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Saunders v. Town of Hull

United States Court of Appeals, First Circuit

October 27, 2017

SCOTT SAUNDERS, Plaintiff, Appellant,
v.
TOWN OF HULL, Defendant, Appellee, RICHARD K. BILLINGS, Defendant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Nathaniel M. Gorton, U.S. District Judge

          Harold L. Lichten, with whom Peter M. Delano and Lichten & Liss-Riordan, P.C. were on brief, for appellant.

          Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellee.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          LYNCH, CIRCUIT JUDGE.

         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 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.

         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 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 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 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 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. 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 ...

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