constitutional
rights to petition the government for redress of grievances under
the First Amendment and to equal protection under the Fourteenth
Amendment. Finding that Campagna failed to state a claim for
relief under 42 U.S.C. § 1983, the district court granted the
defendants' motion to dismiss Campagna's federal claims under Fed.
R. Civ. P. 12(b)(6) and declined to exercise supplemental
jurisdiction over the remaining state law claims. We affirm.
I. Factual and Procedural Background
We cull the relevant facts from Campagna's amended
complaint, taking them in the light most favorable to the
plaintiff. Campagna began working for the DEP in 1985 as an
environmental engineer, and was promoted soon thereafter. He
unsuccessfully sought a further promotion, while candidates were
hired for positions at the level sought by Campagna who were in his
view "less qualified, but more politically connected." Frustrated

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2Although the significance of the allegation is unclear,
Campagna alleges "on information and belief" that defendants
Howland and Kunce made a secret agreement that, if forced to hire
Campagna for the position he sought, "they would fire him during
the six-month probationary period." These allegations connected to
the 1992 lawsuit are the only instances in which Howland and Kunce
are singled out in the amended complaint.
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by his situation, Campagna left the DEP in 1992 for a position with
the federal government. As soon as he left, the DEP announced a
position for which Campagna was qualified. He immediately applied
for the position, but defendant David Howland, the DEP employee
responsible for filling the position, refused to hire him.
Campagna brought suit in state court, claiming that he was
entitled to preferential hiring because of his status as a veteran
of the Vietnam War. The court agreed, and ordered the DEP to place
him in the position unless a better qualified candidate who was also
a veteran applied for the job. The DEP appealed, contending that
Campagna was not qualified for the position.2 As part of a 1995
settlement of the dispute, Campagna ultimately accepted a different
position that was "less desirable."
Campagna continued working for the DEP without incident
for more than two years. During this period, Campagna also ran a
private after-hours business designing and monitoring septic
systems. In April 1997, Campagna was hired to upgrade a septic
system of a home in Westfield, Massachusetts that had failed an
inspection conducted by another inspector, identified in the
pleadings as "Mr. Lally" ("Lally"). Lally had concluded that the

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3Cabral had taken a 32-hour soil inspection course the
previous year, and had not inspected any other sites prior to the
October 11, 1997 inspection.
4Campagna alleges that if Recoulee had made his own estimate,
it would have been consistent with Campagna's.
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system was installed too close to the groundwater and that the tank
had an unsealed "weep hole," a small hole allowing drainage of any
water that accumulates in the tank prior to installation. Campagna
inspected the system and concluded that Lally was incorrect in both
respects. Campagna advised Westfield's board of health to
reevaluate the system. The board notified the DEP of the
discrepancy, and on October 11, 1997, defendant Cabral, a DEP
employee, reinspected the site, accompanied by inspector David
Recoulee ("Recoulee") and others.
Cabral evaluated the soil in a 10-foot deep inspection
hole and found evidence of a high groundwater level of 26 inches.3
Like Lally, Cabral concluded that the system had been installed too
close to the groundwater. Cabral instructed Recoulee to "fail the
system." Recoulee did not make any independent evaluation of the
average height of high groundwater.4 Cabral also concluded that
Campagna's determination that the weep hole had been adequately
sealed was invalid because he had not emptied the tank to reach this
finding. Cabral initiated an administrative proceeding or
"enforcement action" against Campagna "without first sending the
plaintiff a Letter of Non-Compliance," charging him with two willful

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5"Title 5" refers to Mass. Regs. Code tit. 310, §§ 15.000, et
seq. (state environmental regulations governing on-site sewage
treatment and disposal systems), available at http://www.lawlib.
state.ma.us/title5.html.
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violations of state regulations commonly known as Title 55 for (1)
inaccurately estimating the groundwater level and (2) failing to
complete a required form.
Also in October 1997 (although the precise date is not set
forth in the amended complaint), the DEP brought an enforcement
action against another inspector, Timothy Maginnis ("Maginnis").
Like Campagna, Maginnis was fined without first receiving a notice
of non-compliance. Campagna "actively supported" Maginnis's
subsequent appeal. This support included a March 1999 letter from
Campagna to Maginnis's attorney "exonerating Mr. Maginnis."
On August 28, 1998, Campagna was fined $1500 for the
violations that were the subject of the October 1997 reinspection.
Campagna appealed, and on November 1, 2000, an administrative judge
reduced the fine to $100. According to the amended complaint, the
judge found that, except for the minor violation of failing to note
the owner's explanation regarding the weep hole, the accusations
against Campagna were unfounded. The judge also found that Campagna
had been subjected to a different standard than other inspectors,
basing her conclusion in part on the fact that both Lally and
Recoulee failed to include similar information in their inspection
forms but had not been accused of violations.

