Michael Gagliardi v. MICHAEL J. SULLIVAN and the CITY OF LAWRENCE

United States Court of Appeals
For the First Circuit
No. 06-2680
MICHAEL GAGLIARDI,
Plaintiff, Appellant,
v.
MICHAEL J. SULLIVAN and the CITY OF LAWRENCE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Walter H. Underhill, on brief for appellant.
January 18, 2008

-- 1 of 17 --

Gagliardi also made a state law claim that is not at issue in 1
this appeal.
-2-
TORRUELLA, Circuit Judge. Michael Gagliardi lost his
position on the Merrimack Valley Workforce Investment Board
("Board") in Lawrence, Massachusetts, when the Board was dissolved
for failure to achieve the required state certification. He
brought suit under 42 U.S.C. § 1983, claiming that Michael 1
Sullivan, Lawrence's mayor ("Mayor Sullivan"), along with the City
of Lawrence itself ("City") and three state officials, were
responsible for the Board's dissolution and his consequent
dismissal, and that such conduct amounted to a violation of his
First and Fourteenth Amendment rights. The three state officials
moved to dismiss Gagliardi's claim for failure to state a claim on
which relief could be granted, see Fed. R. Civ. P. 12(b)(6), and
the district court granted the motion with respect to all five
defendants. Gagliardi appeals this dismissal, but only with
respect to Mayor Sullivan and the City. After careful
consideration, we affirm.
I. Background
A. Facts
Since the district court dismissed Gagliardi's complaint
pursuant to Rule 12(b)(6), we assume the truth of the well-pleaded
facts therein. Martínez-Rivera v. Sánchez-Ramos, 498 F.3d 3, 5
(1st Cir. 2007); see also Ruiz v. Bally Total Fitness Holding

-- 2 of 17 --

-3-
Corp., 496 F.3d 1, 5 (1st Cir. 2007). We draw our recounting of
the relevant facts from the complaint and the documents annexed to
it or fairly incorporated within it. See Wetmore v. MacDonald,
Page, Schatz, Fletcher & Co., LLC, 476 F.3d 1, 2 (1st Cir. 2007).
The Board was a nonprofit corporation established
pursuant to the Workforce Investment Act §§ 101-195, 29 U.S.C.
§§ 2801-2945 (2007). Its duties included determining how to
allocate federal, state, and local funds to occupational training
in Lawrence and surrounding communities, establishing workforce
development policy, and assisting in overseeing two "one-stop
career centers" in the Lawrence area. During the relevant period,
Mayor Sullivan served as the Board's Chief Elected Official. Among
Mayor Sullivan's duties as Chief Elected Official was to appoint
members to the Board. See id. § 2832(c)(1)(A).
The Workforce Investment Act requires that local boards
be certified by the governor of the state every two years, based on
certain specified criteria. See id. § 2832(c)(2). During the
relevant period, then-Governor Mitt Romney ("Governor Romney")
delegated responsibility for certifying workforce investment
boards, along with receiving and evaluating certification-related
documents, to the Massachusetts Division of Career Services
("DCS"), headed by Susan V. Lawler ("Commissioner Lawler"). DCS
was a subunit of the Massachusetts Department of Workforce
Development ("DWD"), headed by Ranch Kimball ("Secretary

-- 3 of 17 --

Governor Romney, Secretary Kimball, and Commissioner Lawler were 2
originally named as defendants in this lawsuit along with Mayor
Sullivan and the City.
Gagliardi omits to state in his complaint or brief the date on 3
which the report was issued. We glean the fact that it was issued
sometime in the summer of 2005 from the September 13, 2005
newspaper article on this incident, which Gagliardi attached to his
complaint.
A city department known as the Division of Training and 4
Development ("DTD") assisted in the operation of the two Lawrence-
area career centers, and was originally also the employer of record
of the Board members, "Title I administrator," and fiscal agent.
The Board complained to DCS that state policy forbade the DTD from
performing these latter functions, and it was agreed that they
would be transferred to another entity. As Chief Elected Official,
this responsibility fell to Mayor Sullivan.
-4-
Kimball"). DCS conditionally certified Gagliardi's Board sometime 2
in 2004 pending the fulfillment of certain criteria.
At a certain point, the Board became concerned with the
way Mayor Sullivan was using grant money subject to the Board's
jurisdiction. It set up a task force, which in the summer of 20053
uncovered a covert fund of some $1.1 million which Mayor Sullivan
was using for his own purposes. The Board produced a report
exposing the existence of the fund and criticizing Mayor Sullivan's
use of Board funds in general.
In the meantime, the Board was having problems obtaining
its biennial certification from DCS. It had submitted a
certification package sometime in 2004, but DCS stated that it
would not certify the Board until Mayor Sullivan had completed
certain tasks, which he failed to do throughout 2005. DCS cited 4

