United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON, J.
case involves a dispute about why plaintiff Scott Saunders
("plaintiff" or "Saunders") was passed
over for a promotion in the Town of Hull's Police
Department. Plaintiff alleges that defendants, the Town of
Hull and former Police Chief Richard Billings, refused to
promote him because he 1) reported missing funds to the
Massachusetts Attorney General's Office, 2) played a
central role in a publicized Union vote of no confidence
against Chief Billings and 3) because of Chief Billings'
animus against him. Plaintiff's motion for
reconsideration of summary judgment on his Massachusetts
Whistleblower Act, M.G.L. c. 149, § 185(d)
("MWA"), claim is currently before the Court.
Plaintiff's Motion for Reconsideration
plaintiff requests that the Court reconsider its summary
judgment of dismissal of his claim pursuant to M.G.L. c. 149,
§ 185(b)(1) on the grounds that he adequately provided
the notice required under that provision. Plaintiff
alternatively requests that this Court certify the notice
issue to the Supreme Judicial Court of Massachusetts.
Although the statute itself may be ambiguous, the ruling of
the First Circuit Court of Appeals ("First
Circuit") with respect to the written notice requirement
In this application, a literal reading does make sense: the
written notice requirement gives the employer one last chance
to correct wrongdoing before the employee goes public with
Dirrane v. Brookline Police Dep't, 315 F.3d 65,
73 (1st Cir. 2002); see also Wagner v. City of
Holyoke, 241 F.Supp.2d 78, 98 (D. Mass. 2003),
aff'd, 404 F.3d 504 (1st Cir. 2005) ("The
effect of Dirrane ... is to require plaintiffs under
the Whistleblower Statute to notify potential defendants in
writing, in all circumstances, before filing suit.").
Because the First Circuit has determined that there is a
"hard and fast rule" regarding written notice and
such notice was not provided, plaintiff's motion for
reconsideration of summary judgment on his M.G.L. c. 149,
§ 185(b)(1) claim will be denied. Dirrane, 315
F.3d at 73.
plaintiff contends that he is entitled to reconsideration on
the grounds that his MWA claim also falls under Section
(b)(3) of M.G.L. c. 149, § 185. Plaintiff's claim
pursuant to that section seems to be an afterthought and is
hardly a model of clarity. Although plaintiff is correct that
Section 185(b)(3) does not require written notice, Quazi
v. Barnstable Cty., 70 Mass.App.Ct. 780, 783-84 (2007),
his claim under that section is tenuous.
185(b)(3) states that an employer shall not retaliate against
an employee who
Objects to, or refuses to participate in any activity, policy
or practice which the employee reasonably believes is in
violation of a law, or a rule or regulation promulgated
pursuant to law, or which the employee reasonably believes
poses a risk to public health, safety or the environment.
M.G.L. c. 149, § 185(b)(3). Plaintiff does not claim
that he "refuse[d] to participate in any activity,
policy or practice." Accordingly, the question is
whether he objected to an activity, policy or practice that
he reasonably believed violated the law or implicated public
safety concerns. There are two possible sources of such
objections: 1) the Union no-confidence vote and 2)
discussions about the embezzlement of Union funds.
in his memorandum of law opposing summary judgment, plaintiff
briefly contended that he objected to policies and practices
by Chief Billings that implicated public safety concerns
through participating in the Union's no-confidence vote.
The no-confidence issue was put to a yes/no vote. The list of
reasons for the vote that Union Representative Jack Parlon
forwarded to the Town of Hull included complaints about
officers being under-prepared and under-trained and
directives to write revenue-generating traffic citations
which could be considered public safety issues. Plaintiff
himself did not, however, personally present those objections
to a supervisor or to the Town of Hull.
plaintiff called the Town Manager after the no-confidence
vote and was asked what the vote was based upon, the record
is devoid of any information about the content of
plaintiff's answer to that question. Moreover, in his
response to defendants' statement of material facts,
plaintiff does not identify any specific instance when he
personally "objected" to employment policies based
on safety concerns. Accordingly, even construing the record
in his favor, plaintiff has not shown that he objected to
policies based on safety concerns and therefore defendants
are entitled to judgment as a matter of law on the Section
in his motion for reconsideration plaintiff contends that his
conversations with his supervisor and Chief Billings
concerning the possible embezzlement constituted objections
to an illegal practice under M.G.L. c. 149, § 185(b)(3).
Plaintiff's memorandum in opposition to summary judgment
did not, however, assert that plaintiff was making a claim
under Section (b)(3) for objections based on illegal
practices. Fed.R.Civ.P. 59(e) does not "permit a party
to advance arguments it should have developed prior to
judgment." Biltcliffe v. CitiMortgage, Inc.,
772 F.3d 925, 930 (1st Cir. 2014) (quoting Iverso ...