Judith Gail Dein, United States Magistrate Judge.
The plaintiff, John Amirault ("Amirault" or "Plaintiff"), has been employed by the City of Malden, Massachusetts (the "City"), for over 36 years, and as a law enforcement officer for over 31 years. At all relevant times, up until the present, he has held the rank of Captain. Effective November 1, 2015, Amirault was involuntarily removed from his position as the Head of the Department's Detective Unit, and was assigned to fill the Police Department's newly created position of Manager of Accreditation. Amirault claims that the reassignment took him out of the mainstream of detective work and deprived him of the ability to earn overtime pay, and that the job change was made in retaliation for statements he made during the course of two investigations in which he uncovered evidence of possible misconduct by City officials. As described herein, these matters are known as the "Henry matter" and the "YMCA investigation."
On March 20, 2017, this Court dismissed Counts I and III of Amirault's Complaint against Malden's Chief of Police, Kevin Molis, in which Amirault had purported to
The following facts are undisputed unless otherwise indicated.
Amirault has been employed by the Malden Police Department for over 30 years. (DF ¶ 2). In March 2013, Plaintiff, then a Captain, was assigned to serve as the Head of the Department's Detective Division. (DF ¶¶ 4, 6; PF ¶ 147). As the Head of the Detective Division, Amirault had oversight over all major cases that occurred in the City of Malden. (DF ¶ 7; PF ¶ 148). In November 2014 and April 2015, he became involved in the investigation of two separate criminal matters, the "Henry matter" and the "YMCA investigation." (DF ¶¶ 23, 75; PF ¶ 151). On October 7, 2015, Plaintiff was informed that he would be transferred to the newly created position of Accreditation Manager. (PF ¶ 227). Plaintiff alleges that he was involuntarily transferred as retaliation for his involvement in the Henry matter and the YMCA investigation. (
On or about November 17, 2014, the Director of Malden's Planning, Inspections & Permits ("PIPS") Department, Chris Webb ("Director Webb"), reported that a city check had been stolen. (DF ¶ 23). Plaintiff claims that he was informed by Director Webb that the check was last seen on the desk of PIPS employee Enos Henry
The check was discovered to have been cashed on November 8, 2014 by Jennifer Degand Rene. (DF ¶ 25). The Malden Police arrested Ms. Rene on February 2, 2015 and she implicated Mr. Henry in the theft of the check, stating that he had provided her with the check and agreed to pay her if she cashed it. (DF ¶¶ 28-29; PF ¶ 162).
Given the fact that a City employee was implicated in the crime, Plaintiff contacted Chief Molis to brief him on the case. (PF ¶ 163; DF ¶ 32). Chief Molis and the Mayor of Malden, Gary Christenson, met with Amirault in Molis' police cruiser in the station garage.
On February 3, 2015, Mr. Henry was brought in for questioning, and he ultimately confessed to violating PIPS protocols and knowing Ms. Rene. (DF ¶ 39; PF ¶ 166). The same day, Amirault met with City Solicitor Katherine Fallon, Director Webb, and the City's Personnel Director Eleanor Cushing. They determined that there was "just cause" to terminate Mr. Henry and that Mr. Henry should also be issued a no trespass notice to prevent him from accessing City property. (PF ¶¶ 167-69). However, at the recommendation of the Mayor and Chief Molis, Mr. Henry instead was suspended and issued a no trespass notice. (PF ¶ 172; DF ¶¶ 41-42; Pl. Ex. Y).
On February 6, 2015, Director Webb reported that another City employee had been contacted by Mr. Henry in an attempt to smuggle checks back into the PIPS Department. (DF ¶ 44; PF ¶ 173). Based on this information the Malden Police conducted a search of Mr. Henry's home where they allegedly uncovered seventy-six additional checks totaling over $16,000.00. (DF ¶ 46; PF ¶ 174). While officers were executing the warrant, Mr. Henry was discovered attempting to remove or destroy evidence and was subsequently arrested. (DF ¶ 47; PF ¶ 175). Upon hearing of Mr. Henry's arrest, City Solicitor Fallon drafted a termination letter. (PF ¶ 176). The Mayor was allegedly upset over City Solicitor Fallon's unilateral actions, reportedly stating that he "did the hiring and firing, not her." (
On February 10, 2015, Plaintiff appeared before the Malden City Council to discuss the allegations against Mr. Henry. (PF ¶ 181; DF ¶ 50). Afterward the Council approved an outside audit of the PIPS
BlumShapiro personnel contacted Mr. Rodriguez requesting the report on March 31, 2015 and again on April 7, 2015 with no response. (
In or around March 2015 and again on April 16, 2015, the District Attorney's office issued a Grand Jury subpoena related to the Henry matter in an effort to get the necessary information. (DF ¶ 60; PF ¶ 189). The City complied with the request, but City Solicitor Fallon informed Plaintiff that the information the City provided contained significant gaps in the data. (DF ¶ 61; PF ¶ 190).
