Peter Antonellis v. Department of Elder Affairs and Ann Hartsein, Individually and in Her Official Capacity as Secretary of Elder Affairs

SUPERIOR COURT

PETER ANTONELLIS vs. DEPARTMENT OF ELDER AFFAIRS AND ANN HARTSEIN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS SECRETARY OF ELDER AFFAIRS

Docket:

15 00405

Dates:

December 21, 2018

Present:

County:

SUFFOLK, ss.

Keywords:

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

In this action, Plaintiff Peter

Antonellis, a former employee of Defendant Department of Elder Affairs

("Department," and as Executive Office of Elder Affairs, or

"EOEA") and Ann Hartstein, the former Secretary of EOEA, in which he

initially alleged claims for violations of the First Amendment under 42 U.S.C. ' 1983 (Count I) and for violation of the

Whistleblower statute, G.L. c. 149, ' 185

against EOEA and Hartstein, individually and in her official capacity as

Secretary. By order dated July 23, 2015, this Court dismissed Count I against

EOEA and as against Hartstein in her official capacity, and dismissed Count II

as against Hartstein individually and in her official capacity. That left a

claims against Hartstein individually as a defendant in Count I, and against

EOEA as a defendant in Count II.

Presently before the Court

Defendants' motion for summary judgment on the remaining claims. In addition,

Defendant move to strike the additional facts adduced by Antonellis in response

to their motion.[1]

---------------------------

[1]Counsels' vigorous advocacy in

this case has been extraordinarily helpful to the Court is resolving the

present motions.

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Defendants' motion to strike is

ALLOWED IN PART. As reflected in the facts accepted by the Court detailed

below, where Plaintiff has failed to simply and clearly dispute a material

fact, or has failed to respond at all, that fact is deemed admitted. See Rule

9A(b)(5), Sup. Ct. R. The Court ignores all non‑factual information Plaintiff

includes in his responses and in the additional facts he seeks to assert.

For the reasons below, and in light

of the arguments made by counsel, Defendants' motion for summary judgment is

ALLOWED.

BACKGROUND

Summary judgment is appropriate

when the record shows that "there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of

law." Mass. R. Civ. P. 56(c); see DuPont v. Commissioner of Corr., 448

Mass. 389, 397 (2007). The moving party bears the initial burden of

demonstrating that there is no triable issue and that he or she is entitled to

judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing

Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors

Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment,

the Court views the evidence in the light most favorable to the non‑moving

party and draws all reasonable inferences in his or her favor. Jupin v. Kask,

447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the

Coll. of the Holy Cross, 388 Mass. 16

(1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196,

197 (1999).

Plaintiff began working for EOEA in

2000 as an assistant general counsel. In 2006, Plaintiff asked to be

transferred to the assisted living unit as a Program Coordinator II. A Program

Coordinator II at EOEA is also known as certification specialist. Plaintiff

never worked at EOEA as a "Compliance Officer," a title which did not

exist at the agency,

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As a certification specialist,

Plaintiff's responsibilities included reviewing assisted living residences for

certification and re‑certification. Plaintiff also conducted site visits,

documented his findings, and drafted and helped to implement any corrective

actions plans. In addition, when a public records request came to Plaintiff

from his supervisor, Plaintiff identified responsive records and prepared them

for response. EOEA's policy for responding to public records requests provided:

For all EOEA staff...as soon as a

request is received, please send it to the Legal Unit....We will ask you to

identify and compile the documents that may be responsive and provide us with a

print copy of the documents ....We will review the materials for responsiveness

and determine what needs to be redacted and the cost issue. Lastly, we will let

you know what final sub‑set of materials, as redacted, are ultimately turned

over to the requesting party.

When Plaintiff served as assistant general counsel, he

gathered the materials in response to the public records requests and forwarded

them to the general counsel for review.

EOEA had a protocol for media

requests. It provided that "press inquiries or communication issues should

be directed to Martina Jackson," the Communications Director at EOEA.

Personal information about residents in facilities under EOEA's jurisdiction is

protected from disclosure under G.L. c. 66A in the absence of consent to

disclose from the resident or his or her representative.

Beginning in 2009, Plaintiff raised

concerns to his supervisors about EOEA's oversight of assisted living

residences, including: (1) a lack of a clear policy or practice for

investigating and tracking incident reports; (2) inability to properly oversee

and regulate special care residences; (3) disorganization and understaffing at

EOEA; (4) delays in the investigation of serious incidents at assisted living residences;

and (5) lack of a computerized process for tracking incident reports. Plaintiff

complained to his colleagues and supervisors about some or one of these

concerns on a monthly basis between 2010 and 2014. During 2013, Plaintiff had

concerns

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about the Department's ability to follow up on critical

incidents, including suspicious deaths and overdue suspensions of specific

assisted living residences.

On the morning of March 6, 2013,

Plaintiff attended a work meeting prior to a webinar regarding EOEA's

electronic incident reporting system, but left early. Plaintiff did not tell

his supervisor, Duamarius Stukes, that he was leaving the office. Upon leaving

the office, Plaintiff went to the Governor's Office to request a meeting about

concerns he had about elders. He filled out a request form at the Governor's

Office, but was unable to meet with the Governor, and thereafter went home. The

next day, March 7, 2013, Plaintiff did not report to the Boston office of EOEA,

where he normally worked, but instead conducted a site visit outside of the

office.

On March 27, 2013 Antonellis

received notice of a one‑day suspension for leaving the meeting on March 6 and

not reporting to the Boston office the following day. Plaintiff grieved his one‑day

suspension, and the parties settled with an agreement reducing Plaintiffs one‑day

suspension to a formal warning.

