Antonellis v. Department of Elder Affairs

          MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

          MICHAEL D. RICCIUTI, Justice Superior Court

         In this action, Plaintiff Peter Antonellis, a former employee of Defendant Department of Elder Affairs ("Department," and as Executive Office of Elder Affairs, or "EOEA") and Ann Hartstein, the former Secretary of EOEA, in which he initially alleged claims for violations of the First Amendment under 42 U.S.C. § 1983 (Count I) and for violation of the Whistleblower statute, G.L. c. 149, § 185 against EOEA and Hartstein, individually and in her official capacity as Secretary. By order dated July 23, 2015, this Court dismissed Count I against EOEA and as against Hartstein in her official capacity, and dismissed Count II as against Hartstein individually and in her official capacity. That left a claims against Hartstein individually as a defendant in Count I, and against EOEA as a defendant in Count II.

         Presently before the Court Defendants’ motion for summary judgment on the remaining claims. In addition, Defendant move to strike the additional facts adduced by Antonellis in response to their motion.^[1]

         Defendants’ motion to strike is ALLOWED IN PART. As reflected in the facts accepted by the Court detailed below, where Plaintiff has failed to simply and clearly dispute a material fact, or has failed to respond at all, that fact is deemed admitted. See Rule 9A(b)(5), Sup.Ct. R. The Court ignores all non-factual information Plaintiff includes in his responses and in the additional facts he seeks to assert.

         For the reasons below, and in light of the arguments made by counsel, Defendants’ motion for summary judgment is ALLOWED.

         BACKGROUND

         Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c); see DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and that he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll. of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).

         Plaintiff began working for EOEA in 2000 as an assistant general counsel. In 2006, Plaintiff asked to be transferred to the assisted living unit as a Program Coordinator II. A Program Coordinator II at EOEA is also known as certification specialist. Plaintiff never worked at EOEA as a "Compliance Officer," a title which did not exist at the agency, As a certification specialist, Plaintiff’s responsibilities included reviewing assisted living residences for certification and re-certification. Plaintiff also conducted site visits, documented his findings, and drafted and helped to implement any corrective actions plans. In addition, when a public records request came to Plaintiff from his supervisor, Plaintiff identified responsive records and prepared them for response. EOEA’s policy for responding to public records requests provided:

For all EOEA staff...as soon as a request is received, please send it to the Legal Unit....We will ask you to identify and compile the documents that may be responsive and provide us with a print copy of the documents ....We will review the materials for responsiveness and determine what needs to be redacted and the cost issue. Lastly, we will let you know what final sub-set of materials, as redacted, are ultimately turned over to the requesting party.

         When Plaintiff served as assistant general counsel, he gathered the materials in response to the public records requests and forwarded them to the general counsel for review.

         EOEA had a protocol for media requests. It provided that "press inquiries or communication issues should be directed to Martina Jackson," the Communications Director at EOEA. Personal information about residents in facilities under EOEA’s jurisdiction is protected from disclosure under G.L. c. 66A in the absence of consent to disclose from the resident or his or her representative.

         Beginning in 2009, Plaintiff raised concerns to his supervisors about EOEA’s oversight of assisted living residences, including: (1) a lack of a clear policy or practice for investigating and tracking incident reports; (2) inability to properly oversee and regulate special care residences; (3) disorganization and understaffing at EOEA; (4) delays in the investigation of serious incidents at assisted living residences; and (5) lack of a computerized process for tracking incident reports. Plaintiff complained to his colleagues and supervisors about some or one of these concerns on a monthly basis between 2010 and 2014. During 2013, Plaintiff had concerns about the Department’s ability to follow up on critical incidents, including suspicious deaths and overdue suspensions of specific assisted living residences.

         On the morning of March 6, 2013, Plaintiff attended a work meeting prior to a webinar regarding EOEA’s electronic incident reporting system, but left early. Plaintiff did not tell his supervisor, Duamarius Stukes, that he was leaving the office. Upon leaving the office, Plaintiff went to the Governor’s Office to request a meeting about concerns he had about elders. He filled out a request form at the Governor’s Office, but was unable to meet with the Governor, and thereafter went home. The next day, March 7, 2013, Plaintiff did not report to the Boston office of EOEA, where he normally worked, but instead conducted a site visit outside of the office.

         On March 27, 2013 Antonellis received notice of a one-day suspension for leaving the meeting on March 6 and not reporting to the Boston office the following day. Plaintiff grieved his one-day suspension, and the parties settled with an agreement reducing Plaintiff’s one-day suspension to a formal warning.

         After Plaintiff’s visit to the Governor’s Office, Hartstein, through her staff, received a call from the governor’s office reporting that Antonellis was asking for a meeting with the governor. Hartstein asked EOEA’s General Counsel, Stan Eichner, to follow up. Eichner asked Plaintiff to provide a memorandum explaining his basis for his perception that elders were at risk. Eichner informed Plaintiff that the assignment was "a top priority" and "supersedes [his] other assignments." On March 19, 2013, Plaintiff provided a 7-page memorandum to Eichner entitled "Elder Endangerment," which included 30 exhibits, among them emails and incident reports. In response to it, EOEA Secretary Hartstein asked Eichner to conduct an investigation. Three months later, by letter dated June 27, 2013, Hartstein informed Plaintiff that "General Counsel Eichner has reviewed each of the serious allegations relevant to your concern that Massachusetts elders are at risk and has found that this perception is not substantiated. I concur with his findings."

         Providence Cliff House ("PCH") was a facility in Athol, Massachusetts, which first applied to be certified as an assisted living residence in 2012. Plaintiff reviewed PCH’s application and conducted site visits as part of his job responsibilities. EOEA denied certification in 2013. By July, 2014, PCH again applied for certification as an assisted living residence. Plaintiff reviewed PCH’s second application and conducted site visits at PCH. EOEA denied PCH’s application on September 12, 2014. PCH appealed EOEA’s decision on September 15, 2014. A hearing on PCH’s appeal was scheduled for September 30, 2014.

         At one time, PCH had issues with the Board of Health in Athol ("BOH"). However, on August 4, 2014, the BOH informed the owner of PCH that "[a]s of August 4, 2014 the remaining violation of the MA Sanitary Code...has been corrected. As of today all violations cited in earlier letters have been corrected." Plaintiff received a copy of the August 4, 2014 letter from the BOH on August 4, 2014.

         Media outlets were interested in EOEA’s work. Kay Lazar, a health reporter for the Boston Globe, interviewed Hartstein many times. In December, 2013, Colman Herman, a reporter for another media outlet, Commonwealth magazine, submitted a public records request to EOEA related to assisted living facilities, including records for PCH. Stukes asked Plaintiff to assist with responding to Herman’s request, which he did. However, the public records request was only partially answered by July, and Herman sent several emails to various individuals at EOEA and elsewhere demanding a complete response and threatening to appeal the denial of his request. EOEA did not finish responding to Herman’s December 11, 2013 public records request until November 2014.

         In June or July, 2014, Plaintiff received an email from within EOEA concerning Herman’s public records request. After receiving this email, in or about August 2014, Plaintiff contacted Herman. Plaintiff was not instructed or asked by anyone at EOEA to do so. Thereafter, Plaintiff met with Herman in person on three occasions and also spoke with him over the phone, and discussed the concerns Plaintiff had raised in his March 19, 2013 memo to Eichner and about PCH. Again, Plaintiff was not instructed or asked by anyone at EOEA to do so. Further, Plaintiff gave Herman EOEA documents, including a copy of his March 19, 2013 memorandum, some of the exhibits that had been attached to it, and a copy of a report dated February 7, 2013, that Plaintiff sent to Stukes concerning a site visit to PCH, from which Plaintiff asserts he redacted the residents’ names. In the February 7, 2013 report, Plaintiff described a resident as "wheelchair bound and seemingly incoherent" and another as "hearing impaired - only communicates in writing." Plaintiff also gave Herman a report, dated February 14, 2013, concerning a site visit at PCH. EOEA did not authorize Plaintiff to provide documents to Herman. Plaintiff also spoke with Lazar about his objections to EOEA’s practices.

         Speaking to the Boston Globe and Commonwealth was not part of Plaintiff’s job duties. Plaintiff did not inform his supervisor or management at EOEA that he was going to contact Herman or give him EOEA documents, or that he was going to speak with Lazar.

         Plaintiff contends that his purpose in providing information to Herman was to get EOEA’s attention to address his concerns and provide no standards by which Plaintiff and his colleagues were conducting investigations and taking particular actions, thereby improving assisted living residences and the department’s oversight of them.

         On September 12, 2014, Commonwealth published an article, written by Herman, entitled "Oversight questions raised on Elder Affairs." In it, Herman quoted Plaintiff, who was identified as a "compliance officer," and quoted from Plaintiff’s March 19, 2013 memorandum. It also described Plaintiff as believing that "the agency does almost no analysis of the data it is gathering [and] the agency cannot say how many people have fallen down, wandered off, been abused, or exploited."

         After being notified of the article and reading it, Hartstein wanted to "possibly discipline" Plaintiff and on September 12, contacted Rhett Cavicchi, the Director of Labor Relations of the Executive Office of Health and Human Services ("EOHHS") who was assigned to EOEA about that intention.

         On September 21, 2014, the Boston Globe ran a story by Lazar entitled, "Elder advocates raise concerns about Assisted Living." The article described three incidents in which residents of assisted living residences (ALRs) were injured, and stated that residents at A.L.R.s were in "harm’s way too often" because EOEA "was "ill-equipped to protect these increasingly frail residents." The article referred to Plaintiff as a "key staffer" who was worried that the EOEA did not have the staff to regulate the industry. The Globe reported that Plaintiff said "the agency had just two ombudsman to handle the thousands of complaints that pour in each year involving assisted living residences." The article cited Plaintiff as having repeatedly told his superiors that reports of serious incidents were "languishing for weeks or months" and no one analyzes them for patterns that point to larger issues. The article also stated that a "spokeswoman at Elder Affairs disputed Antonellis’ assessment." The Globe described Plaintiff as a "compliance officer" for the Department in the article. Martina Jackson, EOEA’s Director of Communications, spoke with Lazar before the article was published and told her that Plaintiff was not a compliance officer.

         On September 23, 2014, Commonwealth published another article by Herman about EOEA entitled "Elder Affairs lets Athol facility remain open," which again quoted Plaintiff and discussed PCH, a subject of Herman’s public records request of December 2013 that remained outstanding. In the September 23, 2014 article, Plaintiff was again described as a "compliance officer" and was quoted as saying, "I think that right at the outset Providence Cliff should have been given 90 days to shut down and a plan developed to relocate the residents." Plaintiff confirmed he made that statement to Herman. The September 23, 2014 article also quoted from Plaintiff’s PCH site visit reports, dated February 7, 2013 and February 14, 2013, and stated: "Antonellis noted that a number of the residents were wheelchair-dependent, one of whom was seemingly incoherent." That statement came from Plaintiff’s ...