Date: 10-31-2017

Case Style:

Case Number: 17-1174

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Harold Lichten and Peter Delano

Defendant's Attorney: Joseph A. Padolsky

Description: This is an appeal from entry of
summary judgment in favor of the Town of Hull in a civil rights
action brought by a Hull police officer. Scott Saunders, a decadelong
veteran of the Town of Hull Police Department, was passed
over for a promotion in November 2014. He alleges that the Town
of Hull and its then Police Chief, Richard Billings, intentionally
let his application lapse, and did not promote him, in retaliation
for exposing Chief Billings's professional misconduct. In
particular, Saunders -- the President of the local police union at
the time -- had reported $130,000 of missing union funds to the
Massachusetts Attorney General's Office, and presided over a
union-wide vote of no confidence against Chief Billings for his
leadership style and policies.
After the Town's Board of Selectmen declined to promote
Saunders, pursuant to Chief Billings's recommendation, Saunders
brought this suit against both parties. Saunders alleged that the
defendants' unlawful retaliation violated (1) his First Amendment
rights under 42 U.S.C. § 1983, and (2) the Massachusetts
Whistleblower Act ("MWA"), Mass. Gen. Laws ch. 149, § 185(d). The
district court granted summary judgment for the Town on Saunders's
federal and state claims. We affirm the dismissal of Saunders's
§ 1983 claim. With respect to Saunders's MWA claims, we affirm
the district court's holding that Saunders's § 185(b)(3) claim is
waived. As to his state claim under § 185(b)(1), we vacate the
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entry of summary judgment and direct the district court to dismiss
this claim without prejudice.
I.
Background
Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file
show that there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter of law.
See Rosenberg v. City of Everett, 328 F.3d 12, 17 (1st Cir. 2003)
(citing Fed. R. Civ. P. 56(c) (2016)). We review the district
court's entry of summary judgment de novo, construing the record
in the light most favorable to Saunders and "indulg[ing] all
reasonable inferences" in his favor. Sheinkopf v. Stone, 927 F.2d
1259, 1262 (1st Cir. 1991).
Using this lens, we credit the following account of
events leading up to this suit.
Since 2004, Scott F. Saunders has served on the Town of
Hull Police Force, where the defendant, Richard K. Billings, was
Chief from 2004-2016. According to Saunders, Billings ran the
police department based on favoritism and an "either you're with
me or against me" mentality.
For most of his tenure, Saunders felt that he was a
member of Billings's "inner circle." Billings had appointed
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Saunders to the Honor Guard and sponsored him to serve on the Metro
SWAT, a prestigious inter-agency organization of officers from
various local towns. However, Saunders and Billings's
relationship changed for the worse after Saunders was elected
President of the police union, local 344 of the International
Brother of Police Officers ("the Union"), where Billings had served
as Treasurer from 2000-2003.
A. Missing Union Funds
As President of the Union, Saunders also headed two
organizations affiliated with the police department: Hull Police
Associates and Hull Relief Association. These provided death and
retirement benefits for Hull police officers.
Shortly after Saunders took over as President in March
2013, he became concerned that the Union's funds had been
mismanaged. His suspicions began in April when the treasurer,
Greg Shea, was reluctant to authorize a $400 donation to the local
little league team. Surprised that the Union could not readily
afford the sponsorship, Saunders asked Shea for a financial report.
Although Saunders followed up on this request, no report was ever
provided.
In fact, when Saunders assumed his role as President, he
was never given any documentation of the Union's prior business,
including meeting minutes. And when Saunders asked Shea, who had
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been serving as the Union's treasurer since 2003, where the money
in the Union's account had gone, he was told that the account
"never had any money in there," and "that's the way it's always
been."
However, in December 2013, Saunders discovered a bag of
documents in the locker of a retired officer, John Coggins.1 The
bank statements within the bag led Saunders to believe that the
Union had once held over $130,000 in its own, and related, bank
accounts. Saunders immediately reported this discovery to Shea,
who denied the existence of the additional accounts. That same
day, Saunders called the Massachusetts Attorney General's Office
("AG") to report the documents that he had found.
