FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge
L. Lichten, with whom Peter M. Delano and Lichten &
Liss-Riordan, P.C. were on brief, for appellant.
A. Padolsky, with whom Louison, Costello, Condon & Pfaff,
LLP was on brief, for appellee.
Torruella, Lynch, and Kayatta, Circuit Judges.
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 decade-long 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.
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 entry of summary judgment and direct
the district court to dismiss this claim without prejudice.
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
this lens, we credit the following account of events leading
up to this suit.
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.
most of his tenure, Saunders felt that he was a member of
Billings's "inner circle." Billings had
appointed 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.
Missing Union Funds
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.
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.
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 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
in December 2013, Saunders discovered a bag of documents in
the locker of a retired officer, John Coggins. 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.
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 as Treasurer,
four officers had charged $5, 312.55 to an American Express
account in the Union's name.
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.
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.
Vote of No Confidence
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. Saunders also received numerous complaints
about Billings, including allegations of nepotism,
retaliation, and intimidation.
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 ...