On or around June 8, 2015, Plaintiff and City Solicitor Fallon met with the prosecutor of Mr. Henry's case, Assistant District Attorney Craig Estes, and the Forensic Auditor for the Middlesex District Attorney's Office, Sean Ball, to discuss the lack of cooperation by the City. (PF ¶ 188). Plaintiff alleges that he continued to meet with the City Council as many as six times regarding the progress of the Henry matter, and to provide them with "reports which included the lack of cooperation by City officials in providing requested information and the incomplete nature of the documents submitted in response to the Grand Jury subpoena." (
According to the Plaintiff, on October 3, 2015, the Mayor approached the Plaintiff and questioned him about the progress of the Henry matter. (
Chief Molis met with the president of the police union on October 5, 2015 to discuss transferring Amirault to the Accreditation Manager position. (
On April 4, 2015, the police were notified that a six-year-old girl was reporting that she had been sexually assaulted at the YMCA in Malden. (DF ¶ 75). Chief Molis' brother, Francis Molis, was a supervisor at the YMCA and was at the facility on the
Plaintiff received a copy of the surveillance video from Frank Molis and brought it to Assistant District Attorney Katherine Folger ("ADA Folger") in order to assemble a Sexual Assault Intervention Network ("SAIN") Team. (DF ¶ 84). Amirault spoke with ADA Folger about sending a still photo from the videotapes to local media to assist in identifying the suspect. (DF ¶ 86; PF ¶ 200). When Amirault returned to the station, however, he contends that Chief Molis "appeared angry over the status of the case ... [and] countermanded that decision stating that he preferred to `work the case in house.'" (PF ¶ 201).
On April 6, 2015, a detective went to the YMCA to interview witnesses, including Frank Molis. (PF ¶ 202). Without Plaintiff's knowledge, Chief Molis accompanied the detective to participate in the investigation. (
On April 7, 2015, the Plaintiff and Detective Marc Gatcomb brought the suspect in for questioning. (PF ¶ 205; DF ¶¶ 106, 108). Detective Gatcomb and Detective Robert DiSalvatore interviewed the suspect. (DF ¶¶ 109). During the interview, the suspect admitted to the alleged assault and claimed that Frank Molis had invited him to the YMCA on the day in question to help move furniture. (
On April 24, 2015, Plaintiff contacted Frank Molis to request access to the YMCA servers in order to obtain surveillance footage from the incident on April 4, 2015. (DF ¶ 119). Frank Molis informed the Plaintiff that YMCA legal counsel would need to authorize release of the servers. (PF ¶ 215; DF ¶ 121). After contacting the YMCA attorney, the servers were released to the Police Department. (DF ¶ 122; PF ¶ 216).
On July 14, 2015, the Plaintiff met with ADA Folger to discuss the YMCA Investigation, the conflicting statements regarding whether or not Frank Molis knew the suspect, and to express "his belief that Frank Molis was intentionally impeding the investigation." (PF ¶ 217). The case was later transferred from the Middlesex District Attorney's Office to Norfolk County.
Amirault and Detective DiSalvatore met with a Norfolk County ADA and two members of the Massachusetts State Police for the Norfolk County C-PAC Unit to discuss the investigation. During this meeting Amirault informed them that he believed Frank Molis may have misled the investigation. (PF ¶ 219; DF ¶ 126).
