Amirault v. City of Malden et al

Filing 35

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 13 Defendant Kevin Molis' Motion to Dismisss. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JOHN AMIRAULT,
Plaintiff,
v.
CITY OF MALDEN and KEVIN MOLIS,
Defendants.

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CIVIL ACTION
NO. 16-10158-JGD

MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT KEVIN MOLIS’ MOTION TO DISMISS
March 20, 2017
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, John Amirault (“Amirault”), has been employed by the City of Malden,
Massachusetts (“Malden” or the “City”) for 36 years, and has served as an officer in the Malden
Police Department for 31 of those years. On October 7, 2015, Amirault was involuntarily
removed from his position as the head of the Department’s Detective Unit, and was assigned to
serve as the Police Department’s newly created Manager of Accreditation. The plaintiff claims
that the reassignment deprived him of the ability to earn overtime pay, and that it occurred in
retaliation for statements he had made during the course of two separate investigations in
which Amirault uncovered evidence of possible misconduct by City officials. By his Complaint in
this action, Amirault has asserted claims against Malden’s Chief of Police, Kevin Molis (“Molis”),
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the Massachusetts Civil Rights Act, Mass.

Gen. Laws ch. 12, § 11I (“MCRA”), for violating his First Amendment right to free speech
(Counts I and III). He has also asserted a claim against the City for violations of the
Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149, § 185 (Count II).
The matter is before the court on “Defendant Kevin Molis’ Motion to Dismiss” (Docket
No. 13), by which Molis is seeking dismissal of Counts I and III on the grounds that they fail to
state a plausible claim for relief pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, Molis argues
that Amirault cannot sustain a claim under Section 1983 or the MCRA because he has failed to
allege facts showing that his reassignment to the Accreditation Manager position occurred in
retaliation for engaging in constitutionally protected speech. Molis also argues that Amirault’s
MCRA claim must fail because the plaintiff has not alleged facts showing that the defendant’s
conduct involved threats, intimidation or coercion. Finally, Molis contends that even if Amirault
has alleged a violation of his constitutional rights, his claims should be dismissed on the
grounds of qualified immunity.
The threshold issue raised by the defendant’s motion is whether Amirault’s statements
regarding potential misconduct by City officials are entitled to protection under the First
Amendment. Pursuant to the Supreme Court’s seminal decision in Garcetti v. Ceballos, 547 U.S.
410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006), Amirault’s speech would only be protected if, at
the time he made the statements at issue, he was speaking as a citizen on a matter of public
concern rather than pursuant to his official duties as head of the Malden Police Department’s
Detective Unit. As described below, this court finds that Amirault has failed to allege that he
was speaking as a citizen instead of a public employee. Therefore, and for all the reasons

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detailed herein, the defendant’s motion is ALLOWED, and Counts I and III of the plaintiff’s
Complaint shall be dismissed.
II. STATEMENT OF FACTS
When ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the court
must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable
inferences. See Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir. 1999). Applying this
standard to the instant case, the relevant facts are as follows.
Amirault’s Employment as Head of the Detective Unit
As described above, the plaintiff, Amirault, was employed for 31 years as a law enforcement officer for the City of Malden. (Compl. (Docket No. 1) ¶ 4). Beginning in 2012, Amirault
served as head of the Malden Police Department’s Detective Unit. (Id.). This case arises out of
his involuntary transfer from that position to the newly created position of Manager of
Accreditation on October 1, 2015. (Id.). Amirault claims that the transfer violated his rights
under the First Amendment because it was done in retaliation for constitutionally protected
speech.
In his capacity as head of the Detective Unit, Amirault was responsible for all investigations of significant major crimes that had taken place within the City of Malden. (Id. ¶ 5).
During his last year of employment in the Police Department’s Detective Unit, Amirault became
heavily involved in the investigation of two separate criminal matters, which will be referred to
herein as the “Enos Henry matter” and the “YMCA investigation.” (See id. ¶ 6). According to
the plaintiff, the first matter involved the theft of City funds by a Malden Building Department
Clerk named Enos Henry. (See id. ¶¶ 6, 9). The second matter involved the alleged sexual
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assault of a six-year old child at the Malden YMCA, where Molis’ brother, Frank Molis (“Frank”),
was employed in a supervisory capacity. (Id. ¶ 6). Amirault claims that “[t]hroughout the
investigation of these two cases, it became evident to the [p]laintiff that his efforts to investigate these cases were being hampered and obstructed by officials within the City of Malden in
an effort to protect those directly and indirectly involved.” (Id. ¶ 7). He further claims that his
involuntary removal from his position as head of the Detective Unit was motivated by
complaints he made regarding the efforts of City employees to interfere in or otherwise
undermine the investigations. (Id. ¶¶ 69-70).
The Enos Henry Matter
The Enos Henry matter involved the alleged theft of funds from the City of Malden by an
employee of the Malden Building Department, Enos Henry (“Henry”). The matter first came to
light on or about November 17, 2014, when a $2,236 check was reported stolen from the
Building Department. (Id. ¶ 8). The check was made out to the City of Malden, and was
submitted to the Department by a local contractor in connection with an application for a
building permit. (Id. ¶¶ 8-9). It was last seen, along with the application, on Henry’s desk. (Id.
¶ 9). After reviewing the circumstances surrounding the theft of the check, Amirault decided to
launch an investigation. (Id.). The plaintiff was both responsible for, and took part in, the
investigation. (Id. ¶¶ 10-18).
During the investigation, Amirault uncovered evidence implicating Henry in the theft of
the check. In particular, he learned that the check had been cashed on November 8, 2014 by a
woman named Jennifer Degand Rene. (Id. ¶ 13). Ms. Rene was later arrested and interviewed
by the police. (Id. ¶¶ 13-14). In the course of the interview, Ms. Rene confessed that Henry
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had altered the check to make it payable to her, and then had driven her to the bank in order to
cash it. (Id. ¶ 14). She also admitted that Henry had paid her $1,200 after the check was
cashed. (Id.).
The plaintiff claims that on or about February 2, 2015, defendant Molis asked Amirault
to meet with him. (Id. ¶ 15). The Mayor of Malden, Gary Christenson, attended the meeting as
well. (Id.). At the meeting, the plaintiff described the status of the Enos Henry investigation.
(Id. ¶ 16). He also indicated that he would be willing to speak to the Middlesex District
Attorney’s Office about offering Ms. Rene a plea bargain if she would agree to testify against
Henry. (Id. ¶ 17). According to Amirault, neither Molis nor Mayor Christenson seemed
interested in his proposal, and they both raised questions about the strength of the evidence
against Henry. (Id.). The plaintiff suggests that Molis’ and the Mayor’s skepticism toward the
investigation was due to the fact that Henry’s mother was an active political supporter of
Mayor Christenson. (See id. ¶ 31).
Thereafter, Amirault appeared before the Malden City Council, in executive session, to
report on his findings with respect to the Enos Henry matter. (Id. ¶ 18). During his presentation, the plaintiff allegedly expressed concern about the possibility that additional funds might
be missing from the Building Department. (Id.). The plaintiff’s concerns were based on an
apparent discrepancy between the amount of money that had been spent on building permits
since the start of his investigation, and the amount that had been spent on permits during the
prior calendar year. (Id.). As described below, the plaintiff’s suspicions turned out to be
correct.