Around January 2014, the AG responded that Saunders did
not have enough evidence of a crime for the AG to launch an
investigation, and asked him to obtain more records to substantiate
his allegations of embezzlement. Saunders subsequently discovered
bank statements and other documents showing, inter alia, that (1)
Billings had co-signed two checks -- totaling $1,400 -- from an
affiliated account in 2010, and that (2) during Billings's tenure
1 When Saunders became Union President, he decided to
clean out the locker room in the police station. He gave officers
one week to claim their lockers. After the deadline, abandoned
lockers would have their locks cut and contents emptied. However,
before Saunders could implement the plan, an unidentified
individual cut the locks and left several lockers open. The
documents in Coggins's locker were discovered shortly thereafter.
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as Treasurer, four officers had charged $5,312.55 to an American
Express account in the Union's name.
Before he presented this evidence to the AG, Saunders
spoke with the Town Manager and had a sit-down meeting with
Billings and two other officers to review the bank statements. At
the meeting, Billings kept the focus on Shea's alleged
embezzlement. Shea was placed on administrative leave that same
day and later left the police force in April 2014.
In light of this new evidence, the AG began to
investigate the missing funds in March 2014. A retired Hull police
officer also filed a civil lawsuit against Billings and three other
officers for misuse and misappropriation of Union funds. At the
time this appeal was briefed, the lawsuit was pending, and the
criminal investigation had resulted in one indictment -- that of
Greg Shea -- on March 13, 2015. The whole affair received
widespread coverage in local newspapers.
B. Vote of No Confidence
Around the time that Saunders discovered the bank
statements in Coggins's locker, relations between Billings and the
Union members began to deteriorate. Billings demanded to find out
who had cut the locks in the police locker room, and threatened to
make every officer take a polygraph test if no one came forward.
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Saunders also received numerous complaints about Billings,
including allegations of nepotism, retaliation, and intimidation.
On June 21, 2014, Saunders led a Union-wide vote of no
confidence against Billings. The only prefatory statements before
the vote were, as reflected in Saunders's meeting notes:
For two weeks I have been attempting to
arrange for the labor meeting with
administration, Town Manager, and IBPO
[International Brotherhood of Police
Officers]. On Tuesday the Executive Board met
with the FOP [Fraternal Order of Police] and
discussed the confidence vote the same day
Town Manager set up a meeting with IBPO for
June 30th. Make a motion to vote on the
confidence of the Chief.
And the ballots for the vote very simply stated: "I have confidence
in the Chief," with an option for "yes" and one for "no."
The Union passed the vote of no confidence, and the
meeting adjourned. The next day, Saunders received an email
asking him to call the Town Manager, who requested the reasons for
the vote. Later that week, Saunders sent a twenty-three page list
of reasons to the Union representative, who then forwarded it to
the Town Manager.
As summarized in the complaint, the list of reasons
included:
[1] Chief Billings's misuse and
misappropriation of police department funds
for personal use; [2] Billings's approval of
excessive, expensive, and unnecessary
overtime for a high-ranking officer . . . ;
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[3] Billings's failure to provide adequate
training and equipment to full-time and
permanent intermittent officers . . . ; [4]
Billings's requirement that officers write
more revenue-generating tickets; and [5]
Billings's threat to punish officers who issue
warnings instead of revenue-generating
tickets.
Both the vote and the list of reasons received coverage from The
Hull Times.
C. Decision Not to Promote Saunders
In April 2014, before the late-June vote of no
confidence, and in the midst of the AG's embezzlement
investigation, a sergeant position opened up due to Shea's
resignation. At the time, only Saunders and one other officer,
Craig Lepro, had obtained the requisite score on the civil service
exam to be placed on the promotional list.
The Town of Hull's Board of Selectmen ("the Board") was
the ultimate appointing authority in such matters. However, the
Hull Police Department Policy and Procedure Manual made it "the
responsibility of the Police Chief to coordinate the entire process
and make a recommendation . . . ." As part of this process, each
candidate was vetted by an interview panel selected by the Chief.
The panel submitted its findings to the Chief, who then sent his
final recommendation to the Board.
In order to evaluate Saunders and Lepro, Billings
recommended that each be given a trial period of 45 days as Acting
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Sergeant. Lepro served first, and then Saunders began his trial
period on June 16, 2014.
