United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT KEVIN
MOLIS' MOTION TO DISMISS
Gail Dein United States Magistrate Judge
plaintiff, John Amirault (“Amirault”), has been
employed by the City of Malden, Massachusetts
(“Malden” or the “City”) for 36
years, and has served as an officer in the Malden Police
Department for 31 of those years. On October 7, 2015,
Amirault was involuntarily removed from his position as the
head of the Department's Detective Unit, and was assigned
to serve as the Police Department's newly created Manager
of Accreditation. The plaintiff claims that the reassignment
deprived him of the ability to earn overtime pay, and that it
occurred in retaliation for statements he had made during the
course of two separate investigations in which Amirault
uncovered evidence of possible misconduct by City officials.
By his Complaint in this action, Amirault has asserted claims
against Malden's Chief of Police, Kevin Molis
(“Molis”), pursuant to 42 U.S.C. § 1983
(“Section 1983”) and the Massachusetts Civil
Rights Act, Mass. Gen. Laws ch. 12, § 11I
(“MCRA”), for violating his First Amendment right
to free speech (Counts I and III). He has also asserted a
claim against the City for violations of the Massachusetts
Whistleblower Act, Mass. Gen. Laws ch. 149, § 185 (Count
matter is before the court on “Defendant Kevin
Molis' Motion to Dismiss” (Docket No. 13), by which
Molis is seeking dismissal of Counts I and III on the grounds
that they fail to state a plausible claim for relief pursuant
to Fed.R.Civ.P. 12(b)(6). Specifically, Molis argues that
Amirault cannot sustain a claim under Section 1983 or the
MCRA because he has failed to allege facts showing that his
reassignment to the Accreditation Manager position occurred
in retaliation for engaging in constitutionally protected
speech. Molis also argues that Amirault's MCRA claim must
fail because the plaintiff has not alleged facts showing that
the defendant's conduct involved threats, intimidation or
coercion. Finally, Molis contends that even if Amirault has
alleged a violation of his constitutional rights, his claims
should be dismissed on the grounds of qualified immunity.
threshold issue raised by the defendant's motion is
whether Amirault's statements regarding potential
misconduct by City officials are entitled to protection under
the First Amendment. Pursuant to the Supreme Court's
seminal decision in Garcetti v. Ceballos, 547 U.S.
410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Amirault's
speech would only be protected if, at the time he made the
statements at issue, he was speaking as a citizen on a matter
of public concern rather than pursuant to his official duties
as head of the Malden Police Department's Detective Unit.
As described below, this court finds that Amirault has failed
to allege that he was speaking as a citizen instead of a
public employee. Therefore, and for all the reasons detailed
herein, the defendant's motion is ALLOWED, and Counts I
and III of the plaintiff's Complaint shall be dismissed.
STATEMENT OF FACTS
ruling on a motion to dismiss brought under Fed.R.Civ.P.
12(b)(6), the court must accept as true all well-pleaded
facts, and give the plaintiff the benefit of all reasonable
inferences. See Cooperman v. Individual Inc., 171
F.3d 43, 46 (1st Cir. 1999). Applying this standard to the
instant case, the relevant facts are as follows.
Employment as Head of the Detective Unit
described above, the plaintiff, Amirault, was employed for 31
years as a law enforcement officer for the City of Malden.
(Compl. (Docket No. 1) ¶ 4). Beginning in 2012, Amirault
served as head of the Malden Police Department's
Detective Unit. (Id.). This case arises out of his
involuntary transfer from that position to the newly created
position of Manager of Accreditation on October 1, 2015.
(Id.). Amirault claims that the transfer violated
his rights under the First Amendment because it was done in
retaliation for constitutionally protected speech.
capacity as head of the Detective Unit, Amirault was
responsible for all investigations of significant major
crimes that had taken place within the City of Malden.
(Id. ¶ 5). During his last year of employment
in the Police Department's Detective Unit, Amirault
became heavily involved in the investigation of two separate
criminal matters, which will be referred to herein as the
“Enos Henry matter” and the “YMCA
investigation.” (See id. ¶ 6). According
to the plaintiff, the first matter involved the theft of City
funds by a Malden Building Department Clerk named Enos Henry.
(See id. ¶¶ 6, 9). The second matter
involved the alleged sexual assault of a six-year old child
at the Malden YMCA, where Molis' brother, Frank Molis
(“Frank”), was employed in a supervisory
capacity. (Id. ¶ 6). Amirault claims that
“[t]hroughout the investigation of these two cases, it
became evident to the [p]laintiff that his efforts to
investigate these cases were being hampered and obstructed by
officials within the City of Malden in an effort to protect
those directly and indirectly involved.” (Id.
¶ 7). He further claims that his involuntary removal
from his position as head of the Detective Unit was motivated
by complaints he made regarding the efforts of City employees
to interfere in or otherwise undermine the investigations.
(Id. ¶¶ 69-70).
Enos Henry Matter
Enos Henry matter involved the alleged theft of funds from
the City of Malden by an employee of the Malden Building
Department, Enos Henry (“Henry”). The matter
first came to light on or about November 17, 2014, when a $2,
236 check was reported stolen from the Building Department.
(Id. ¶ 8). The check was made out to the City
of Malden, and was submitted to the Department by a local
contractor in connection with an application for a building
permit. (Id. ¶¶ 8-9). It was last seen,
along with the application, on Henry's desk.
(Id. ¶ 9). After reviewing the circumstances
surrounding the theft of the check, Amirault decided to
launch an investigation. (Id.). The plaintiff was
both responsible for, and took part in, the investigation.
(Id. ¶¶ 10-18).
the investigation, Amirault uncovered evidence implicating
Henry in the theft of the check. In particular, he learned
that the check had been cashed on November 8, 2014 by a woman
named Jennifer Degand Rene. (Id. ¶ 13). Ms.
Rene was later arrested and interviewed by the police.
(Id. ¶¶ 13-14). In the course of the
interview, Ms. Rene confessed that Henry had altered the
check to make it payable to her, and then had driven her to
the bank in order to cash it. (Id. ¶ 14). She
also admitted that Henry had paid her $1, 200 after the check
was cashed. (Id.).
plaintiff claims that on or about February 2, 2015, defendant
Molis asked Amirault to meet with him. (Id. ¶
15). The Mayor of Malden, Gary Christenson, attended the
meeting as well. (Id.). At the meeting, the
plaintiff described the status of the Enos Henry
investigation. (Id. ¶ 16). He also indicated
that he would be willing to speak to the Middlesex District
Attorney's Office about offering Ms. Rene a plea bargain
if she would agree to testify against Henry. (Id.
¶ 17). According to Amirault, neither Molis nor Mayor
Christenson seemed interested in his proposal, and they both
raised questions about the strength of the evidence against
Henry. (Id.). The plaintiff suggests that Molis'
and the Mayor's skepticism toward the investigation was
due to the fact that Henry's mother was an active
political supporter of Mayor Christenson. (See id.
Amirault appeared before the Malden City Council, in
executive session, to report on his findings with respect to
the Enos Henry matter. (Id. ¶ 18). During his
presentation, the plaintiff allegedly expressed concern about
the possibility that additional funds might be missing from
the Building Department. (Id.). The plaintiff's
concerns were based on an apparent discrepancy between the
amount of money that had been spent on building permits since
the start of his investigation, and the amount that had been
spent on permits during the prior calendar year.
(Id.). As described below, the plaintiff's
suspicions turned out to be correct.
February 3, 2015, Henry was interviewed at the Malden Police
Station regarding the alleged theft of the $2, 236 check.
(Id. ¶ 19). Allegedly, Henry made numerous
inconsistent and inculpatory statements throughout the course
of the interview. (Id.). Four days later, the police
conducted a search of Henry's home, where they allegedly
discovered 75 checks made out to the City of Malden for
building permits, two payroll checks made out to two
different City employees, and three high capacity magazines
for an AR-15 style rifle. (Id. ¶ 20). Amirault
claims that Henry was present during the search, and
attempted to remove evidence. (Id. ¶ 21). As a
result, Henry was arrested for interfering with an
the search of Henry's home, and with the urging of the
plaintiff and the Malden City Solicitor, the City hired the
independent accounting firm of Blum-Shapiro to conduct a
review of all building permits issued between May 1, 2013 and
March 1, 2015, and to determine whether additional payments
were missing from the Building Department. (Id.
¶ 22). The plaintiff claims that City employees were
uncooperative with Blum-Shapiro's effort to carry out its
investigation. (See id. ¶¶ 23, 25). In
particular, Amirault alleges that Blum-Shapiro made several
requests for reports from the City's IT Director
regarding the issuance of building permits and payments to
the City. (Id. ¶ 23). However, the only
information Blum-Shapiro received from the IT Director
consisted of two “unidentifiable and
contradictory” Excel reports. (Id.).
contends that City employees were also uncooperative with a
Middlesex Grand Jury's effort to obtain information
relating to the Enos Henry matter. Specifically, Amirault
claims that on April 16, 2015, the Grand Jury issued a
subpoena to the City, which sought “all records and
information relating to building permits issued by the City
of Malden” between October 1, 2014 and January 31,
2015. (Id. ¶ 24). While the Malden
Comptroller's Office produced records that were in its
possession, the City Treasurer allegedly indicated that no
further documents were available. (Id.). According
to the plaintiff, “[t]his information was later
determined to be false.” (Id.). Thus, Amirault
suggests that the City failed to take the steps necessary to
insure that all responsive documents had been produced.
8, 2015, Amirault attended a meeting with the City Solicitor,
Kathryn Fallon, Assistant District Attorney Craig Estes
(“ADA Estes”), and the Forensic Auditor for the
Middlesex District Attorney's Office, Sean Ball, to
address the impediments to Blum-Shapiro's investigation.
(Id. ¶ 26). During the meeting, Amirault
allegedly criticized the City Treasurer's office, as well
as the City's failure to produce relevant records.
(Id. ¶ 27). There is no indication that
Amirault participated in the meeting in any capacity other
than as head of the Detective Unit of the Malden Police
Department. Nor is there any indication that his
participation exceeded the scope of his job responsibilities.
Blum-Shapiro provided a list of documents that it believed
were necessary to determine whether additional funds had been
stolen from the Building Department. (Id. ¶
28). City Solicitor Fallon then went to the Building
Department and pulled the records herself. (Id.).
The records were reviewed by Amirault and other members of
the Detective Unit. (Id.). Amirault claims that as a
result of the review, he determined that less than 5% of the
City's building permit records had been properly recorded
or accounted for. (Id.).
met with ADA Estes and Mr. Ball again on October 6, 2015, and
showed them relevant records, as well as information that he
was able to compile from those records . (Id. ¶
30). The plaintiff claims that during this meeting, he
expressed his displeasure with the lack of cooperation and
support he received from City of Malden officials.
(Id.). Again, however, there is no indication that
Amirault attended the meeting in any capacity other than in
his capacity as head of the Detective Unit and an employee of
the Malden Police Department, or that his participation was
outside the scope of his job responsibilities.
plaintiff claims that the City's failure to produce the
records necessary to investigate the theft of funds from the
Building Department caused a delay in the criminal
proceedings. (Id. ¶ 32). Consequently, no
criminal charges had been brought against Henry at the time
Amirault filed his Complaint in this case. (Id.).
April 2015, while the Enos Henry matter remained ongoing,
Amirault also became involved in the investigation of a
sexual assault of a six-year old girl, which had taken place
at the Malden YMCA on April 4, 2015. (Id. ¶ 33;
see also id. ¶ 55). Molis' brother, Frank,
worked at the YMCA in a supervisory capacity, and was present
at the facility on the day of the alleged assault.
(Id. ¶¶ 6, 35). Certain areas of the YMCA
are monitored by surveillance videotape, and after police
officers responded to the alleged assault, they began to
review the videotape in the hope of collecting evidence of
the incident and identifying the unknown assailant.
(Id. ¶ 34).
claims that the surveillance tape contained evidence of the
alleged assault, including a clear image of the suspected
perpetrator, who was identified as a young Asian male.
(Id. ¶ 36). He also claims that Frank Molis was
present when the police reviewed the relevant portions of the
videotape, and was able to view the footage of the suspect as
well. (Id. ¶ 38). No one who saw the
surveillance tape, including Frank Molis, indicated having
any knowledge of or familiarity with the suspect.
(Id. ¶¶ 36, 38). According to Amirault,
however, he later learned that ...