-- 4 of 17 --

-5-
this failure as a reason for its inability to grant full
certification to the Board.
In September 2005, the City acknowledged that the Board
had compiled all the certification documents "within its purview,"
but that "there [were] a few items that remain[ed] which [were]
dependent on City of Lawrence Decisions." Soon thereafter,
Gagliardi and the Board's chair disclosed Mayor Sullivan's inaction
to a local newspaper, which published an article on the matter on
September 13, 2005. According to Gagliardi's complaint, this
publicity infuriated Mayor Sullivan's brother, Kevin Sullivan, who
purportedly threatened to use his "influence with the state" to
cause the Board to be decertified.
On October 21, 2005, Commissioner Lawler informed the
Board that, due to its continued conditionally certified status, it
was no longer authorized to undertake workforce development
business, and would be confined to whatever business was necessary
to rectify outstanding certification issues. Mayor Sullivan put
attorney William DiAdamo in charge of compiling and presenting a
final certification package to DCS. Apparently as part of this
package, DiAdamo drafted a new set of Board bylaws which, inter
alia, would give Mayor Sullivan the power to dismiss board members
at will. The Board chair refused to go along with the termination
provision, claiming it was inconsistent with the Workforce
Investment Act. Gagliardi claims that, in response to this

-- 5 of 17 --

-6-
refusal, DiAdamo's father "said he had powerful allies in . . .
Ranch Kimball's office, who would decertify the [Board] on a
moment's notice."
According to the complaint, at some point in November
2005, Mayor Sullivan met "at a secret location with four DCS and/or
DWD officials." At the end of the meeting, "the Mayor announced
that he had disbanded the Board." Mayor Sullivan and DCS took the
position that the Board had to be dissolved because of its failure
to submit a complete certification package, and Mayor Sullivan
expressed the view that conflicts among the Board's members had
prevented it from functioning effectively.
B. Procedure in the District Court
On March 28, 2006, Gagliardi filed suit in the district
court under 42 U.S.C. § 1983, claiming that Mayor Sullivan, the
City, Commissioner Lawler, Secretary Kimball, and Governor Romney
had infringed his constitutional rights to free speech and
procedural due process. He averred, inter alia, that "[t]he Board
members were fired for performing an oversight function required by
federal law," and that Mayor Sullivan and DCS conspired to destroy
the Board by interfering with the certification process. Gagliardi
sought, inter alia, a declaration that the termination of the Board
was unlawful, an injunction reinstating the Board and requiring
Mayor Sullivan to assist it in achieving certification, and
compensatory and punitive damages.

-- 6 of 17 --

By agreement among the parties, all claims against Governor 5
Romney were dismissed, as were all claims against all defendants in
their official capacities for compensatory and punitive damages.
-7-
Governor Romney, Secretary Kimball, and Commissioner
Lawler moved jointly under Rule 12(b)(6) to dismiss Gagliardi's
complaint for failure to state a claim on which relief could be
granted. Neither Mayor Sullivan nor the City joined the motion.
At the hearing on the motion, counsel for Governor Romney,
Secretary Kimball, and Commissioner Lawler presented arguments, as
did counsel for Gagliardi; counsel for Mayor Sullivan and the City
was in attendance, but made no submissions and acknowledged that he
was "not obviously participating substantively in the discussions
. . . ." The district court dismissed all of Gagliardi's federal
claims -- not only against Governor Romney, Secretary Kimball, and
Commissioner Lawler, but also against Mayor Sullivan and the City
-- and remanded the state claims to Massachusetts court.5
C. Procedure on Appeal
Gagliardi appealed the dismissal of his complaint, only
with respect to Mayor Sullivan, the City, and Commissioner Lawler.
Commissioner Lawler filed a response brief; Mayor Sullivan and the
City did not, and did not appear for oral argument. Before oral
argument, Commissioner Lawler and Gagliardi moved pursuant to

