Saunders v. Town of Hull et al

Filing 36

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER "For the foregoing reasons, defendants motion for summary judgment (Docket No. 25) is, with respect to 1) the 42 U.S.C. § 1983 claim against the Town of Hull and 2) the Massachusetts Whistleblower Act claim, ALLOWED, but is otherwise DENIED."Town of Hull (Commonwealth of Massachusetts ) terminated.(Caruso, Stephanie)

United States District Court
District of Massachusetts

SCOTT SAUNDERS,
Plaintiff,
v.
TOWN OF HULL AND RICHARD K.
BILLINGS,
Defendants.

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Civil Action Nos.
15-11509-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves a dispute about why plaintiff Scott
Saunders (“plaintiff” or “Saunders”) was passed over for a
promotion in the Police Department of Hull, Massachusetts.
Saunders alleges that defendants the Town of Hull and former
Police Chief Richard K. Billings (“Billings” and, collectively
with the Town of Hull, “defendants”) declined to promote him in
retaliation for protected speech and thereby violated 42 U.S.C.
§ 1983 and the Massachusetts Whistleblower Act, M.G.L. c. 149, §
185(d) (“MWA”).

Plaintiff also alleges that Chief Billings

tortiously interfered with his business relations.
Defendants’ motion for summary judgment is pending before
the Court.

For the reasons that follow, the motion will be,

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with respect to 1) the 42 U.S.C. § 1983 claim against the Town
of Hull and 2) the MWA claim, allowed but otherwise denied.
I.

Factual and Procedural Background
Saunders, who resides in Pembroke, Massachusetts, has been

an employee of the Hull Police Department since 2004.

Defendant

Billings is a resident of Scituate, Massachusetts and was Chief
of Police in Hull from 2004 until he retired in January, 2016.
Defendant the Town of Hull, Massachusetts is organized under the
laws of the Commonwealth as a municipal corporation.
A. The Missing Funds and Ensuing Investigation, Legal
Actions and No Confidence Vote
Saunders was elected president of Local 344 of the
Brotherhood of Police Officers (“Union”) and of the associated
organizations, the Hull Police Relief Association and the Hull
Police Associates (collectively, “the affiliates”), in March,
2013.

That same year, he became aware that about $130,000 was

missing from the treasury of the Union and affiliates and
unaccounted for in financial records.

In December, 2013, he

reported the missing funds to the Massachusetts Attorney
General’s Office (“the AG’s Office”).
The AG’s Office began an investigation concerning the
missing funds in March, 2014.

In Saunders’ view, the Chief was

implicated in the investigation because he had served as
Treasurer for the Union from 2000 to 2004 and co-signed two

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checks from the funds in or around 2010.

The investigation

resulted in the criminal indictment of former Sergeant Greg
Shea, who left the police department in April, 2014, and an
ongoing civil lawsuit against senior officers at the department,
including Chief Billings, in Plymouth Superior Court.

Local

newspapers extensively covered the missing funds, the
investigation and legal actions.
In June, 2014, under Saunders’ leadership, the Union
approved a vote of no confidence in then-Chief Billings.
According to Saunders, the Union’s reasons for the vote
included, inter alia, the expenditure by Billings of department
funds for personal use, failure to provide sufficient training
and equipment, reliance on reserve officers who lacked
sufficient training and threats to punish officers who issued
traffic violation warnings rather than revenue-generating
tickets.
B. The Decision Not to Promote Officer Saunders
There were two vacant sergeant positions in the Hull police
department in 2014.

At that time, there were only two officers

who had passed the requisite exam and were eligible for
promotion, Craig Lepro and Saunders.

While the Board of

Selectmen for Hull (“the Board”) determines which officers are
promoted, the police chief provides recommendations to the
Board.

In plaintiff’s version of events, former Chief Billings
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and the Board declined to promote him because Saunders reported
the missing funds to the AG’s Office and presided over the noconfidence vote against Billings.
A few days after the vote of no confidence, the Chief set
up a meeting with Saunders.

According to Saunders, Billings was

“visibly upset” at the meeting and told him that he planned to
let his promotion eligibility expire, forcing him to retake the
promotion test.

Billings also allegedly held meetings with

other officers in which he stated “Saunders is not going to hold
me over a barrel” and “there has been a lot of backstabbing
going on around here”.

Moreover, he purportedly told an

acquaintance at a police conference that “[he couldn’t] believe
[Saunders] did this . . . after all [he] did for him.”
The Board certified a shortlist of candidates for the
sergeant position which included only Lepro and Saunders.

In

accordance with Billings’ recommendation, the Board gave both
Lepro and Saunders 45-day evaluation periods as acting
sergeants.

Both were interviewed for the sergeant position by a

team of Massachusetts police chiefs that did not include
Billings.

Saunders contends that the team gave him stellar

reviews and determined that both he and Lepro were good
candidates.

Saunders further submits that the Town of Hull has

a consistent practice of promoting eligible officers from the
shortlist.

On Billings’ recommendation, the Board promoted
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Lepro to fill one of the sergeant vacancies but declined to
promote Saunders to fill the other.

Even though he was not

promoted, his “45-day period” as acting sergeant has been
extended to date.
Saunders took the next sergeant exam but his score was too
low to qualify for the remaining sergeant position.

He asserts

that by refusing to promote him while he was eligible,
defendants knowingly and intentionally prevented him from being
promoted.
In April, 2015, Saunders filed suit alleging that 1) both
defendants violated 42 U.S.C. § 1983 by unlawfully refusing to
promote him in retaliation for protected speech, 2) defendant
Town of Hull engaged in actions prohibited by the MWA and 3)
defendant Billings tortiously interfered with his business
relations with the Town of Hull.

Defendants answered in due

course denying all substantive allegations.

In October, 2016,

defendants moved for summary judgment on all of the claims
against them.
II.

This memorandum and order addresses that motion.

Motion for Summary Judgment
A. Legal Standard
The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).

The burden is on the moving party to
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show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

A fact is material if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material

fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).

The Court must view the

entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party’s
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party’s favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
B. The 42 U.S.C. § 1983 Claim Against Defendant the Town
of Hull
Municipalities may not be held liable pursuant to a
respondeat superior theory in a 42 U.S.C. § 1983 action. Monell

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v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690–91
(1978).

Instead, a plaintiff must show that the municipality

infringed on his rights through a “policy or custom.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 385, (1989).

Because

evidence of a policy or custom is required, a “single incident
of misconduct cannot provide the basis for municipal liability
under § 1983.” Fabiano v. Hopkins, 352 F.3d 447, 452 (1st Cir.
2003)
When the record is viewed in the light most favorable to
plaintiff, there is a dearth of evidence that there was a
municipal policy or custom that led to the alleged retaliation.
Plaintiff himself asserts that it was common practice for
eligible officers to be promoted within the Hull Police
Department.

The record is devoid of facts showing that it was

the policy or custom of the Town of Hull to pass over
individuals for promotion in retaliation for protected speech.
Therefore, defendant the Town of Hull is entitled to summary
judgment on the 42 U.S.C. § 1983 claim as a matter of law.
Canton, 489 U.S. at 385.
C. The 42 U.S.C. § 1983 Against Defendant Billings
An individual’s First Amendment rights are not extinguished
when he begins to work for the government. City of San Diego,
Cal. v. Roe, 543 U.S. 77, 80 (2004).

Government employees

retain a constitutional right to comment on matters of public
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concern. Id.

That right, however, has limits, and the

government is permitted to place more restrictions on employee
speech than non-governmental entities. Id.
Courts undertake a three-step analysis in determining
whether a public employee has a valid First Amendment claim
against his employer. Fabiano, 352 F.3d at 453.

First, the

employee must show that the speech touched on a “matter of
public concern.” Connick v. Myers, 461 U.S. 138, 147 (1983).
Second, if the employee succeeds in showing that the speech
involved a matter of public concern, the court then examines
whether the employee’s First Amendment interest in the protected
speech outweighs the government’s interest in public officials
efficiently providing public services. Pickering v. Bd. of Ed.
of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563,
568 (1968).

The second step is often referred to as Pickering

balancing. Davignon v. Hodgson, 524 F.3d 91, 103-04 (1st Cir.
2008).

If the balance of interests tilts in the employee’s

favor, the Court will proceed to the third step and evaluate
whether the plaintiff has shown causation, i.e. that the speech
was a “substantial factor” or “motivating factor” in the
unfavorable employment decision. Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

Once an employee

makes a prima facie showing of causation, the burden shifts to

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the employer to show that the employment decision would have
been made regardless of the protected speech. Id.
In the present case, plaintiff has demonstrated that
genuine issues of material fact persist with respect to each
step of the inquiry.
1. Matter of Public Concern
a. Legal Standard
Speech is a matter of public concern if it addresses a
“political, social, or other concern to the community.”
Davignon, 524 F.3d at 101 (quoting Connick, 461 U.S. at 146).
Whether speech is a matter of public concern “must be determined
by the content, form, and context of a given statement.”
Connick, 461 U.S. at 147-48.

The form and context of the speech

need not be considered if the speech “would qualify on the basis
of its content alone as a matter of inherent public concern.”
Davignon, 524 F.3d at 101 (internal quotation omitted).
Speech that is meant to “contribute to any public
discourse” is more likely to involve public concern than speech
that “reflect[s] personal or internal . . . concerns.” Fabiano,
352 F.3d at 454 (quoting Mullin v. Town of Fairhaven, 284 F.3d
31, 38 (1st Cir. 2002)) (internal quotations omitted).

If

speech “bring[s] to light actual or potential wrongdoing or
breach of public trust” by a government official, it may address
a matter of public concern. Davignon, 524 F.3d at 102 (quoting
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Connick, 461 U.S. at 148).

Although the fact that speech is

made in a union context does not render it a matter of inherent
public concern, it does “point in the direction of finding that
the speech involved a matter of public concern.” Id. at 101.
b. Application
Defendants have conceded, for the purpose of summary
judgment, that the speech plaintiff made to the AG’s Office
involved a matter of public concern to the extent that it
addressed the integrity of officers in the police department.
On the other hand, defendants contend that the Union’s vote
of no confidence did not involve matters of public concern.
Defendants also assert that the vote was part of plaintiff’s
official duties as an officer and thus falls outside of First
Amendment protections.

Plaintiff responds that the no-

confidence vote addressed matters of public concern because it
was based on allegations that Chief Billings misappropriated
funds for his own use, permitted untrained officers to patrol
the streets and threatened officers who were not writing enough
traffic citations to generate revenue.

Plaintiff further

replies that the limited exception that renders speech made
pursuant to official government duties unprotected does not
apply in a union context.
First, with respect to defendants’ contention that the vote
of no confidence does not involve matters of public concern, a
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genuine issue of material fact persists.

The parties agree that

the vote of no confidence occurred in a union setting which
suggests a finding that the speech involved a matter of public
concern. Davignon, 524 F.3d at 101.

While the parties further

agree that the no-confidence vote was a simple yes-no vote, they
disagree on the content of the speech.

Plaintiff asserts that

the list of reasons for the no-confidence vote included misuse
of funds and putting untrained officers on the streets, both of
which would likely qualify as matters of public concern.
Fabiano, 352 F.3d at 454.

On the other hand, defendants contend

that the list also included complaints about station air quality
and the ongoing use of reserve officers, issues more closely
related to internal management of the police department. Id.
Accordingly, genuine issues of material fact remain as to
whether the list of reasons involved matters of public concern.
Defendants’ second contention, that the speech at issue was
part of plaintiff’s official duties, is without merit.

Although

statements of public employees made in accordance with their
official duties are not protected by the First Amendment,
Decotiis v. Whittemore, 635 F.3d 22, 30 (1st Cir. 2011), there
is no indication from the record that Saunders was required to
hold the vote of no confidence as part of his duties as a police
officer.

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2. Pickering Balancing
a. Legal Standard
The second step of the analysis involves a fact-intensive
weighing of interests. Davignon v. 524 F.3d at 104.

When

applying the Pickering test, courts
balance the strength of the relevant constitutional
interests against the countervailing governmental interest
in promoting efficient performance of the City's public
service
Fabiano, 352 F.3d at 455.