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6Like the allegations regarding defendants Howland and Kunce,
see note 2, above, and defendant Struhs, see note 6, below, these
references to Weinberg and Holland are the only allegations in the
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Campagna contends that his groundwater estimate was
accurate, and that the findings made by Lally and Cabral were
incorrect. According to the amended complaint, Cabral (acting
"under the direction of the other defendants") ignored key evidence
that would have validated Campagna's estimate, including monthly
readings from a test hole on the property. Campagna further alleges
that only three other inspectors (including Maginnis, the inspector
Campagna "actively supported") have been subjected to enforcement
actions by the Western Regional Office of the DEP, and only two of
these inspectors were fined.
During the pendency of Campagna's appeal of the
enforcement action, defendant Alan Weinberg advised Campagna not to
discuss his case with other DEP employees, and required him to
request permission to visit other areas of the DEP's Western
Regional Office in an effort to prevent Campagna from discussing his
case with fellow employees. Also, at some time after another DEP
employee advised defendant Mary Holland that he intended to testify
on Campagna's behalf, the employee "was falsely accused by the DEP
of visiting pornography sites on the Internet during office hours."
This employee left the DEP, accepting a lower-paying position
because he "could no longer tolerate the animosity of the
defendants."6

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amended complaint (other than an initial identification of the
defendants) in which Weinberg or Holland are identified by name.
All other references to them are only generalized references to
"the defendants."
7Campagna alleges that "the defendants" made defamatory
statements about him in connection with the enforcement action,
with harmful consequences for his private inspection business. See
Campagna v. Commonwealth, 206 F. Supp. 2d 120, 123 (D. Mass. 2002).
Defendant David Struhs is the only defendant identified by name in
connection with these allegations. Because these allegations
relate solely to the defamation claim under Massachusetts common
law, they are not repeated here.
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Campagna brought suit in May 2001, claiming violations of
his constitutional rights (under 42 U.S.C. § 1983 and Mass. Gen.
Laws ch. 12, §§ H-I) and common law defamation.7 According to
Campagna, the enforcement action violated his constitutional right
to petition the government for redress of grievances under the First
Amendment because it was initiated in retaliation for his 1992
lawsuit and his support of Maginnis's appeal. Further, the
enforcement action violated his Fourteenth Amendment right to equal
protection under the law because he had been held to a different
standard than other inspectors. The defendants moved to dismiss for
failure to state a claim under Fed. R. Civ. P. 12(b)(6) as to both
of the alleged constitutional violations. The district court
granted the motion, dismissing the case in toto after declining to
exercise supplemental jurisdiction over the remaining state law
claims. This appeal followed.

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8In addition to (1) the 1992 lawsuit, and (2) Campagna's
support of Maginnis, the district court found that Campagna alleged
a third course of conduct, namely his appeal of the enforcement
action, that prompted retaliatory action by the Defendants. See
Campagna, 206 F. Supp. 2d at 123. In our view, however, the only
form of retaliation alleged by Campagna is the enforcement action
itself.
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II. Analysis
We review the district court's Rule 12(b)(6) ruling de
novo, crediting all well pleaded facts in the complaint, and drawing
all reasonable inferences in Campagna's favor. Nethersole v.
Bulger, 287 F.3d 15, 18 (1st Cir. 2002). We affirm the dismissal
"only if, under the facts alleged, [the plaintiff] cannot recover
on any viable theory." Id. (quoting Blackstone Realty LLC v. FDIC,
244 F.3d 193, 197 (1st Cir. 2001)). Despite a generous reading, the
amended complaint falls short of stating a viable constitutional
claim.
A. First Amendment
We begin with Campagna's claim that the enforcement action
violated his right to petition the government for redress of
grievances. The district court found that Campagna had failed to
allege that his 1992 lawsuit or his support of Maginnis's appeal
implicated matters of public concern.8 Thus, it concluded, Campagna
failed to state a claim challenging a retaliatory action by his
employer. The district court relied on the principle that, except
in unusual circumstances, public employees claiming an adverse
employment action in retaliation for exercising their First