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On February 3, 2015, Henry was interviewed at the Malden Police Station regarding the
alleged theft of the $2,236 check. (Id. ¶ 19). Allegedly, Henry made numerous inconsistent and
inculpatory statements throughout the course of the interview. (Id.). Four days later, the
police conducted a search of Henry’s home, where they allegedly discovered 75 checks made
out to the City of Malden for building permits, two payroll checks made out to two different
City employees, and three high capacity magazines for an AR-15 style rifle. (Id. ¶ 20). Amirault
claims that Henry was present during the search, and attempted to remove evidence. (Id.
¶ 21). As a result, Henry was arrested for interfering with an investigation. (Id.).
Following the search of Henry’s home, and with the urging of the plaintiff and the
Malden City Solicitor, the City hired the independent accounting firm of Blum-Shapiro to
conduct a review of all building permits issued between May 1, 2013 and March 1, 2015, and to
determine whether additional payments were missing from the Building Department. (Id.
¶ 22). The plaintiff claims that City employees were uncooperative with Blum-Shapiro’s effort
to carry out its investigation. (See id. ¶¶ 23, 25). In particular, Amirault alleges that BlumShapiro made several requests for reports from the City’s IT Director regarding the issuance of
building permits and payments to the City. (Id. ¶ 23). However, the only information BlumShapiro received from the IT Director consisted of two “unidentifiable and contradictory” Excel
reports. (Id.).
Amirault contends that City employees were also uncooperative with a Middlesex Grand
Jury’s effort to obtain information relating to the Enos Henry matter. Specifically, Amirault
claims that on April 16, 2015, the Grand Jury issued a subpoena to the City, which sought “all
records and information relating to building permits issued by the City of Malden” between
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October 1, 2014 and January 31, 2015. (Id. ¶ 24). While the Malden Comptroller’s Office
produced records that were in its possession, the City Treasurer allegedly indicated that no
further documents were available. (Id.). According to the plaintiff, “[t]his information was later
determined to be false.” (Id.). Thus, Amirault suggests that the City failed to take the steps
necessary to insure that all responsive documents had been produced.
On June 8, 2015, Amirault attended a meeting with the City Solicitor, Kathryn Fallon,
Assistant District Attorney Craig Estes (“ADA Estes”), and the Forensic Auditor for the Middlesex
District Attorney’s Office, Sean Ball, to address the impediments to Blum-Shapiro’s investigation. (Id. ¶ 26). During the meeting, Amirault allegedly criticized the City Treasurer’s office, as
well as the City’s failure to produce relevant records. (Id. ¶ 27). There is no indication that
Amirault participated in the meeting in any capacity other than as head of the Detective Unit of
the Malden Police Department. Nor is there any indication that his participation exceeded the
scope of his job responsibilities.
Allegedly, Blum-Shapiro provided a list of documents that it believed were necessary to
determine whether additional funds had been stolen from the Building Department. (Id. ¶ 28).
City Solicitor Fallon then went to the Building Department and pulled the records herself. (Id.).
The records were reviewed by Amirault and other members of the Detective Unit. (Id.).
Amirault claims that as a result of the review, he determined that less than 5% of the City’s
building permit records had been properly recorded or accounted for. (Id.).
Amirault met with ADA Estes and Mr. Ball again on October 6, 2015, and showed them
relevant records, as well as information that he was able to compile from those records . (Id.
¶ 30). The plaintiff claims that during this meeting, he expressed his displeasure with the lack
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of cooperation and support he received from City of Malden officials. (Id.). Again, however,
there is no indication that Amirault attended the meeting in any capacity other than in his
capacity as head of the Detective Unit and an employee of the Malden Police Department, or
that his participation was outside the scope of his job responsibilities.
The plaintiff claims that the City’s failure to produce the records necessary to investigate
the theft of funds from the Building Department caused a delay in the criminal proceedings.
(Id. ¶ 32). Consequently, no criminal charges had been brought against Henry at the time
Amirault filed his Complaint in this case. (Id.).
The YMCA Investigation
In April 2015, while the Enos Henry matter remained ongoing, Amirault also became
involved in the investigation of a sexual assault of a six-year old girl, which had taken place at
the Malden YMCA on April 4, 2015. (Id. ¶ 33; see also id. ¶ 55). Molis’ brother, Frank, worked
at the YMCA in a supervisory capacity, and was present at the facility on the day of the alleged
assault. (Id. ¶¶ 6, 35). Certain areas of the YMCA are monitored by surveillance videotape, and
after police officers responded to the alleged assault, they began to review the videotape in the
hope of collecting evidence of the incident and identifying the unknown assailant. (Id. ¶ 34).
Amirault claims that the surveillance tape contained evidence of the alleged assault,
including a clear image of the suspected perpetrator, who was identified as a young Asian male.
(Id. ¶ 36). He also claims that Frank Molis was present when the police reviewed the relevant
portions of the videotape, and was able to view the footage of the suspect as well. (Id. ¶ 38).
No one who saw the surveillance tape, including Frank Molis, indicated having any knowledge
of or familiarity with the suspect. (Id. ¶¶ 36, 38). According to Amirault, however, he later
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learned that Frank Molis not only knew the suspect’s identity, but had also been responsible for
hiring the suspect to perform work at the YMCA. (Id. ¶¶ 49-51).
In order to expedite efforts to identify and locate the perpetrator of the alleged sexual
assault, Amirault contacted the head of the Child Abuse Unit at the Middlesex District
Attorney’s Office, Katherine Folger (“ADA Folger”), and recommended that she distribute the
suspect’s photograph to the electronic media. (Id. ¶ 39). ADA Folger agreed, and the plaintiff
delivered a copy of the surveillance videotape to the District Attorney’s Office in Woburn. (Id.).
However, when Amirault returned to the police station, he allegedly learned that the defendant, Kevin Molis, had been making inquiries regarding the progress of the YMCA investigation,
and seemed agitated about the lack of any available information. (Id. ¶ 40). Accordingly,
Amirault met with Molis and informed him of the strategy to distribute the suspect’s photograph to the local media. (Id. ¶ 41). The plaintiff alleges that Molis instructed him not to
disseminate the suspect’s photograph, but rather to “work the case in house” instead. (Id.
¶ 42). He also alleges that Molis called ADA Folger, and convinced her to withhold the suspect’s
photograph from the media. (Id. ¶¶ 42-43).
Subsequently, Amirault’s subordinates in the Malden Detective Unit conducted
interviews of two YMCA employees who were working at the front desk on the morning of the
alleged sexual assault. (Id. ¶ 44). The defendant, who had allegedly arrived at the YMCA
unannounced, sat with the detectives as they performed the interviews. (Id.). Molis’ brother
Frank also was present for the interviews. (Id.). As part of their investigation, the detectives
had the two employees review the portions of the surveillance videotapes that had captured

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the unidentified assailant. (Id. ¶ 45). Although Frank allegedly was present when the videotapes were reviewed, he gave no indication that he knew the suspect’s identity. (Id. ¶ 46).
Upon review of the surveillance tapes, one of the YMCA employees stated that the
suspect “comes in here all the time,” and had been visiting the facility for a “couple of years,”
but was unable to recall his name. (Id. ¶ 47). Later that night, Amirault received a call from the
defendant, Kevin Molis. (Id.). Molis allegedly advised the plaintiff that the YMCA employee
had been able to remember the suspect’s name, and that the suspect was a 15-year old high
school student. (Id.). However, the defendant allegedly said nothing about a pre-existing
relationship between the suspect and his brother Frank. (Id.).
After learning the name of the suspect, Amirault resumed his investigation. Thus, the
plaintiff met with the suspect’s father and showed him the photograph that had been taken
from the YMCA surveillance video. (Id. ¶ 48). The father identified the individual shown in the
photograph as his son, and agreed to accompany the suspect to the police station for an interview. (Id.). Amirault then arranged for the suspect to be taken to the Malden police station,
along with his father, where the suspect was interviewed by two detectives in Amirault’s unit.
(Id. ¶¶ 48-49). Allegedly, during the interview, the suspect stated that he had been at the
YMCA on the day of the assault because he had been hired to move furniture for Frank Molis.
(Id. ¶ 49). He also stated that he had been going to the facility for a few years because Frank
Molis had hired him to work there as a volunteer, that he had spoken to Frank on the day of the
alleged assault, and that he had performed a lot of work for Mr. Molis for which he had been
paid. (Id. ¶¶ 50-51). Amirault claims that the suspect’s father agreed with these statements.
(Id. ¶ 51).
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Amirault alleges that the initial portion of the interview was captured by video and
audio recording, but that the recording was terminated from outside the interview room when
the detectives began to question the suspect about his relationship with Frank Molis. (Id. ¶ 52).
As a result, that portion of the interview has not been preserved. (Id.). Amirault has not identified who was responsible for terminating the recording.
On April 8, 2015, Amirault instructed one of the detectives to go to the YMCA in order to
establish time offsets for the surveillance tapes from the day of the alleged sexual assault, and
to retrieve the video from all of the cameras that were located in the building. (Id. ¶ 53).
Allegedly, Frank Molis told the detective that the YMCA was in the process of switching out its
servers at the request of its insurance company. (Id.). Later that month, Amirault allegedly
learned that the police might not have recovered all of the surveillance video from the date of
the alleged sexual assault. (Id. ¶ 54). Accordingly, the plaintiff and a second detective returned
to the YMCA to seek additional information. (Id.). During his visit, Amirault met with Frank
Molis and requested that he turn over to the Malden police any of the servers that had
captured video of the suspect on April 4, 2015. (Id. ¶ 55). Frank allegedly stated that he would
need to consult with his attorney before he could comply with the request. (Id.). According to
Amirault, he also asked Frank if he knew the suspect personally, and Frank stated that he did
not. (Id. ¶ 56).
The plaintiff alleges that after informing the attorney for the YMCA of his intention to
obtain a search warrant, the servers were turned over to Malden Police Department and then
forwarded to the Middlesex District Attorney’s Office. (Id. ¶ 57). In June 2015, Amirault
received a copy of the video from the YMCA servers, and he instructed one of the police cadets
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to review the relevant tapes to see where the suspect had gone after he entered the YMCA.
(Id. ¶ 58). After reviewing the available material, the cadet allegedly informed the plaintiff that
she had seen the videotape of the suspect entering the YMCA and approaching the front counter at the time the tapes were first produced by Frank Molis, and that the camera angle from
those tapes was not included in the video that had been obtained from the server. (Id. ¶ 59).
Thus, Amirault suggests that someone – possibly Frank Molis – redacted a portion of the video.
On July 14, 2015, Amirault met with ADA Folger in order to request that the District
Attorney’s Office expedite the processing of the surveillance video from the YMCA. (Id. ¶ 60).
The plaintiff claims that during the course of that meeting, he told ADA Folger about the
conflicting statements from the sexual assault suspect and Frank Molis as to whether the two
knew each other. (Id.). Two days later, the Middlesex District Attorney’s Office informed
Amirault that the case was being transferred to Norfolk County due to the potential conflict of
interest arising from the family relationship between the defendant and his brother Frank. (Id.
¶ 61). On August 3, 2015, Amirault and a second detective met with one of the Norfolk County
ADAs and two members of the Massachusetts State Police for the Norfolk County C-PAC Unit in
order to provide them with all of the information they had gathered in the course of the YMCA
Investigation. (Id. ¶ 62). This included information about the alleged inconsistencies in the
statements that had been made by Frank Molis and the sexual assault suspect. (Id.).
Amirault’s Reassignment
On October 7, 2015, defendant Molis allegedly informed Amirault that he wanted the
Police Department to move toward accreditation, and that he was transferring the plaintiff to a
full time accreditation position effective as of November 1, 2015. (Id. ¶ 63). According to
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Amirault, Molis advised him that once he had been reassigned, the plaintiff would be expected
to work on accreditation and “nothing else.” (Id. ¶ 64). Amirault claims that he had earned
significant overtime pay while carrying out his duties as the head of the Detective Unit, and that
Molis knew that the transfer to accreditation would effectively prevent the plaintiff from
earning any overtime pay. (Id. ¶ 65). Thus, Molis allegedly was aware that the move would
result in a significant loss of income for the plaintiff. (Id.). Amirault also claims that during his
conversation with Molis, he expressed his belief that the defendant’s decision was “personal,”
thereby suggesting that it had been made in retaliation for his involvement in the Enos Henry
matter and the YMCA investigation. (Id. ¶ 64). Nevertheless, on November 1, 2015, Amirault
was involuntarily removed from his position as head of the Detective Unit and transferred to
the newly created position of Accreditation Manager. (Id. ¶ 66).
The plaintiff alleges that in the fifteen years prior to the filing of his lawsuit, there were
only four instances when a detective was transferred involuntarily out of the Detective Unit,
and three of those instances involved egregious misconduct by the officer in question. (Id.
¶ 67). He also alleges that there was no reason for his reassignment to the accreditation
position other than to silence him and prevent his further involvement in the Enos Henry
matter and the YMCA investigation. (Id. ¶ 70). On November 18, 2015, Amirault notified the
defendants, in writing, of his claim that his removal from his position as head of the Detective
Unit occurred in retaliation for his involvement in those two investigations, and for statements
that he made about the City’s and its employees’ roles in those matters. (Id. ¶ 68 & Ex. A). He
filed the instant lawsuit against the City and Molis on February 2, 2016.

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Additional factual details relevant to this court’s analysis are set forth below where
appropriate.
III. ANALYSIS
A.

Standard of Review

Molis has moved to dismiss Amirault’s claims against him, pursuant to Fed. R. Civ. P.
12(b)(6), for failure to state a claim for relief. Motions to dismiss under Rule 12(b)(6) test the
sufficiency of the pleadings. Thus, when confronted with such a motion, the court accepts as
true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. See
Cooperman, 171 F.3d at 46. Dismissal is only appropriate if the complaint, so viewed, fails to
allege “a plausible entitlement to relief.” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95
(1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S. Ct. 1955, 1967, 167
L. Ed. 2d 929 (2007)).
“The plausibility inquiry necessitates a two-step pavane.” Garcia-Catalan v. United
States, 734 F.3d 100, 103 (1st Cir. 2013). “First, the court must distinguish ‘the complaint’s
factual allegations (which must be accepted as true) from its conclusory legal allegations (which
need not be credited).’” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.
2012)). “Second, the court must determine whether the factual allegations are sufficient to
support ‘the reasonable inference that the defendant is liable for the misconduct alleged.’” Id.
(quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)) (additional citation omitted).
This second step requires the reviewing court to “draw on its judicial experience and common
sense.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868
(2009)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
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detailed factual allegations,” the plaintiff must provide “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Bell Atl., 550 U.S. at
555, 127 S. Ct. at 1964-65 (citations omitted). Accordingly, the factual allegations “must be
enough to raise a right to relief above the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S. Ct. at 1965
(citations omitted). For the reasons set forth below, this court finds that Amirault has failed to
state a plausible claim for relief against Molis.
B.

Count I: Claim Against Molis Under Section 1983

In Count I of his Complaint, Amirault is seeking to hold Molis liable, pursuant to Section
1983, for violations of his First Amendment right to engage in free speech. Specifically,
Amirault claims that Molis retaliated against him, by removing him from the Detective Unit and
reassigning him to the Accreditation Manager position, for statements that Amirault made in
connection with his involvement in the Enos Henry matter and the YMCA investigation. (See
Compl. ¶ 69). “A claim under section 1983 has two essential elements. First, the challenged
conduct must be attributable to a person acting under color of state law” and “second, the
conduct must have worked a denial of rights secured by the Constitution or by federal law.”
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). For purposes of the defendant’s motion,
there is no dispute that Molis was acting under color of state law at all relevant times. At issue
is whether his alleged conduct in transferring Amirault from the Detective Unit to the
accreditation position in retaliation for Amirault’s statements violated the plaintiff’s rights

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under the First Amendment.1 Because Amirault has failed to allege that he engaged in constitutionally protected speech, this court finds that Count I of his Complaint must be dismissed.
Elements of a First Amendment Retaliation Claim
“It is well settled that ‘as a general matter the First Amendment prohibits government
officials from subjecting an individual to retaliatory actions . . . for speaking out.’” Decotiis v.
Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (quoting Mercado-Berrios v. Cancel-Alegria, 611
F.3d 18, 25-26 (1st Cir. 2010)) (additional citation omitted). In the public employment context,
however, this right is not unlimited. As the Supreme Court explained in Garcetti v. Ceballos,
547 U.S. 410, 418, 126 S. Ct. 1951, 1958, 164 L. Ed. 2d 689 (2006), “[w]hen a citizen enters

1

In support of his claim under Section 1983, Amirault alleges that “Defendant Kevin Molis, in his official
capacity, and under color of law, attempted to interfere with, and interfered with Plaintiff’s constitutional right of free speech as guaranteed by the First Amendment to the United States Constitution and
Article 16 of the Massachusetts Constitution[.]” (Compl. ¶ 72 (emphasis added)). Nevertheless, both
parties have proceeded on the assumption that Molis has been sued in his individual capacity. As
described above, this court finds that Amirault has failed to state a Section 1983 claim against Molis in
his individual capacity. To the extent Amirault intended to assert a Section 1983 claim against Molis in
his official capacity, any such claim must fail as well. “[O]fficial-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.” McGuigan v. Conte,
629 F. Supp. 2d 76, 82 (D. Mass. 2009) (quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed.
2d 301 (1991)). Accordingly, an official capacity claim against Molis constitutes another way of asserting
a Section 1983 claim against the City of Malden. “It is well established that a municipality is not liable
for the tortious actions of its employees simply by virtue of the employment relationship.” McElroy v.
City of Lowell, 741 F. Supp. 2d 349, 353 (D. Mass. 2010). “Instead, to establish municipal liability, ‘a
plaintiff must show that a policy or custom of the city led to the constitutional deprivation alleged.’” Id.
(quoting Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989)). In this case, Amirault has not alleged the
existence of a policy or custom that led to the alleged violation of his First Amendment rights. Nor can a
municipal policy or custom be inferred from the facts alleged. See id. at 354 (“While the existence of a
municipal custom may be evidenced by the repetition of unlawful acts by [police] officers, a single
instance of police misconduct in the field, standing alone, is insufficient to establish the endorsement of
an informal policy or custom by the City.”). Therefore, even if Amirault intended to assert an official
capacity claim against Molis under Section 1983, his claim could not withstand the defendant’s motion
to dismiss.

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government service, the citizen by necessity must accept certain limitations on his or her
freedom.” This is because
[g]overnment employers, like private employers, need a significant
degree of control over their employees’ words and actions; without it,
there would be little chance for the efficient provision of public services.
Public employees, moreover, often occupy trusted positions in society.
When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental
functions.
Garcetti, 547 U.S. at 418-19, 126 S. Ct. at 1958 (internal citation omitted). Consequently, “a
governmental employer may impose certain restraints on the speech of its employees,
restraints that would be unconstitutional if applied to the general public.” Davignon v.
Hodgson, 524 F.3d 91, 100 (1st Cir. 2008) (quoting City of San Diego v. Roe, 543 U.S. 77, 80, 125
S. Ct. 521, 523, 160 L. Ed. 2d 410 (2004)) (alteration omitted).
The Supreme Court has identified a two-step initial inquiry “to guide interpretation of
the constitutional protections accorded to public employee speech.” Garcetti, 547 U.S. at 418,
126 S. Ct. at 1958. The first step of the initial inquiry “requires determining whether the
employee spoke as a citizen on a matter of public concern. If the answer is no, the employee
has no First Amendment cause of action based on his or her employer’s reaction to the
speech.” Id. (internal citation omitted). Thus, “Garcetti recognizes that this first step itself has
two subparts: (a) that the employee spoke as a citizen and (b) that the speech was on a matter
of public concern.” Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007). The plaintiff must satisfy
both subparts to qualify for protection under the First Amendment. See Foley v. Town of
Randolph, 598 F.3d 1, 5 (1st Cir. 2010) (“If the answer to either of these sub-parts is no, then

17

[the plaintiff] has no First Amendment claim based on the Defendants’ action in relation to his
speech.”).
If the answer to the first step of the initial inquiry is yes, “then the possibility of a First
Amendment claim arises” and the second step of the initial inquiry will come into play.
Garcetti, 547 U.S. at 418, 126 S. Ct. at 1958. Under such circumstances,
[t]he question becomes whether the relevant government entity had an
adequate justification for treating the employee differently from any
other member of the general public. This consideration reflects the
importance of the relationship between the speaker’s expressions and
employment. A government entity has broader discretion to restrict
speech when it acts in its role as employer, but the restrictions it imposes
must be directed at speech that has some potential to affect the entity’s
operations.
Id. (internal citation omitted). Accordingly, “[i]f a court finds the employee has made
statements that are within the scope of First Amendment protection, the court must then
‘balance . . . the interests of the [employee], as a citizen, in commenting upon 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.’” Curran, 509 F.3d at 44 (quoting Pickering v. Bd. of
Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)).
In the instant case, Molis argues that Amirault’s First Amendment retaliation claim must
fail because the plaintiff was speaking in his capacity as a public employee, rather than as an
ordinary citizen, at all relevant times. (Def. Mem. (Docket No. 14) at 5-8). Thus, while Molis
does not dispute for purposes of his motion that Amirault’s speech involved a matter of public
concern, he contends that the plaintiff’s speech is not entitled to protection under the First
Amendment because “it was made in the context of his job responsibilities as head of the
Detective Unit.” (Id. at 5). The defendant’s argument presents an issue of law, which must be
18

resolved by the court. Curran, 509 F.3d at 45 (“it is the judge who decides as a matter of law
the issues in the two steps Garcetti identifies”). Because Amirault’s allegations establish that
he was speaking in his capacity as head of the Detective Unit at all times relevant to this action,
this court finds that his speech was not protected by the First Amendment, and that his claim
against Molis under Section 1983 must be dismissed.
Nature of Amirault’s Speech
“In Garcetti, the Supreme Court held that public employees do not speak as citizens
when they ‘make statements pursuant to their official duties,’ and that accordingly, such
speech is not protected by the First Amendment.” Decotiis, 635 F.3d at 30 (quoting Garcetti,
547 U.S. at 421, 126 S. Ct. at 1960). However, the Supreme Court has since clarified that the
mere fact that an individual’s speech “relates to public employment” or “concerns information
acquired by virtue of his public employment does not transform that speech into employee –
rather than citizen – speech.” Lane v. Franks, 134 S. Ct. 2369, 2379, 189 L. Ed. 2d 312 (2014).
Instead, as the Court explained, “[t]he critical question under Garcetti is whether the speech at
issue is itself ordinarily within the scope of an employee’s duties, not whether it merely
concerns those duties.” Id.
In order to determine whether Amirault’s alleged speech was made pursuant to his
ordinary duties as head of the Detective Unit, this court “must take a hard look at the context
of the speech.” Decotiis, 635 F.3d at 32. While the First Circuit has emphasized that “no one
contextual factor is dispositive,” it has set forth a list of non-exclusive factors to guide courts in
their evaluation. Id. Those factors include:
whether the employee was commissioned or paid to make the speech in
question; the subject matter of the speech; whether the speech was
19

made up the chain of command; whether the employee spoke at [his]
place of employment; whether the speech gave objective observers the
impression that the employee represented the employer when [he]
spoke (lending it “official significance”); whether the employee’s speech
derived from special knowledge obtained during the course of [his]
employment; and whether there is a so-called citizen analogue to the
speech.
Id. (internal citations omitted). Ultimately, however, “the proper inquiry is practical rather than
formal, focusing on the duties an employee actually is expected to perform, and not merely
those formally listed in the employee’s job description.” Id. at 31 (quotations and citations
omitted).
In this case, Amirault’s own allegations establish that all of the relevant speech occurred
in the context of carrying out his duties as head of the Detective Unit. Thus, the plaintiff alleges
that in his role as head of the Detective Unit, he “had essential control over all of the significant
major crimes and investigations that occurred within the City of Malden.” (Compl. ¶ 5).
Accordingly, Amirault was not only involved in, but was also in charge of, the investigation of
the Enos Henry matter and the YMCA investigation. (See id. ¶¶ 6-7). His statements regarding
these investigations, including his complaints about the lack of cooperation and interference by
City employees, as well as his comments about Frank Molis’ role in the YMCA matter, were
based on knowledge he obtained during the course of his employment, and were conveyed
under circumstances that would not involve ordinary citizens. Therefore, they would best be
characterized as official communications.
With respect to the Enos Henry matter, Amirault claims that he “appeared before the
Malden City Council, in executive session, to report his findings regarding the investigation of
Henry.” (Id. ¶ 18). During that meeting, Amirault allegedly “expressed his concerns regarding
20

the possibility of additional missing funds from the Building Department based upon an
examination of the difference of money spent on City of Malden building permits in the
previous year (2014) and after Plaintiff’s investigation had begun.” (Id.). To the extent the
plaintiff contends that Molis retaliated against him for the statements he made to the City
Council, it is clear from the alleged context of the statements that the plaintiff was carrying out
his duties as head of the Detective Unit. The meeting was held so that Amirault could report his
findings to the City. Thus, the City Council looked to him to provide it with reliable information
regarding the status of an important criminal investigation. No ordinary citizen would have
been in a similar position. See Oberg v. City of Taunton, 972 F. Supp. 2d 174, 196 (D. Mass.
2013) (finding that plaintiff was speaking as a representative of the police department where
his speech “was simply not the kind of activity engaged in by citizens who do not work for the
police department”). Furthermore, his statements were based on information that he had
gathered while carrying out his official duties to investigate crime. Such information would not
have been available to him outside the context of his employment. See id. (finding that plaintiff’s speech was not protected under the First Amendment where it “derived solely from his
special knowledge obtained during the course of his investigation and therefore during the
course of his employment”).
To the extent Amirault contends that he was retaliated against for subsequent
complaints that he made about City employees, this court finds that those statements too
occurred in furtherance of his duties as head of the Detective Unit. Thus, the plaintiff claims
that after the City hired Blum-Shapiro to investigate whether additional funds were missing
from the Building Department, he participated in discussions regarding the failure of City
21

employees to cooperate in the investigation. (Compl. ¶¶ 25-27). In particular, on June 8, 2015,
Amirault allegedly attended a meeting with the City Solicitor, ADA Estes and the Forensic
Auditor for the Middlesex District Attorney’s Office, Mr. Ball, in order “to discuss BlumShapiro’s inability to properly investigate whether additional funds had been stolen from the
building department.” (Id. ¶ 26). During the meeting, Amirault “expressed his objection to the
conduct of the City of Malden Treasurer’s office and the City’s failure to produce the necessary
permit records and payments” to Blum-Shapiro. (Id. ¶ 27). Again, Amirault’s speech reflected
knowledge that he had obtained in the course of carrying out his responsibilities for
investigating crimes. It also occurred in the context of a meeting among law enforcement and
legal officials, rather than in a public forum. “[T]here is no relevant analogue to speech by
citizens who are not government employees.” Garcetti, 547 U.S. at 424, 126 S. Ct. at 1961. An
objective observer would have had the impression that Amirault was present in his capacity as
head of the Detective Unit, and that he was representing the Police Department at the time he
made his comments.
The same conclusion is warranted with respect to statements that Amirault made on
October 6, 2015. At that time, the plaintiff allegedly met with ADA Estes and Mr. Ball in order
to show them records and information that he and other members of the Detective Unit had
obtained from their review of Building Department documents. (See id. ¶¶ 28-30). Amirault
claims that during that meeting, he “expressed his displeasure with the lack of cooperation and
support provided by Malden City officials.” (Id. ¶ 30). Again, Amirault’s alleged statements
were made in a meeting among officials at which the plaintiff presented information obtained
from an official investigation. His statements were not shared with the public, and there is no
22

indication that he was acting in any capacity other than in his role as head of the Detective Unit.
See Oberg, 972 F. Supp. 2d at 196 (where plaintiff spoke as a police chief “in the context of his
duties to investigate the background of existing or future members of the department and to
make recommendations regarding their continued employment[,]” he has “not plausibly
allege[d] that [he] spoke as a citizen”). Accordingly, this court finds that his statements were
made pursuant to his official duties to investigate crime within the City of Malden, and not in
his capacity as a citizen speaking on a matter of public concern.
The plaintiff argues that although his speech was made in connection with the
investigation of the Enos Henry matter, his complaints concerning the lack of cooperation by
City employees “did not specifically involve his [own] investigation.” (Pl. Opp. Mem. (Docket
No. 17) at 14). As the plaintiff reasons, once the City hired Blum-Shapiro to investigate whether
additional funds had been stolen from the Building Department,
[t]he responsibility of conducting that investigation was vested in an
outside forensic auditing agency (Blum Shapiro), not the Malden Police
Detective’s Unit. Thus, any subsequent speech by Plaintiff regarding the
possible interference by City Officials in the auditing company’s
investigation resulting from the obvious delay and outright refusal to
provide documentation was not a part of his job responsibilities.
(Id. at 14-15).
This court finds that the plaintiff’s argument is insufficient to trigger the protections of
the First Amendment. As an initial matter, his theory is undermined by his own factual allegations. In his Complaint, Amirault claims that Blum-Shapiro created a list of the documents
needed to determine whether additional funds had been stolen from the Building Department.
(Compl. ¶ 28). City Solicitor Fallon then began to pull the records from the Building Department
herself, and Amirault, along with other members of the Detective Unit, engaged in a review and
23

analysis of those records. (Id.). Accordingly, the Complaint demonstrates that even after the
City hired Blum-Shapiro to investigate the theft of funds from the Building Department,
Amirault continued to take part in the investigation in his capacity as head of the Detective
Unit. In fact, Amirault alleges that at the time he expressed frustration with City officials on
October 6, 2015, he was meeting with ADA Estes and Mr. Ball to show them records and
information from his own review of the Building Department documents. (Id. ¶ 30). Therefore,
the Complaint undermines Amirault’s assertion that he was no longer responsible for
investigating the Enos Henry matter on behalf of the Malden Police Department.
In any event, the Complaint establishes that Amirault was not involved in “the kind of
activity engaged in by citizens who do not work for the government” at the time he engaged in
the alleged speech. Garcetti, 547 U.S. at 423, 126 S. Ct. at 1961. As described above, each of
his statements occurred in the context of meetings with other officials to report on or otherwise discuss the status of a criminal investigation. Such statements cannot be equated with
“public statements [made] outside the course of performing [one’s] official duties.” Foley, 598
F.3d at 6 (quoting Garcetti, 547 U.S. at 423, 126 S. Ct. 1951) (alterations in original). Consequently, Amirault has not alleged that he spoke as a citizen with respect to the Enos Henry
matter.
As it relates to the YMCA investigation, Amirault’s First Amendment claim arises out of
his August 3, 2015 meeting with a Norfolk County ADA and two individuals from the Norfolk
County C-PAC Unit of the Massachusetts State Police after responsibility for the matter was
transferred from Middlesex to Norfolk County. (See Pl. Opp. Mem. at 15-16). During the
meeting, Amirault and a second detective from the Malden Detective’s Unit were asked
24

questions and provided the Norfolk County employees with all of the information they had
gathered from the YMCA investigation. (Compl. ¶ 62). The information allegedly “includ[ed]
the inconsistencies in the stories provided by Frank Molis and the sexual assault suspect.” (Id.).
The Complaint establishes that Amirault was speaking in his capacity as head of the
Detective Unit at the time of the meeting on August 3, 2015. The information he provided was
obtained in the course of an official investigation of a sexual assault at the Malden YMCA, which
Amirault had conducted pursuant to his responsibilities for investigating significant crimes in
the City. There was no one in the room at the time of the alleged discussion other than
individuals who were responsible for investigating the incident and prosecuting the
perpetrator. Furthermore, the individuals from Norfolk County were looking to Amirault to
provide them with reliable information about the status of the investigation, and the subject
matter of the discussion was entirely related to Amirault’s employment as a member of
Malden’s Detective Unit. Under the circumstances, “his speech took on a degree of official
significance that has ‘no relevant analogue to speech by citizens.’” Foley, 598 F.3d at 8 (quoting
Garcetti, 547 U.S. at 424, 126 S. Ct. 1951. Accordingly, the alleged circumstances warrant the
conclusion that he was speaking in his official capacity as a public employee.2
The plaintiff argues that his statements “were not a part of the specific YMCA sexual
assault investigation, but instead were directed to the independent investigation now in the

2

To the extent Amirault contends that Molis retaliated against him for statements that he made to ADA
Folger about the details of the YMCA investigation, his claim cannot survive the motion to dismiss. The
Complaint demonstrates that his statements to ADA Folger were made in connection with his investigation, and in furtherance of his efforts to identify the perpetrator and to collect all of the relevant
surveillance videotape from the date of the alleged sexual assault. (See Compl. ¶¶ 39, 60). It also
indicates that his statements concerned the substance of the investigation. (Id.). Accordingly, the
Complaint establishes that Amirault’s statements were made in his official capacity as a detective.