-- 7 of 17 --

After Commissioner Lawler was dismissed, Mayor Sullivan and the 6
City filed a letter stating that they "formally adopt" the
arguments made in Commissioner Lawler's brief "as their own." An
appellee cannot, however, simply adopt the arguments of another
appellee without making some effort at explaining how those
arguments apply to its case, particularly in the present
circumstances where Commissioner Lawler's position and alleged
conduct differ in several important respects from those of Mayor
Sullivan. See United States v. Casas, 425 F.3d 23, 30 n.2 (2005).
We decline the invitation to scour Commissioner Lawler's brief in
search of arguments that might be availing to Mayor Sullivan and
the City. See id., 425 F.3d at 30 n.2.
-8-
Federal Rule of Appellate Procedure 42(b) to dismiss the appeal
with respect to her. We granted the motion.6
II. Discussion
A. Standard of Review
To survive a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the factual allegations in a complaint
must "possess enough heft" to set forth "a plausible entitlement to
relief." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966-67
(2007). Dismissal for failure to state a claim is appropriate if
the complaint fails to set forth "'factual allegations, either
direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.'" Centro
Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st
Cir. 2005) (quoting Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.
1997)).
We review a district court's order granting a motion to
dismiss de novo. Id. at 5. Although we take the well-pleaded

-- 8 of 17 --

Gagliardi may have been entitled to different treatment because, 7
while he was clearly on notice that the district court might grant
the Rule 12(b)(6) motion with respect to its proponents Romney,
Kimball, and Lawler, he may not have been on notice that the
district court would also dismiss the complaint with respect to
Sullivan and the City. As discussed above, Sullivan and the City
did not join the motion or make arguments at the motion hearing.
See Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002) (sua sponte
dismissal under Rule 12(b)(6) upheld only if "[i]f it is crystal
clear that the plaintiff cannot prevail and that amending the
complaint would be futile") (quoting González-González v. United
States, 257 F.3d 31, 37 (1st Cir. 2001)). Nevertheless, Gagliardi
did not object at the hearing and has not raised this issue on
appeal, so we apply the normal standard. See Zannino, 895 F.2d at
17.
-9-
facts in the light most favorable to the plaintiff and indulge him
all reasonable inferences, Berner, 129 F.3d at 23, we need not
credit "bald assertions, periphrastic circumlocutions,
unsubstantiated conclusions, or outright vituperation," or
"subjective characterizations, optimistic predictions, or
problematic suppositions." Wash. Legal Found. v. Mass. Bar Found.,
993 F.2d 962, 971 (1st Cir. 1993) (citation and internal quotation
marks omitted); accord Dartmouth Review v. Dartmouth Coll., 889
F.2d 13, 16 (1st Cir. 1989), overruled on other grounds by
Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st
Cir. 2004). We may augment the facts in the complaint by reference
to "(i) documents annexed to [the complaint] or fairly incorporated
into it, and (ii) matters susceptible to judicial notice."
Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006).7

-- 9 of 17 --

-10-
B. 42 U.S.C. § 1983
Section 1983 is a vehicle through which individuals may
sue certain persons for depriving them of federally assured rights,
such as the First Amendment's right to free speech or the
Fourteenth Amendment's right to procedural due process. See Centro
Médico del Turabo, 406 F.3d at 6 n.2. A claim under § 1983 has two
"essential elements": the defendant must have acted under color of
state law, and his or her conduct must have deprived the plaintiff
of rights secured by the Constitution or by federal law.
Rodríguez-Cirilo v. García, 115 F.3d 50, 52 (1st Cir. 1997). The
second element requires the plaintiff to show "that the
[defendant's] conduct was the cause in fact of the alleged
deprivation." Id.
1. Free Speech Claim
Claims of retaliatory adverse employment action for the
exercise of First Amendment rights are cognizable under § 1983.
See Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004). To make
out such a claim in the present circumstances, the well-pleaded
facts in the complaint, considered together with the documents
annexed to it or fairly incorporated within it, must establish that
Gagliardi's speech was protected under the First Amendment so as to
shield him from adverse employment action in retaliation for such