In 2013, the Mayor informed Chief Molis that he wanted to pursue accreditation for the Malden Police Department. (DF ¶ 127). On March 1, 2013, the Mayor and Amirault signed a Memorandum of Agreement altering the collective bargaining agreement that existed between the City of Malden and the New England Police Benevolent Association. (Def. Ex. J). This memo explicitly granted the police chief "flexibility in assigning duties and responsibilities to a Captain ... so that responsibilities involving grant writing, police accreditation and the technological advances of the department are adequately addressed." (
On October 5, 2015, two days after Plaintiff's conversation with the Mayor regarding the Henry matter, Chief Molis met with Detective Gatcomb, the president of the union to which Plaintiff belonged. (PF ¶ 220; DF ¶ 130). During this meeting Chief Molis presented a "Notice of Contemplated Action" stating that he was "contemplating assigning Capt. John Amirault to a temporary assignment as [the Department's] Accreditation Project Manager." (Pl. Ex. U). The Notice further stipulated that Chief Molis was "contemplating assigning [Detective Gatcomb], as the Detective Lieutenant in the bureau, to temporarily serve as the commanding officer of the Detective Bureau." (
At this time, Detective Gatcomb held the rank of Lieutenant. (PF ¶ 225). At no point prior to this incident had the Head of the Detective Unit held a rank other than Captain. (
Defendant claims that the Mayor has "no involvement with the Police Department's personnel decisions, including how personnel are assigned within the Department," and that "Chief Molis did not inform the Mayor of his decision to temporarily reassign the Plaintiff to Accreditation Manager[.]" (DF ¶¶ 39-40). However, the Mayor was copied on the October 5, 2015 Notice of Contemplated Action documenting Chief Molis' decision to remove Plaintiff from his role as Head of Detectives. (PF ¶ 221). As of that time, Amirault had yet to be informed of the reassignment. (PF ¶ 224).
On October 7, 2015, Chief Molis met with Amirault and informed him that he would be temporarily reassigned to the position of Accreditation Manager effective November 1, 2015. (DF ¶ 134; PF ¶ 227). Chief Molis also informed Amirault that in the new position Amirault was only to work on accreditation and "nothing else." (PF ¶ 228). At this meeting, Amirault informed Chief Molis that he felt the reassignment
Defendant maintains that on October 29, 2015, Chief Molis assured the City Council and the Assistant District Attorney pursuing Mr. Henry's case to inform them that Plaintiff's reassignment would not impact the investigation and that Plaintiff was available if needed.
Upon hearing of Plaintiff's reassignment, City Solicitor Fallon met with City Council officials to express her concern due to Plaintiff's involvement in the Henry matter. (PF ¶ 232). City Solicitor Fallon felt that Plaintiff's removal "was intended to be punishment." (
On November 18, 2015, Plaintiff, through counsel, wrote to Chief Molis alleging that the "reassignment to Accreditation Manager was in retaliation for his involvement with the investigation of the Henry matter and the YMCA matter." (DF ¶ 144). Plaintiff then filed this Complaint on February 2, 2016. (
Additional facts will be provided below as appropriate.
"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.'"
"Once 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."
Applying these principles to the instant case compels the conclusion that the defendants' motion for summary judgment must be ALLOWED IN PART AND DENIED IN PART.
The Massachusetts Whistleblower statute provides in relevant part that:
Mass. Gen. Laws ch. 149, § 185(b)(1)-(3). "Retaliatory action" is defined 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." Mass. Gen. Laws ch. 149, § 185(a)(5). The City has conceded, for purposes of the motion for summary judgment, that Amirault's removal as Head of the Detective Unit, and his transfer to Accreditation constitutes an adverse employment action under the statute. (Def. Mem. (Docket No. 53) at 6 n.3).
A claim proceeding under the Massachusetts Whistleblower Act is analyzed under a burden-shifting analysis. Once the employee has presented a prima facie case, the employer "may subsequently avoid liability `by proffering a legitimate, nonretaliatory reason for the adverse action.'"
In order to make out a prima facie claim under the Whistleblower Act, "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.'"
In connection with the Henry matter, Amirault contends that he engaged in protected activity in connection with his meetings with the Malden City Council, the June 8, 2015 meeting with Assistant District Attorney Craig Estes and Forensic Auditor Sean Ball, and his general involvement with the Henry investigation. While the Defendant does not dispute that this conduct is protected activity,
A plaintiff can show that the protected conduct and retaliatory action are causally connected in many ways, including but not limited to, "differential treatment in the workplace ... temporal proximity of an employee's protected activity to an employer's adverse action ... or comments by the employer which intimate a retaliatory mindset."
The City argues that Plaintiff's appearances before the City Council occurred in February 2015, the investigation took place over the Spring of that year, and "Plaintiff's temporary reassignment became effective on November 1, 2015." (Def. Mem. at 7). The precise dates of the Plaintiff's meetings with the City Council are unclear, but there is substantial evidence in the record that Amirault's involvement continued up until the time of his reassignment. As described above, according to the Defendant, Chief Molis assured the City Council and the Assistant District Attorney pursuing Mr. Henry's case after Amirault's reassignment to inform them that Plaintiff's reassignment would not impact the investigation and that Plaintiff was available if needed. (DF ¶ 143). Similarly, City Solicitor Fallon was concerned that the reassignment was in retaliation for Amirault's involvement in the Henry matter. (PF ¶ 232). Significantly, on October 3, 2015, just days before the reassignment, the Mayor asked Amirault about the status of the Henry matter, and was told that an indictment was expected. (PF ¶ 193). While the Defendant disputes the significance of this conversation (Def. Mem. at 9), it should be up to a fact-finder to determine if the Henry matter was still very much on Chief Molis' and the Mayor's mind when the decision was made in early October (not November 1, 2015) to reassign Amirault. The reassignment was not so remote from Amirault's involvement in the Henry matter that this Court can conclude, as a matter of law, that the Plaintiff cannot establish causation.
Moreover, the Plaintiff has proffered additional evidence which would support a finding of causation. The "ultimate issue" is "whether, viewing the aggregate package of proof offered by the plaintiff and taking all inferences in the plaintiff's favor, the plaintiff has raised a genuine issue of fact" as to whether the adverse job action was causally related to his involvement in the Henry matter.
The City argues that there is no evidence that the Mayor was involved in or aware of Chief Molis' decision to reassign Amirault. Again, however, there is evidence from which a fact-finder may find to the contrary. Thus, the record establishes that Chief Molis provided the Mayor with a copy of the October 5, 2015 Notice documenting the reassignment, which Chief Molis had given to Detective Gatcomb. (PF ¶ 221). Thus, the Mayor knew about the reassignment even before Amirault. (PF ¶¶ 224, 227). The Plaintiff argues that "Chief Molis had never before informed Mayor Christenson of a contemplated re-assignment within the Department prior to this time." (Pl. Mem. at 15;
Finally, the City argues that Amirault cannot establish that its stated reason for transferring him to be in charge of the accreditation process was pretextual. Thus, the City argues that accreditation was a legitimate goal of the Department, and that "Chief Molis selected the Plaintiff to be the Accreditation Manager because of his well-rounded tenure with the Department, including his experience as patrol commander, Union leader, a member of the detail board, and a leader in the Detective Division" — factors which allegedly led Chief Molis to conclude that Amirault was the best suited for the position. (Def. Mem. at 12-13 (citing DF ¶ 131)). However, the Plaintiff has raised sufficient questions about the validity of the reason given for his reassignment so that the issue should be decided by a jury.
While the Mayor allegedly informed Chief Molis that he wanted to pursue accreditation for the Department in 2013, Chief Molis apparently did not do anything in furtherance of that goal until May 2015, when he attended a conference where there was a presentation from the Accreditation Commission. (DF ¶¶ 127-28). Even then, although he was apparently in frequent contact with Amirault, he never communicated with him either about the accreditation process or his potential role as Manager. The Chief did not even provide Amirault with a copy of the Notice proposing to change his position, electing instead to provide the information to the Union. (PF ¶ 220; DF ¶ 130). The jury can consider such evidence in deciding whether the reassignment was a straightforward business decision, or done in retaliation for pursuing an investigation that was causing the City discomfort.
Moreover, the record before the Court is that Amirault was performing his role as the Head of Detectives well, and was respected by members of his Unit. (PF ¶ 150). Historically, the Detective's Unit was headed by a Captain (PF ¶ 225), and a Captain assigned as the Head of the Unit would be removed only for disciplinary reasons. (PF ¶ 153). Nevertheless, Amirault was allegedly not being disciplined,
(Pl. Mem. at 17). In order to defeat any employer's business explanation at this stage of a case, "[t]he plaintiff does not have to prove by a preponderance of the additional evidence that discrimination was in fact the motive for the action taken. All a plaintiff has to do is raise a genuine issue of fact as to whether discrimination motivated the adverse employment action."
For the reasons detailed herein, Amirault's whistleblower claim based on his role in the YMCA investigation fails as a matter of law.
According to the Plaintiff:
(PF ¶ 217).
(PF ¶ 219).
In order to constitute protected activity Plaintiff must be disclosing "to a public body an activity, policy or practice of the employer ... that the employee reasonably believes is in violation of a law...." Mass. Gen. Laws ch. 149, § 185(b)(1) (emphasis added). Thus, the Plaintiff's complaints about Frank Molis do not qualify as protected activities. Moreover, there are no allegations that any City official was aware of his meeting with the ADAs. The absence of any evidence that the alleged retaliators knew of Amirault's protected activity defeats his claim.
For all the reasons detailed herein, the "Defendant's Motion for Summary Judgment" (Docket No. 52) is ALLOWED to the extent that the Whistleblower Act claim is based on the YMCA investigation, but DENIED to the extent that the claim is based on the Henry matter.