25

hands of Norfolk County and not [the] Malden Police Department.” (Pl. Opp. Mem. at 15-16).
However, this does not support his claim that he engaged in protected speech. While his
statements may not have been made in the course of his own investigation, he was still carrying
out his duties as a detective by providing relevant information to the individuals who were
tasked with taking over the investigation under circumstances which “imbued his speech with
the official significance that removed it from the protection of the First Amendment.” Foley,
598 F.3d at 10. Accordingly, this court concludes that Amirault was not speaking as a citizen at
any relevant time, “and that he consequently has no First Amendment cause of action.” Id.
Count I of the Complaint will therefore be dismissed.
C.

Count III: Claim Against Molis Under the MCRA

In Count III of his Complaint, Amirault is seeking to hold Molis liable under the MCRA for
violating his First Amendment rights. Because this court finds that Amirault has failed to allege
a constitutional violation, or to allege facts showing that Molis retaliated against him using
threats, intimidation or coercion, the defendant’s motion to dismiss is allowed with respect to
this claim as well.
“To state a claim under the MCRA,3 a plaintiff must show that (1) his exercise or
enjoyment of rights secured by the constitution or laws of either the United States or the

3

The MCRA, Mass. Gen. Laws ch. 12, § 11H, provides in relevant part: “Whenever any person or
persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or
attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other
person or persons of rights secured by the constitution or laws of the United States, or of rights secured
by the constitution or laws of the commonwealth, the attorney general may bring a civil action for
injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment
of the right or rights secured.” Mass. Gen. Laws ch. 12, § 11I authorizes civil actions by any person who
has suffered the interference or attempted interference of the right described in § 11H.

26

Commonwealth of Massachusetts (2) has been interfered with, or attempted to be interfered
with, and (3) that the interference or attempted interference was by threats, intimidation or
coercion.” Farrah ex rel. Estate of Santana v. Gondella, 725 F. Supp. 2d 238, 247 (D. Mass.
2010) (footnote added). “The purpose of the MCRA is to provide under state law a remedy
‘coextensive with 42 U.S.C. § 1983, except that the Federal statute requires State action
whereas its State counterpart does not.’” Id. (quoting Batchelder v. Allied Stores Corp., 393
Mass. 819, 822-23, 473 N.E.2d 1128, 1131 (1985)). Furthermore, under the MCRA, but not 42
U.S.C. § 1983, the plaintiff must identify a federal or state right that has been “interfered with
by threats, intimidation, or coercion.” Flesner v. Tech. Commc’ns Corp., 410 Mass. 805, 818,
575 N.E.2d 1107, 1115 (1991)). For the reasons described above, Amirault has failed to allege
sufficient facts to show that Molis interfered with his constitutional rights. Therefore, his MCRA
claim cannot be sustained. See Willoughby v. Town of Tisbury, 750 F. Supp. 2d 374, 383 (D.
Mass. 2010) (finding that plaintiffs’ failure to establish that the defendants violated their
constitutional rights warranted dismissal of their claim under the MCRA).
Even if Amirault had alleged a constitutional violation, he would not be able to maintain
a claim against Molis under the MCRA because he has failed to allege that Molis interfered with
his rights through the use of threats, intimidation or coercion. Pursuant to the MCRA,
“[a] ‘threat’ … involves the intentional exertion of pressure to make
another fearful or apprehensive of injury or harm. ‘Intimidation’ involves
putting in fear for the purpose of compelling or deterring conduct …
[‘Coercion’ involves] the application to another of such force, either
physical or moral, as to constrain [a person] to do against his will
something he would not otherwise have done.”
Farrah ex rel. Estate of Santana, 725 F. Supp. 2d at 247 (quoting Planned Parenthood League of
Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994)) (alterations in original). Here,
27

Amirault alleges that Molis retaliated against him by transferring him from the Detective Unit to
the Accreditation Manager position against his will and advising the plaintiff that he was to
work on accreditation and “nothing else.” (See Compl. ¶¶ 63-66). The plaintiff does not
dispute that this conduct does not constitute a threat or intimidation. (See Pl. Opp. Mem. at
17-19). Nevertheless, he argues that Molis’ decision to reassign him to the accreditation
position involved economic coercion that is actionable under the MCRA. For the reasons that
follow, this court disagrees.
“Although there may be circumstances in which a showing of economic coercion,
standing alone, may be actionable under the MCRA, almost all of the reported cases involve an
element of physical force or confrontation.” Horne v. City of Boston, 509 F. Supp. 2d 97, 115
(D. Mass. 2007), and cases cited. No such force or confrontation has been alleged in this case.
Moreover, Amirault has not alleged that he was entitled to remain in the Detective Unit, or that
his reassignment breached or otherwise interfered with a contractual right. See Nolan v. CN8,
656 F.3d 71, 77 (1st Cir. 2011) (noting that in the employment context, “the Supreme Judicial
Court’s cases demonstrate . . . that some contractual entitlement to one’s position is necessary,
but not necessarily sufficient, to show that an employee’s termination is coercive in the
relevant sense”). Under such circumstances, he has not shown that his reassignment to the
Accreditation Manager position was coercive within the meaning of the MCRA. See id. at 78
(finding no coercion where employer had discretion to terminate plaintiff “for his campaign of
public protest,” and did not breach its contract or deprive plaintiff “of future economic gain to

28

which he was rightfully entitled”). Accordingly, he has failed to state a claim against Molis for
relief under the MCRA, and Count III of his Complaint must be dismissed.4
IV. CONCLUSION
For all the reasons detailed herein, the “Defendant Kevin Molis’ Motion to Dismiss”
(Docket No. 13) is ALLOWED, and Counts I and III of the plaintiff’s Complaint shall be dismissed.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

4

In light of this court’s conclusion that Amirault has failed to state a claim against Molis under either
Section 1983 or the MCRA, it is not necessary to address the defendant’s argument that he is entitled to
qualified immunity. (See Def. Mem. at 10-12).

29