Antonellis v. Department of Elder Affairs

19-P-475

2020 | Cited 0 times | Massachusetts Appeals Court | August 17, 2020

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19-P-475 Appeals Court

PETER ANTONELLIS vs. DEPARTMENT OF ELDER AFFAIRS & another. 1

No. 19-P-475.

Suffolk. April 7, 2020. - August 17, 2020.

Present: Meade, Massing, & Desmond, JJ.

Constitutional Law, Freedom of speech and press. Public Employment, Termination. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on February 13, 2015.

The case was heard by Michael D. Ricciuti, J., on a motion for summary judgment.

The case was submitted on briefs. Joseph L. Sulman & Andrea L. Haas for the plaintiff. Anne M. McLaughlin, Assistant Attorney General, for the defendants.

DESMOND, J. Peter Antonellis commenced this action,

alleging that Ann Hartstein, the former Secretary of the

1 Ann Hartstein, individually and in her official capacity as the Secretary of Elder Affairs. 2

Department of Elder Affairs (agency or EOEA), terminated him for

speaking out publicly about elder endangerment in assisted

living residences (ALRs). 2 He appeals from a summary judgment

dismissing his Federal civil rights claim against Hartstein

individually (count I), and his claim under the Massachusetts

public employee whistleblower statute against EOEA (count II). 3

We affirm.

1. Background. From the same record as the motion judge,

we set forth the facts in the light most favorable to

Antonellis. 4 See Welch v. Barach, 84 Mass. App. Ct. 113, 118-119

(2013).

In March, 2000, Antonellis, an attorney, accepted a

position at EOEA as an assistant general counsel. In 2006, at

2 Antonellis named the Department of Elder Affairs, which oversees all ALRs in Massachusetts, as a defendant. See G. L. c. 19A, § 1. Because the parties refer to the department as the "Executive Office of Elder Affairs" or "EOEA," for convenience, we do as well. 3 Antonellis's civil rights claims against EOEA and Hartstein in her official capacity, and his whistleblower claim against Hartstein were dismissed before the summary judgment ruling, and are not in issue in this appeal. 4 Antonellis has not challenged the judge's order allowing, in part, the defendants' motion to strike, predicated upon his noncompliance with Rule 9A(b)(5) of the Rules of the Superior Court (2018). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 46 n.18 (2005). Accordingly, we do not consider facts struck by the judge as improperly disputed or unsupported by the summary judgment materials. 3

Antonellis's request, EOEA transferred him to the position of

program coordinator II (also known as a certification

specialist) in the assisted living unit. 5 There is no

"compliance officer" position at EOEA.

In 2009, Antonellis began raising concerns to his

supervisors about EOEA's administration and oversight of ALRs.

Between 2010 and 2014, he regularly voiced these concerns to

both supervisors and colleagues.

Pursuant to EOEA's 2011 "public records protocol," all EOEA

employees were required to send public record requests to the

legal department for handling. 6 EOEA protocol also called for

staff to refer "press inquiries [and] communication issues" to

Martina Jackson, the EOEA communications director. Antonellis

understood that personal information about residents of ALRs

could not be disclosed without the consent of the resident or

5 As a certification specialist, Antonellis was involved in the initial certification and recertification process of ALRs. His job duties included conducting site visits and inspections for statutory and regulatory compliance, making and documenting findings, drafting corrective action plans and helping to implement them, identifying responsive documents to public records requests, and preparing the documents for response. 6 Staff were expected to gather all documents responsive to the request and send them to the legal department, which would decide what materials would be turned over, the necessity of redactions, if any, and the cost associated with the request. During his time as an assistant general counsel, Antonellis was involved in this process, forwarding materials to the general counsel for his review. 4

the resident's representative. See G. L. c. 66A, the Fair

Information Practices Act (FIPA). 7

In 2012, at EOEA's request, the Providence Cliff House

(PCH) in Athol submitted an application for certification.

Antonellis conducted several site visits in connection with the

application. Following EOEA's denial of PCH's application and

its request to waive certain certification requirements, PCH

exercised its right to an informal appeal hearing.

On March 6, 2013, Antonellis was scheduled to make a

presentation as part of a webinar on EOEA's new electronic

incident reporting system. Shortly before the webinar,

Antonellis left the office without informing his immediate

supervisor, Duamarius Stukes, and went to the State House.

There, he requested a joint meeting with Governor Deval Patrick

and John Polanowicz, the Secretary of the Executive Office of

Health and Human Services (EOHHS), to discuss his concerns about

elder endangerment. After filling out a request form, he went

7 Under FIPA, it is unlawful for a State agency to "allow any other agency or individual not employed by [it] to have access to personal data unless such access is authorized by statute or regulations . . . or is approved by the data subject whose personal data are sought." G. L. c. 66A, § 2 (c). The Legislature broadly defined personal data to mean "any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in [G. L. c. 4, § 7, cl. 26]." G. L. c. 66A, § 1. 5

home for the day without informing anyone at EOEA. On the

following day, Antonellis went directly from his home to

Pocasset to conduct an ALR site visit. He did not tell anyone

at EOEA his whereabouts ahead of time. For this conduct, he

subsequently received a one-day suspension without pay. 8

When Hartstein discovered that Antonellis went over her

head with his concerns, she was disappointed. Stan Eichner,

EOEA's general counsel, directed Antonellis to articulate his

concerns in writing, and to give the assignment "top priority."

On March 19, 2013, Antonellis provided Eichner with a lengthy

memorandum, claiming that the lack of incident reporting

standards, poor management, and understaffing were endangering

the health, safety, and welfare of ALR residents. Antonellis

attached thirty exhibits to his memorandum, including e-mails

and incident reports. He sent a copy to Secretary Polanowicz.

On June 27, 2013, Hartstein informed Antonellis that Eichner had

determined that Antonellis's "perceptions" were unsubstantiated

and that she concurred with Eichner's findings. 9

8 The sanction was negotiated down to a formal warning. 9 Shortly thereafter, an EOEA hearing officer rejected PCH's appeal, but gave it "leave to reapply" once all requirements of State and Federal law were met. She encouraged PCH to continue making improvements. EOEA allowed PCH to continue to operate as an uncertified ALR. 6

In December, 2013, Colman Herman, a reporter for

CommonWealth Magazine, submitted a public records request to

EOEA. At Stukes's direction Antonellis assisted with the

response. When Antonellis learned from an internal e-mail

months later that some of Herman's request was still pending, he

reached out to Herman, beginning in August, 2014. 10 He did not

tell management what he was doing. Thereafter, Antonellis met

and spoke with Herman several times about his concerns regarding

PCH and his objections to EOEA's practices. Without notice to

his supervisors or management, Antonellis provided Herman with

copies of EOEA documents, including his March 19, 2013

memorandum (and some of the attached exhibits), and his February

7 and February 14, 2013 site visit reports to Stukes detailing

the shortcomings of PCH. In addition to Herman, Antonellis also

spoke multiple times about his objections to EOEA's practices

with Boston Globe health reporter, Kay Lazar, and gave her a

copy of his March 19, 2013 memorandum.

Antonellis also worked on PCH's second application for

certification, which was denied by EOEA on September 12, 2014. 11

10 EOEA did not complete its response until November, 2014. 11 Antonellis e-mailed a copy of the denial letter to the owner of PCH on the same day. PCH again exercised the right to appeal the decision. On August 4, 2014, the owner had reported to Antonellis that the one remaining violation of the State sanitary code had been corrected, and forwarded the letter from the local board of health clearing PCH. 7

On the same day, CommonWealth Magazine published an article by

Herman entitled, "Oversight questions raised on Elder Affairs."

