393 F.3d 337 (2nd Cir. 2004), 03-9060, Brown v. City of South Burlington, Vermont

Docket Nº:Docket No. 03-9060.
Citation:393 F.3d 337
Party Name:Leon A. BROWN, Plaintiff-Appellant, v. CITY OF SOUTH BURLINGTON, VERMONT, Charles Hafter, Individually and as City Manager, City of South Burlington, and Michael O'Neil, Individually and as Chief Engineer, City of South Burlington, Defendants-Appellees.
Case Date:December 29, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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393 F.3d 337 (2nd Cir. 2004)

Leon A. BROWN, Plaintiff-Appellant,


CITY OF SOUTH BURLINGTON, VERMONT, Charles Hafter, Individually and as City Manager, City of South Burlington, and Michael O'Neil, Individually and as Chief Engineer, City of South Burlington, Defendants-Appellees.

Docket No. 03-9060.

United States Court of Appeals, Second Circuit

December 29, 2004

Argued: Aug. 25, 2004.

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Edwin L. Hobson, Burlington, VT, for Plaintiff-Appellant.

Steven A. Bredice, Unsworth, Powell, Barra, Orr & Bredice, PLC, Essex Junction, VT, for Defendants-Appellees.

Before: MESKILL, MINER, and KATZMANN, Circuit Judges.

MINER, Circuit Judge.

Plaintiff-appellant, Leon A. Brown, appeals from a summary judgment entered in the United States District Court for the District of Vermont (Murtha, J.). The judgment was entered in favor of the defendants-appellees: the City of South Burlington, Vermont (the "City"), which had employed Brown as a firefighter; Charles Hafter, City Manager; and Michael O'Neil, City Fire Chief, designated in the caption as "Chief Engineer" (collectively, "Defendants"). Brown brought the action giving rise to the judgment for the purpose of recovering damages for the wrongful termination of his employment. His claim for wrongful discharge was predicated upon the First Amendment, the retaliation ("whistleblower") provision of the False Claims Act ("FCA"), and Vermont State law. In granting summary judgment, the District Court held that Brown had ratified a release of all claims that he had executed in favor of Defendants prior to commencing the action. The District Court determined that Brown was barred from repudiating the release by reason of his failure to tender back in a timely manner the consideration he had received for it.


The termination of Brown's employment had its genesis in an anonymous letter (the "Letter"), which apparently was sent in January of 1999 to the various individuals, news media outlets, and agencies named therein as addressees. The Letter reads as follows:

Remember the 1998 Ice Storm!

The South Burlington Fire Chief, Mike O'Neil using invoices from the South Burlington Firefighter's Association for it's [sic] own power.

Obtaining FEMA currency for personal use, by submitting claims for meals which never conspired [sic], 299 meals in fact.

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Not even one meal from any such service was ever supported or existed.

This S.B. Fire Chief has hurt this department in such a short amount of time. Why do you think so many of us on-call firefighter's [sic] have moved on. Look at the interior qualified firefighter list when the Chief started and look at the list today.

cc. South Burlington City Council: William Cimonetti, James C. Condos

South Burlington City Manager: Chuck Hafter

WCAX-TV ch3: News room

WPTZ-N ch5: News room

Burlington Free Press: News room

Federal Bureau of Investigation

Federal Emergency Management Agency

The ice storm referred to in the Letter occurred in January of 1998 and caused extensive damage throughout northwestern Vermont, including the City of South Burlington. On January 26, 1998, President Clinton declared Vermont a federal disaster area eligible for public assistance funds under the Disaster Relief Act, 42 U.S.C. § 5121 et seq. The Federal Emergency Management Agency, popularly known as FEMA, was the federal agency responsible for administering the federal disaster funds made available to the City. In addition to claims for other services performed, the City sought and received reimbursement for 299 meals provided to firefighters during ice storm operations. According to the Letter, no such meals were provided, the invoices for the meals were false, and Fire Chief O'Neil was responsible for the claim. Those referred to in the Letter as "on-call" and "interior qualified" firefighters were the City's unpaid volunteer firefighters, whose numbers were said to have been diminished due to dissatisfaction with the Fire Chief. The Letter purported to be written by an unnamed on-call firefighter.

The Letter generated a number of inquiries and reports. In a letter dated January 26, 1999, Scott A. Merchant of the South Burlington Firefighter's Association ("S.B.F.F.A."), responding to an inquiry by Chief O'Neil, reported that "[t]he actual receipts were lost in the confusion of various people picking up the meals." Invoices "based upon estimates" therefore were sent to FEMA "as receipts" to support the meal expenses claimed. The letter concluded: "It is very disheartening when someone attacks the credibility of an organization such as the S.B.F.F.A. and South Burlington Fire Dept, who has [sic] done countless things to support and contribute to the community they serve."

By memorandum to City Manager Hafter, dated January 29, 1999, Chief O'Neil reported that he had "reviewed the documentation" submitted for the reimbursement and had discussed the documentation requirements with FEMA representatives. O'Neil reported that he had turned over to FEMA the "copies of the receipts" received from Scott Merchant. By memorandum to John McGough of FEMA Region 1, dated February 2, 1999, FEMA Inspector Frederick J. Costello reported that he had investigated the meal reimbursment claim described in the Letter and "found all records to be in order" and "kept in accordance with FEMA Region 1 Guidelines." He concluded his report as follows: "Fire Chief Michael O'Neil says the anonymous [L]etter is currently under investigation."

The investigation referred to was undertaken by the City Police Department and, apparently, was instigated by City Manager Hafter, to whom a copy of the Letter had been sent. Detective Gary Small was assigned to the case. He interviewed Chief O'Neil, who reported his suspicion

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that a paid firefighter, Leon Brown, had written the Letter. The Chief said that Brown was "upset" and "unhappy" about a number of problems in his life--a low score on a promotion exam; injuries sustained in a car accident; an extended sick leave resulting from the accident; and extensive damage to his house as the result of a fire next door.

Detective Small also interviewed Captain Ken Dattilio, who was Brown's supervisor in the fire department. Dattilio related that he, too, suspected that Brown was the Letter's author. Dattilio opined that Brown "had been depressed lately," referring to some of the same problems cited by Chief O'Neil. Dattilio was of the opinion that Brown felt hated by Chief O'Neil and "may have had something to do" with the "false claims involving Chief O'Neil." Dattilio also noted that "Brown had been on some medication because of his health issues." Detective Small's investigation included a comparison of envelopes and labels sent from the Brown residence with the envelope and label used for the Letter.

On February 9, 1999, Detective Small and Captain Dattilio interviewed Leon Brown. Early in the interview, Brown said: "I feel relieved that the [L]etter has come to [sic] and admitting it, yes, I did type it up and I am the only one that acted on it and I am very sorry for ever doing it." In the interview, Brown went on to describe his perceived problems with Chief O'Neil; the damage to his house as a cause of financial difficulties; a serious automobile accident and consequent extended sick leave; and a poor showing on his promotion examination. When asked whether "the Chief had any involvement illegally with any of the funds from FEMA," Brown responded that he did not know but that no meals had been provided and that Sonny Audette, the Emergency Management Coordinator at the Fire Department, had "contest[ed] signing the slips" for the meal reimbursement.

By confidential memorandum to City Manager Hafter, dated February 16, 1999, Chief O'Neil provided an "update" on the investigation into the Letter. The Chief noted that the Letter had accused him of "certain improprieties" and that the accusations "ha[d] proven to be false." The Chief, reporting that Brown had admitted to writing the Letter, noted that various members of the department felt that, because Brown wrote the Letter, they would be unable to trust him or to work with him. Brown's...

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