MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
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 Defendantsâ 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]
Defendantsâ
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,
Defendantsâ 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, Plaintiffâs
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. EOEAâs 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 EOEAâs 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
EOEAâs 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 Departmentâs 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 EOEAâs 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 Governorâs
Office to request a meeting about concerns he had about
elders. He filled out a request form at the Governorâs
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 Plaintiffâs one-day suspension to a
formal warning.
After
Plaintiffâs visit to the Governorâs Office, Hartstein,
through her staff, received a call from the governorâs office
reporting that Antonellis was asking for a meeting with the
governor. Hartstein asked EOEAâs 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 PCHâs
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 PCHâs second application
and conducted site visits at PCH. EOEA denied PCHâs
application on September 12, 2014. PCH appealed EOEAâs
decision on September 15, 2014. A hearing on PCHâs 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 EOEAâs 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 Hermanâs
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 Hermanâs
December 11, 2013 public records request until November 2014.
In June
or July, 2014, Plaintiff received an email from within EOEA
concerning Hermanâs 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 residentsâ 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 EOEAâs practices.
Speaking
to the Boston Globe and Commonwealth was
not part of Plaintiffâs 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 EOEAâs 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
departmentâs 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 Plaintiffâs 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
"harmâs 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 Antonellisâ assessment." The Globe
described Plaintiff as a "compliance officer" for
the Department in the article. Martina Jackson, EOEAâs
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 Hermanâs 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 Plaintiffâs 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 Plaintiffâs
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