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Amirault v. City of Malden

United States District Court, D. Massachusetts

September 28, 2018

CITY OF MALDEN, Defendant.


          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 bring claims pursuant to 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I, for violating his First Amendment right to free speech. (Docket No. 35). This matter is presently before the Court on “Defendant's Motion for Summary Judgment” (Docket No. 52), by which the City of Malden is seeking judgment on Count II of Plaintiff's Complaint in which he alleges that the City violated his rights under the Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149, § 185. For the reasons detailed herein, the City's motion for summary judgment is ALLOWED IN PART and DENIED IN PART. Amirault may proceed on his whistleblower claims based on the Henry matter. Summary judgment shall enter in favor of the City on Count II to the extent it relates to the YMCA investigation.


         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. (See Compl. (Docket No. 1) at ¶¶ 76-79). It is undisputed for purposes of this motion for summary judgment that the transfer to the position of Accreditation Manager was an adverse employment action as it represented a significant loss in pay and most officers “would not want to be assigned” to the position. (PF ¶¶ 230-31; DR ¶¶ 230-31).

         The Henry Matter

         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[2] and that the surveillance camera near Mr. Henry's office had been disconnected. (PF ¶¶ 151, 159-60). Director Webb also stated that Mr. Henry had worked in the City's IT department at the time the cameras were installed. (PF ¶ 160).

         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.[3] (PF ¶¶ 163-64; DF ¶¶ 35-36). Plaintiff updated Chief Molis and the Mayor about the investigation. (DF ¶¶ 36-37; PF ¶ 164). Chief Molis asked Plaintiff several questions, but the nature of his questions and the Mayor's level of participation in the discussion are disputed.[4] (PF ¶ 164; DR ¶ 164; DF ¶¶ 37-38; PR ¶¶ 37-38).

         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.” (Id. ¶ 178). Together with his Chief of Staff, the Mayor rewrote the letter, terminating Mr. Henry's employment on or about February 11, 2015. (DF ¶ 49; PF ¶¶ 177-80).

         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 Department to be performed by the accounting firm BlumShapiro. (PF ¶ 181; DF ¶ 53). However, according to the Plaintiff, City personnel were uncooperative in the investigation, and he complained about their conduct. For example, in order to complete the audit, BlumShapiro required a document known as the Energov Report. (PF ¶ 182). The Energov Report was to be completed by the head of the City's IT Department Anthony Rodriguez. (Id.) On February 26, 2015, BlumShapiro provided him with a recommended format for the report detailing the information sought. (Id.). Mr. Rodriguez was unfamiliar with creating an Energov Report using the recommended format and suggested a conference call with BlumShapiro and the company that provided support for the City's Energov system. (Id. ¶ 183). He was tasked with setting up the call, but the call was never scheduled. (Id.).

         BlumShapiro personnel contacted Mr. Rodriguez requesting the report on March 31, 2015 and again on April 7, 2015 with no response. (Id. ¶ 184). On April 13, 2015, City Solicitor Fallon interceded, at which point Mr. Rodriguez produced two Excel spreadsheets with no identifying information. (Id. ¶ 185). When BlumShapiro personnel contacted Mr. Rodriguez for assistance interpreting the unlabeled data, he was unable to explain the information. (Id.). A workable Energov Report was eventually provided on April 21, 2015, but it contained income-plete information, making it impossible to complete a final audit. (Id. ¶186). However, with the information presented BlumShapiro was able to show several suspicious transactions involving Mr. Henry totaling close to $99, 000.00. (Id. ¶ 187).

         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.” (Id. ¶ 191).

         According to the Plaintiff, on October 3, 2015, the Mayor approached the Plaintiff and questioned him about the progress of the Henry matter. (Id. ¶ 193). Plaintiff informed the Mayor that the investigation was progressing well, that an indictment was expected, and that he would be meeting with the District Attorney regarding the case on October 6, 2015. (Id. ¶ 193).

         Chief Molis met with the president of the police union on October 5, 2015 to discuss transferring Amirault to the Accreditation Manager position. (Id. ¶ 220; DF ¶ 130). Plaintiff was informed of the transfer on October 7, 2015. (PF ¶ 227; DF ¶ 134).

         The YMCA Investigation

         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 day of the alleged assault. (PF ¶ 194). Certain areas of the YMCA are monitored by cameras, and after police officers responded to the alleged assault, they reviewed the surveillance videotapes with Frank Molis in the hope of identifying the assailant. (PF ¶¶ 198-99; DF ¶ 80). A review of the tapes revealed an Asian male suspect. (DF ¶ 81). None of the YMCA employees, including Frank Molis, indicated that they knew anything about the suspect on the videotape. (PF ¶ 199).

         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. (Id.). Frank Molis and two front desk employees were interviewed. (PF ¶ 204; DF ¶ 96). Chief Molis participated in all three interviews and reviewed the video surveillance recording. (PF ¶ 204). Neither Frank Molis, nor any of the other witnesses, indicated knowing the suspect. (Id.). Later that night, one of the front desk ...

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