Saunders v. Town of Hull
| Decision Date | 11 January 2017 |
| Docket Number | Civil Action Nos. 15–11509–NMG |
| Citation | 229 F.Supp.3d 80 |
| Parties | Scott SAUNDERS, Plaintiff, v. TOWN OF HULL and Richard K. Billings, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Harold L. Lichten, Peter M. Delano, Lichten & Liss–Riordan, P.C., Boston, MA, for Plaintiff.
Douglas I. Louison, Joseph A. Padolsky, Louison, Costello, Condon & Pfaff, LLP, Boston, MA, for Defendants.
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, 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.
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.
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 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.
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 and the Board declined to promote him because Saunders reported the missing funds to the AG's Office and presided over the no-confidence 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 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. This memorandum and order addresses that motion.
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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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.
Municipalities may not be held liable pursuant to a respondeat superior theory in a 42 U.S.C. § 1983 action. Monell v. Dep't of Soc. Servs. of City of N.Y. , 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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, 109 S.Ct. 1197, 103 L.Ed.2d 412, (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, 109 S.Ct. 1197.
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, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). Government employees retain a constitutional right to comment on matters of public 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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Second, if the employee succeeds in...
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