Courts consider whether the speech

“disrupted the day-to-day functioning of [the] workplace,” id.
at 456, by occurring during business hours, at the place of
employment or requiring individuals to leave their place of
employment. Davignon, 524 F.3d at 104.
b. Application
According to defendants, plaintiff’s constitutional
interest in the vote of no-confidence is outweighed by the
government’s interest in efficiency.

Plaintiff responds that

the vote occurred outside of his working hours and place of
employment and that there is no evidence that it disrupted the
police department. Id. at 104.

Viewing disputed facts in the

light most favorable to plaintiff, a reasonable jury could find
that the balance leans in favor of his position.

Consequently,

summary judgment based on the balance of interests is not
warranted.

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3. Causation
a. Legal Standard
To demonstrate that his speech was protected, the
government employee must also meet the third prong of the test
by showing causation. Davignon, 524 F.3d at 106.

A plaintiff

may prove causation by demonstrating that the protected speech
was a “substantial or motivating factor” in the adverse
employment decision. Id. (quoting Mt. Healthy, 429 U.S. at 287).
The plaintiff’s burden to prove causation can be met with
circumstantial evidence. Id.

For instance, the timing of the

employment decision or evidence that the plaintiff and defendant
landed on opposite sides of a highly charged debate both support
findings of causation. See id.; Welch, 542 F.3d at 940–41.
b. Application
The parties disagree on then-Chief Billings’ motivation in
declining to recommend plaintiff for promotion.

According to

defendants, the Chief’s recommendation of Saunders for the
temporary position of acting sergeant and praise of him in a
letter to the Board demonstrate that he did not attempt to
retaliate against plaintiff for the speech at issue.

Plaintiff

responds that after the no-confidence vote, the Chief told him
that his eligibility for a promotion would expire and that the
Chief would personally make sure that plaintiff was never
promoted.

Moreover, Saunders contends that Billings’
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conspicuous decision not to recommend him to the Board for
promotion weighed heavily on the Board’s decision.

Given those

disagreements and the fact that plaintiff and defendant Billings
were on opposite sides of a contentious, highly publicized
debate, when viewed in the light most favorable to plaintiff,
summary judgment on the grounds of causation is precluded.
Davignon, 524 F.3d at 106; Welch, 542 F.3d at 940–41.
Defendants further submit that summary judgment is
warranted because being passed over for a promotion is not an
adverse employment decision.

On the contrary, adverse

employment decisions involve a broad category of actions such as
“denials of promotion, transfers and rehires[.]” Id. at 936
(citing Rutan v. Republican Party of Illinois, 497 U.S. 62, 75
(1990)).
In sum, because genuine issues of material fact persist
with respect to all three prongs of the test for determining
whether a public employee’s speech is constitutionally
protected, summary judgment on the 42 U.S.C. § 1983 claim
against defendant Billings will be denied.
D. MWA Claim Against Defendant Town of Hull
1. Legal Standard
The MWA provides relief if municipalities retaliate against
employees’ protected behavior.

Chamberlin v. Town of Stoughton,

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601 F.3d 25, 31 (1st Cir. 2010).

To succeed under that statute,

a plaintiff must demonstrate
that he engaged in protected activity and his participation
in that activity played a substantial or motivating part in
the retaliatory action.
Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014)
(internal quotation omitted).

Once the plaintiff makes that

initial showing, the employer may make a counter-showing of a
“legitimate, nonretaliatory reason” for the employment decision.
Id. (quoting Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 262 (1st Cir. 1999)). Upon such a showing, the burden
returns to the plaintiff to demonstrate that the purportedly
legitimate reason for the action is pretextual. Id.
The MWA generally requires that employees give their
employer written notice of the alleged retaliation before
reporting it to a public body.

The statute defines “public

bodies” to include “any federal, state, or local judiciary.”
Dirrane v. Brookline Police Dep't, 315 F.3d 65, 73 (1st Cir.
2002) (quoting M.G.L. c. 149, § 185(a)(3)).