Shortly thereafter, the Union passed its vote of no
confidence in Billings. In response, Billings called Saunders
into his office for a closed-door meeting. During their hour-long
conversation, Billings allegedly yelled at Saunders and remarked,
"I'm the Chief and I don't answer to you." At the end of the
meeting, Billings allegedly threatened to let the promotion list
expire so that Saunders would have to retake the exam, and stated
that he would personally make sure that Saunders was never
promoted.
After Lepro and Saunders's trial periods concluded, the
interview panel ranked Lepro first, but concluded that both
officers would make "good candidates for sergeant" and that "[the
panel members] would promote both if it was their decision."
Although a second sergeant position had opened up in the interim,
Billings only recommended Lepro for the promotion. With regards
to Saunders, the relevant portion of Billings's letter to the Board
stated:
I concur with [the panel's] assessment and my
own observations of both candidates convince
me that Officer Saunders would also make a
fine addition to the Sergeant complement of
the Hull Police Department.
As the Board is aware the recent lateral
transfer of Sergeant Bart Forzese to Milton PD
creates a currently funded position for
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sergeant . . . . Therefore regarding the open
position I would like to know what the Board
would like to do regarding same at this time.
I am available to discuss this recommendation
and appointment and second open position with
the Board at their convenience and have
available to you all the of the pertinent
background information and interview results.
On November 18, 2014, the Town Board of Selectman voted
to adopt Billings's recommendation to promote Lepro, but did not
promote Saunders to the second vacant position. When Billings
called Saunders into his office to discuss the decision, he
attributed it to Saunders's actions to date, stating, "[Y]ou can't
fight Town Hall," and "Town Hall has my back."
One month later, Saunders filed an appeal with the Civil
Service Commission. He continued to serve as sergeant in a
provisional capacity because the second sergeant position remained
vacant. However, Saunders became ineligible for a permanent
promotion after he failed his subsequent civil service exam.
Saunders then petitioned the Commission to "investigate whether
the Town's decision to let him 'die on the vine' [was] based on
political or personal bias." On May 4, 2015, the Commission
rejected both his appeal and his request for an investigation.
D. U.S. District Court Proceedings
Saunders filed this lawsuit on April 3, 2015, seeking
(1) an injunction compelling the Town of Hull to promote him to
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sergeant, and (2) money damages. He alleged that both Billings
and the Town of Hull violated his First Amendment rights under
§ 1983 (Count I) and the MWA (Count II), and that Billings, in his
individual capacity, tortiously interfered with his advantageous
business relations (Count III).
Both defendants moved for summary judgment. The
district court denied the motion with respect Saunders's First
Amendment and tortious interference claims against Billings.
However, it entered judgment for the defendants on Saunders's
§ 1983 and MWA claims against the Town. The parties later filed
a joint motion to dismiss the claims against Billings pursuant to
a settlement agreement. This had no effect on the remaining claims
against the Town of Hull.
The district court dismissed Saunders's § 1983 claim
against the Town on the ground that he failed to establish that
the alleged retaliation was "a policy or custom of the Town of
Hull." It also held that he could not avail himself of the MWA's
protections because he had failed to provide written notice of his
suit, as required by the statute's notice provision.
Saunders filed a motion for reconsideration of his MWA
claims, arguing (for the first time) that he did provide adequate
notice. In the alternative, he, for the first time, asked the
court to certify the interpretation of the MWA notice requirement
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to the Massachusetts Supreme Judicial Court ("SJC"). In a
separate motion, Saunders also sought reconsideration of his First
Amendment claim. Both of his motions were denied in January 2016.
Saunders now appeals to challenge the district court's judgment in
favor of the Town on both the federal and the state count.
II.
Section 1983 Claim
Saunders concedes that Town of Hull's Board of Selectmen
-- not Billings -- was the relevant and final policymaker for the
adverse promotion decision in his case. He argues that the
district court nevertheless erred in granting summary judgment
against his § 1983 claim because a reasonable jury could have found
the Board liable on the grounds that it was aware of Billings's
retaliatory motive and ratified his decision.2 Even construing
the record in Saunders's favor, we see no basis for this claim.