Herman quoted "compliance officer" Antonellis as well as

Antonellis's March 19, 2013 memorandum warning that the safety

of elders was at risk due to poor management at EOEA. 12

Apprised of the article, Hartstein was again disappointed

that Antonellis did not first bring his concerns to her. She

informed the EOEA human resources liaison that she wanted to

"possibly discipline" Antonellis.

On September 21, 2014, the Boston Globe published an

article written by Lazar entitled, "Elder advocates raise

concerns on assisted living." Lazar reported that elders in

ALRs were "in harm's way too often" and that EOEA was "ill-

equipped to protect the increasingly frail residents." Lazar

reported that Antonellis, a "key staffer" and "compliance

officer," had indicated that the agency had just "two ombudsmen

to handle the thousands of complaints that pour in each year

12 Antonellis stated, "[T]he agency does almost no analysis of the data it is gathering . . . [and] cannot say how many people have fallen down, wandered off, been abused, or exploited" and he reported that "there are no procedures in place on how to handle incident reports as they come in." He further stated that two ombudsmen in Boston were "not sufficient to tend to the needs of all the people who are living in [ALRs] spread throughout . . . the [S]tate." Herman reported that in his memorandum, Antonellis had called EOEA's incident reporting system "nothing more than a hollow and dangerous facade." 8

involving [ALR]s." 13 Antonellis was also quoted as stating that

although "most elders and their families think this is a

regulated industry . . . we don't have the staff to regulate

it"; he had "repeatedly alerted his superiors that reports of

serious incidents at facilities are languishing for weeks or

months at the agency, and that no one seems to be analyzing them

for patterns that may point to larger issues"; and "[u]nless the

facilities know that we are scrutinizing what happens, they

don't have to be too concerned about the system they use to keep

residents safe." As reported in the article, EOEA spokeswoman,

Martina Jackson, disputed Antonellis's assessment. 14 The article

quoted Hartstein stating that although EOEA's regulations needed

"some retooling" to ensure safety, and updates were in progress,

there was no need to replace the residential model used to

regulate ALRs with the medical model championed by Antonellis

and others.

On September 23, 2014, CommonWealth Magazine published a

related article by Herman entitled, "Elder Affairs lets Athol

facility remain open." Focusing on PCH, a subject of his public

13 In fact, the ombudsman program received less than 200 complaints that year. Antonellis claimed to have been misquoted and that he was "possibly" referring to thousands of incident reports. 14 Jackson had explained to Lazar before the article was published that Antonellis was not a compliance officer. 9

records request that remained outstanding, Herman quoted

Antonellis, "a compliance officer at Elder Affairs who has been

critical of the agency's oversight functions" as stating, "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. . . . [I]nstead, the matter has dragged on for 2 1/2

years and we're still dealing with it, it has been a huge waste

of our limited resources." Antonellis admitted that he made the

statement to Herman. The article repeated the quotes from

Antonellis's March 19, 2013 memorandum about poor management

endangering ALR residents and the reference to EOEA's incident

reporting program as "nothing more than a hollow and dangerous

facade." It also repeated Antonellis's criticisms about EOEA's

failures to keep track of the injuries and abuse sustained by

seniors at ALRs and to analyze the data.

The article quoted from the stale PCH site reports. First,

the article noted that in his February 2013 report to Stukes,

the director of the assisted living program at Elder Affairs,

Antonellis had "called attention to [PCH] having units with

inadequate square footage, unlockable doors and windows, and

poor ventilation." Herman reported that Antonellis also wrote

in that report that "[r]esidents are occupying units that do not

currently appear to meet minimum requirements of the [S]tate

sanitation code regarding bathrooms." Herman also listed many 10

other sanitary code violations that PCH had been cited for "[a]t

various times." Nothing was said about the correction of all

these problems. The article reported that Antonellis directly

asked Stukes in an e-mail, "How much longer will you allow [PCH]

to continue to operate without the needed certificate?" and

"Will you require [the owner] to move out a number of the

residents?" The article quoted a statement by Antonellis that

he had "noted that a number of the residents were wheelchair-

dependent, one of whom was seemingly incoherent." According to

Antonellis, Stukes failed to respond and permitted PCH to

continue to operate "as an uncertified [ALR] under dangerous

conditions." Around this time, Antonellis's access to his

telephone and the Internet at EOEA were blocked.

After reading the article, the son of one of PCH's

residents immediately concluded that Antonellis's statement

referred to his mother, who had suffered a series of minor

strokes. 15 He indicated that neither he nor his mother, to his

knowledge, had given permission to Herman or to Antonellis

authorizing them to describe her in the article. At PCH's

appeal hearing, the son publicly noted his displeasure at the

release of the information as well as the terminology used to

describe her.

15 There were a limited number of seniors residing at PCH at the time. 11

CommonWealth Magazine published a third article by Herman

on September 26, 2014, focusing exclusively on Antonellis, who

was described as a "compliance officer" and EOEA's "biggest

critic." Titled "A critic from within," the article summarized

portions of the earlier articles, noting that Antonellis had

"shared internal emails and documents with CommonWealth that

indicate Elder Affairs let an Athol facility operate an [ALR]

even though it wasn't certified and it was unsafe." Herman

reported that in Antonellis's view, "assisted living doesn't

belong under the domain of Elder Affairs, . . . [and that] the

responsibility for regulating assisted living needs [to] be

moved into the Department of Public Health, which has the skills

in place to regulate health and medical programs such as

assisted living." Antonellis reiterated his beliefs during a

meeting with senior management. PCH's appeal hearing occurred

four days later. Although Antonellis had been scheduled to

attend, Stukes excused his absence.

In Hartstein's view, Antonellis interfered with PCH's

appeal and made statements to the press that were detrimental to

the residents of PCH and to the agency. 16

16 Hartstein testified that Antonellis "was appearing to say that it was an unsafe residence . . . to be in, which was very upsetting to the residents who were living there at the time"; and further that EOEA "did not have adequate oversight ability, which would be very detrimental both to the [a]gency's reputation and to residents who lived [there]." 12

On October 8, 2014, Emily Rooney of WGBH interviewed

Antonellis and Herman on her show. On October 14, Antonellis

was placed on paid administrative leave, pending an

investigation into his conduct. He was expressly warned that if

he "attempted to interfere with or undermine the agency's

ability to conduct the investigation," he would be "subject to

immediate discipline up to and including termination." EOHHS

assigned Sheila Anderson, a labor relations specialist at EOHHS,

to investigate the allegations; she was instructed to give the

assignment her "utmost priority" and to complete it "as quickly

as possible." On October 16, Anderson interviewed Antonellis.

Another labor relations specialist, Carrie McCoy, was present

and took notes. During the interview, Antonellis expressly

denied providing any EOEA documents to Herman. Rhett Cavicchi,

the director of labor relations, edited Anderson's draft report.

He added language, made a number of comments, and suggested

adding a final paragraph summarizing how Antonellis's actions

violated the agency's policies. The draft was circulated to

upper management at EOHHS and EOEA, including Hartstein. On

October 23, Anderson provided Hartstein with a final

investigation report.

Christopher Groll, a labor relations specialist and

Hartstein's designated hearing officer, conducted a show cause

hearing on November 3 and 6 to determine whether Antonellis 13

should be disciplined. Antonellis was represented by counsel,

and testified at that hearing along with Anderson and McCoy.

Twenty-eight exhibits were submitted in evidence by the parties.

