United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT CITY OF
MALDEN'S MOTION FOR SUMMARY JUDGMENT
Gail Dein, United States Magistrate Judge.
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.”
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
STATEMENT OF FACTS 
following facts are undisputed unless otherwise indicated.
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).
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 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).
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).
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. (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. (PF ¶ 164;
DR ¶ 164; DF ¶¶ 37-38; PR ¶¶ 37-38).
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).
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).
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
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).
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).
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).
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).
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).
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).
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).
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