The Supreme Court held in City of St. Louis v.
Praprotnik, 485 U.S. 112 (1988), that ratification is "chargeable
to the municipality" only if "the authorized policymakers approve
a subordinate's decision and the basis for it." Id. at 126
2 Saunders does not advance any other grounds for
municipal liability. Rather, his briefing makes clear that the
sole basis of his appeal is the decision of the Town of Hull's
Board of Selectmen not to promote him.
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(plurality opinion) (emphasis added); see also Walden v. City of
Providence, 596 F.3d 38, 57 (1st Cir. 2010) (applying Praprotnik).
Although Praprotnik does not define what constitutes
"ratification," it draws a line between passive and active
approval. The Court noted that "[s]imply going along with
discretionary decisions made by one's subordinates," and the "mere
failure to investigate . . . especially where . . . the
wrongfulness of the subordinate's decision arises from a
retaliatory motive," is insufficient to trigger § 1983 liability.
Praprotnik, 485 U.S. at 130. In contrast, the Court cautioned
that:
It would be a different matter if a particular
decision by a subordinate was cast in the form
of a policy statement and expressly approved
by the supervising policymaker. It would also
be a different matter if a series of decisions
by a subordinate official manifested a "custom
or usage" of which the supervisor must have
been aware.
Id. (emphasis added).
Our Court has yet to address the precise contours of
this ratification doctrine. In a factually similar case, Welch
v. Ciampa, 542 F.3d 927 (1st Cir. 2008), we never reached the issue
because the parties stipulated that the Acting Police Chief, not
the Board of Selectmen, was the "final policymaking official" in
that case. Id. at 942. Nevertheless, our dicta in Welch is still
illustrative.
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There, Officer Welch alleged that he was denied
reappointment to his specialist position in the police force
because he had refused to participate in a campaign to reinstate
the former Police Chief. Id. at 933-35. Instead, Welch had
assisted with an investigation into the former Chief's misconduct.
Id. at 934. The former Chief warned Welch that he had "picked the
wrong side," and that "there [were] going to be changes." Id.
Welch later "found rubber rats, derogatory cartoons and, on one
occasion, a bullet in his mailbox at the police station." Id.
After the former Chief was vindicated by a recall campaign against
the Town Selectmen who had refused to extend his tenure, the Acting
Chief refused to reappoint Welch to his specialist position. Id.
at 935.
Although we held that this circumstantial evidence was
enough to permit an inference of the Acting Police Chief's
retaliatory motive against Welch, we nevertheless found that Welch
"failed to provide a sufficient evidentiary basis on which to
impose municipal liability" based on the Board's actions because
"[the Acting Chief] is the individual responsible for the
nonreappointment and there is no evidence that the Board authorized
[him] to take retaliatory action against Welch or others . . . ."
Id. at 942.
Saunders offers even weaker circumstantial evidence to
establish that the Board here adopted Billings's retaliatory
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motive. First, Saunders alleges that the Board knew that he had
implicated Billings in the embezzlement scandal and had led a vote
of no confidence against him. Second, Saunders notes that, after
the Board had declined to promote him to the vacant sergeant
position, Billings explained that the decision was because of his
role in those events, and remarked, "[Y]ou can't fight Town Hall,"
and "Town Hall has my back." Based solely on these allegations,
Saunders contends that a reasonable jury could have found that the
Town's Board of Selectmen ratified the retaliatory basis for
Billings's decision.
"Although we give the nonmoving party the benefit of all
reasonable inferences, a party cannot rest on 'conclusory
allegations, improbable inferences, [or] unsupported speculation'
to defeat a motion for summary judgment." Welch, 542 F.3d at 935
(quoting McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st
Cir. 1995)). Saunders's assertion that the Board knew of, and
ratified, Billings's retaliatory motive is just that: a conclusory
allegation.
In Welch, even evidence of an "undisputedly charged
atmosphere" and retaliation within the police department was
insufficient to impute a retaliatory motive to the Board. 542
F.3d at 940. Instead, we noted that some evidence is needed to
establish the Board's knowledge and authorization of the alleged
retaliation. Id.