After Plaintiff's visit to the

Governor's Office, Hartstein, through her staff, received a call from the

governor's office reporting that Antonellis was asking for a meeting with the

governor. Hartstein asked EOEA's General Counsel, Stan Eichner, to follow up.

Eichner asked Plaintiff to provide a memorandum explaining his basis for his

perception that elders were at risk. Eichner informed Plaintiff that the

assignment was "a top priority" and "supersedes [his] other

assignments." On March 19, 2013, Plaintiff provided a 7‑page memorandum to

Eichner entitled "Elder Endangerment," which included 30 exhibits,

among them emails and incident reports. In response to it, EOEA Secretary

Hartstein asked Eichner to conduct an investigation. Three months later, by

letter dated June 27, 2013, Hartstein informed Plaintiff that "General

Counsel Eichner has reviewed each of the serious allegations relevant to your

concern that

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Massachusetts elders are at risk and has found that this

perception is not substantiated. I concur with his findings."

Providence Cliff House

("PCH") was a facility in Athol, Massachusetts, which first applied

to be certified as an assisted living residence in 2012. Plaintiff reviewed

PCH's application and conducted site visits as part of his job

responsibilities. EOEA denied certification in 2013. By July, 2014, PCH again

applied for certification as an assisted living residence. Plaintiff reviewed

PCH's second application and conducted site visits at PCH. EOEA denied PCH's

application on September 12, 2014. PCH appealed E0EA's decision on September

15, 2014. A hearing on PCH's appeal was scheduled for September 30, 2014.

At one time, PCH had issues with

the Board of Health in Athol ("BOH"). However, on August 4, 2014, the

BOH informed the owner of PCH that A [a]s

of August 4, 2014 the remaining violation of the MA Sanitary Code.. .has been

corrected. As of today all violations cited in earlier letters have been

corrected." Plaintiff received a copy of the August 4, 2014 letter from

the BOH on August 4, 2014.

Media outlets were interested in

E0EA's work. Kay Lazar, a health reporter for the Boston Globe, interviewed

Hartstein many times. In December, 2013, Colman Herman, a reporter for another

media outlet, Commonwealth magazine, submitted a public records request

to EOEA related to assisted living facilities, including

records for PCH. Stukes asked Plaintiff to assist with responding to Herman's

request, which he did. However, the public records request was only partially

answered by July, and Herman sent several emails to various individuals at EOEA

and elsewhere demanding a complete response and threatening to appeal the

denial of his request. EOEA did not finish responding to Herman's December 11,

2013 public records request until November 2014.

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In June or July, 2014, Plaintiff

received an email from within EOEA concerning Herman's public records request.

After receiving this email, in or about August 2014, Plaintiff contacted

Herman. Plaintiff was not instructed or asked by anyone at EOEA to do so.

Thereafter, Plaintiff met with Herman in person on three occasions and also

spoke with him over the phone, and discussed the concerns Plaintiff had raised

in his March 19, 2013 memo to Eichner and about PCH. Again, Plaintiff was not

instructed or asked by anyone at EOEA to do so. Further, Plaintiff gave Herman

EOEA documents, including a copy of his March 19, 2013 memorandum, some of the

exhibits that had been attached to it, and a copy of a report dated February 7,

2013, that Plaintiff sent to Stukes concerning a site visit to PCH, from which

Plaintiff asserts he redacted the residents' names. In the February 7, 2013

report, Plaintiff described a resident as "wheelchair bound and seemingly

incoherent" and another as "hearing impaired C

only communicates in writing." Plaintiff also gave Herman a report, dated

February 14, 2013, concerning a site visit at PCH. EOEA did not authorize

Plaintiff to provide documents to Herman. Plaintiff also spoke with Lazar about

his objections to E0EA's practices.

Speaking to the Boston Globe and

Commonwealth was not part of Plaintiff's job duties. Plaintiff did not inform

his supervisor or management at EOEA that he was going to contact Herman or

give him EOEA documents, or that he was going to speak with Lazar.

Plaintiff contends that his purpose

in providing information to Herman was to get EOEA's attention to address his

concerns and provide no standards by which Plaintiff and his colleagues were

conducting investigations and taking particular actions, thereby improving

assisted living residences and the department's oversight of them.

On September 12, 2014, Commonwealth

published an article, written by Herman, entitled "Oversight questions

raised on Elder Affairs." In it, Herman quoted Plaintiff, who was

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identified as a "compliance officer," and quoted

from Plaintiff's March 19, 2013 memorandum. It also described Plaintiff as

believing that "the agency does almost no analysis of the data it is

gathering [and] the agency cannot say how many people have fallen down,

wandered off, been abused, or exploited."

After being notified of the article

and reading it, Hartstein wanted to "possibly discipline" Plaintiff

and on September 12, contacted Rhett Cavicchi, the Director of Labor Relations

of the Executive Office of Health and Human Services ("EOHHS") who

was assigned to EOEA about that intention.

On September 21, 2014, the Boston

Globe ran a story by Lazar entitled, "Elder advocates raise concerns about

Assisted Living." The article described three incidents in which residents

of assisted living residences (ALRs) were injured, and stated that residents at

ALRs were in "harm's way too often" because EOEA "was "ill‑equipped

to protect these increasingly frail residents." The article referred to

Plaintiff as a "key staffer" who was worried that the EOEA did not

have the staff to regulate the industry. The Globe reported that Plaintiff said

"the agency had just two ombudsman to handle the thousands of complaints

that pour in each year involving assisted living residences." The article

cited Plaintiff as having repeatedly told his superiors that reports of serious

incidents were "languishing for weeks or months" and no one analyzes

them for patterns that point to larger issues. The article also stated that a

"spokeswoman at Elder Affairs disputed Antonellis' assessment." The

Globe described Plaintiff as a "compliance officer" for the

Department in the article. Martina Jackson, EOEA's Director of Communications,

spoke with Lazar before the article was published and told her that Plaintiff

was not a compliance officer.