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9To the extent Campagna alleges that the restrictions on
discussing his case in the workplace constituted a retaliatory
employment action, we uphold the district court's application of
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Amendment rights must allege that their conduct touched on matters
of public concern. Connick v. Meyers, 461 U.S. 138, 147 (1983)
(applying public concern doctrine in connection with claim made
under the Free Speech Clause of the First Amendment); see also
Nethersole, 287 F.3d at 18-19 (same); Tang v. State of Rhode Island,
163 F.3d 7, 11-12 (1st Cir. 1998) (same); Boyle v. Burke, 925 F.2d
497, 505 (1st Cir. 1991) (discussing, in dicta, the applicability
of the public concern doctrine to claim made under the Petition
Clause). The "public concern" doctrine balances the First Amendment
rights of a citizen-employee against the interest of a government-
employer in maintaining order and efficiency in the workplace. See
Connick, 461 U.S. at 140 (citing Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968)).
The facts of this case are complicated by Campagna's dual
roles as a DEP employee and a DEP-certified inspector. According
to the amended complaint, however, the DEP took action against
Campagna in his capacity as a private inspector, not as a DEP
employee. Other than the relatively minor allegation that Campagna
and his fellow employees were advised not to discuss his appeal of
the enforcement action, Campagna alleges no adverse impact on his
employment with the DEP, such as a transfer, demotion, or
termination.9 Instead, Campagna complains that his private business

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the public concern doctrine.
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of inspecting and updating septic systems suffered as a result of
adverse publicity regarding the enforcement action. "Since the
reason for the test is missing in the present case -- maintaining
order in the governmental workplace -- the [public concern doctrine]
should not be applied here." Gable v. Lewis, 201 F.3d 769, 771 (6th
Cir. 2000) (holding that, as an independent contractor for a
government agency, plaintiff alleging retaliation need not prove
that her complaint for sex discrimination touched on matters of
public concern). So too in the present circumstances.
Our First Amendment inquiry does not end here, however,
because we may affirm the district court's dismissal of the First
Amendment claim on any ground supported by the record. Aldridge v.
A.T. Cross Corp., 284 F.3d 72, 84 (1st Cir. 2002). Therefore, we
consider whether Campagna has satisfied the pleading requirements
of Rule 12(b)(6). In so doing, we are not bound to credit "bald
assertions, unsupportable conclusions, and opprobrious epithets."
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.
1989)(internal quotation omitted)(quoting Chongris v. Bd. of
Appeals, 811 F.2d 36, 37 (1st Cir. 1987)). While forgiving, Rule
12(b)(6) "is not entirely a toothless tiger." Id. A plaintiff must
allege facts in support of "each material element necessary to
sustain recovery under some actionable legal theory." Id. (quoting
Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)).

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10Campagna's frequent references to "the defendants" highlight
the generality of his allegations. Taken literally, they would
include defendant Struhs, who is named only in Campagna's common
law defamation claim.
11Campagna fails to allege that any defendant other than Cabral
directly participated in the enforcement action. To the extent
Campagna relies on these defendants' positions within the DEP as a
basis for supervisory liability, he has failed to allege facts
sufficient to allow such an inference. See Rogan v. Menino, 175
F.3d 75, 78 (1st Cir. 1999)("To state a cognizable claim on that
basis, [the plaintiff] needed to depict a scenario that would
permit a fact-based inference that [the defendants] were guilty of
conduct that amounted to condonation or tacit authorization of
wrongdoing.").
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In the amended complaint, Campagna gives a chronological
account of his relationship with the DEP, both as an employee and
as a private inspector. Campagna's claim turns on the allegations
that Cabral acted "under the direction of the other defendants"10
when she undertook the enforcement action, and that this was done
in retaliation for Campagna's earlier lawsuit and support of
Maginnis. Compl. ¶¶ 24, 27, 34. These are the only allegations
that link the critical events in Campagna's case. But more than
five years had passed since Campagna filed his lawsuit, a suit
undertaken in the context of his employment with the DEP, not his
private inspection business. The allegations in Campagna's
complaint do not support a fact-based inference that the "direction"
given to Cabral by the defendants was anything other than routine
supervision of Cabral as a DEP employee.11 Without more, we cannot
credit Campagna's unsupported conclusion that the enforcement action
was undertaken to retaliate against Campagna.

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Similarly, even if we make the tenuous assumption that
Campagna's support of Maginnis's appeal is properly characterized
as an exercise of Campagna's rights under the Petition Clause -- an
issue we do not address today -- he fails to state a claim for
deprivation of that right. Campagna's allegation that, "[o]n
information and belief, the defendants were aware of plaintiff
Campagna's support of Mr. Maginnis," Compl. ¶ 17, does not bridge
the gap between his support for Maginnis's appeal and the
enforcement action. Campagna identifies a single act of support in
the amended complaint -- a letter written in 1999 (and months after
Campagna was fined) to Maginnis's attorney on Maginnis's behalf.
But he fails utterly to link his writing of the letter to the
allegedly retaliatory enforcement action.
As to the First Amendment claim, we find that the amended
complaint fails to meet even the minimal requirements to survive a
motion to dismiss. See Coyne v. City of Somerville, 972 F.2d 440,
443-45 (1st Cir. 1992). Accordingly, we affirm the district court's
dismissal of that claim.
B. Equal Protection
We turn to Campagna's claim that he was denied equal
protection under the law on the ground that he was treated
differently from inspectors Lally and Recoulee. Campagna does not
allege that he is a member of a protected class or group. Relying
on Village of Willowbrook v. Olech, 528 U.S. 562, 563-64 (2000), he

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claims instead that he is a "class of one," an individual who has
been treated differently from others similarly situated without any
rational basis for the disparate treatment.
We consider whether Campagna sufficiently alleged that he
was treated differently from others "similarly situated" and that
there was no rational basis for the treatment. As we read the
amended complaint, Lally failed the system on the Westfield
property, Campagna arrived at a different result, and Recoulee
participated in an investigation intended to resolve the
discrepancies between the two conclusions. Recoulee did not make
his own independent inspection of the property, but instead failed
the system at Cabral's direction.
Lally and Campagna were not similarly situated for the
purposes of determining whether Campagna was treated unfairly: the
two inspectors reached different results. See Barrington Cove Ltd.
P'ship v. Rhode Island Hous. & Mortgage Fin. Corp., 246 F.3d 1, 8-9
(1st Cir. 2001) (finding plaintiff developer and other developers
who applied for tax credit were not similarly situated where, under
facts alleged in complaint, plaintiff could have been found to have
more questionable business acumen and judgment). The October 1997
investigation (the so-called "third" inspection) resulted in a DEP
finding, whether accurate or not, that Lally's conclusion was
correct. And Recoulee was unlike either Lally or Campagna.
Recoulee was not hired by the homeowner to inspect the property for

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the purposes of certification -- he was part of a DEP investigation
into the conflicting conclusions. These facts, even when taken in
the light most favorable to Campagna, defeat any claim that the
enforcement action was irrational or arbitrary. To the contrary,
it was Campagna's conclusions as an inspector (in conflict with
another inspector's) that prompted the enforcement action.
Aside from the dispute over the groundwater calculations,
Campagna argues that we should find that his right to equal
protection under the law was violated because the DEP fined him, but
not Lally or Recoulee, for failing to fill out certain paperwork.
The DEP fined Campagna for this technical violation as part of a
proceeding that found him responsible for a substantive violation
of law. The defendants -- who we assume arguendo took part in the
DEP's decision to discipline Campagna -- were under no obligation
to take enforcement action for technical violations by other
inspectors found to have committed no other violation of law. A
state agency may allocate its resources in this manner without
raising the specter of discriminatory enforcement. Cf. Kisser v.
Cisneros, 14 F.3d 615, 620 (D.C. Cir. 1994). We find no equal
protection violation under these facts.
C. State Law Claims
The district court dismissed Campagna's state law claims
without prejudice, finding this an inappropriate case for exercising

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supplemental jurisdiction. See Rodriguez v. Doral Mortgage Corp.,
57 F.3d 1168, 1177 (1st Cir. 1995). We affirm this decision.
III. Conclusion
For the foregoing reasons the order of the district court
dismissing the amended complaint is affirmed.

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