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Saunders can point to no evidence linking the Board to
Billings's purported retaliatory motive, aside from Billings's
single statement: "Town Hall has my back." Saunders did not depose
any Board members to obtain information to substantiate his claim.
Nor does he proffer any communications suggesting that the Board
members were aware of -- let alone expressly approved of --
Billings's motive.3 There is nothing in the record, aside from
Saunders's own suspicions to suggest that the Board did not simply
"go[] along" with Billings's decision or "mere[ly] fail[] to
investigate" why he did not affirmatively recommend that the Board
promote Saunders to the vacant sergeant position. Praprotnik, 485
U.S. at 130.
As such, the district court correctly held that Saunders
failed to raise a genuine dispute as to whether the Board members
"ratified" Billings's alleged retaliation under Praprotnik.
III.
Massachusetts Whistleblower Act (MWA) Claims
Saunders also appeals from entry of judgment against his
state law claims. He argues that the district court erred in
holding that his lawsuit was barred by the MWA's notice
3 In fact, the letter from Billings to the Board regarding
Saunders's promotion was laudatory. Billings wrote that "Officer
Saunders would also make a fine addition to the Sergeant
complement."
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requirement, see Mass. Gen. Laws ch. 149, § 185(c)(1), because his
underlying whistleblowing activity was exempt from the notice
requirement. Specifically, Saunders alleges that (1) his
disclosure to the AG fell under the § 185(c)(2)(C) exception for
reporting a crime, and (2) his role in leading the vote of no
confidence was exempt under § 185(b)(3).
As a threshold matter, we hold that Saunders waived his
§ 185(b)(3) claim. "It is hornbook law that theories not raised
squarely in the district court cannot be surfaced for the first
time on appeal." McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22
(1st Cir. 1991). Saunders did not specifically plead the
§ 185(b)(3) claim in his complaint, nor did he provide any support
for why the vote of no confidence constituted a (b)(3) claim in
his opposition to summary judgment. Instead, Saunders rotely
recited that he "also has a valid claim under the Whistleblower
Statute for objecting to what he reasonably believed were policies
and practices by Defendant Billings . . . under M.G.L. c. 149,
§ 185(b)(3) . . . ." This is precisely the kind of perfunctory
argument that we "ordinarily refuse to deem . . . preserved for
appellate review." Id.
We turn to whether, after dismissal of the only federal
claim in this case, Saunders's lawsuit -- based on § 185(b)(1) of
the MWA -- should have been heard by the district court.
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Saunders's claim is that the Town, through its Board of Selectmen,
retaliated against him because he reported the alleged mishandling
of Union funds to the AG. The underlying issue is whether, before
filing this lawsuit, Saunders had to give written notice to a
supervisor and afford the employer a reasonable opportunity to
correct the activity of which he complained.
The notice provision, § 185(c)(1), states:
Except as provided in paragraph [(c)(2)], the
protection against retaliatory action
provided by subsection (b)(1) shall not apply
to an employee who makes a disclosure to a
public body unless the employee has brought
the activity . . . to the attention of a
supervisor of the employee by written notice
and has afforded the employer opportunity to
correct the activity, policy or practice."
Mass. Gen. Laws ch. 149, § 185(c)(1)(emphasis added). The
carveout relevant to this case, § 185(c)(2)(C), exempts an
employee who "makes the disclosure to a public body . . . for the
purpose of providing evidence of what the employee reasonably
believes to be a crime." Id. § 185(c)(2)(C).
In Dirrane v. Brookline Police Dep't, 315 F.3d 65 (1st
Cir. 2002), this Court, in the absence of guidance from the SJC on
the issue, held that the state-law notice provision is a "hard and
fast rule" that precludes the filing of lawsuits for wrongful
retaliation without prior notice because the MWA "defines 'public
bodies' to include 'any federal, state, or local judiciary,'" and
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a lawsuit is a form of disclosure. Id. at 73 (quoting Mass. Gen.
Laws ch. 149, § 185(a)(3)). Since then, the highest Massachusetts
state court to have interpreted the provision -- the Appeals Court
-- held in Quazi v. Barnstable Cty., 877 N.E.2d 273 (Mass. App.