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On September 23, 2014, Commonwealth

published another article by Herman about EOEA entitled "Elder Affairs

lets Athol facility remain open," which again quoted Plaintiff and

discussed PCH, a subject of Herman's public records request of December 2013

that remained outstanding. In the September 23, 2014 article, Plaintiff was

again described as a "compliance officer" and was quoted as saying,

"I think that right at the outset Providence Cliff should have been given

90 days to shut down and a plan developed to relocate the residents."

Plaintiff confirmed he made that statement to Herman. The September 23, 2014

article also quoted from Plaintiff's PCH site visit reports, dated February 7,

2013 and February 14, 2013, and stated: "Antonellis noted that a number of

the residents were wheelchair‑dependent, one of whom was seemingly

incoherent." That statement came from Plaintiff's February 7, 2013 site

report. The article also mentioned the memorandum that Plaintiff sent to EOEA

in March 2013 detailing his concerns that poor management was endangering the

safety of residents in ALRs.

A relative of a PCH resident saw

the September 23, 2014 article and testified he believed the statement "a

number of the residents were wheelchair‑dependent, one of whom was seemingly

incoherent" referred to his mother, a resident there. Neither Herman nor

Plaintiff had permission from the resident or her relative to describe her in

the article. The resident's relative subsequently submitted an affidavit to

Sheila Anderson at EOHHS, which stated:

Based on the description provided

and the limited number of residents currently at Providence House, I

immediately identified my mother as being the resident described in the article...I

mentioned that I was unhappy with the release of information when I attended an

informal review for Providence Cliff House in Boston on September 30, 2014, and

I object to the terminology used in the description of my mother.

On September 26, 2014, Commonwealth

published a third article by Herman about EOEA that quoted Plaintiff, entitled

"A critic from within." That article focused exclusively on

Plaintiff, and stated he was a "compliance officer with the state's Elder

Affairs office [who] has

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become his agency's biggest critic." In the article,

Plaintiff was again described as a "compliance officer," and stated

that "[for another story, [Plaintiff] shared internal emails and documents

with Commonwealth that indicate Elder Affairs let an Athol facility operate as

an assisted living residence even though it wasn't certified and it was

unsafe." The article included Plaintiff's description of a recent meeting

during which he shared his concerns with two EOEA officials and his views that

a huge problem was that EOEA treated assisted living as a residential model,

when in reality it was a medical model because many of the residents had

serious medical issues like dementia and that the responsibility for regulating

assisted living should be moved to the Department of Public Health. Plaintiff

was praised in the article by former state inspector general Gregory Sullivan:

"Every citizen in Massachusetts should pause a moment and think of the

courageous actions of people like Peter Antonellis. It takes somebody who has

guts, integrity, and selflessness to do what he has done."

Hartstein later testified that she

believed that Plaintiff believed that he was speaking out on matters of public

safety, but that Plaintiff's statements were detrimental to ALR residents

because "he was appearing to say that it was unsafe for residence for them

to be in, which was very upsetting to the residents who were living there at

the time." She also testified that Plaintiff's statement that EOEA did not

have adequate oversight ability was "very detrimental both to the Agency's

reputation and to the residents who lived in" ALRs.

PCH's appeal hearing before EOEA

was scheduled for September 30, 2014, four days after this article appeared.

On October 6, 2014, a meeting was

scheduled with Hartstein to discuss the "operational impact on the

decision" they were going to make on Plaintiff. On October 14, 2014,

Plaintiff

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was informed he was placed on paid administrative leave

"pending the completion of an investigation into multiple instances of

potentially inappropriate and unprofessional conduct."

In the following investigation, an

EOHHS Labor Relations Specialist, Sheila Anderson, interviewed Plaintiff on

October 16, 2014. Carrie McCoy, another Labor Relations Specialist, was present

at the interview and took notes. In her report, Anderson wrote that she

"asked Plaintiff if he provided any emails, documentation or communication

to Mr. Herman, and he responded in the negative." The first finding in the

resulting investigation report, titled "Media Policy Violation,"

states in part: "Press inquiries or Communication issues should be

directed to Martina Jackson at ex. 2‑7429." It further states that:

"Mr. Antonellis initiated direct contact with Mr. Herman without being

instructed to do so by his supervisor or consulting with Martina Jackson (the

EOEA Communications Director). Such contact constitutes a violation of E0EA's

Communications/Legislation Protocols." The report also found that

Plaintiff provided a false statement to the media because he affirmatively

stated that EOEA had two ombudsman to handle thousands of complaints.

On October 27, 2014, Plaintiff

received notification by letter of the allegations against him and a show cause

hearing to address them. The letter stated that EOEA was contemplating

discipline, up to and including termination, for alleged violations of the

public records request protocol, violations of Massachusetts general laws for

describing a resident with specific details, making prejudicial statements

regarding an ALR, misstating facts to outside media sources, falsely

identifying his position in the agency, and not being truthful during the investigation.

A show cause hearing was conducted

on November 3 and 6 before Christopher Groll, a Labor Relations Specialist and

Hearings Officer to determine whether Plaintiff should be disciplined.

