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Amirault v. City of Malden

United States District Court, D. Massachusetts

March 20, 2017



          Judith Gail Dein United States Magistrate Judge


         The 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 II).

         The 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.

         The 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.


         When 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.

         Amirault's Employment as Head of the Detective Unit

         As 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.

         In his 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).

         The Enos Henry Matter

         The 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).

         During 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.).

         The 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. ¶ 31).

         Thereafter, 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.

         On 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 investigation. (Id.).

         Following 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.).

         Amirault 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.

         On June 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.

         Allegedly, 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.).

         Amirault 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.

         The 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.).

         The YMCA Investigation

         In 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).

         Amirault 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. ΒΆΒΆ 36, 38). According to Amirault, however, he later learned that ...

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