Scott Saunders v. Town of Hull

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

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.