-- 10 of 17 --

Whether a public employee is shielded from adverse employment 8
action for engaging in speech is governed by a two-step inquiry
that asks "'whether the employee spoke as a citizen on a matter of
public concern'" and, if so, "'whether the relevant government
entity had an adequate justification for treating the employee
differently from any other member of the general public.'" Curran
v. Cousins, No. 07-1686, 2007 WL 4247791, at *6 (1st Cir. Dec. 5,
2007) (quoting Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006)).
These are issues of law for the court. As discussed below, the
third issue is causation.
As a general rule, we abstain at this stage of the proceedings 9
from deciding whether this element has been established, since it
"'normally presents a factfinding responsibility for the jury.'"
Garnier v. Rodríguez, 506 F.3d 22, 27 (1st Cir. 2007) (quoting
Nethersole v. Bulger, 287 F.3d 15, 18-19 (1st Cir. 2002)). In this
case we are presented with a rare exception to the general rule, as
the complaint is so patently deficient.
-11-
speech, and that he suffered adverse employment action caused by 8
Mayor Sullivan and the City. In addition, there is a third
question concerned with causation, "with whether the plaintiff can
show that the protected expression was a substantial or motivating
factor in the adverse employment decision." Curran v. Cousins, No.
07-1686, 2007 WL 4247791, at *6 (1st Cir. Dec. 5, 2007). The 9
employer must, of course, "have the opportunity to prove that it
would have made the same decision regardless of the protected
expression." Id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)).
Read in the light most favorable to Gagliardi and drawing
all reasonable inferences in his favor, the complaint cites two
concrete instances of speech which allegedly provoked the
retaliatory dissolution of the Board. The first was in the summer

-- 11 of 17 --

-12-
of 2005, when the Board issued its report exposing the existence of
Mayor Sullivan's $1.1 million covert fund. The second was the
September 13, 2005 newspaper article in which Gagliardi and the
chair of the Board exposed Mayor Sullivan's persistent failure to
perform the tasks necessary for the Board to complete its
certification package. Neither allegation is sufficient to state
a claim on which relief can be granted.
First, it is evident that neither Mayor Sullivan nor
anyone else whose conduct may be imputed to the City was directly
responsible for decertifying, and thus dissolving, the Board.
Despite the occasional asseveration that Mayor Sullivan himself
"fired," "terminated," or "disbanded" the Board -- and thus "fired"
or "terminated" its members -- it is clear that only the governor
and those acting with authority delegated by him were empowered to
certify or decertify workforce investment boards. See 29 U.S.C.
§ 2832(c). Nowhere does Gagliardi allege that Governor Romney
delegated this authority to Mayor Sullivan or another Lawrence city
official. He instead admits that Governor Romney delegated it to
DCS, and that it was Commissioner Lawler as head of DCS who oversaw
the certification process, including by corresponding with the
Board on the steps still needed to achieve certification, and by
ultimately deciding that the Board could transact no further
workforce development business until it submitted a complete and
satisfactory certification package. According to the complaint,

-- 12 of 17 --

We similarly give no credit to any notion that Kevin Sullivan, 10
Mayor Sullivan's brother, carried out his threat to use his
"influence with the state" to cause the Board to be decertified in
retaliation for the newspaper article, or that DiAdamo's father
carried out his threat to contact "powerful allies in . . . Ranch
Kimball's office, who would decertify the [Board] on a moment's
notice." In any event, the complaint does not allege that either
man actually approached any state official to urge decertification.
-13-
Mayor Sullivan did not announce the Board's dissolution until after
he had met in secret with unnamed officials from DCS or from DWD,
the state agency of which DCS formed part. We reject the
complaint's intimation that Mayor Sullivan somehow twisted the arm
of these officials, during this meeting or elsewhere, to persuade
them to decertify the Board; this allegation is conclusory and is
not substantiated by reasonable inference from the well-pleaded
facts. See Dartmouth Review, 889 F.2d at 16. The well-pleaded 10
facts do not demonstrate that either Mayor Sullivan or any other
Lawrence city official made or directly compelled the state
officials to make the decision to decertify.
Second, Gagliardi's complaint, viewed in the light most
favorable to him, can also be read as making an allegation of
indirect causation between Mayor Sullivan and the decision to
decertify. The Board was decertified for failing to submit a
complete certification package. While the Board had, sometime in
2004, turned in all the required documentation it could to DCS, it
fell to Mayor Sullivan as Chief Elected Official to undertake the
remaining tasks necessary for certification. Gagliardi argues that

-- 13 of 17 --

-14-
Mayor Sullivan deliberately refrained from undertaking these tasks
in retaliation for the critical report, the newspaper article, or
both.
Yet even if Gagliardi could manage to prove at trial a
causal nexus between Mayor Sullivan's deliberate inaction and the
decision to decertify the Board -- including that DCS would have
certified the Board but for Mayor Sullivan's inaction -- he has
failed to demonstrate that either instance of speech was a
substantial or motivating factor behind the inaction. The
complaint avers that the certification package was ready, with the
exception of the tasks required of Mayor Sullivan, sometime in
2004. According to the complaint, "[t]hroughout 2005, the Mayor,
through his inaction, prevented the certification process from
being completed." These facts plainly indicate that Mayor
Sullivan's inaction began at least some months before the two
instances of speech, which occurred respectively in the summer of
2005 and on September 13, 2005. The speech in question did not
provoke Mayor Sullivan to abstain from undertaking his
certification-related tasks; such abstention long predated the
speech and continued up to the Board's November 2005
decertification. See Johnson v. Louisiana, 369 F.3d 826, 830 (5th
Cir. 2004) ("[I]f the decision-maker who imposed the adverse
employment action was not motivated by the speech, then the speech
did not cause the adverse employment action."). Even if a causal

-- 14 of 17 --

-15-
link could be demonstrated between Mayor Sullivan's inaction and
the decision to decertify the Board, Gagliardi has failed to plead
sufficient facts to show that his speech was a substantial or
motivating factor behind Mayor Sullivan's inaction.
Accordingly, Gagliardi has failed to state a plausible
entitlement to relief on the free speech claim: he has not alleged
sufficient well-pleaded facts to demonstrate that Mayor Sullivan or
the City directly caused the Board's decertification or that, if
Mayor Sullivan indirectly caused the decertification through his
inaction, that the speech in question was a substantial or
motivating factor behind such inaction. No relief could therefore
be granted on this claim if the case were to proceed to trial.
2. Due Process Claim
What we have said above allows us to dispose of
Gagliardi's Fourteenth Amendment due process claim in short order.
Invoking Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985),
Gagliardi argues that he had a property interest in his position on
the Board, and that he was deprived of this interest without due
process of law by not being told the reasons for the Board's
dissolution and his consequent dismissal, or being given an
opportunity to be heard. See Alvarado-Aguilera v. Negrón, No. 06-
2467, 2007 WL 4247665, at *1 (1st Cir. Dec. 5, 2007) (plaintiff
must "'exhibit a constitutionally protected interest in life,
liberty, or property'" to state a valid claim for a violation of

-- 15 of 17 --

-16-
Fourteenth Amendment due process (quoting Centro Médico del Turabo,
406 F.3d at 8)); id. ("Property interests are created and defined
by 'existing rules or understandings that stem from an independent
source such as state law.'") (quoting Hatfield-Bermúdez v.
Aldanondo-Rivera, 496 F.3d 51, 59 (1st Cir. 2007)); Loudermill, 470
U.S. at 542 (notice and an opportunity to be heard are "essential
principle[s] of due process").
This claim appears to be a relic from a time when the
state officials ostensibly responsible for the decision to
decertify the Board -- Governor Romney, Secretary Kimball (for
DWD), and Commissioner Lawler (for DCS) -- were still defendants in
this case. We need not reach the question of whether Massachusetts
law gave Gagliardi a property interest in continued appointment to
the Board because he cannot make out a due process claim even if he
can show such an interest. This is so because neither Mayor
Sullivan nor any other Lawrence official was responsible for the
decision to decertify the Board, and they accordingly had no duty
to provide Gagliardi with notice or an opportunity to be heard. If
anyone owed Gagliardi such guarantees -- again, a question we do
not reach -- it would have been Governor Romney, Secretary Kimball,
Commissioner Lawler, or some other state official with the proper
authorization; none of these persons is a party to the lawsuit.
Cf. Woods v. City of Michigan City, Ind., 940 F.2d 275, 279 (7th
Cir. 1991) (defendants city and county not liable under § 1983

-- 16 of 17 --

-17-
where official whose order arguably deprived plaintiff of
constitutionally protected liberty interest without due process was
a non-defendant state judge). Thus, Gagliardi has again failed to
state a plausible entitlement to relief. The district court did
not err in dismissing this claim under Rule 12(b)(6).
III. Conclusion
For the foregoing reasons, we affirm the dismissal of
Gagliardi's complaint. No costs are awarded.
Affirmed.

-- 17 of 17 --