Plaintiff was represented by counsel at the show cause hearing and testified on

his

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own behalf. The "hearing was.. .to determine what

action, if any, would be taken against [Plaintiff] as the result of any or all

of the following allegations:" (1) he "violated policies, procedures

and expectations when [he] failed to adhere to public records request

protocol;" (2) he "violated Massachusetts General Laws as well as the

reasonable expectations of the agency when [he] described a resident with

specific details which could reasonably be considered disclosing the resident's

identity;" (3) he "made prejudicial statements regarding an Assisted

Living residence while an appeal process was pending thereby potentially

undermining the ability of the agency to undertake the appellate process;"

(4) he "made statements to outside media sources that misstated the facts

and disparaged the reputation of the agency;" (5) he "falsely

identified [his] position with the agency;" and (6) he was "not

truthful and forthcoming during the course of the investigation."

After the hearing. Groll sustained

all six claims against Plaintiff.

As to the first, Groll concluded

that Plaintiff "provide[d] internal EOEA emails and other documents, as

well as information to media outlets in 2014, in violation of EOEA

protocols." Groll also found "Antonellis was aware of EOEA's

protocols regarding public record requests and media inquiries at the time he

provided information and documents to the media in 2014" and that

"[a]lthough Mr. Antonellis testified that he was aware of the agency's protocols

while he served as an Assistant Legal Counsel, he nevertheless claimed that he

was no longer aware of them while he served as a Certification

Specialist." Groll found it to be "highly unlikely that [Plaintiff]

would forget what the protocols were simply because he switched positions

within EOEA."

As to the second ground, Groll

concluded that Plaintiff "provided personal data about an ALR resident in

violation of the Fair Information Practices Act (M.G.L. c. 66A)" because

"the

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statute expressly includes 'description' within the

definition of personal data" and the relative of the PCH resident

"was clearly able to identify their relative based on a description

provided to the media by Mr. Antonellis...the only finding can be that he

violated these provisions."

As to the third issue, Groll found

Plaintiff criticized PCH while its appeal was pending, "thereby

potentially undermining the ability of EOEA to undertake its responsibilities

in the appellate process." As to this issue, Groll stated that "a

potential argument exists for Mr. Antonellis that the comments attributed to

him...[are] protected speech under the First Amendment." However, Groll

found that "the problem for Mr. Antonellis in this instance is that the

information he provided to the media about PCH was knowingly incomplete"

because Plaintiff "had personal knowledge as early as August 5, 2014 that

the health and sanitary violations referenced in the internal emails he

provided to Herman were both outdated.. .as PCH had been cleared of these

violations by the [BOH] ... [W]hen these old and inaccurate claims surfaced in

a news article a week before the meeting on PCH's appeal, and were directly

attributed to Mr. Antonellis, there can be no doubt that they had a prejudicial

effect on EOEA's ability to appear neutral and fulfill its appellate

responsibilities."

As to the fourth issue, Groll found

that Plaintiff could also allege his First Amendment rights in defense of the

allegation that he "made multiple statements to outside media sources that

misstated facts and/or disparaged the reputation of EOEA." However, Gross

found that as Plaintiff "readily acknowledged, both in his investigative

interview and at the Show Cause hearing, that some of these statements were

factually incorrect." Groll rejected Plaintiff's claim that he was

misquoted or that someone else was the source, and "considering that many

of these statements were based on documents he supplied, it is more probable

than not that he was accurately quoted in the various articles. And since he

was clearly aware that some of these

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statements were factually inaccurate, he cannot avail

himself of the protections afforded by the First Amendment."

As to the fifth issue, that

Plaintiff falsely identified himself as a compliance officer, Groll concluded

that "there can be no finding other than he unquestionably did so... .In

doing so, he undoubtedly, and most likely intentionally, lent an air of added

credibility to his claims against EOEA and PCH."

Finally, as to the sixth issue,

Groll wrote that "there is the most damaging allegation against

[Plaintiff], that he was not truthful and forthcoming during the course of

EOEA's investigation. Here, the overwhelming preponderance of the evidence

presented at hearing readily satisfies Management's burden in proving this

claim" because "[b]oth Sheila Anderson and Carrie McCoy testified

that [Plaintiff] was directly asked if he had provided any emails or documents

to Herman or any other members of the media, and he said no, a fact

corroborated by Ms. McCoy's contemporaneous notes of the interview."

As a result, Groll concluded that

"Management has established by a preponderance of the evidence the

veracity of all six (6) allegations against [Plaintiff]. ...disciplinary

action, up to and including termination is appropriate and should be imposed in

this matter," in part because Plaintiff irreparably damaged the

relationship of trust between him and EOEA.

By letter dated November 26, 2014,

Hartstein terminated Plaintiff's employment, "[a]fter reviewing the

evidence produced at the hearing, the designated hearing officer reported his

findings to me.. .which I adopt," which "indicate that you engaged in

egregiously inappropriate and unprofessional behavior." She added,

"EOEA no longer has the requisite trust and confidence in your ability to

carry out your job duties in an appropriate and professional manner."

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DISCUSSION

A. 42 U.S.C. 1983 Claim against

Hartstein

To prove a claim under 42 U.S.C. ' 1983 for retaliation in violation of

the First Amendment, Plaintiff must establish three things: (1) that he was

speaking "as a citizen on a matter of public concern"; (2) that his

interests, "as a citizen, in commenting upon matters of public

concern" outweighed his employer's interest "in promoting the

efficiency of the public services it performs through its employees"; and

(3) "that the protected expression was a substantial or motivating factor

in the adverse employment decision." O'Connell v. Marrero-Recio, 724 F.3d

117 , 123‑24 (1st Cir. 2013), citing Decotiis v. Whittemore, 635 F.3d 22, 29

(1st Cir. 2011), quoting Curran v. Cousins, 509 F.3d 36 , 44‑45 (1st Cir. 2007).

