No. 21-1251

DIANE LAWLESS,

Plaintiff, Appellee,

v.

TOWN OF FREETOWN, et al.,

Defendants, Appellants. _____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge] _____________________

Before

Kayatta and Howard, Circuit Judges, and Walker, District Judge. _____________________

Joseph A. Padolsky, with whom Louison, Costello, Condon & Pfaff, LLP was on brief, for appellants. Chip Muller, with whom Muller Law, LLC was on brief, for appellee. _____________________

March 22, 2023 _____________________

 Of the District of Maine, sitting by designation. WALKER, District Judge. The Appellants, three members of the Town of Freetown Board of Selectmen, ask us to review a summary judgment order that rejected their affirmative defense of qualified immunity against Appellee Diane Lawless’s procedural due process claim. For reasons that follow, we reverse in part the district court’s summary judgment ruling and remand for further proceedings.

I.

Plaintiff-Appellee Diane Lawless served as Treasurer of the Town of Freetown for roughly two years beginning in 2013 and ending in 2015. Her contract called for a three-year term of employment, terminable only for cause following a six-month probationary period. The Town of Freetown is governed by a Board of Selectmen. The board members took exception to Lawless’s continued tenure, arranged for her to receive notice of perceived shortcomings, placed her on administrative leave, and eventually instituted disciplinary proceedings based on a notice reciting eight charges. At her termination hearing before the Board, Lawless was represented by counsel, questioned the Board’s two witnesses, and addressed the Board on her own behalf. At the conclusion of the three-day hearing, the Board voted to terminate Lawless’s contract without deliberation. In connection with the underlying controversy concerning Lawless’s performance and in the lead up to the hearing, certain statements were made by the board members

- 2 - that would permit findings of personal bias or prejudgment. The Town of Freetown affords no further proceeding post-termination.

Lawless filed an action in Bristol County Superior Court naming as defendants the Town of Freetown and (now former) board members Lee Baumgartner, Lisa Pacheco, and Paul Sadeck. The individual board members are the Appellants herein.1 Lawless included in her complaint a claim alleging deprivation of her right to procedural due process, citing 42 U.S.C. § 1983, and on that basis the defendants removed Lawless’s state court action to the United States District Court for the District of Massachusetts. In due course, Lawless amended her complaint and the Town and the board members filed a joint answer to the amended complaint. The answer recited nine affirmative defenses but omitted any reference to the doctrine of qualified immunity or immunity in general.

Following the close of discovery, the board members joined with the Town in seeking summary judgment against Lawless’s due process claim, contending for their part that the doctrine of qualified immunity shielded them from Lawless’s § 1983 claim. Lawless opposed the motion by arguing, in part, that the board members waived the defense of qualified immunity by failing to include