Because courts are

public bodies for the purpose of the statute, the First Circuit
Court of Appeals has determined that there is a “hard and fast
rule” requiring written notice before a lawsuit is filed
pursuant to the MWA. Id.
There are three scenarios in which a plaintiff is exempt
from the written notice requirement:
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[I]f [the employee]: (A) is reasonably certain that the
activity, policy or practice is known to one or more
supervisors of the employer and the situation is emergency
in nature; (B) reasonably fears physical harm as a result
of the disclosure provided; or (C) makes the disclosure to
a public body . . . for the purpose of providing evidence
of . . . a crime.
Wagner v. City of Holyoke, 241 F. Supp. 2d 78, 97 (D. Mass.
2003), aff'd sub nom. Wagner v. City Of Holyoke, Massachusetts,
404 F.3d 504 (1st Cir. 2005) (quoting Dirrane, 315 F.3d at 75).
2. Analysis
Defendants contend that summary judgment is warranted
because plaintiff failed to comply with the notice provisions
before filing suit.

Plaintiff responds that the speech at issue

is exempt from the notice requirement because it involved
reporting suspected criminal conduct to the AG’s Office.
Plaintiff does not, however, dispute the fact that no notice was
provided.
Because plaintiff concedes that he did not provide written
notice before filing suit, even viewing the disputed facts in
his favor, defendant is entitled to judgment as a matter of law
on the MWA claim.

Although the disclosure of possible criminal

activity to the AG’s Office was exempt from the notice
requirement, plaintiff was still required to file written notice
with his employer before reporting the alleged misconduct to the
federal judiciary which is considered a public body under the

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MWA. Wagner, 241 F. Supp. 2d at 98–99.

Accordingly, with

respect to the MWA claim, defendants’ motion for summary
judgment will be allowed.
E. Tortious Interference with Advantageous Business
Relations Claim Against Defendant Billings
1. Legal Standard
To succeed on a claim of tortious interference with
advantage business relations under Massachusetts law, a
plaintiff must prove
(1) that she had a business relationship, (2) that the
defendant knew of this relationship, (3) that the defendant
intentionally and maliciously interfered with the
relationship, and (4) that the defendant's actions harmed
her.
Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir.
2001) (citing Comey v. Hill, 387 Mass. 11, 19 (1982)).

Because

a tortious interference claim is usually not permitted against a
party to a contract, employees are typically barred from
bringing tortious interference claims against their employers
for purported contractual violations. Welch, 542 F.3d at 944.
An employee may, however, pursue a claim against a
supervisor for tortious interference if “actual malice,” defined
as “a spiteful, malignant purpose, unrelated to the legitimate
corporate interest” is the “controlling factor” in the alleged
tortious interference. Id. (citations and internal quotations
omitted).

For instance, the decision of a police chief to pass

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over an officer for a specialty appointment may, if it is the
result of actual malice, provide the basis for a tortious
interference claim. Id.
2. Analysis
Defendants contend that there is no evidence that Chief
Billings intentionally induced the Board not to promote
plaintiff to sergeant.

Defendants further submit that because

plaintiff has been working as acting sergeant and there is no
emotional distress claim, he has not suffered damages.
Plaintiff responds that the fact that defendant Billings
declined to recommend him, along with the Chief’s statement that
he would make sure Saunders never got promoted, show that actual
malice was a controlling factor in the purported tortuous
interference.

Plaintiff further responds that damages are shown

because Saunders will inevitably be returned to a lower position
and pay grade and is not accruing seniority in the sergeant
position.
Viewing the facts in the light most favorable to plaintiff,
genuine issues of material fact exist with respect to whether
the Chief acted with actual malice in declining to recommend
Saunders for promotion. See Welch, 542 F.3d at 944.

Moreover,

plaintiff’s alleged inevitable return to a lower pay grade and
inability to accrue seniority, when viewed in the light most
favorable to him, preserve genuine issues of material fact with
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respect to damages. See Zimmerman, 262 F.3d at 76.
Consequently, summary judgment on the tortious interference
claim will be denied.

ORDER
For the foregoing reasons, defendants’ motion for summary
judgment (Docket No. 25) is, with respect to 1) the 42 U.S.C.
§ 1983 claim against the Town of Hull and 2) the Massachusetts
Whistleblower Act claim, ALLOWED, but is otherwise DENIED.

So ordered.

/s/ Nathaniel M. Gorton
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Nathaniel M. Gorton
United States District Judge
Dated January 11, 2017

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