Even if Plaintiff establishes these

three elements, a Defendant escapes liability if he or she shows an entitlement

to qualified immunity, an affirmative defense. DiMarco C Zappa

v. Cabanillas, 238 F.3d 25 , 35 (1st Cir.

2001). "[Q]ualified immunity shields government officials performing

discretionary functions from civil liability for money damages when their

conduct does not violate clearly established statutory authority or

constitutional rights of which a reasonable person would have known." Id.

(citation, quotation omitted); see also Baker v. Gray, 57 Mass. App. Ct. 618,

622 (2003); Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006). A

defendant can show that qualified immunity applies if he or she shows that,

even if there was a violation of the plaintiffs Federal constitutional or statutory

rights, at the time of the violation, those rights were not clearly established

and a reasonable person in the defendant's position would not have understood

that his or her conduct violated them. See Nelson v. Salem State College, 446 Mass. 525, 531 (2006); see

also Saucier v. Katz, 533 U.S. 194 , 200‑201 (2001); White v. Gurnon, 67 Mass.

App. Ct. 622, 627 (2006).

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Although an inquiry into whether

there is qualified immunity is "separate and distinct" from the

assessment of merits of plaintiffs case, they sometimes "overlap" in

that the first element of the claim and the first question to be addressed in

determining whether qualified immunity applies both turn on whether Plaintiff

can prove that the Defendant violated his or her First Amendment rights. See

Clancy v. McCabe, 441 Mass. 311, 322 (2004), quoting Camilo-Robles v. Hoyos,

151 F.3d 1, 7 (1st Cir. 1998). The threshold inquiry on this issue is whether

Plaintiff spoke as a citizen and on a matter of public concern. See Decotiis,

635 F.3d at 29 , citing Curran, 509 F.3d at 45 and Pickering v. Bd. of Educ.,

391 U.S. 563, 568 (1968); Cristo, 90 Mass. App. Ct. at 589 (first factor has

two subparts: whether the plaintiffs were speaking as citizens and whether the

subject of the speech was of public concern). If Plaintiff spoke "pursuant

to [her] official duties," the speech would not constitute citizen speech

subject to First Amendment protection, since "restricting speech that owes

its existence to a public employee's professional responsibilities does not

infringe any liberties." Garcetti v. Ceballos, 547 U.S. 410 , 421‑22

(2006).

Determining whether Plaintiff spoke

in his official or private capacity is not as easy as either side would have

it. "In Garcetti v. Ceballos, the Supreme Court held that "the First

Amendment does not prohibit managerial discipline based on an employee's

expressions made pursuant to official responsibilities." The relevant

inquiry under Garcetti thus has two basic components C (1)

what are the employee's official responsibilities? and (2) was the speech at

issue made pursuant to those responsibilities? C both

of which are highly context‑sensitive." Mercado‑Berrios v. Cancel‑Alegria,

611 F.3d 18,26 (1st Cir. 2010) (citations omitted).

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On the one hand, as Plaintiff

argues, Plaintiff was not authorized to speak to the Commonwealth writer[2] as

a representative of EOEA and that speaking to the press or public was not part

of his normal duties C

although a reader of Commonwealth might conclude to the contrary, since

Plaintiff portrayed himself as an EOEA "Compliance Officer." The fact

that the substance of what Plaintiff said was obtained by the Plaintiff during

his employment is not determinative; "Nile critical question under

Garcetti is whether the speech at issue is itself ordinarily within the scope

of an employee's duties, not whether it merely concerns those duties."

Lane v. Franks, 573 U.S. 228 , 239‑40 (2014). On the other hand, Plaintiff, as

part of his job, was in the midst of assisting EOEA in responding to a public

records request made by Commonwealth and spoke about the substance of those

requests C and,

indeed, produced to Commonwealth, on his own and without authority from EOEA,

documents sought by Commonwealth.

The First Circuit in Mercado‑Berrios

struggled with drawing the distinction between employee and citizen speech when

the two are muddled, as they are here. There, the issue was whether an

employee's complaints about her superiors' interference with her fulfillment of

her job responsibilities was protected under the First Amendment:

The relevant question is whether

those complaints were made pursuant to her official responsibilities.

That is not an easy question to

answer. On the one hand, Mercado C Berrios's

complaints were not made "pursuant to" her job duties in the most

literal sense. ... The record contains no hint that her superiors ... expected

her to raise broad policy and safety concerns in carrying out her official

duties. ...

Garcetti can be read to suggest

that unofficial communications that are not "part of what [the plaintiff]

... was employed to do," like Mercado C Berrios's

complaints, fall outside the scope of its rule. The Supreme Court was

deliberate in its choice of words. It referred thirteen times to speech made

"pursuant to" an employee's job duties, most notably in its

statements of the question presented and the holding. Elsewhere, it described

the relevant

---------------------------

[2] While Plaintiff also spoke to

the Globe, his comments to and actions regarding Commonwealth drive the analysis.

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class of speech in similar

terms.[3] The Court did not expressly indicate that it meant to sweep more

broadly and include, for example, all speech that relates to, contributes to,

or incidentally facilitates the performance of official functions.

On the other hand, some of the

considerations identified in Garcetti such as the importance of "affording

government employers sufficient discretion to manage their operations,"

may suggest a wider scope. Several courts of appeals, focusing on those cues,

have construed the decision to cover all speech made "during the course of

performing an official duty" that "reasonably contributes to or

facilitates the employee's performance of [an] official duty." On that

view, complaints like Mercado C Berrios's

might be unprotected, since they could be said to facilitate job performance by

removing (or attempting to remove) an obstacle. The D.C. Circuit has explicitly

embraced such a view. See Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir.2009)

("[W]e have consistently held that a public employee speaks without First

Amendment protection when he reports conduct that interferes with his job

responsibilities, even if the report is made outside his chain of

command.").

In short, there are strong

arguments that the "pursuant to official duties" doctrine of Garcetti

does not apply to Mercado C Berrios's

complaints to her superiors, but there are also strong arguments to the

contrary.

Mercado‑Berrios, 611 F.3d at 27 (citations omitted).

This case is thus not like

Pickering, 391 U.S. 563 , where the issue was whether a teacher had a First

Amendment right to send a letter to a local newspaper in connection with a

proposed tax increase that was critical of the way in which the school board

and the district superintendent of schools had handled past proposals to raise

new revenue for the schools. That speech was related to, but sufficiently distant

from, the teacher's duties and was clearly the kind of speech citizens are

entitled to make. $ee also Lane, 573 U.S. at 240 (citation omitted)

("speech by public employees on subject matter related to their employment

holds special value precisely because those employees gain knowledge of matters

of public concern through their employment" and are thus "uniquely

qualified to comment' on 'matters concerning government

---------------------------

[3]"For example, the Court

referred to speech that "owes its existence to a public employee's

professional responsibilities," speech that the employer "has

commissioned or created," speech that the employee "was paid to"

make, speech that the employee's "duties ... required him to" make,

speech that amounts to the employee's "work product," and speech that

is an "official communication[ ]." Mercado‑Berrios, 611 F.3d at 27

(citations omitted).

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policies that are of interest to the public at large').

Here, some of what Plaintiff said constituted citizen speech C for instance, his criticism that EOEA

failed to properly analyze data it gathered to determine the number of

residents in assisted living facilities who suffered from falls and other

issues. That part of Plaintiff's speech also concerned a matter of public

concern and was the subject of legitimate news interest. Lane, 573 U.S. at 241;

see also Garcetti, 547 U.S. at 425 ("Exposing governmental inefficiency

and misconduct is a matter of considerable significance"). But other

expressive conduct in which Plaintiff engaged in connection with the

Commonwealth interaction was not

protected by the First Amendment, such as disclosing EOEA documents without

authorization. But it is not necessary for this prong of the analysis to fully

catalogue which of Plaintiff's conduct fell on either side of the First

Amendment line; because some of Plaintiff's expressive conduct enjoyed First

Amendment protection, the Court concludes that Plaintiff has adduced sufficient

evidence on the first prong of the 42 U.S.C. ' 1983

analysis to survive Defendants' motion for summary judgment.

Just because some of the speech at

issue is citizen speech, that "does not settle the matter' Lane, 573 U.S.

at 242; where that is the case, "the next question is whether the

government had an 'adequate justification for treating the employee differently

from any other member of the public' based on the government's needs as an

employer. ... [where] 'a stronger showing [of government interests] may be

necessary if the employee's speech more substantially involve[s] matters of

public concern" Id. at 242, citing Garcetti, 547 U.S. at 418 , and quoting

Connick v. Myers, 461 U.S. 138 , 150‑51 (1983). This is essentially a balancing

test, weighing the citizen's right to comment upon matters of public concern

against his or her employer's interest in promoting efficiency of the public

service it performs through its employees. "[G]overnment employers often

have legitimate `interest[s] in the effective and efficient

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fulfillment of [their] responsibilities to the public,'

including "promot[ing] efficiency and integrity in the discharge of

official duties," and "maintain[ing] proper discipline in public

service." Lane, 573 U.S. at 242 (citations omitted).

The parties joust over whether and

when Hartstein's motivation in terminating Plaintiff is relevant. It is, on

this prong of the analysis. See Mihos v. Swift, 358 F.3d 91 , 103‑06 (1st Cir.

2004). On the undisputed record, however, the Defendant has demonstrated that

she had substantial reasons to terminate Plaintiff in fulfillment of her

responsibilities to the public, including promoting efficiency and integrity in

the discharge of official duties, and maintaining proper discipline, which

outweighed Plaintiff's interest in exercising his First Amendment rights. As

noted above, not all of Plaintiff's expressive conduct enjoyed First Amendment

protection.

Further, Lane found that employee

speech that is "false or erroneous or ... unnecessarily disclosed any

sensitive, confidential or privileged information" weighs against

according it First Amendment protection. 573 U.S. at 242 (citations omitted).

Plaintiff's expressive conduct suffered from all three of these failings.

Plaintiff made erroneous, perhaps false, statements, such as about his title at

EOEA. He disclosed information about PCH which was outdated and hence conveyed

an erroneous impression. He revealed privileged information describing a PCH

resident in sufficient detail for her to be identified by a relative, in

violation of state law. $ee G. L. c. 66A, ' ' 1,

2 (protecting from disclosure "personal data," defined to include any

"description [that] can be readily associated with a particular

individual"). Moreover, Plaintiff did not just speak, he provided EOEA

documents to the Commonwealth reporter which Plaintiff had no right to produce,

improperly bypassing EOEA's public records request response process, and spoke

at a time when the EOEA was considering PCH's appeal, which undermined EOEA's

ability to adjudicate that appeal. And, separately but seriously, Plaintiff was

untruthful when he was asked

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by investigators whether he provided documents to

Commonwealth. Thus, while Plaintiff would have been privileged to comment about

EOEA's performance, he had no right to take any of these latter actions, which

Hartstein justifiably concluded diminished her trust in him. Hartstein thus has

shown that she had ample justification for taking action against Plaintiff

which was separate from Plaintiff's protected commentary about EOEA's

performance. Hartstein is thus entitled to summary judgment on this point

alone.

