Tang v. State of R.I., Dept. of Elderly Affairs

Citation163 F.3d 7
Decision Date03 November 1998
Docket NumberNos. 98-1256,98-1668,s. 98-1256
Parties74 Empl. Prac. Dec. P 45,668 Rhoda TANG, Plaintiff, Appellant, v. STATE OF RHODE ISLAND, DEPARTMENT OF ELDERLY AFFAIRS and Maureen Maigret and Susan Sweet, in Their Individual and Official Capacities, Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Dennis J. Roberts, II, with whom Gabriella G. Gaal, was on brief for appellant.

Rebecca Tedford Partington, Assistant Attorney General, for appellees.

Before BOUDIN, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant Rhoda Tang ("Tang"), an Asian-American employee of the Rhode Island Department of Elderly Affairs ("Department"), filed a complaint against the Department 1 alleging racial and gender discrimination, harassment and retaliation. During the course of litigation, the district court excluded certain evidence, granted judgment as a matter of law for the Department, and granted attorney's fees to the Department. Tang appeals each of these decisions. Because she has failed to show that the district court's rulings on evidence and judgment as a matter of law were erroneous, we affirm. We, however, remand the attorney's fee decision for clarification.

I. Background

During the decade preceding this litigation, Tang, individually and in her role as president of the local union, filed a series of grievances against the Department. One such grievance, filed in 1989 after the Department discharged her, went to an arbitration hearing in May 1991. During that hearing, the parties agreed to settle the grievance by reinstating Tang and had the stipulated settlement entered as the arbitrator's award.

Several years later, Tang filed another grievance, this time claiming racial and gender discrimination as well as retaliation for actions occurring before the 1991 hearing date. The Department moved to dismiss the complaint based on the res judicata effect of the stipulated arbitration award. Judge Pettine found that he could not decide the issue on the basis of the record at the time, and consequently denied the motion. During the course of that opinion, the court noted that at a recent conference the parties had discussed the admissibility of evidence underlying the 1989 grievance. Although the parties had not briefed the evidentiary issue, Judge Pettine stated that "evidence of [Tang's 1989] discharge will be admissible at trial" whether or not Tang's claim could be based on the earlier termination.

Defendants subsequently filed an interlocutory appeal on grounds not relevant here. By the time the action was remanded to the district court, Judge Pettine had retired, and the case had been assigned to Judge Torres.

Based on the statement in Judge Pettine's opinion, Tang sought to introduce evidence underlying her 1989 discharge at trial. Judge Torres found that the existence of the grievance was relevant to Tang's retaliation claim, but the facts underlying it were not because it had been resolved. Judge Torres therefore ruled that Tang could introduce the fact that she had filed a grievance but not the details of it.

After the close of the plaintiff's case, Judge Torres granted judgment as a matter of law in favor of the Department. He ruled that Tang had presented no evidence that would support her claims, and, in fact, the evidence contradicted her allegations.

The Department then filed a motion for attorney's fees under 42 U.S.C. § 1988. Reiterating that the complaint was based on "a number of minor perceived slights" and that there was "absolutely no evidence" that the slights were race or gender-based, Judge Torres granted the Department's motion for fees.

II. Discussion
A. Admission of Pre-1991 Evidence

Tang claims that Judge Torres erred in excluding the pre-1991 evidence because Judge Pettine's ruling that the evidence would be admissible was the law of the case. Whether the law of the case doctrine bars subsequent litigation of a claim is an issue of law subject to plenary review by this court. See Dopp v. Pritzker, 38 F.3d 1239, 1245 (1st Cir.1994).

Tang's reliance on the law of the case doctrine is misplaced. As we recently said, that doctrine both prevents a party from relitigating an issue decided by a lower court and unchallenged on appeal, and requires a lower court to comply with a superior court's instructions on remand. See Field v. Mans, 157 F.3d 35, 40-41 (1st Cir.1998). The doctrine does not preclude all reconsideration of an issue already settled. See Bethlehem Steel Export Corp. v. Redondo Constr. Corp., 140 F.3d 319, 321 (1st Cir.1998). "Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994).

At the time of Judge Pettine's comments, the parties had not briefed whether the evidence was admissible; the Department had made a motion to dismiss the complaint. Even if Judge Pettine's comments constituted a ruling on admissibility, that ruling was interlocutory and subject to reconsideration. The fact that the issue was reconsidered by Judge Torres, rather than Judge Pettine, is of no moment. See United States v. O'Keefe, 128 F.3d 885, 891 (5th Cir.1997) ("[A] successor judge has the same discretion to reconsider an order as would the first judge."). The law of the case is simply not implicated in Judge Torres's ruling on the admissibility of evidence. 2

B. Judgment as a Matter of Law

Tang also alleges that the district court erroneously granted judgment as a matter of law in favor of the Department on her First Amendment freedom of speech claim. 3 We review the district court's decision de novo, taking the facts in the light most favorable to Tang. See Russo v. Baxter Healthcare Corp., 140 F.3d 6, 7-8 (1st Cir.1998). We may affirm the judgment only if there "is no legally sufficient evidentiary basis for a reasonable jury to find for [her]." Fed.R.Civ.P. 50(a). Tang must provide "more than a mere scintilla of evidence and may not rely on conjecture or speculation to justify the submission of an issue to the jury." Russo, 140 F.3d at 7-8 (internal quotation marks omitted).

Tang claims the Department violated her First Amendment free speech rights by retaliating against her for filing union grievances, both on her own behalf and in her role as president of the union. 4

The First Amendment guarantees every citizen the right "to petition the Government for a redress of grievances." U.S. Const. amend. I. Tang does not lose this right because she has been employed by the government. See Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Nevertheless, absolute First Amendment protection is not accorded to any grievance a public employee files against an employer, without regard to content. If it did, anything she said in the Department "would plant the seed of a constitutional case." Id. at 149, 103 S.Ct. 1684.

Instead, we employ a three part test to determine whether Tang has an actionable First Amendment freedom of speech claim. First, the court must determine whether Tang made her statements "as a citizen upon matters of public concern." Id. at 147, 103 S.Ct. 1684. If the speech involved matters not of public concern, "but instead ... of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Id. Second, the court must weigh the strength of the employee's and the public's First Amendment interests against the government's interest in the efficient performance of the workplace. See Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Third, if the employee's and the public's First Amendment interests outweigh a legitimate governmental interest in curbing the employee's speech, Tang must show that the protected expression was a substantial or motivating factor in an adverse employment action. See O'Connor v. Steeves, 994 F.2d 905, 913 (1st Cir.1993).

Tang's claims fail at the first step because she has not demonstrated that her speech involved any public interest. In assessing whether Tang's speech implicates public concerns, we analyze "the content, form, and context of [the speech], as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684.

Having done so, we agree with the district court that Tang has failed to develop a viable First Amendment claim. Tang's brief on appeal notes that she filed many grievances regarding employment practices, but fails to provide any explicit description of their content, form, or context. Nor does a review of the record below shed any further light on the nature and circumstances of the several dozen grievances Tang filed.

The record, at best, permits speculation that the grievances underlying her First Amendment claim were similar to the six alleged acts of harassment and retaliation, none of which, individually or together, involved public concerns. 5 The first such act occurred on March 4, 1994, when Tang was informed that her position was to be abolished due to budget cuts. She was placed on administrative leave with pay, and informed that she had the right to "bump" another union employee with less seniority. Several days later, the government realized that Tang's position could not be abolished, rescinded the March 4 notice, and reinstated Tang to her previous position. In essence, then, Tang's first complaint involves the fact that she was erroneously placed on administrative leave with pay for a few days. The second instance involved relocating her workspace from the third floor to the first floor, and sometime later to the second. Third, she complained that a filing cabinet was moved to a different floor from her workspace and...

To continue reading

Request your trial
124 cases
  • Putnam v. Town of Saugus, Mass., No. CIV.A.03-12062-WGY.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • April 7, 2005
    ...protection, however, is not accorded to all public employees' speech irrespective of its content. Tang v. State of R.I. Dep't of Elderly Affairs, 163 F.3d 7, 11 (1st Cir.1998). Otherwise, anything said by a public employee on the job could "plant the seeds of a constitutional case." Id. (qu......
  • Torres-Rosado v. Rotger-Sabat, 02-2103.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 2, 2003
    ...concern;" if not, there is no claim for First Amendment protection. Connick, 461 U.S. at 146, 103 S.Ct. 1684; see Tang v. Rhode Island, 163 F.3d 7, 12 (1st Cir.1998). Second, the court evaluates the balance between the employee's First Amendment interests and the government's interests as a......
  • Vicenty Martell v. Estado Libre Asoicado De P.R., Civ. 98-1352(SEC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • March 29, 1999
    ...must show that the protected expression was a substantial or motivating factor in an adverse employment action. Tang v. Rhode Island, 163 F.3d 7, 11 (1st Cir.1998) (internal citations and quotation marks Plaintiff's alleged complaints to defendants and to "the appropriate authorities" (Dock......
  • Torres Rosado v. Rotger Sabat, CIV.00-1899-JP.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • May 7, 2002
    ...accorded to any grievance a public employee files against an employer, without regard to content". See Tang v. State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 11-12 (1st Cir.1998). If it did, anything anyone said "would plant the seed of a constitutional case". Id. The standard for ana......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT