Delaney v. Town of Abington, 890 F.3d 1

Background

Plaintiff Tom Delaney, an Abington police officer, alleged the department had a "money ticket quota" requiring more citations than warnings and that he objected to it.
Delaney reported the policy to the Massachusetts Attorney General (AG) on April 7, 2014, and refiled the report on October 14, 2014; he also gave a copy to the Town Manager on the re-filing date. He was elected president of the patrolmen's union in April 2014.
Delaney claims defendants (Town and three police supervisors) retaliated for (1) his AG reports and (2) union activity via assignments, email reprimands, suspension, and other workplace actions.
He sued under 42 U.S.C. § 1983 (First Amendment retaliation), Massachusetts whistleblower statute (M.G.L. ch. 149, § 185), the Massachusetts Civil Rights Act, and for intentional infliction of emotional distress; the case was removed to federal court.
The district court granted summary judgment to defendants on all claims and quashed Delaney’s subpoena to depose the AG Office; Delaney appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether filing reports with the AG Office was protected speech and whether defendants retaliated in violation of the First Amendment	Delaney: AG reports were citizen speech on a matter of public concern and adverse actions (assignments, email, suspension) were motivated by the reports	Defendants: either unaware of the April filing; later actions were not materially adverse or lacked causal link to the AG report	Affirmed for defendants: no genuine issue of material fact that the April filing motivated retaliation; later actions either too trivial, too temporally remote, or lacking causation
Whether union activity (Delaney’s role as union president) was protected and defendants impermissibly retaliated	Delaney: deputy chief’s email and other conduct constituted retaliation for union activity and created a hostile work environment	Defendants: the email and other acts were mild criticism, not materially adverse, and do not show causation	Affirmed for defendants: challenged email was "exceedingly mild" and insufficient to support First Amendment retaliation
Whether Delaney stated a claim under the Massachusetts whistleblower statute (M.G.L. ch. 149, § 185)	Delaney: he gave written notice by handing supervisor a copy of Department Rule 7.0 and protesting the policy; alternatively, his AG report fell within the criminal-conduct exception to written-notice requirement	Defendants: Delaney did not provide the statute's required written notice; exception for criminal conduct does not apply because alleged ticketing practice did not reasonably implicate the criminal statutes cited	Affirmed for defendants: Delaney failed to give the required written notice and reasonably could not have believed a criminal bribery statute was violated
Whether the district court abused its discretion by quashing Delaney’s deposition subpoena to the AG Office	Delaney: deposition would permit inquiry into matters not otherwise revealed and avoid reliance solely on documents	AG Office/Defendants: AG produced all non-privileged documents and privilege log; deposition would be duplicative and invade privilege	Affirmed for defendants/AG Office: court did not abuse discretion; withheld materials were privileged and Delaney did not challenge privilege findings

Key Cases Cited

Garcetti v. Ceballos, 547 U.S. 410 (speech by public employees in official duties has reduced protection)
Pickering v. Board of Education, 391 U.S. 563 (balancing employee speech on matters of public concern against government employer interests)
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (defendant can show it would have acted regardless of protected conduct)
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (definition of adverse employment action)
Curran v. Cousins, 509 F.3d 36 (First Circuit summary of Garcetti/Pickering framework)
Barton v. Clancy, 632 F.3d 9 (critical supervisor comments may be too trivial for First Amendment claim)
McKee v. Hart, 436 F.3d 165 (criticisms by employer insufficient alone for First Amendment deprivation)
Noviello v. City of Boston, 398 F.3d 76 (temporal proximity relevant when employer knew of protected conduct)
United States v. Devin, 918 F.2d 280 (interpretation of bribery statute in police ticketing context)
Wilber v. Curtis, 872 F.3d 15 (factors governing exercise of pendent jurisdiction)