Groll found Antonellis largely untruthful, credited EOEA's six

allegations against him, and concluded that "disciplinary

action[,] up to and including termination is appropriate and

should be imposed in this matter." 17 On November 26, 2014,

Hartstein adopted Groll's findings, which demonstrated to her

that he had engaged in "egregiously inappropriate and

unprofessional behavior." Concluding that Antonellis's conduct

"undermined the efficacy and integrity of the agency," and that

"EOEA no longer has the requisite trust and confidence in [his]

ability to carry out [his] job duties in an appropriate and

professional manner," Hartstein terminated him.

17 The hearing officer found, inter alia, that Antonellis (1) knowingly violated EOEA's protocols by sharing information, and EOEA e-mails and documents, with the media; (2) violated G. L. c. 66 by providing information to the media containing personal data identifying an ALR resident; (3) made "knowingly incomplete" and prejudicial statements about an ALR while its appeal was pending, thereby undermining the ability of EOEA "to appear neutral and fulfill its appellate responsibilities"; (4) made statements to the media that he clearly knew misstated the facts and disparaged the reputation of EOEA; (5) falsely identified himself to the media as a compliance specialist, lending "an air of added credibility to his claims against EOEA and PCH"; and (6) was "not truthful and forthcoming during the course of [the] investigation." 14

2. Discussion. We review a grant of summary judgment de

novo, Yee v. Massachusetts State Police, 481 Mass. 290, 294

(2019), in order to determine whether all material facts have

been established and the moving party is entitled to judgment as

matter of law, 18 see Mass. R. Civ. P. 56 (c), as amended, 436

Mass. 1404 (2002).

a. 42 U.S.C. § 1983 (§ 1983). We analyze § 1983 claims

arising from violations of First Amendment to the United States

Constitution rights under a three-part test. See Pereira v.

Commissioner of Social Servs., 432 Mass. 251, 257 & n.15 (2000).

See also Decotiis v. Whittemore, 635 F.3d 22, 29-30 (1st Cir.

2011). The threshold inquiry for the court is whether the

employee spoke "as a citizen upon matters of public concern."

Connick v. Myers, 461 U.S. 138, 147 (1983). If the court

reaches that conclusion, the court next balances the interest of

the employee speaking out as a citizen on matters of public

concern and "the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees." Pickering v. Board of Educ., 391 U.S.

18 In cases alleging First Amendment violations, appellate courts are also required to perform an independent examination of the entire record to ensure that "the judgment does not constitute a forbidden intrusion on the field of free speech" (citation omitted). Pereira v. Commissioner of Social Servs., 432 Mass. 251, 258 (2000). 15

563, 568 (1968) (Pickering test). 19 See Decotiis, supra at 35

(describing Pickering test as attempt to "balance the value of

an employee's speech -- both the employee's own interests and

the public's interest in the information the employee seeks to

impart -- against the employer's legitimate government interest

in preventing unnecessary disruptions and inefficiencies in

carrying out its public service mission" [quotation and citation

omitted]). If the interests of the employee and the public

outweigh those of the employer, the speech is deemed

constitutionally protected, and the parties proceed to the third

step of the test.

The third step requires the employee to proffer sufficient

evidence that would permit a reasonable jury to find that the

protected speech was "a substantial or motivating factor behind

the adverse employment action." Guilloty Perez v. Pierluisi,

339 F.3d 43, 55 (1st Cir. 2003). If the employee satisfies that

initial burden, the burden of persuasion shifts to the employer

to prove, by a preponderance of the evidence, that it would have

taken the same action regardless of the protected speech. See

19 The United States Supreme Court subsequently clarified the Pickering test. See Lane v. Franks, 573 U.S. 228, 242 (2014), quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("if an employee speaks as a citizen on a matter of public concern, the question is whether the government had 'an adequate justification for treating the employee differently from any other member of the public' based on the government's needs as an employer"). 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977) (Mt. Healthy defense). This showing by an employer

defeats the employee's § 1983 claim. See Decotiis, 635 F.3d at

30.

The first two parts of the analysis are questions of law

that are subject to de novo review. See Davignon v. Hodgson,

524 F.3d 91, 100-101 (1st Cir. 2008). Although causation is

generally a question of fact for the jury, the burden-shifting,

Mt. Healthy defense may be determined as matter of law by the

court at the summary judgment stage. See, e.g., Guilloty Perez,

339 F.3d at 56; Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 13-14

(1st Cir. 2003); Lewis v. Boston, 321 F.3d 207, 219-220 (1st

Cir. 2003).

In his carefully considered memorandum, the motion judge

recognized the difficulties courts have encountered in

addressing the first step of the part one analysis: whether the

employee spoke in a private capacity. 20 See Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006) (holding that "when public

employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their

20 As the judge noted, the first step of the analysis has two subparts: whether the individual spoke as a citizen vis-à- vis employee and whether the subject of the speech was a matter of public concern. See DeCotiis, 635 F.3d at 30-35. 17

communications from employer discipline"). Applying the holding

and guiding principles of Garcetti, as construed by the First

Circuit, see Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26-

27 (1st Cir. 2010), the judge concluded that some, but not all

of Antonellis's speech was expressed as a citizen. One example

the judge gave of speech that fell on the protected side of the

line was Antonellis's criticism of EOEA's failure to properly

analyze the data it collected on falls by residents of ALRs.

After concluding that the matter was the subject of legitimate

news interest, the judge decided that he did not need to go any

further for summary judgment purposes. See Garcetti, supra at

425 ("Exposing governmental inefficiency and misconduct is a

matter of considerable significance"). On appeal, Hartstein has

not challenged Antonellis's satisfaction of the first step of

the analysis. We turn to the second step.

In assessing whether the speech should be protected, the

subject matter of Antonellis's disclosures -- his whistleblowing

about EOEA's alleged inadequacies -- weigh heavily in his favor.

See Guilloty Perez, 339 F.3d at 53, and cases cited. As

Antonellis demonstrated, he made a number of statements to the

media about important matters of great public concern. There

was significant public interest in his speech. "[T]he stronger

the First Amendment interests in the speech, the stronger the 18

justification the employer must have." Curran v. Cousins, 509

F.3d 36, 48 (1st Cir. 2007), citing Connick, 461 U.S. at 150.

On the other side of the balance, government employers have

"legitimate interest[s] in the effective and efficient

fulfillment of [their] responsibilities to the public, including

promot[ing] efficiency and integrity in the discharge of

official duties, and maintain[ing] proper discipline in public

service" (quotations and citation omitted). Lane v. Franks, 573

U.S. 228, 242 (2014). Factors relevant to the disruption

inquiry include whether the employee's statements "directly went

to impairing discipline by superiors, disrupting harmony and

creating friction in working relationships, undermining

confidence in the administration, . . . and interfering with the

regular operation of the enterprise." Curran, 509 F.3d at 50.

See Rankin v. McPherson, 483 U.S. 378, 388 (1987) ("Interference

with work, personnel relationships, or the speaker's job

performance can detract from the public employer's function;

avoiding such interference can be a strong [S]tate interest").

"In general, government interests outweigh First Amendment

rights when employee speech prevents efficient provision of

government services or disrupts the workplace." Torres-Rosado,

335 F.3d at 13.

Here, we conclude that Hartstein made the strong showing of

justification for terminating Antonellis necessary to overcome 19

Antonellis's First Amendment rights. First, Antonellis made

prejudicial statements to the media about PCH during the

pendency of its appeal that impacted EOEA's ability to perform

its appellate function. Antonellis's statements about the long

history of code violations at PCH may have helped make his point

about EOEA's lax oversight and neglect, but absent full

disclosure about PCH's clearance by the local board of health,

the statements were misleading to the public. Second, his

opinionated views about the medical model of regulation

potentially impeded his ability to perform his job duties in the

future. Third, one could reasonably conclude that in violation

of FIPA, he disclosed personal data identifying a resident of an

ALR to the media without permission, upsetting the family. 21 See

Lane, 573 U.S. at 242 ("false or erroneous" statements or

unnecessary disclosure of "any sensitive, confidential, or

privileged information" may tip balance on employer's side).

His action potentially subjected the data holder, EOEA, to

exemplary damages, "even if the data subject sustained no actual

damages." Torres v. Attorney Gen., 391 Mass. 1, 13 (1984).

Fourth, we have no doubt that Antonellis's decision to name and

21 Whether Antonellis's disclosure of information about the resident violated FIPA was a question of law here, and not an issue of the fact for the jury. See Torres v. Attorney Gen., 391 Mass. 1, 3 (1984). We agree with the judge's interpretation of the statute that a violation occurred. 20

depict Stukes as an incompetent and uncaring director damaged

their relationship beyond repair. Fifth, his disclosures tended

to undermine public confidence in the agency and potentially

jeopardized EOEA's ability to perform its core mission. 22

Finally, although some of Antonellis's concerns and objections

to his employer's practices may have been valid, he maximized

the potential disruption by expressing them to a wide audience

using injudicious language. 23 See O'Connor v. Steeves, 994 F.2d

905, 917 n.10 (1st Cir.), cert. denied sub. nom. Nahant v.

O'Connor, 510 U.S. 1024 (1993) (broad dissemination of

"disclosures [that] have the potential to disrupt the employing

agency or department" weighs in favor of employer). Antonellis

could have conveyed his message in a far less disruptive manner.

Most of this potential disruption to EOEA's operations was

attributable to Antonellis's speech. 24 These factors tilted the

22 We acknowledge that the same argument could potentially be made in any whistleblower case. What separates this case from a garden-variety one is the extent of the derogation of the employer (and Antonellis's egregious misconduct). If Antonellis had his way, all of EOEA's public duties to ALRs would have been removed, leaving no mission to fulfill. 23 We note that at least two additional related articles quoting Antonellis were published on October 14 and 15. Anderson concluded that Antonellis made false or misleading statements in those articles demonstrating that Antonellis placed EOEA in a false light. 24 As the defendants note, "[p]ublic employers need not allege or show that an employee's speech actually disrupted the workplace, and substantial weight has been given 'to government 21

scale on Hartstein's side. Because the interests of the

employer outweighed those of the employee and the public,

Antonellis's speech was not constitutionally protected under the

Pickering test.

Even were we to rule that Antonellis prevailed on the

Pickering test, we conclude that Hartstein established a Mt.

Healthy defense as matter of law. There is no need to repeat

the evidence of potential disruption. We add only that

Antonellis engaged in unprotected conduct by sharing internal e-

mails and documents with the media without authority and in

violation of his employer's protocol. See Sanchez-Lopez v.

Fuentes-Pujols, 375 F.3d 121, 131 (1st Cir. 2004) (evidence that

defendant has regular practice of imposing sanctions for

particular violations indicates that defendant would have

imposed some sanctions even in absence of protected speech). He

had a previous formal warning on file, and he was not forthright

with investigators. As supported by the findings of the

independent hearing officer, Hartstein demonstrated that "even

if an improper motive played a part [in the decision], the

employers' reasonable predictions of disruptions.'" Diaz-Bigio v. Santini, 652 F.3d 45, 53-54 (1st Cir. 2011), quoting Waters v. Churchill, 511 U.S. 661, 673 (1994). Indeed, the United States Supreme Court has recognized that the purported "danger" posed by public disclosures is "mostly speculative." Waters, supra. No jury issue regarding potential or actual disclosure was presented here. 22

adverse action would have been taken for legitimate reasons."

Broderick v. Evans, 570 F.3d 68, 73 (1st Cir. 2009).

Antonellis's arguments regarding the unfairness of the

predeprivation process are not persuasive. Although he claims

that "several factual mistakes" in Anderson's final

investigative report "infected" the hearing officer's decision,

he failed to be more specific. At the show cause hearing, he

was given the opportunity to present evidence, testify, and to

cross-examine the witnesses against him. On this record, he has

not demonstrated that the hearing was unfair or that the hearing

officer relied on a "biased" investigation.

Finally, we agree with the motion judge that even if there

are material facts in dispute with regard to causation,

Hartstein was entitled to qualified immunity as matter of law.

See Cristo v. Evangelidis, 90 Mass. App. Ct. 585, 589-590

(2016). A hearing officer found an abundance of just cause to

support Antonellis's termination. The charges against

Antonellis sustained by the hearing officer were serious,

including his violation of EOEA's public records request

protocol, his disclosure of the personal data of an ALR

resident, and perhaps most troubling of all, his blatant

misrepresentation to investigators. 25 When Antonellis was placed

25 Lying in the course of an investigation in and of itself was arguably a terminable offense. 23

on paid leave, he was warned about the consequence of that type

of misconduct. The hearing officer expressly rejected

Antonellis's First Amendment defenses. Given the information

available to Hartstein and the difficulties involved in applying

the governing three-part test, a reasonable official standing in

Hartstein's shoes could well have believed that the termination

would not violate Antonellis's First Amendment rights. 26 See

Clancy v. McCabe, 441 Mass. 311, 317, 322-323 (2004). See also

Wagner v. Holyoke, 404 F.3d 504, 509 (1st Cir. 2005). Qualified

immunity attached in Hartstein's favor.

b. General Laws c. 149, § 185 (b) (3). 27 Antonellis

unquestionably engaged in protected activity under the statute

by objecting to EOEA's practices that he reasonably believed

posed a risk to elder health and safety. See Trychon v.

Massachusetts Bay Transp. Auth., 90 Mass. App. Ct. 250, 255

(2016) (three elements of whistleblower claim are "[1] the

employee engaged in a protected activity; [2] participation in

26 We note that to the extent that Antonellis argues that any reasonable official would have known it was unconstitutional to enforce a media "pre-clearance" policy that unlawfully restricted employee speech, he did not raise a prior restraint claim during the predeprivation proceedings or in this action. 27 In his complaint, Antonellis did not specify under which statutory section he was proceeding. At summary judgment, he clarified that his claim was brought under the objections clause. See G. L. c. 149, § 185 (b) (3). 24

that activity played a substantial or motivating part in the

retaliatory action; and [3] damages resulted"). Beginning in

2009, Antonellis regularly complained about many of his

employer's practices. He continued to express his objections

internally through September, 2014. Notwithstanding this

protected activity, we conclude that Antonellis's whistleblower

claim, similar to his § 1983 claim, failed as matter of law on

the element of causation. No jury could reasonably find on this

record that Antonellis's internal objections were a "substantial

or motivating" factor in his November, 2014 termination. 28 Id.

In addition, Hartstein met her burden under Mt. Healthy of

demonstrating independent and legitimate reasons that justified

her termination decision, notwithstanding Antonellis's prior

protected conduct. Id.

Judgment affirmed.

28 We agree with the judge's ruling that objections to the media are not protected conduct covered by G. L. c. 149, § 185 (b) (3). We decline Antonellis's request for what appears to be an advisory opinion on the question whether an external objection would be entitled to statutory protection under § 185 (b) (3) as long as "the decision-maker was made aware of the objection and the adverse action was caused by the objection" (emphasis omitted). See Answer of the Justices, 444 Mass. 1201, 1203 (2005).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporters@sjc.state.ma.us

19-P-475 Appeals Court

PETER ANTONELLIS vs. DEPARTMENT OF ELDER AFFAIRS & another. 1

No. 19-P-475.

Suffolk. April 7, 2020. - August 17, 2020.

Present: Meade, Massing, & Desmond, JJ.

Constitutional Law, Freedom of speech and press. Public Employment, Termination. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on February 13, 2015.

The case was heard by Michael D. Ricciuti, J., on a motion for summary judgment.

The case was submitted on briefs. Joseph L. Sulman & Andrea L. Haas for the plaintiff. Anne M. McLaughlin, Assistant Attorney General, for the defendants.

DESMOND, J. Peter Antonellis commenced this action,

alleging that Ann Hartstein, the former Secretary of the

1 Ann Hartstein, individually and in her official capacity as the Secretary of Elder Affairs. 2

Department of Elder Affairs (agency or EOEA), terminated him for

speaking out publicly about elder endangerment in assisted

living residences (ALRs). 2 He appeals from a summary judgment

dismissing his Federal civil rights claim against Hartstein

individually (count I), and his claim under the Massachusetts

public employee whistleblower statute against EOEA (count II). 3

We affirm.

1. Background. From the same record as the motion judge,

we set forth the facts in the light most favorable to

Antonellis. 4 See Welch v. Barach, 84 Mass. App. Ct. 113, 118-119

(2013).

In March, 2000, Antonellis, an attorney, accepted a

position at EOEA as an assistant general counsel. In 2006, at

2 Antonellis named the Department of Elder Affairs, which oversees all ALRs in Massachusetts, as a defendant. See G. L. c. 19A, § 1. Because the parties refer to the department as the "Executive Office of Elder Affairs" or "EOEA," for convenience, we do as well. 3 Antonellis's civil rights claims against EOEA and Hartstein in her official capacity, and his whistleblower claim against Hartstein were dismissed before the summary judgment ruling, and are not in issue in this appeal. 4 Antonellis has not challenged the judge's order allowing, in part, the defendants' motion to strike, predicated upon his noncompliance with Rule 9A(b)(5) of the Rules of the Superior Court (2018). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 46 n.18 (2005). Accordingly, we do not consider facts struck by the judge as improperly disputed or unsupported by the summary judgment materials. 3

Antonellis's request, EOEA transferred him to the position of

program coordinator II (also known as a certification

specialist) in the assisted living unit. 5 There is no

"compliance officer" position at EOEA.

In 2009, Antonellis began raising concerns to his

supervisors about EOEA's administration and oversight of ALRs.

Between 2010 and 2014, he regularly voiced these concerns to

both supervisors and colleagues.

Pursuant to EOEA's 2011 "public records protocol," all EOEA

employees were required to send public record requests to the

legal department for handling. 6 EOEA protocol also called for

staff to refer "press inquiries [and] communication issues" to

Martina Jackson, the EOEA communications director. Antonellis

understood that personal information about residents of ALRs

could not be disclosed without the consent of the resident or

5 As a certification specialist, Antonellis was involved in the initial certification and recertification process of ALRs. His job duties included conducting site visits and inspections for statutory and regulatory compliance, making and documenting findings, drafting corrective action plans and helping to implement them, identifying responsive documents to public records requests, and preparing the documents for response. 6 Staff were expected to gather all documents responsive to the request and send them to the legal department, which would decide what materials would be turned over, the necessity of redactions, if any, and the cost associated with the request. During his time as an assistant general counsel, Antonellis was involved in this process, forwarding materials to the general counsel for his review. 4

the resident's representative. See G. L. c. 66A, the Fair

Information Practices Act (FIPA). 7

In 2012, at EOEA's request, the Providence Cliff House

(PCH) in Athol submitted an application for certification.

Antonellis conducted several site visits in connection with the

application. Following EOEA's denial of PCH's application and

its request to waive certain certification requirements, PCH

exercised its right to an informal appeal hearing.

On March 6, 2013, Antonellis was scheduled to make a

presentation as part of a webinar on EOEA's new electronic

incident reporting system. Shortly before the webinar,

Antonellis left the office without informing his immediate

supervisor, Duamarius Stukes, and went to the State House.

There, he requested a joint meeting with Governor Deval Patrick

and John Polanowicz, the Secretary of the Executive Office of

Health and Human Services (EOHHS), to discuss his concerns about

elder endangerment. After filling out a request form, he went

7 Under FIPA, it is unlawful for a State agency to "allow any other agency or individual not employed by [it] to have access to personal data unless such access is authorized by statute or regulations . . . or is approved by the data subject whose personal data are sought." G. L. c. 66A, § 2 (c). The Legislature broadly defined personal data to mean "any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in [G. L. c. 4, § 7, cl. 26]." G. L. c. 66A, § 1. 5

home for the day without informing anyone at EOEA. On the

following day, Antonellis went directly from his home to

Pocasset to conduct an ALR site visit. He did not tell anyone

at EOEA his whereabouts ahead of time. For this conduct, he

subsequently received a one-day suspension without pay. 8

When Hartstein discovered that Antonellis went over her

head with his concerns, she was disappointed. Stan Eichner,

EOEA's general counsel, directed Antonellis to articulate his

concerns in writing, and to give the assignment "top priority."

On March 19, 2013, Antonellis provided Eichner with a lengthy

memorandum, claiming that the lack of incident reporting

standards, poor management, and understaffing were endangering

the health, safety, and welfare of ALR residents. Antonellis

attached thirty exhibits to his memorandum, including e-mails

and incident reports. He sent a copy to Secretary Polanowicz.

On June 27, 2013, Hartstein informed Antonellis that Eichner had

determined that Antonellis's "perceptions" were unsubstantiated

and that she concurred with Eichner's findings. 9

8 The sanction was negotiated down to a formal warning. 9 Shortly thereafter, an EOEA hearing officer rejected PCH's appeal, but gave it "leave to reapply" once all requirements of State and Federal law were met. She encouraged PCH to continue making improvements. EOEA allowed PCH to continue to operate as an uncertified ALR. 6

In December, 2013, Colman Herman, a reporter for

CommonWealth Magazine, submitted a public records request to

EOEA. At Stukes's direction Antonellis assisted with the

response. When Antonellis learned from an internal e-mail

months later that some of Herman's request was still pending, he

reached out to Herman, beginning in August, 2014. 10 He did not

tell management what he was doing. Thereafter, Antonellis met

and spoke with Herman several times about his concerns regarding

PCH and his objections to EOEA's practices. Without notice to

his supervisors or management, Antonellis provided Herman with

copies of EOEA documents, including his March 19, 2013

memorandum (and some of the attached exhibits), and his February

7 and February 14, 2013 site visit reports to Stukes detailing

the shortcomings of PCH. In addition to Herman, Antonellis also

spoke multiple times about his objections to EOEA's practices

with Boston Globe health reporter, Kay Lazar, and gave her a

copy of his March 19, 2013 memorandum.

Antonellis also worked on PCH's second application for

certification, which was denied by EOEA on September 12, 2014. 11

10 EOEA did not complete its response until November, 2014. 11 Antonellis e-mailed a copy of the denial letter to the owner of PCH on the same day. PCH again exercised the right to appeal the decision. On August 4, 2014, the owner had reported to Antonellis that the one remaining violation of the State sanitary code had been corrected, and forwarded the letter from the local board of health clearing PCH. 7

On the same day, CommonWealth Magazine published an article by

Herman entitled, "Oversight questions raised on Elder Affairs."

Herman quoted "compliance officer" Antonellis as well as

Antonellis's March 19, 2013 memorandum warning that the safety

of elders was at risk due to poor management at EOEA. 12

Apprised of the article, Hartstein was again disappointed

that Antonellis did not first bring his concerns to her. She

informed the EOEA human resources liaison that she wanted to

"possibly discipline" Antonellis.

On September 21, 2014, the Boston Globe published an

article written by Lazar entitled, "Elder advocates raise

concerns on assisted living." Lazar reported that elders in

ALRs were "in harm's way too often" and that EOEA was "ill-

equipped to protect the increasingly frail residents." Lazar

reported that Antonellis, a "key staffer" and "compliance

officer," had indicated that the agency had just "two ombudsmen

to handle the thousands of complaints that pour in each year

12 Antonellis stated, "[T]he agency does almost no analysis of the data it is gathering . . . [and] cannot say how many people have fallen down, wandered off, been abused, or exploited" and he reported that "there are no procedures in place on how to handle incident reports as they come in." He further stated that two ombudsmen in Boston were "not sufficient to tend to the needs of all the people who are living in [ALRs] spread throughout . . . the [S]tate." Herman reported that in his memorandum, Antonellis had called EOEA's incident reporting system "nothing more than a hollow and dangerous facade." 8

involving [ALR]s." 13 Antonellis was also quoted as stating that

although "most elders and their families think this is a

regulated industry . . . we don't have the staff to regulate

it"; he had "repeatedly alerted his superiors that reports of

serious incidents at facilities are languishing for weeks or

months at the agency, and that no one seems to be analyzing them

for patterns that may point to larger issues"; and "[u]nless the

facilities know that we are scrutinizing what happens, they

don't have to be too concerned about the system they use to keep

residents safe." As reported in the article, EOEA spokeswoman,

Martina Jackson, disputed Antonellis's assessment. 14 The article

quoted Hartstein stating that although EOEA's regulations needed

"some retooling" to ensure safety, and updates were in progress,

there was no need to replace the residential model used to

regulate ALRs with the medical model championed by Antonellis

and others.

On September 23, 2014, CommonWealth Magazine published a

related article by Herman entitled, "Elder Affairs lets Athol

facility remain open." Focusing on PCH, a subject of his public

13 In fact, the ombudsman program received less than 200 complaints that year. Antonellis claimed to have been misquoted and that he was "possibly" referring to thousands of incident reports. 14 Jackson had explained to Lazar before the article was published that Antonellis was not a compliance officer. 9

records request that remained outstanding, Herman quoted

Antonellis, "a compliance officer at Elder Affairs who has been

critical of the agency's oversight functions" as stating, "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. . . . [I]nstead, the matter has dragged on for 2 1/2

years and we're still dealing with it, it has been a huge waste

of our limited resources." Antonellis admitted that he made the

statement to Herman. The article repeated the quotes from

Antonellis's March 19, 2013 memorandum about poor management

endangering ALR residents and the reference to EOEA's incident

reporting program as "nothing more than a hollow and dangerous

facade." It also repeated Antonellis's criticisms about EOEA's

failures to keep track of the injuries and abuse sustained by

seniors at ALRs and to analyze the data.

The article quoted from the stale PCH site reports. First,

the article noted that in his February 2013 report to Stukes,

the director of the assisted living program at Elder Affairs,

Antonellis had "called attention to [PCH] having units with

inadequate square footage, unlockable doors and windows, and

poor ventilation." Herman reported that Antonellis also wrote

in that report that "[r]esidents are occupying units that do not

currently appear to meet minimum requirements of the [S]tate

sanitation code regarding bathrooms." Herman also listed many 10

other sanitary code violations that PCH had been cited for "[a]t

various times." Nothing was said about the correction of all

these problems. The article reported that Antonellis directly

asked Stukes in an e-mail, "How much longer will you allow [PCH]

to continue to operate without the needed certificate?" and

"Will you require [the owner] to move out a number of the

residents?" The article quoted a statement by Antonellis that

he had "noted that a number of the residents were wheelchair-

dependent, one of whom was seemingly incoherent." According to

Antonellis, Stukes failed to respond and permitted PCH to

continue to operate "as an uncertified [ALR] under dangerous

conditions." Around this time, Antonellis's access to his

telephone and the Internet at EOEA were blocked.

After reading the article, the son of one of PCH's

residents immediately concluded that Antonellis's statement

referred to his mother, who had suffered a series of minor

strokes. 15 He indicated that neither he nor his mother, to his

knowledge, had given permission to Herman or to Antonellis

authorizing them to describe her in the article. At PCH's

appeal hearing, the son publicly noted his displeasure at the

release of the information as well as the terminology used to

describe her.

15 There were a limited number of seniors residing at PCH at the time. 11

CommonWealth Magazine published a third article by Herman

on September 26, 2014, focusing exclusively on Antonellis, who

was described as a "compliance officer" and EOEA's "biggest

critic." Titled "A critic from within," the article summarized

portions of the earlier articles, noting that Antonellis had

"shared internal emails and documents with CommonWealth that

indicate Elder Affairs let an Athol facility operate an [ALR]

even though it wasn't certified and it was unsafe." Herman

reported that in Antonellis's view, "assisted living doesn't

belong under the domain of Elder Affairs, . . . [and that] the

responsibility for regulating assisted living needs [to] be

moved into the Department of Public Health, which has the skills

in place to regulate health and medical programs such as

assisted living." Antonellis reiterated his beliefs during a

meeting with senior management. PCH's appeal hearing occurred

four days later. Although Antonellis had been scheduled to

attend, Stukes excused his absence.

In Hartstein's view, Antonellis interfered with PCH's

appeal and made statements to the press that were detrimental to

the residents of PCH and to the agency. 16

16 Hartstein testified that Antonellis "was appearing to say that it was an unsafe residence . . . to be in, which was very upsetting to the residents who were living there at the time"; and further that EOEA "did not have adequate oversight ability, which would be very detrimental both to the [a]gency's reputation and to residents who lived [there]." 12

On October 8, 2014, Emily Rooney of WGBH interviewed

Antonellis and Herman on her show. On October 14, Antonellis

was placed on paid administrative leave, pending an

investigation into his conduct. He was expressly warned that if

he "attempted to interfere with or undermine the agency's

ability to conduct the investigation," he would be "subject to

immediate discipline up to and including termination." EOHHS

assigned Sheila Anderson, a labor relations specialist at EOHHS,

to investigate the allegations; she was instructed to give the

assignment her "utmost priority" and to complete it "as quickly

as possible." On October 16, Anderson interviewed Antonellis.

Another labor relations specialist, Carrie McCoy, was present

and took notes. During the interview, Antonellis expressly

denied providing any EOEA documents to Herman. Rhett Cavicchi,

the director of labor relations, edited Anderson's draft report.

He added language, made a number of comments, and suggested

adding a final paragraph summarizing how Antonellis's actions

violated the agency's policies. The draft was circulated to

upper management at EOHHS and EOEA, including Hartstein. On

October 23, Anderson provided Hartstein with a final

investigation report.

Christopher Groll, a labor relations specialist and

Hartstein's designated hearing officer, conducted a show cause

hearing on November 3 and 6 to determine whether Antonellis 13

should be disciplined. Antonellis was represented by counsel,

and testified at that hearing along with Anderson and McCoy.

Twenty-eight exhibits were submitted in evidence by the parties.

Groll found Antonellis largely untruthful, credited EOEA's six

allegations against him, and concluded that "disciplinary

action[,] up to and including termination is appropriate and

should be imposed in this matter." 17 On November 26, 2014,

Hartstein adopted Groll's findings, which demonstrated to her

that he had engaged in "egregiously inappropriate and

unprofessional behavior." Concluding that Antonellis's conduct

"undermined the efficacy and integrity of the agency," and that

"EOEA no longer has the requisite trust and confidence in [his]

ability to carry out [his] job duties in an appropriate and

professional manner," Hartstein terminated him.

17 The hearing officer found, inter alia, that Antonellis (1) knowingly violated EOEA's protocols by sharing information, and EOEA e-mails and documents, with the media; (2) violated G. L. c. 66 by providing information to the media containing personal data identifying an ALR resident; (3) made "knowingly incomplete" and prejudicial statements about an ALR while its appeal was pending, thereby undermining the ability of EOEA "to appear neutral and fulfill its appellate responsibilities"; (4) made statements to the media that he clearly knew misstated the facts and disparaged the reputation of EOEA; (5) falsely identified himself to the media as a compliance specialist, lending "an air of added credibility to his claims against EOEA and PCH"; and (6) was "not truthful and forthcoming during the course of [the] investigation." 14

2. Discussion. We review a grant of summary judgment de

novo, Yee v. Massachusetts State Police, 481 Mass. 290, 294

(2019), in order to determine whether all material facts have

been established and the moving party is entitled to judgment as

matter of law, 18 see Mass. R. Civ. P. 56 (c), as amended, 436

Mass. 1404 (2002).

a. 42 U.S.C. § 1983 (§ 1983). We analyze § 1983 claims

arising from violations of First Amendment to the United States

Constitution rights under a three-part test. See Pereira v.

Commissioner of Social Servs., 432 Mass. 251, 257 & n.15 (2000).

See also Decotiis v. Whittemore, 635 F.3d 22, 29-30 (1st Cir.

2011). The threshold inquiry for the court is whether the

employee spoke "as a citizen upon matters of public concern."

Connick v. Myers, 461 U.S. 138, 147 (1983). If the court

reaches that conclusion, the court next balances the interest of

the employee speaking out as a citizen on matters of public

concern and "the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees." Pickering v. Board of Educ., 391 U.S.

18 In cases alleging First Amendment violations, appellate courts are also required to perform an independent examination of the entire record to ensure that "the judgment does not constitute a forbidden intrusion on the field of free speech" (citation omitted). Pereira v. Commissioner of Social Servs., 432 Mass. 251, 258 (2000). 15

563, 568 (1968) (Pickering test). 19 See Decotiis, supra at 35

(describing Pickering test as attempt to "balance the value of

an employee's speech -- both the employee's own interests and

the public's interest in the information the employee seeks to

impart -- against the employer's legitimate government interest

in preventing unnecessary disruptions and inefficiencies in

carrying out its public service mission" [quotation and citation

omitted]). If the interests of the employee and the public

outweigh those of the employer, the speech is deemed

constitutionally protected, and the parties proceed to the third

step of the test.

The third step requires the employee to proffer sufficient

evidence that would permit a reasonable jury to find that the

protected speech was "a substantial or motivating factor behind

the adverse employment action." Guilloty Perez v. Pierluisi,

339 F.3d 43, 55 (1st Cir. 2003). If the employee satisfies that

initial burden, the burden of persuasion shifts to the employer

to prove, by a preponderance of the evidence, that it would have

taken the same action regardless of the protected speech. See

19 The United States Supreme Court subsequently clarified the Pickering test. See Lane v. Franks, 573 U.S. 228, 242 (2014), quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) ("if an employee speaks as a citizen on a matter of public concern, the question is whether the government had 'an adequate justification for treating the employee differently from any other member of the public' based on the government's needs as an employer"). 16

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

287 (1977) (Mt. Healthy defense). This showing by an employer

defeats the employee's § 1983 claim. See Decotiis, 635 F.3d at

30.

The first two parts of the analysis are questions of law

that are subject to de novo review. See Davignon v. Hodgson,

524 F.3d 91, 100-101 (1st Cir. 2008). Although causation is

generally a question of fact for the jury, the burden-shifting,

Mt. Healthy defense may be determined as matter of law by the

court at the summary judgment stage. See, e.g., Guilloty Perez,

339 F.3d at 56; Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 13-14

(1st Cir. 2003); Lewis v. Boston, 321 F.3d 207, 219-220 (1st

Cir. 2003).

In his carefully considered memorandum, the motion judge

recognized the difficulties courts have encountered in

addressing the first step of the part one analysis: whether the

employee spoke in a private capacity. 20 See Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006) (holding that "when public

employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their

20 As the judge noted, the first step of the analysis has two subparts: whether the individual spoke as a citizen vis-à- vis employee and whether the subject of the speech was a matter of public concern. See DeCotiis, 635 F.3d at 30-35. 17

communications from employer discipline"). Applying the holding

and guiding principles of Garcetti, as construed by the First

Circuit, see Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26-

27 (1st Cir. 2010), the judge concluded that some, but not all

of Antonellis's speech was expressed as a citizen. One example

the judge gave of speech that fell on the protected side of the

line was Antonellis's criticism of EOEA's failure to properly

analyze the data it collected on falls by residents of ALRs.

After concluding that the matter was the subject of legitimate

news interest, the judge decided that he did not need to go any

further for summary judgment purposes. See Garcetti, supra at

425 ("Exposing governmental inefficiency and misconduct is a

matter of considerable significance"). On appeal, Hartstein has

not challenged Antonellis's satisfaction of the first step of

the analysis. We turn to the second step.

In assessing whether the speech should be protected, the

subject matter of Antonellis's disclosures -- his whistleblowing

about EOEA's alleged inadequacies -- weigh heavily in his favor.

See Guilloty Perez, 339 F.3d at 53, and cases cited. As

Antonellis demonstrated, he made a number of statements to the

media about important matters of great public concern. There

was significant public interest in his speech. "[T]he stronger

the First Amendment interests in the speech, the stronger the 18

justification the employer must have." Curran v. Cousins, 509

F.3d 36, 48 (1st Cir. 2007), citing Connick, 461 U.S. at 150.

On the other side of the balance, government employers have

"legitimate interest[s] in the effective and efficient

fulfillment of [their] responsibilities to the public, including

promot[ing] efficiency and integrity in the discharge of

official duties, and maintain[ing] proper discipline in public

service" (quotations and citation omitted). Lane v. Franks, 573

U.S. 228, 242 (2014). Factors relevant to the disruption

inquiry include whether the employee's statements "directly went

to impairing discipline by superiors, disrupting harmony and

creating friction in working relationships, undermining

confidence in the administration, . . . and interfering with the

regular operation of the enterprise." Curran, 509 F.3d at 50.

See Rankin v. McPherson, 483 U.S. 378, 388 (1987) ("Interference

with work, personnel relationships, or the speaker's job

performance can detract from the public employer's function;

avoiding such interference can be a strong [S]tate interest").

"In general, government interests outweigh First Amendment

rights when employee speech prevents efficient provision of

government services or disrupts the workplace." Torres-Rosado,

335 F.3d at 13.

Here, we conclude that Hartstein made the strong showing of

justification for terminating Antonellis necessary to overcome 19

Antonellis's First Amendment rights. First, Antonellis made

prejudicial statements to the media about PCH during the

pendency of its appeal that impacted EOEA's ability to perform

its appellate function. Antonellis's statements about the long

history of code violations at PCH may have helped make his point

about EOEA's lax oversight and neglect, but absent full

disclosure about PCH's clearance by the local board of health,

the statements were misleading to the public. Second, his

opinionated views about the medical model of regulation

potentially impeded his ability to perform his job duties in the

future. Third, one could reasonably conclude that in violation

of FIPA, he disclosed personal data identifying a resident of an

ALR to the media without permission, upsetting the family. 21 See

Lane, 573 U.S. at 242 ("false or erroneous" statements or

unnecessary disclosure of "any sensitive, confidential, or

privileged information" may tip balance on employer's side).