Ct. 2007), that written notice of a lawsuit is only required if
the victim's whistleblowing activity falls under § 185(b)(1)
(disclosing or threatening to disclose the employer's misconduct),
but not if the victim's conduct is embraced by § 185(b)(3)
(objecting to or refusing to participate in such misconduct). See
id. at 275-76.
Although the Massachusetts Appeals Court distinguished
Dirrane on the ground that its holding was cabined to § 185(b)(1)
claims, see Quazi, 877 N.E.2d at 276, the court's reasoning
directly conflicted with a key assumption of Dirrane, and its
progeny, Wagner v. City of Holyoke, 404 F.3d 504 (1st Cir. 2005).
Compare Quazi, 877 N.E.2d at 276 n.3 (finding that a lawsuit for
retaliation is not, in and of itself, a "claim through § 185(b)(1),
thus making [the notice provision] applicable"), with Wagner, 404
F.3d at 509 (finding that in order for the § 185(c)(2)(C) exception
to apply to plaintiff's suit, he must demonstrate that "the
disclosure at issue here -- his filing of suit -- was for the
purpose of providing criminal intelligence" (emphasis added)).
The SJC has yet to rule on whether a lawsuit for wrongful
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retaliation is itself a disclosure to a public body under
§ 185(b)(1).4
Because Saunders's MWA claim turns on a hotly disputed
interpretation of state law, we need not, and indeed, should not,
resolve it here. We have held that "it can be an abuse of
discretion -- if no federal claim remains -- for a district court
to retain jurisdiction over a pendent state law claim when that
state law claim presents a substantial question of state law that
is better addressed by state courts." Wilber v. Curtis, 872 F.3d
15, 22 (1st Cir. 2017) (citing Desjardins v. Willard, 777 F.3d 43,
45-46 (1st Cir. 2015)). When confronted with such state law issues
on appeal, we can order the district court to dismiss the state
claims on remand without reaching "whether the district court
abused its discretion in resolving the state law claims when it
did." Desjardins, 777 F.3d at 46. That is what this Court did
in Desjardins, see id., and Wilber, see 872 F.3d at 17-18, 22.
We reach the same result here. Saunders's MWA claim is
only before us due to supplemental jurisdiction. See 28 U.S.C.
4 Even though Dirrane, as later interpreted and applied in
Wagner, and Quazi are admittedly in tension, we reject Saunders's
request for certification. Saunders initially filed this case in
the U.S. District Court for the District of Massachusetts, not in
Massachusetts state court, where he could have brought all of his
claims. He knew that Dirrane and Wagner applied when he filed.
In any case, our disposition of this appeal will leave its ultimate
resolution to the Commonwealth courts.
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§ 1367. But given our decision to affirm the entry of summary
judgment as to Saunders's § 1983 claim, there is no longer a
federal claim in this case. Accordingly, "the balance of factors
to be considered under pendent jurisdiction doctrine -- judicial
economy, convenience, fairness, and comity" all "point toward
declining to exercise jurisdiction over the state law claims."
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 342, 350 n.7 (1988).
This makes especial sense where, as here, there is a reasonable
argument that our precedent is not in accord with the manner in
which the SJC may well read Massachusetts law, and the plaintiff
himself is asking that we get the issue answered by the
Commonwealth courts. Accordingly, we leave the interpretation of
Massachusetts law to Massachusetts courts.5

Outcome: IV.
Conclusion

We affirm the district court's entry of summary judgment
for the Town of Hull on Saunders's § 1983 claim. With respect to
5 We dismiss Saunders's claim based on § 185(b)(1) of the
MWA without prejudice, noting the tolling provision in 28 U.S.C.
§ 1367(d). See Brown v. City of Bos., No. 96-1074, 1996 WL 590553,
at *1 (1st Cir. Oct. 15, 1996)(citing Edmondson & Gallagher v.
Alban Towers Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995)
(when a state claim over which a federal court has exercised
supplemental jurisdiction is dismissed, § 1367(d) tolls the state
statute of limitations until 30 days after the dismissal)).
Saunders's MWA claims, we affirm the dismissal of the § 185(b)(3)
claim. As to the § 185(b)(1) claim, we vacate the district court's
entry of summary judgment and remand with instructions to dismiss
that claim without prejudice. Each party shall bear their own
costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: