USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-2092
DONNA SINGER,
Plaintiff, Appellee,
v.
STATE OF MAINE, ET AL.,
Defendant, Appellee.
__________________
JOHN LAFAVER, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________
Roy S. McCandless, with whom Charles A. Harvey, Jr.,
_________________
_______________________
& Dana were on brief for appellee State of Maine, Bureau
______
and appellants John LaFaver, David Campbell, Stephen
Elizabeth Dodge.
Joyce A. Oreskovich, with whom Claudia C. Sharon,
____________________
__________________
Oreskovich were on brief for appellee.
__________

and

Verr
____
of Taxati
Murray,

and Sharo
_____

____________________
April 13, 1995
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
_____________________
and defendants-appellants
Maine

Bureau of

Defendants
Donna
the

were

Singer was a tax

the

when this

State

examiner in the
Singer

in November 1992, less

of

suit arose.

management supervisors.1

Enforcement Division.

Bureau

employees of

Taxation ("Bureau")

were senior

Plaintiff-appellee

Plaintiff

Collections Unit of

was discharged

than a year

from the

after she (along

with six other Bureau employees) filed both state and federal
age and sex discrimination claims against her employers.
In February 1994,
sue

letters

("MHRC")

from both

and

the

after having received

the

Maine

right-to-

Human Rights

Commission

Opportunity

Commission

Equal Employment

("EEOC"), Singer filed suit in the district court against the

Bureau and these defendants
capacities.
state
having

The

complaint alleged that defendants

and federal law by

filed the

complaint

firing her in

also alleged, under 42

rights

defendants

under

violated

violated

retaliation for her

discrimination claims

the process by which

process

in their official and individual

against them.

U.S.C.

1983,

that:

Singer was terminated violated

the Fourteenth
her

Fifth

Amendment;

Amendment

right

The
(i)

her due
and

(ii)

against

____________________
1. Defendant John LaFaver was State Tax Assessor;
David Campbell was Director of the Administrative Services
Division of the Department of Administrative and Financial
Services; Stephen Murray was Director of the Enforcement
Division; and Elizabeth Dodge was Acting Director of the
Enforcement Division.
-22

compelled self-incrimination by firing her

to answer

questions asked

after she refused

during an investigation

conduct as a Bureau employee.

In

response

to

into her

defendants'

motion for summary judgment on all counts, the district court

held first, that Singer's
1983

was

barred

defendants in
denied

against

the

Bureau

and

their official capacities.

defendants'

retaliation

cause of action under 42

motion

claims.

for

the

individual

Second, the court

summary

Third,

the

U.S.C.

judgment

court

held

on

the

that

the

individual defendants were entitled to qualified immunity

to the

Fourteenth Amendment claim, and

for summary
Finally,

judgment.

the court

judgment with
that

Singer

denied

granted their motion

does not appeal

defendants'

respect to the Fifth

this ruling.

motion for

on

appeal

is

whether

defendants

are

The sole

entitled

qualified immunity on the Fifth Amendment claim.

I.
I.

summary

Amendment claim, holding

they were not entitled to qualified immunity.

issue

as

to

We reverse.

Background
Background
__________

On appeal from a denial of a defendant's motion for

summary

judgment, the court must view the facts in the light

most favorable
Maine Sys.,
___________
Rodr guez
_________

to the plaintiff.
35 F.3d

6, 8

(1st

v. Betancourt-Lebr n,
_________________

Cotnoir v.
_______
Cir. 1994)
14

F.3d 87,

University of
_____________
(citing Febus______
89 (1st

Cir.

1994)).

Both

cases

turned

on

the

issue

of

qualified

immunity.

-33

In February 1992,
employees in filing age
with the MHRC,

Singer joined

six other

Bureau

and sex discrimination claims, first

and later with the EEOC.2

In a letter dated

April 29, 1992, addressed to defendants Campbell and LaFaver,

the MHRC requested information relating to the discrimination
complaint ("the

complaint"), and

representatives

be

scheduled for June

following the

feel that

5, 1992.

the claims

fact-finding

Over the

conference

next several

alleged therein.3

incidents occurred

she was

disciplinary action
the complaint.

at

certain Bureau

months

filing of the complaint, the MHRC conducted an

investigation of
period, certain

present

asked that

being "singled

which
out" for

in retaliation for her

During this

caused Singer

to

questioning and
involvement with

The first
Singer

was

incident occurred on May

questioned

by

apparently for the first time

with

the

explained

Bureau,
that

about a

supervisor,

29, 1992, when

Frank

Hiscock,4

in her twenty-one year

pattern

of

unforeseeable tardiness

tardiness.
was

career
Singer

an unavoidable

____________________
2. Prior to February 1992, Singer had never filed a union
grievance; she had, however, filed a previous complaint with
the MHRC, when she was "passed over" for the job of tax
examiner in the early 1980's.
3. The EEOC held its own investigation
the outcome of the MHRC investigation.

in abeyance pending

4. Hiscock is not a party to this litigation, but was among

those whose presence was requested at the MHRC fact-finding
conference.
-44

consequence of a disability
fifteen years

prior

to this

from which she had

incident.

suffered for

According

to

the

defendants, the Bureau had no previous knowledge or record of

Singer's disability

and the

decision to question

her about

her tardiness was in no way connected to her involvement with

the complaint.
For her

part, Singer maintains that

had never before been

an issue; that, prior to the filing of

the complaint, her tardiness

had been neither documented nor

questioned by any supervisor;

she

always made

response to
her

up the

and that, when she

time at

the supervisor's

attorney

and

documentation

of

the end

to

provide

medical

June.

By

of the

the

condition.

informed defendant LaFaver of Singer's

early

was tardy,
day.

request, Singer arranged

doctor
her

the May incident,

her tardiness

and the doctor

Bureau
The

with
with

attorney

disability soon after

prepared the statement

error, however, the

In

in

doctor's statement was

not sent to the Bureau at that time.

On October
with the

16, 1992,

issue

of

Hathaway,5

former

unaware of

her disability

confirmation

of

her

tardiness

Singer was again

by

co-worker,
and

condition

a
who

new

supervisor,

stated

that there
on file

confronted

that

was no
with

the

he

Mark
was

doctor's
Bureau.

____________________
5. Like Hiscock, Hathaway is not a party to this suit, but
his attendance at the MHRC fact-finding conference was also
requested.
-55

Singer's

attorney

statement with

subsequently

a letter

enclosed

the

to defendant Murray,

doctor's

dated October

21, 1992.
Singer's

belief

that she

discipline because

of her

involvement in the

buttressed

by

her

discovery

had

that,

been targeted

some

filed, defendant Campbell, in

Sawin Millet,

Commissioner of the State

of Administrative

and

complaint was

time

complaint was

for

after

the

a memorandum to

of Maine Department

Financial Services,

had referred

to

Singer as one of the "troublemakers" at the Bureau.

In

late

August

1992,

an

incident

("the

TRACE

incident") occurred, which prompted the Bureau to investigate

Singer's

conduct as

TRACE incident, it
job.

tax

a Bureau employee.
is necessary to know

examiner

in

the

To

understand the

more about Singer's

Collections Unit

delinquent taxpayer accounts and contacts these

an

effort to collect the taxes owed.

many

hundreds of

accounts.

account, along with information

monitors

taxpayers in

Each examiner services

Information

relating to

each

regarding contacts made

and

actions taken by the examiner, are recorded in a computerized

system

known as

collection

TRACE.

process is

The examiner's
to attempt

to make

first step

in the

personal contact

with the taxpayer, by telephone or in writing.

In the event

the

examiner is unsuccessful in her

taxes, the

next step is to

attempts to collect the

issue a levy demand

against the

-66

taxpayer, which notifies the

taxpayer that the debt

must be

paid within ten days, and outlines the actions to be taken if

payment
include,

is not

received within

that time.

not limited

to, involuntary

but are

These

actions

wage levies,

liens, seizure of property, and public disclosure of the debt

in court.

If

demand, the

the debt is not

state

is

paid in response to

allowed to

take

the levy

possession

of

the

taxpayer's assets in lieu of payment.

By law and Bureau policy, employees are required to
maintain the confidentiality of all taxpayer records.
policy

requires

acknowledging

both

confidentiality and
information

that

could

each
the

employee

sign

responsibility

statement

to

that the unauthorized disclosure

result

in immediate

dismissal

imposition of penalties under state and federal law.

Bureau

maintain
of tax
and

the

Singer

signed confidentiality statements in 1985 and 1987.

The TRACE

incident began when

a Bureau supervisor

received an anonymous telephone call from a woman who accused

a

Bureau

Bureau.

clerk of

tax account

experienced a number

become involved

with

her estranged

the anonymous caller

that

had been

the call

with the Bureau.

made in

The clerk

of problems with

suspected that

trouble

outside the

The accusation was apparently unfounded.

had recently
who had

discussing her

husband.

was the same

order

a woman

to cause

Having identified the

She

woman and
the clerk
woman as a

-77

delinquent taxpayer whose active account had been assigned to

Singer, the clerk and another employee talked to Singer about
the situation.
Singer

herself had

the suspected caller and

from

no personal

did not know her.

the conversation that the clerk

relationship with
Singer gathered

was very upset because

she thought that

anonymous call.
the

she might be fired as

Singer

TRACE system

looked up the name

Singer's conversation with the clerk later resumed.

When, in

of

relating

suspected caller, the

woman lived,

the

status

another

of

in

account.

course

noted

of the woman
the

the

and

a consequence of the

incident

clerk mentioned the city

Singer realized

involving

the

in which the

that this information

did not

comport with the address listed for that account in the TRACE
system, the

address at which Singer

tried unsuccessfully to

contact the woman a year ago, when she had last worked on the
account.

Singer then

asked for and received from

the clerk

the correct address and telephone number for the woman.

When Singer returned to her work station, she again
called

up

the woman's

account

on

the

TRACE system,

and

recorded the following message: "[The woman] called in to try

to get [the clerk]
and that of a
that it was
that

in trouble.

The complaint

personal nature between them."

not at all unusual to record

she did so simply

to notify other

-88

was unfounded
Singer argues

such a message and

employees who might

have dealings with

the account

that the

woman might

cause

recording the

message,

Singer

problems.
In

the course

noticed a "CP
fact

of

code" on the

that the

system that alerted

taxpayer was

listed on

system as

owing additional taxes.

was

of her

part

job as

accounts

and inform the

In order

to

do that,

system a request
under

these

previously
taxpayer,

an

levy demand.
in

failed to

must now

notify

amount

of the consolidated debt,

means

of

notification

Accordingly, in

addition to

total amount owed.

enter into

the

the taxpayer

of

a levy demand
to

the

updating the address

the

Singer,

examiner

establish contact

available

of the

Singer, it

According to

which

the

consolidate these

necessary to

circumstances,

and

According to

taxpayer of the

for a

tried and

another part

examiner to

it was

her to

has

with the
the total

is the only
examiner.
and phone

number, Singer entered the following TRACE message: "Going to

have

[the accountant] send a Levy Demand on all because they

also owe for a CP under 1983."

The clerk somehow learned of the TRACE message, was
upset by it, and reported it to her supervisor, Brian Mahany.
When

Singer learned

that

the

clerk

was upset

message, she asked to speak with Mahany about it

explain to
believed she

him what she had

had

done

done and why.

nothing

unusual

about

the

in order to

Although Singer
or

inappropriate,

-99

Mahany made it clear that he thought otherwise.

her to remove

the message, which was impossible

messages entered

are permanent, Mahany

After asking
because the

instructed Singer to

add the following message: "If this lady should call with any
complaint, give call to
to

freeze

the

levy

a supervisor."
demand

defendants Dodge and Murray.

and

He then

reported

The Bureau's

took action

the

matter

to

position is that

Singer's conduct in this

regard was subject to investigation

and

because

possible discipline

Singer:

(i) removed

the

account from its predetermined position in the TRACE system's

chronological

order

personal contact

of

priority

without

with the taxpayer; (ii)

first attempting
entered a personal

message on the TRACE system and took official action

a taxpayer
demand

for personal reasons;

and (iii) issued

against
the levy

out of the normal sequence in which such action would

have been taken in the ordinary course of Bureau business.

Singer's position is that the Bureau's response

the TRACE

incident is another

targeted for
MHRC

indication that she

discipline because of her

complaint.

She

argues

that

to

had been

participation in the
her

conduct

was

not

inappropriate because neither the message nor the actions she

took

were

affidavits

personal,
sworn

messages were

unusual,

by co-workers

or

extreme.

indicate

frequently entered into

Furthermore,

that:

(i)

such

the system, sometimes

by supervisors; (ii) at the time of the TRACE incident, there

-1010

were no written rules

governing such messages; and

the time of the incident,

the decision when to issue

(iii) at
a levy

demand was discretionary with the tax examiner.

On August 27, 1992, Singer was called to a
with defendant
questioned

her about

position that
life

Dodge and
the

Supervisor Mahany, at
TRACE incident.

Singer's actions were related

of a Bureau

employee, rather

than to

meeting

which Dodge

Dodge

took the

to the personal
official Bureau

business, and therefore were inappropriate.

that the message was

neither personal nor unusual,

her decision to issue the levy

the

clerk's

problems with

Singer's explanation

also asked

caller.

Unsatisfied

for her conduct, Dodge

Singer

and that

demand had nothing to do with

the

that the investigation would

Dodge

Singer explained

continue.

to provide

with

informed Singer

According to Singer,
her

with examples

of

similar messages that had been entered into the TRACE system.
A

meeting to

scheduled

for

October

Singer's

attorney

investigate
2, 1992.

called

out

for

The request

unable to attend the

the

meeting

for

in

further was

September
Dodge

to

retaliation

was granted,

Bureau

-1111

request

was being singled

but the

for the

were

MHRC

attorney was

meeting for other reasons.

the

30, 1992,

Singer wanted her attorney

felt certain that she

disciplinary action

complaint.

On

defendant

permission to attend the meeting.

present because she

the matter

Supervisor

Present at
Hathaway,

Personnel
Dodge.

Manager

Pat Beaudoin,

Singer was

the Maine

and defendants

present, represented by

State Employees

Murray and

Roger Parlin of

Association ("MSEA").

Parlin is

not an attorney.
At the outset of
its purpose
work.

She

was to discuss

record is not

conclusion

of

the

position

although Murray
session

Parlin believed
(iii) Parlin

questioning,

printouts,
confidential
messages

had

to

does

had broken

establish

the

a threat

been

information,
the one

for

Singer and
charges;

copies of TRACE
so
and
which

(ii)

a fact-finding

of criminal

redacted

the

was the

law;

investigation, both

his possession

taxpayer

what happened at the

the meeting was

there to be

similar

investigation

Singer

a criminal

which

it

Although

tried to ascertain whether it

that

had in

incident

the questions put to her.

stated that

and not

to Singer's

about the TRACE

clear as to exactly

following: (i) Parlin

Bureau's

an incident related

then questioned Singer

and Singer answered all

the

the meeting, Dodge announced that

as
which

to

screen
exclude

contained

Singer was

under

that had been entered into the system by other

Bureau employees;6 (iv) at

some point, the defendants became

____________________
6.
The record also indicates that, in the course of her
questioning of Singer, Dodge herself displayed a similarly
redacted printout of the TRACE screen at issue in the
investigation, in full view of Parlin.

-1212

aware that Parlin had these documents

in his possession; and

(v) Parlin, followed by Singer, left the meeting abruptly.

Concerned
taxpayer

records

authorization,
defendants

in

possession.
Counsel dated
reviewed
shared

Singer had

to

union

violation

Murray

Parlin and the

that

and

representatives
of

law

and

LaFaver attempted

without

Bureau
to

policy,

recover

from

MSEA any confidential Bureau records in their

In one

such attempt, a letter to the MSEA Chief

October 14, 1992,

the matter
his view that

with

maintained

LaFaver stated that

the State

throughout

he had

Attorney General,

"this situation appears

extremely serious breach of

MSEA

disclosed confidential

to involve an

taxpayer confidentiality."
that

it

did

who

not

The

have

any

Murray

and

confidential taxpayer information.

Meanwhile,
Dodge, dated

in

letters

to defendants

October 21 and October

Singer's attorney

27, 1992, respectively,

stated that she understood

Singer to have

been

threatened

with

meeting, and asked to

those charges.
that

Singer

In

the

October

be advised of the nature and status of

not

concerning criminal

order

charges at

both letters, the attorney made

would

the letter of

criminal

be

allowed

to

meet

with

charges without benefit of

October 27,

the attorney also

it clear
anyone

counsel.

In

said that,

in

to advise her client, she needed to know the questions

that would be asked

at the next investigatory meeting.

The

-1313

Bureau did

not respond

to these requests

regarding

the threat of

for clarification

possible criminal charges perceived

by Singer and her representatives.

The Bureau scheduled
10, 1992, in order
was represented
attended

the

another meeting for

to ask additional questions.

at

this

October

meeting

by the

meeting:

Supervisor

Personnel Manager Beaudoin, and defendants

Singer

was

present,

represented

same

by

November
The Bureau

people

who

Hathaway,

Murray and Dodge.

Robert McLaughlin,

different
Singer's

MSEA

representative,

attorney

was

who

present,

participate.

At

the outset

questioning,

McLaughlin asked

is

but

not

was

an

not

of this meeting,
to

know the

attorney.
allowed

to

prior to

any

purpose of

the

meeting, whether it was a criminal investigation, and whether

he

could tape the meeting.

meeting

pertained only

Defendant Dodge replied that the

to alleged

work-related misconduct,

that it was not a criminal investigation,

that no one at the

Bureau was empowered to conduct a criminal investigation, and

that the meeting could not be taped.
Before proceeding with

the questioning,

defendant

Dodge told Singer that it would be to her advantage to answer

the

questions.

asked to

neither advised of,

waive, her Fifth Amendment

incrimination.
not

Singer was

She was not

privilege against self-

told that there

be a criminal investigation

-1414

nor was she

would or would

in the future;

nor was she

informed whether the answers

she gave at this

be used against

her in a subsequent criminal

that

be

she would

fired

if

she

meeting could
proceeding, or

refused

to

answer

the

asked whether Singer

had

questions put to her at this meeting.

The first
provided Parlin
documents.
pursuant

to

McLaughlin was
participate

two questions

with TRACE screen printouts

When

Singer

did not

the

whispered

or other Bureau

answer

these

questions

her

attorney,

instructions of

reminded that the attorney was not allowed to

in the

meeting.

Singer's

attorney

requested and received

a copy

asked, and met outside

privately with Singer and McLaughlin.

When

the

investigatory

of the five

thereupon

meeting

announced that he would not

questions to

reconvened,

be

McLaughlin

allow Singer to answer questions

one through four (which asked whether Singer had disclosed to

Parlin

or to

anyone else

TRACE screen

Bureau documents) because they were

repeating

her

previous

questions.
allow
no

indication

answer

that

it

would

that

indicates that McLaughlin

be

There is

verbally

invoked

her

any

time during

the

meeting.

privilege at

Counsel that

to

would not

Singer

to the last question (whether

Chief

After

defendant Dodge asked the five

Singer to answer questions one through four.

Amendment

MSEA

The record

or other

not job related.

admonition

Singer's advantage to answer,

printouts

Murray

-1515

Fifth
In

Singer agreed with the

had given

TRACE screen

printout to Parlin at

the October 2 meeting)

that defendant Dodge, rather

so.

Singer replied

than defendant Murray, had done

Before the meeting adjourned, McLaughlin stated that the

MSEA had nothing confidential in its possession.

On November

16 and

17, 1992, McLaughlin

telephone with Personnel Manager Beaudoin.

spoke by

McLaughlin stated

that Singer's attorney had reviewed the criminal statutes and

determined that admissions made by

Singer could subsequently

be

that Singer

used

against her.

questions presented in
original

incident,

He

added

writing if they

but

that

would answer

were related to

the questions

asked

at

the
the

November 10 meeting would not be answered.

On November 19,
to Singer a

1992, defendant LaFaver

letter informing her that

the investigators had

concluded as follows: (i) Singer had ordered the

for

delivered

levy demand

personal reasons, an inappropriate activity constituting

misconduct;7 (ii)
person
activity

not

she had given confidential

entitled

constituting

to

possess
gross

them,

an

misconduct;8

documents to a
inappropriate
(iii)

Singer

refused both to
reassurances

acknowledge this misconduct and to

that it

would not

be repeated;

give any

and (iv)

the

____________________
7.
According to the Bureau's report of the investigation, a
document separate and apart from LaFaver's letter, this
conduct constitutes grounds for disciplinary action.
8.
According to
the Bureau's
constitutes grounds for dismissal.

report,

this

conduct

-1616

Bureau could no longer

records.

As

a result,

administrative

leave,

November 24, 1992.

that she

trust Singer with confidential Bureau

had a

Singer
and

was immediately

dismissed

from

the

placed

on

Bureau

on

Although the letter also informed

right to meet

with LaFaver on

Singer

November 23,

1992, to discuss her dismissal, Singer did not do so.

As

has been

employees had filed

and

the EEOC

received

stated, Singer

and six

other Bureau

discrimination complaints with the

in February

right-to-sue

1992.

letters

In November
from

both

MHRC

1993, Singer

agencies.

On

February

8, 1994, she filed

in the district

court the suit

giving rise to this appeal.

We
the question

now turn to the only issue before us on appeal,

whether the individual defendants

to qualified immunity as to the

II.
II.
To
claim
an

are entitled

1983 Fifth Amendment claim.

Standard of Review
Standard of Review
__________________

the extent

district court

of qualified immunity turns on an

order denying

issue of law, it is

appealable final decision within the meaning of 28 U.S.C.

1291.

Mitchell
________

v. Forsyth,
_______

472

U.S. 511,

530 (1985);

Cotnoir v. University of Maine Sys., 35 F.3d at 9.

___________________________________
Where

a qualified immunity

defense is asserted by

pre-trial motion, the usual summary judgment standards apply.

Amsden v. Moran,
______
_____

904 F.2d

748, 752 (1st

-1717

Cir. 1990),

cert.
_____

denied, 498 U.S. 1041

______
is

proper only

(1991).

if the

interrogatories, and

Accordingly, summary judgment

"pleadings, depositions,

admissions on file,

answers to

together with

the

affidavits, if any, show that there is no genuine issue as to

any material fact

and that the moving party is entitled to a

judgment as a matter of law."

III.
III.
A.
A.

Fed. R. Civ. P. 56(c).

Discussion
Discussion
__________

Qualified Immunity
Qualified Immunity
__________________
1.
1.
__

It
the

is undisputed

that Singer was

Bureau, in part, for her refusal to answer the questions

asked of her at the November 10 meeting.

arguments on

appeal.

First,

did not violate Singer's

established

public

employee

questions

to

where:

employee's

incrimination; (ii)

of these events.

Second,

no clearly-established right of
to

answer

(i) the employer did

Amendment

employment-related
not seek a waiver of

right

the employee did not

Fifth Amendment privilege;

their actions

Fifth Amendment rights according to

refuse

Fifth

Defendants make two

they argue that

precedent at the time

they argue that there was

the

discharged from

against

self-

actually claim the

and (iii) the employee's

answers

were

never

used

against

her

in

subsequent

criminal

public

officials

prosecution.

-1818

Qualified

immunity

shields

performing discretionary functions "from liability

damages

insofar as

their conduct

established statutory
reasonable person
457 U.S. 800,

or constitutional

would have known."

818 (1982).

violated must have

does not

The right

violate clearly

rights

alleged to have

been clearly established

sufficiently clear that a

understand

that

what

he

is doing

of which

Harlow v. Fitzgerald,
______
__________

at the time

the alleged violation, id., and "[t]he contours

___
must be

for civil

been
of

of the right

reasonable official would

violates

that

right."

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

________
_________
The

qualified

immunity

analysis focuses

on

the

objective reasonableness of the

defendant's actions.

"[T]he

relevant question is whether a reasonable official could have

believed

his

actions

were

lawful

in

light

of

clearly

established law and the information the official possessed at

the

time

of

his

allegedly

unlawful

conduct."

Febus______

Rodr guez, 14 F.3d at 91 (quoting McBride v. Taylor, 924 F.2d

_________
_______
______
386,

389

Mitchell
________
Court

(1st Cir.

1991))

v. Forsyth, 472
_______

characterized the

(other citation

U.S. 511, 526

qualified

omitted).

In

(1985), the Supreme

immunity

defense as

an

entitlement to "immunity from suit rather than a mere defense

__________________
to liability . . . . "
In applying these principles to a recent
immunity

determination,

the

Supreme

Court

qualified

stated:

"A

-1919

necessary

concomitant

constitutional right

to the
asserted

determination of
by a

plaintiff

whether the
is

`clearly

established'

at

determination
violation

the
of

of a

time

whether

the
the

defendant
plaintiff

constitutional right

Gilley,
______

500 U.S.

226,

Siegert
_______

for

proposition

the

232 (1991).

has

at all."
We

that

acted

is

the

asserted

Siegert
_______

v.

subsequently cited

"before

even

reaching

qualified immunity, a court of appeals must ascertain whether

the appellants have asserted
right at
1993).
inquiry,

all."

Page, 987 F.2d 1,

____

"a

plaintiff

violated

must

the

establish

plaintiff's

that

particular

federally

protected

Febus-Rodr guez, 14 F.3d at 91 (citations omitted).

_______________

Applying these principles,

in

7 (1st Cir.

Thus, as a predicate to the objective reasonableness

defendant
rights."

Watterson v.
_________

a violation of a constitutional

our qualified

established

that

immunity
defendants

the threshold

analysis is

whether Singer

violated her

right against self-incrimination.

question

Fifth

has

Amendment

There is no indication in

the record that Singer

at any time actually stated

was refusing to answer

questions on Fifth Amendment grounds.

Instead, she
attorney

and

simply remained
union

silent

on the

representative.9

that she

advice of
Under

her
these

____________________
9.
Moreover, at oral argument, Singer stated
not coerced at the November 10 meeting.

that she was

-2020

circumstances, it would appear that there

is a real question

as

a Fifth

to whether

Singer

actually asserted

Amendment

violation.
In

her brief, Singer states that "a constitutional

violation occurs when an

silent."

Appellee's Brief at 21.

state that Singer did

November

employee is penalized for remaining

not invoke the Fifth Amendment

10 meeting, but

questions
Appellants'

asked

notwithstanding,

instead refused to

because

Brief

at

the

In their brief, defendants

they

were

25.

These

parties have

not

court the question whether

not

at the

respond to the
job

brief

related.
references

argued before

the Fifth Amendment requires that

one who seeks to invoke its protection must explicitly

the

privilege,

remaining

silent

as distinct
in the

questions.

Under the

deciding,

that Singer

this

from

face of

simply

claim

exercising it

by

potentially incriminating

circumstances, we will assume, without

invoked

the privilege

against self-

incrimination.
2.
2.
__
As

recently

Justice Powell,

by

the inquiry whether

clearly established
its

explained

retired

Supreme Court

the right at

properly focuses "not upon

most general or abstract level,

issue was

the right at

but at the level of its

application to the specific conduct being challenged."

Wiley
_____

v. Doory, 14 F.3d 993, 995 (4th Cir. 1994) (quoting Pritchett

_____
_________

-2121

v.

Alford, 973 F.2d 307,

______

312 (4th Cir.

1992)).

"Moreover,

`the manner in which this [clearly established] right applies

to the actions of the official
(quoting Maciariello
___________

must also be apparent.'"

v. Sumner, 973 F.2d 295,

______

1992)) (citations omitted) (alteration

Id.
___

298 (4th Cir.

in original).

"[I]f

there is a `legitimate question' as to whether

conduct

an official's

constitutes a constitutional violation, the official

is entitled

to qualified immunity."

Id. (quoting Tarantino

___
_________

v. Baker, 825 F.2d 772, 775 (4th Cir. 1987)).

_____
We think

that this perspective gives

a clear view

of the qualified immunity issue.

B.
B.

The Fifth Amendment Rights of Public Employees

The Fifth Amendment Rights of Public Employees
______________________________________________
The Fifth Amendment states that no person "shall be

compelled in

any

himself."

criminal

U.S. CONST.

addressed the

case

to be

amend. V.

cases.

U.S. 493 (1967); Gardner

_______

See
___

witness

The Supreme

Fifth Amendment rights of

the Garrity line of

_______

against
Court has

public employees in

Garrity v. New Jersey,

_______
__________

v. Broderick, 392 U.S.

_________

385

273 (1968);

Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,

______________________________
__________________________
392

U.S. 280 (1968).

See also Lefkowitz v. Turley, 414 U.S.

___ ____ _________
______

70 (1973); Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

_________
__________
In
the threat
in

the

Garrity, police
_______
of termination to

course

of

an

officers were

compelled under

answer incriminating questions

investigation

-2222

into

traffic-ticket

"fixing."

Prior to questioning, each

officer was warned, in

accordance with a state statute, as follows:

(1) that anything he said might be used
against
him
in any
state criminal
proceeding; (2) that he had the privilege
to refuse to answer if the disclosure
would tend to incriminate him; but (3)
that if he refused to answer he would be
subject to removal from office.
Garrity, 385 U.S. at 494.
_______
The
immunity and

officers were not

there was no immunity

the circumstances.
some

of

been

forced to

incriminating

were used

themselves,

statements, "obtained under

could

not

be

proceedings.

used

against

them in

held

their

that

their

threat of removal from

them

in

a later

that the officers

between losing
and

waiver of

the questions and

against

The Court concluded

choose

sign a

statute applicable under

The officers answered

these answers

criminal proceeding.
had

asked to

subsequent

jobs and
coerced
office,"
criminal

Id. at 500.
___

Gardner and

Uniformed Sanitation Men

both involve

_______

________________________

public employees (in Gardner,

_______
Sanitation Men,
_______________

municipal

a police officer; in Uniformed

_________
sanitation

unconstitutionally "confronted with

workers)

who

Hobson's choice

were

between

self-incrimination and forfeiting [their] means of livelihood

.

. . .

"

Gardner, 392
_______

Sanitation Men, 392

_______________
officer, who

U.S. at

U.S.

277; see
___

at 284.

was subpoenaed

also Uniformed
____ _________

In Gardner,
_______

to appear

police

before a grand

jury

-2323

investigating
officers,

bribery

was advised as

intended to
his

alleged

official

and

follows:

corruption
(i) that

ask him questions concerning

duties;

(ii)

that he

he

was

fired.

required to
After

sign a

waiver of

he refused to testify and

police

the grand jury

the performance of

had

privilege against self-incrimination; and

of

constitutional

(iii) that by
immunity or

law

else be

to sign the waiver,

the

officer

discharged

was

given

pursuant to

an
a

administrative

provision of

Charter, solely for his refusal to

rights.
officer

Gardner,
_______
"was

392

U.S. at

discharged from

and

New York

City

waive his Fifth Amendment

274-75.

office,

answer relevant questions about

.

the

hearing

Noting
not

that

for failure

the
to

his official duties, but for

. . failure to relinquish the protections of the privilege

against

self-incrimination,"

id.
___

at

278, the

Court

held

unconstitutional both the officer's dismissal for his refusal

to

waive

his

immunity

and

the

Significantly,

the

Court

Charter

provision

that

authorized it.

Uniformed Sanitation Men

_________________________

preserved

in

Gardner
_______

the right

of a

employer to ask job-related questions of the employee:

If appellant, a policeman, had refused to
answer questions specifically, directly,
and narrowly relating to the performance
of his official duties, without being
required to waive his
immunity with
respect to the use of his answers or the
fruits thereof in a criminal prosecution
of himself, the privilege against self-2424

and

in

public

incrimination would not

to his dismissal.
Gardner,
_______

392

U.S.

at

278

have been a

(citation

bar

omitted);

see
___

also
____

Uniformed Sanitation Men, 392 U.S. at 284.

________________________
Justice
these

cases

incrimination

Powell

suggests
is

concludes
that

that the

the

not violated

right

by

the

"language
against

in

self-

mere compulsion

of

statements, without a compelled waiver of the Fifth Amendment

privilege

or the

use

of compelled

maker in a criminal proceeding."

statements against

Wiley v. Doory, 14
_____
_____

the

F.3d at

996 (citation omitted); see also Wiley v. Mayor of Baltimore,

___ ____ _____
__________________
--- F.3d ---, 1995 WL 85433, 3 (4th Cir. 1995); accord Hester
______ ______
v. City of Milledgeville, 777
_______________________
1985); Gulden
______

v. McCorkle,
________

1982),

denied,
______

cert.
_____

Sanitation Men Ass'n v.

____________________

459

F.2d 1492,

680 F.2d
U.S.

1070,

1206

1494 (11th

Cir.

1074 (5th

Cir.

(1983);

Uniformed
_________

Commissioner of Sanitation, 426 F.2d

__________________________

619, 627 (2nd Cir. 1970), cert. denied, 406 U.S. 961 (1972).
_____ ______
In

United States
_____________

v. Indorato,
________

628 F.2d

711, 716

(1st Cir.),
summarized

cert. denied, 449

_____ ______
the Garrity
_______

line

U.S. 1016 (1980),

of cases

in similar

this court
fashion,

noting the two features common to Garrity and its progeny:

_______
(1) the person being investigated is
explicitly told that failure to waive his
constitutional
right
against
selfincrimination
will
result
in
his
discharge from public employment (or a
similarly severe sanction imposed in the
case of private citizens); and (2) there
is a statute or
municipal ordinance
mandating such procedure.
-2525

(Footnote omitted).
In Indorato,
________

appellant,

a state

trooper who

had

been convicted of conspiracy, theft and perjury, contended on

appeal that his statements in response to questions asked
his superior
which gave

officers during an investigation

rise to the

charges were coerced,

inadmissible against him at

by

of the events
and therefore

trial under the Fifth Amendment.

Indorato, who
statements,

was not
was

in custody

not

advised

at the
of

his

time he made
rights

the

prior

to

questioning and was not threatened with dismissal for refusal

to answer the questions asked of him.
Relying on Garrity, Indorato argued that the threat
_______
of dismissal

was nevertheless

questioned by superior

officers and was well

departmental rules governing

the

dismissal of

orders

viewed

the state

officers who

of superior

Indorato

implied because he

himself

Under

as having

aware that the

police provided

refused to

officers.

was being

obey

these
been

for

the lawful

circumstances,

put

in

the same

position as the officers in Garrity.

_______
In
this

case, there

statutorily
that
happen

rejecting Indorato's
was no

if he

sufficient

explicit `or

mandated firing

the subjective

fears

refused
to

bring

argument, we

him

else' choice

is involved.
of defendant

to answer

-2626

We do
as

and no

not think

to what

his superior

within

stated: "In

Garrity's
_________

might

officers are
cloak

of

protection."
there was

Indorato,
________

no Fifth

628 F.2d

at 716.

Amendment violation on

In holding

that

these facts,

we

said:
Here,
defendant
did not
claim the
privilege. He was not told that he would
be dismissed if he failed to answer the
questions asked.
He was not asked to
sign a waiver of immunity. There was no
statute mandating dismissal for refusal
to
answer
hanging
over his
head.
Defendant, here, was not, as in Garrity,
_______
put between the rock and the whirlpool;
he was standing safely on the bank of the
stream.
Id. at 717 (citation and internal quotation marks omitted).
___
Singer, like Indorato, did not explicitly claim the
privilege;

was not told that

she would be

dismissed if she

failed to answer the questions asked of her; was not asked to

sign

a waiver

dismissal

of

immunity; and

for refusal

Accordingly, Singer

to

was not

had

no statute

answer hanging
put "between

over her

mandating
head.10

the rock and

the

____________________
10.

In Indorato, we said that the language used in the state

________
police departmental rules, which provided that a trooper may
___
be tried and upon conviction may be subject to dismissal or
___
other disciplinary action for violation
of the rules,
"suggests that
dismissal would not
have automatically
followed defendant's invocation of the [F]ifth [A]mendment."

Indorato, 628 F.2d at 716.

________
As stated in the text, here, there is no statute
mandating
dismissal for
refusal to
answer questions.
Moreover, the language used in the Bureau's confidentiality
statement suggests that dismissal would not automatically
follow an employee's invocation of the Fifth Amendment:
"Unauthorized disclosure of any tax information may result in
___
immediate dismissal and imposition of penalties prescribed by
Maine and Federal statutes."
Appendix p. 00080 (emphasis
added).
-2727

whirlpool," as were
cases.

Instead,

the plaintiffs

in the

Garrity line
_______

like Indorato, she was "standing

of

safely on

the bank of the stream."

Therefore, we must agree with defendants that their
actions

did

established

not

amount

to

Fifth Amendment

First Circuit precedent

violation

right under

at the

1987) (the

from every

Fifth Amendment

time of these

and

events.

See
___

375, 376

(1st

"does not shield

adverse social or economic

clearly-

Supreme Court

also In re Grand Jury Proceedings, 835 F.2d

____ ______________________________
Cir.

of

a person

consequence which may

flow from

testifying," and

is not violated

where a

public

employee who has been granted immunity is required to testify

before

grand

jury

(citation omitted);

investigating

O'Brien v.
_______

(1st Cir.

1976) (Fifth

dismissed

for

refusing

to

dismissed

for

directly, and

complete

. .

financial

to

answer

. '"

violated because

when public

employees are

questions `specifically,

narrowly relating to the

official duties .

police officers

a required

crime were not

not infringed

failing

543, 546

an investigation into their alleged

relationship with organized

"privilege is

activities)

DiGrazia, 544 F.2d

________

Amendment rights of

questionnaire as part of

the

illegal

performance of their

(quoting Uniformed Sanitation

_____________________

Men, 392 U.S. at 284) (other citation omitted)), cert. denied

___
_____ ______
sub
___

nom. O'Brien
____ _______

v.

Jordan, 431
______

U.S.

914 (1977);

accord
______

Uniformed Sanitation Men Ass'n v. Commissioner of Sanitation,

______________________________
__________________________

-2828

426

F.2d at 627 ("The proceeding here involved no attempt to

coerce

relinquishment

of

constitutional

rights,

because

public employees do not have an absolute constitutional right

to

refuse to

account for their

official actions

and still

keep their jobs . . . .").

In

view of

the

divergence of

opinion among

the

circuits with respect to the various issues that circumscribe

the Fifth Amendment rights of public employees, we agree with
the defendants that the law in this area was unsettled at the
time of these events and remains so today.11
When viewed
the

specific conduct

at the
being

level of their
challenged

application to

here,

neither

contours of the Fifth Amendment right itself, nor the

in

which

that

right

defendants are at all

said
public

of

the law
employees

applies
apparent.

to

the

actions

governing

the Fifth

in

circumstances,

these

Amendment
it

manner

of

Thus, whatever else

the

these
may be

rights of
cannot

be

maintained that it was then or is now clearly established.

We cannot conclude that
have

known that

their

actions

defendants knew or
violated Singer's

should
clearly-

____________________
11.

See Justice Powell's review of the federal law in this

___
area in Wiley v. Doory, 14 F.3d at 998 ("Today, approximately
_____
_____
six years after Doory's alleged conduct, the law remains
unsettled."); and in Wiley v. Mayor of Baltimore, 1995 WL
_____
___________________

85433 at 4 ("We recognize that, in cases involving private

citizens, there is some
inconsistency in the circuits
regarding whether or not a Fifth Amendment violation can
occur when the fruits of coerced questioning are not used.").
-2929

established

Fifth Amendment

rights.

Indeed,

it could

be

reasonably argued that under the applicable law, there was no

Fifth Amendment violation at all.
defendants

are entitled

Accordingly, we hold that

to qualified immunity

as to

the

1983 Fifth Amendment claim.

IV.
IV.
For

the

Conclusion
Conclusion
__________

foregoing reasons,

the district court's

the district court's
_____________________

order denying summary judgment to defendants on the Fifth

order denying summary judgment to defendants on the Fifth
_____________________________________________________________
Amendment claim is reversed.
Amendment claim is reversed.
___________________________

No Costs.
No Costs.
________

-3030