Even were that not the case,

Hartstein would still prevail. The last prong of the ' 1983

analysis, which asks whether the protected expression was a substantial or

motivating factor in the adverse employment decision, is ordinarily a question

of fact for the jury, not a question of law. See Davignon v. Hodgson, 524 F.3d

91 , 100‑‑01 (1st Cir. 2008); Garcetti 547 U.S. at 418-20 . [4] But on the

undisputed facts, Plaintiff has not shown that his termination was attributable

to his exercise of First Amendment rights as opposed to those reasons outlined

by Groll and accepted by Hartstein which described conduct far outside of them.

See Mihos, 358 F.3d at 108 ("In short, the issue is the causal link

between the protected conduct and the adverse employment action"); Wagner

v. City of Holyoke, Massachusetts, 404 F.3d 504, 508 (1st Cir. 2005)

("While individuals are entitled to speak on matters of public concern

free from the threat of retaliation... this does not entitle those same

individuals to use whatever methods or instrumentalities they see

---------------------------

[4]On this point, "the

employee must meet the 'burden of producing sufficient direct or circumstantial

evidence from which a jury reasonably may infer that his constitutionally

protected conduct ... was a 'substantial' or 'motivating' factor behind his

dismissal.' If an employee succeeds in establishing this causal relationship,

an employer can still defeat the claim 'by proving by a preponderance of the

evidence that the governmental agency would have taken the same action against

the employee 'even in the absence of the protected conduct." These two

criteria ... 'ensure[] that a plaintiff‑employee who would have been dismissed

in any event on legitimate grounds is not placed in a better position merely by

virtue of the exercise of a constitutional right irrelevant to the adverse

employment action." Diaz‑Bigio v. Santini, 652 F.3d 45 , 51‑52 (1st Cir.

2011) (citations, footnote omitted). While EOEA had ample justification to

terminate Plaintiff, Groll's analysis should not necessarily stand as the last

word on this issue, as there is at least some evidence that Hartstein harbored

an interest in disciplining Plaintiff soon after the first Commonwealth article

appeared, before Groll uncovered the full details of Plaintiffs conduct.

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fit to convey their message. If the use of such

inappropriate means of expression C rather

than the speech itself C prompts

discipline, there is no first amendment violation").

Even had Plaintiff prevailed on

this point, qualified immunity would still apply, meaning that even if

Plaintiff had a triable case on the merits, Hartstein would still be entitled

to judgment as a matter of law.

In assessing qualified immunity, A [w]e apply a three‑part test which asks

`(1) whether the facts taken in the light most favorable to the plaintiff

demonstrate that there was a violation of the plaintiffs ... constitutional or

statutory rights; ... (2) if so, whether at the time of the violation those

rights were clearly established; and (3) whether a reasonable person in the

defendant's position would understand that his conduct violated those clearly

established rights." Krupien v.

Ritcey, 94 Mass. App. Ct. 131 at *2 (2018) (citations omitted). "Qualified

immunity 'gives government officials breathing room to make reasonable but

mistaken judgments about open legal questions.' Under this doctrine, courts may

not award damages against a government official in his personal capacity unless

'the official violated a statutory or constitutional right,' and 'the right was

'clearly established' at the time of the challenged conduct.' The relevant

question for qualified immunity purposes is this: Could [Hartstein] reasonably

have believed, at the time he fired [Plaintiff], that a government employer

could fire an employee on account of' the acts in question? Lane 573 U.S. at

243 (citations omitted).

As Plaintiff properly points out,

the principle that public employees have a protected First Amendment right to speak

out on issues of public concern without differing retaliation was well‑established

by 2013,[5] but that right was "not absolute." Diaz‑Bigio, 652 F.3d

at 51‑2 (citations,

---------------------------

[5]Plaintiff also cited two prior

restraint cases in support of his qualified immunity argument, but those

decisions are irrelevant here. This was not an instance of prior restraint, and

neither case is controlling. In any event, one of the two non‑authoritative

cases he cited concluded that press policies restraining government employee

speech, like that at issue here, are not unlawful mr se. Harman v. City of New

York, 140 F.3d 111, 124 (2d Cir. 1998) ("This is not to say that any

policy that restricts speech beyond the information statutorily required to be

kept confidential could not withstand constitutional scrutiny. Given the City's

compelling interest in protecting such information, a less burdensome

regulation may well survive the [applicable] balancing test. We hold only that

the City has not met its burden to justify the comprehensive sweep of the

policies at issue here").

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footnote omitted) ("The law is 'settled that as a

general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions ... for speaking out,' but this

prohibition is not absolute. `[I]n recognition of the government's interest in

running an effective workplace, the protection that public employees enjoy

against speech‑based reprisals is qualified").

The record here simply does not

show that a reasonable person in Hartstein's position would have known that

taking adverse employment action against Plaintiff under these facts violated

that clearly established right. On the contrary, the record shows that the Defendants

realized that Plaintiffs conduct was potentially protected by the First

Amendment B Groll's

report expressly recognizes this to be the case. But the fact that part of

Plaintiff's conduct constituted protected speech did not insulate the rest of

his conduct from employment action, a point recognized by the First Circuit:

The general right ... to engage in

speech on matters of public concern without retaliation C

was clearly established ... But qualified immunity requires that the general

right be placed in a reasonably specific context; and given the facts

surrounding [a public employee's] discipline, this is not a case in which

reasonable officers, in light of clearly established law, "must have known

that [they were] acting unconstitutionally." To the contrary, [the

employee's] broad range of complaints (some consisting of unprotected and

antagonistic speech), coupled with his disregard of confidentiality protocols and

his disobedience in following the department's chain of command, would have

permitted a reasonable superior officer to believe that he was entitled to

discipline [him] regardless of the content of his speech, consistent with the

protections of the first amendment. Even if this reasoning were mistaken, it

would not have been egregiously so and, accordingly, qualified immunity is

available.

Wagner, 404 F.3d at 509 (citations omitted). In light of the

undisputed facts which show that Plaintiff committed misconduct quite apart

from his protected conduct, such as lying to

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investigators about providing EOEA documents to a reporter,

a reasonable supervisor in Hartstein's position would not have concluded that

taking adverse employment action against Plaintiff trampled his constitutional

rights. Indeed, in this case, Hartstein had the benefit of Groll's analysis of

Plaintiff's First Amendment "defenses," which found them lacking

after an adversary process in which Plaintiff participated, which informed her

that taking adverse action against Plaintiff would not trample his First

Amendment rights. Plaintiff has not shown any cogent reason to discount Groll's

analysis or Hartstein's decision to rely on it.

Accordingly, even were the Court to

find a dispute of material fact over whether Plaintiff's activities were

protected by the First Amendment, Hartstein would be nonetheless entitled to

qualified immunity. Hartstein is entitled to judgment as a matter of law on

Count I. Count I is thus dismissed.

B. G.L. c. 149, 4185 Claim A2ainst

EOEA

Plaintiff brings a claim under the

Massachusetts Whistleblower Act, G.L. c. 149, ' 185

("MWA") against EOEA, but did not cite a subsection that statute

until he responded to the summary judgment motion filed by Defendants. He then

cited G.L. c. 149, ' 185(b)(1)

and (3). Under those subparts, a public employer is prohibited from taking

"retaliatory action" against an employee because the employee

discloses an activity, policy or practice of the employer to a supervisor or

public body which the employee reasonably believes is in violation of the law

or because the employee objects to or refuses to participate in such activity,

policy or practice. G.L. c. 149, ' ' 185(b)(1),

(b)(3). To qualify for protection under ' 185(b)(1),

but not under ' 185(b)(3),

an employee must first "br[ing] the activity, policy or practice ... to

the attention of a supervisor of the employee by written notice and ... afford[

] the employer a reasonable opportunity to correct the activity, policy or

practice." Id. ' 185(c)(1).

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"Retaliatory action" is

defined in the statute as the "discharge, suspension or demotion of an

employee or other adverse employment action taken against an employee in the

terms and conditions of employment." G.L. c. 149, ' 185(a)(5).

The Act provides a private cause of action to any employee aggrieved by a

violation of the statute. G.L. c. 149, ' 185(d).

"To prevail on an MWA claim,

an employee must show 'that he engaged in protected activity and that his

participation in that activity played a substantial or motivating part in the

retaliatory action.' The employer may subsequently avoid liability 'by

proffering a legitimate, nonretaliatory reason for the [adverse action].' The

burden then shifts back to the employee to 'adduce some significantly probative

evidence showing both that the proffered reason is pretextual and that a

retaliatory animus sparked his dismissal." Pierce v. Cotuit Fire Dist.,

741 F.3d 295, 303 (1st Cir. 2014) (citations omitted).

Plaintiff concedes that his

disclosure to the media does not constitute a disclosure under ' 185(b)(1), but claims that his

statements to the media constitute an "objection" under ' 185(b)(3), arguing that the latter

section does not require the objection be made to "anyone in

particular." The argument that the Legislature intended to limit

statements to public bodies under ' 185(b)(1)

but not impose any restrictions for statements to the media under ' 185(b)(3) ignores the structure of the

statute. Sections (b)(1) and (c) permit disclosures to a public body C that is, an entity outside of the

employment relationship C

only after internal disclosure to a supervisor is made, unless there is a

compelling justification C

an emergency or similar pressing need C

to make an earlier disclosure to the public body. It would make no sense for

the statute to be read to so restrict disclosures to public bodies in favor of

earlier, internal disclosure, but permit unrestricted disclosures to the media.

The Court is required to give full effect to the entirety of a statute and to

read it to effect the Legislature's will. See Commonwealth v. Morgan,

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476 Mass. 768, 777 (2017) (citations omitted) ("In

construing a statute, we strive to discern and effectuate the intent of the

Legislature. The plain language of the statute, read as a whole, provides the

primary insight into that intent. We do not confine our interpretation to the

words of a single section. To the extent that the meaning of a statute remains

unclear, we seek to 'ascertain the intent of a statute from all its parts and

from the subject matter to which it relates, and must interpret the statute so

as to render the legislation effective, consonant with sound reason and common

sense"). The Court rejects Plaintiff's proposed interpretation of ' 185(b)(3) as nonsensical. The objection

protected in that section of the MWA is an internal objection, not a public

objection through the media.

With this understanding, Plaintiff

has shown that he did object within EOEA about elder care issues. As detailed

in section A above, EOEA has proffered legitimate, nonretaliatory reasons for

terminating Plaintiff. Plaintiff has failed to sustain his burden to adduce

some significantly probative evidence showing both that the proffered reason is

pretextual and that a retaliatory animus sparked his dismissal. Indeed,

Plaintiff has shown no facts to suggest that his internal complaints within

EOEA played any role, much less a substantial or motivating part, in his

dismissal.

On the undisputed facts,

Plaintiff's claim against EOEA fails as a matter of law. EOEA is thus entitled

to judgment on Count II.

ORDER

For the foregoing reasons,

Defendants' motion to strike is ALLOWED IN PART and its motion for summary

judgment is ALLOWED. This case is thus DISMISSED.

/s/MICHAEL D. RICCIUTI Justice of the Superior Court

December 21, 2018

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