His action potentially subjected the data holder, EOEA, to

exemplary damages, "even if the data subject sustained no actual

damages." Torres v. Attorney Gen., 391 Mass. 1, 13 (1984).

Fourth, we have no doubt that Antonellis's decision to name and

21 Whether Antonellis's disclosure of information about the resident violated FIPA was a question of law here, and not an issue of the fact for the jury. See Torres v. Attorney Gen., 391 Mass. 1, 3 (1984). We agree with the judge's interpretation of the statute that a violation occurred. 20

depict Stukes as an incompetent and uncaring director damaged

their relationship beyond repair. Fifth, his disclosures tended

to undermine public confidence in the agency and potentially

jeopardized EOEA's ability to perform its core mission. 22

Finally, although some of Antonellis's concerns and objections

to his employer's practices may have been valid, he maximized

the potential disruption by expressing them to a wide audience

using injudicious language. 23 See O'Connor v. Steeves, 994 F.2d

905, 917 n.10 (1st Cir.), cert. denied sub. nom. Nahant v.

O'Connor, 510 U.S. 1024 (1993) (broad dissemination of

"disclosures [that] have the potential to disrupt the employing

agency or department" weighs in favor of employer). Antonellis

could have conveyed his message in a far less disruptive manner.

Most of this potential disruption to EOEA's operations was

attributable to Antonellis's speech. 24 These factors tilted the

22 We acknowledge that the same argument could potentially be made in any whistleblower case. What separates this case from a garden-variety one is the extent of the derogation of the employer (and Antonellis's egregious misconduct). If Antonellis had his way, all of EOEA's public duties to ALRs would have been removed, leaving no mission to fulfill. 23 We note that at least two additional related articles quoting Antonellis were published on October 14 and 15. Anderson concluded that Antonellis made false or misleading statements in those articles demonstrating that Antonellis placed EOEA in a false light. 24 As the defendants note, "[p]ublic employers need not allege or show that an employee's speech actually disrupted the workplace, and substantial weight has been given 'to government 21

scale on Hartstein's side. Because the interests of the

employer outweighed those of the employee and the public,

Antonellis's speech was not constitutionally protected under the

Pickering test.

Even were we to rule that Antonellis prevailed on the

Pickering test, we conclude that Hartstein established a Mt.

Healthy defense as matter of law. There is no need to repeat

the evidence of potential disruption. We add only that

Antonellis engaged in unprotected conduct by sharing internal e-

mails and documents with the media without authority and in

violation of his employer's protocol. See Sanchez-Lopez v.

Fuentes-Pujols, 375 F.3d 121, 131 (1st Cir. 2004) (evidence that

defendant has regular practice of imposing sanctions for

particular violations indicates that defendant would have

imposed some sanctions even in absence of protected speech). He

had a previous formal warning on file, and he was not forthright

with investigators. As supported by the findings of the

independent hearing officer, Hartstein demonstrated that "even

if an improper motive played a part [in the decision], the

employers' reasonable predictions of disruptions.'" Diaz-Bigio v. Santini, 652 F.3d 45, 53-54 (1st Cir. 2011), quoting Waters v. Churchill, 511 U.S. 661, 673 (1994). Indeed, the United States Supreme Court has recognized that the purported "danger" posed by public disclosures is "mostly speculative." Waters, supra. No jury issue regarding potential or actual disclosure was presented here. 22

adverse action would have been taken for legitimate reasons."

Broderick v. Evans, 570 F.3d 68, 73 (1st Cir. 2009).

Antonellis's arguments regarding the unfairness of the

predeprivation process are not persuasive. Although he claims

that "several factual mistakes" in Anderson's final

investigative report "infected" the hearing officer's decision,

he failed to be more specific. At the show cause hearing, he

was given the opportunity to present evidence, testify, and to

cross-examine the witnesses against him. On this record, he has

not demonstrated that the hearing was unfair or that the hearing

officer relied on a "biased" investigation.

Finally, we agree with the motion judge that even if there

are material facts in dispute with regard to causation,

Hartstein was entitled to qualified immunity as matter of law.

See Cristo v. Evangelidis, 90 Mass. App. Ct. 585, 589-590

(2016). A hearing officer found an abundance of just cause to

support Antonellis's termination. The charges against

Antonellis sustained by the hearing officer were serious,

including his violation of EOEA's public records request

protocol, his disclosure of the personal data of an ALR

resident, and perhaps most troubling of all, his blatant

misrepresentation to investigators. 25 When Antonellis was placed

25 Lying in the course of an investigation in and of itself was arguably a terminable offense. 23

on paid leave, he was warned about the consequence of that type

of misconduct. The hearing officer expressly rejected

Antonellis's First Amendment defenses. Given the information

available to Hartstein and the difficulties involved in applying

the governing three-part test, a reasonable official standing in

Hartstein's shoes could well have believed that the termination

would not violate Antonellis's First Amendment rights. 26 See

Clancy v. McCabe, 441 Mass. 311, 317, 322-323 (2004). See also

Wagner v. Holyoke, 404 F.3d 504, 509 (1st Cir. 2005). Qualified

immunity attached in Hartstein's favor.

b. General Laws c. 149, § 185 (b) (3). 27 Antonellis

unquestionably engaged in protected activity under the statute

by objecting to EOEA's practices that he reasonably believed

posed a risk to elder health and safety. See Trychon v.

Massachusetts Bay Transp. Auth., 90 Mass. App. Ct. 250, 255

(2016) (three elements of whistleblower claim are "[1] the

employee engaged in a protected activity; [2] participation in

26 We note that to the extent that Antonellis argues that any reasonable official would have known it was unconstitutional to enforce a media "pre-clearance" policy that unlawfully restricted employee speech, he did not raise a prior restraint claim during the predeprivation proceedings or in this action. 27 In his complaint, Antonellis did not specify under which statutory section he was proceeding. At summary judgment, he clarified that his claim was brought under the objections clause. See G. L. c. 149, § 185 (b) (3). 24

that activity played a substantial or motivating part in the

retaliatory action; and [3] damages resulted"). Beginning in

2009, Antonellis regularly complained about many of his

employer's practices. He continued to express his objections

internally through September, 2014. Notwithstanding this

protected activity, we conclude that Antonellis's whistleblower

claim, similar to his § 1983 claim, failed as matter of law on

the element of causation. No jury could reasonably find on this

record that Antonellis's internal objections were a "substantial

or motivating" factor in his November, 2014 termination. 28 Id.

In addition, Hartstein met her burden under Mt. Healthy of

demonstrating independent and legitimate reasons that justified

her termination decision, notwithstanding Antonellis's prior

protected conduct. Id.

Judgment affirmed.

28 We agree with the judge's ruling that objections to the media are not protected conduct covered by G. L. c. 149, § 185 (b) (3). We decline Antonellis's request for what appears to be an advisory opinion on the question whether an external objection would be entitled to statutory protection under § 185 (b) (3) as long as "the decision-maker was made aware of the objection and the adverse action was caused by the objection" (emphasis omitted). See Answer of the Justices, 444 Mass. 1201, 1203 (2005).

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