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

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

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[1]Counsels' vigorous advocacy in this case has been extraordinarily helpful to the Court is resolving the present motions.

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

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

BACKGROUND

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

Plaintiff began working for EOEA in 2000 as an assistant general counsel. In 2006, Plaintiff asked to be transferred to the assisted living unit as a Program Coordinator II. A Program Coordinator II at EOEA is also known as certification specialist. Plaintiff never worked at EOEA as a "Compliance Officer," a title which did not exist at the agency,

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As a certification specialist, Plaintiff's responsibilities included reviewing assisted living residences for certification and re‑certification. Plaintiff also conducted site visits, documented his findings, and drafted and helped to implement any corrective actions plans. In addition, when a public records request came to Plaintiff from his supervisor, Plaintiff identified responsive records and prepared them for response. EOEA's policy for responding to public records requests provided:

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

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

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

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

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about the Department's ability to follow up on critical incidents, including suspicious deaths and overdue suspensions of specific assisted living residences.

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

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

After Plaintiff's visit to the Governor's Office, Hartstein, through her staff, received a call from the governor's office reporting that Antonellis was asking for a meeting with the governor. Hartstein asked EOEA's General Counsel, Stan Eichner, to follow up. Eichner asked Plaintiff to provide a memorandum explaining his basis for his perception that elders were at risk. Eichner informed Plaintiff that the assignment was "a top priority" and "supersedes [his] other assignments." On March 19, 2013, Plaintiff provided a 7‑page memorandum to Eichner entitled "Elder Endangerment," which included 30 exhibits, among them emails and incident reports. In response to it, EOEA Secretary Hartstein asked Eichner to conduct an investigation. Three months later, by letter dated June 27, 2013, Hartstein informed Plaintiff that "General Counsel Eichner has reviewed each of the serious allegations relevant to your concern that

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Massachusetts elders are at risk and has found that this perception is not substantiated. I concur with his findings."

Providence Cliff House ("PCH") was a facility in Athol, Massachusetts, which first applied to be certified as an assisted living residence in 2012. Plaintiff reviewed PCH's application and conducted site visits as part of his job responsibilities. EOEA denied certification in 2013. By July, 2014, PCH again applied for certification as an assisted living residence. Plaintiff reviewed PCH's second application and conducted site visits at PCH. EOEA denied PCH's application on September 12, 2014. PCH appealed E0EA's decision on September 15, 2014. A hearing on PCH's appeal was scheduled for September 30, 2014.

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

Media outlets were interested in E0EA's work. Kay Lazar, a health reporter for the Boston Globe, interviewed Hartstein many times. In December, 2013, Colman Herman, a reporter for another media outlet, Commonwealth magazine, submitted a public records request

to EOEA related to assisted living facilities, including records for PCH. Stukes asked Plaintiff to assist with responding to Herman's request, which he did. However, the public records request was only partially answered by July, and Herman sent several emails to various individuals at EOEA and elsewhere demanding a complete response and threatening to appeal the denial of his request. EOEA did not finish responding to Herman's December 11, 2013 public records request until November 2014.

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In June or July, 2014, Plaintiff received an email from within EOEA concerning Herman's public records request. After receiving this email, in or about August 2014, Plaintiff contacted Herman. Plaintiff was not instructed or asked by anyone at EOEA to do so. Thereafter, Plaintiff met with Herman in person on three occasions and also spoke with him over the phone, and discussed the concerns Plaintiff had raised in his March 19, 2013 memo to Eichner and about PCH. Again, Plaintiff was not instructed or asked by anyone at EOEA to do so. Further, Plaintiff gave Herman EOEA documents, including a copy of his March 19, 2013 memorandum, some of the exhibits that had been attached to it, and a copy of a report dated February 7, 2013, that Plaintiff sent to Stukes concerning a site visit to PCH, from which Plaintiff asserts he redacted the residents' names. In the February 7, 2013 report, Plaintiff described a resident as "wheelchair bound and seemingly incoherent" and another as "hearing impaired C only communicates in writing." Plaintiff also gave Herman a report, dated February 14, 2013, concerning a site visit at PCH. EOEA did not authorize Plaintiff to provide documents to Herman. Plaintiff also spoke with Lazar about his objections to E0EA's practices.

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

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

On September 12, 2014, Commonwealth published an article, written by Herman, entitled "Oversight questions raised on Elder Affairs." In it, Herman quoted Plaintiff, who was

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identified as a "compliance officer," and quoted from Plaintiff's March 19, 2013 memorandum. It also described Plaintiff as believing that "the agency does almost no analysis of the data it is gathering [and] the agency cannot say how many people have fallen down, wandered off, been abused, or exploited."

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

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

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

A relative of a PCH resident saw the September 23, 2014 article and testified he believed the statement "a number of the residents were wheelchair‑dependent, one of whom was seemingly incoherent" referred to his mother, a resident there. Neither Herman nor Plaintiff had permission from the resident or her relative to describe her in the article. The resident's relative subsequently submitted an affidavit to Sheila Anderson at EOHHS, which stated:

Based on the description provided and the limited number of residents currently at Providence House, I immediately identified my mother as being the resident described in the article...I mentioned that I was unhappy with the release of information when I attended an informal review for Providence Cliff House in Boston on September 30, 2014, and I object to the terminology used in the description of my mother.

On September 26, 2014, Commonwealth published a third article by Herman about EOEA that quoted Plaintiff, entitled "A critic from within." That article focused exclusively on Plaintiff, and stated he was a "compliance officer with the state's Elder Affairs office [who] has

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become his agency's biggest critic." In the article, Plaintiff was again described as a "compliance officer," and stated that "[for another story, [Plaintiff] shared internal emails and documents with Commonwealth that indicate Elder Affairs let an Athol facility operate as an assisted living residence even though it wasn't certified and it was unsafe." The article included Plaintiff's description of a recent meeting during which he shared his concerns with two EOEA officials and his views that a huge problem was that EOEA treated assisted living as a residential model, when in reality it was a medical model because many of the residents had serious medical issues like dementia and that the responsibility for regulating assisted living should be moved to the Department of Public Health. Plaintiff was praised in the article by former state inspector general Gregory Sullivan: "Every citizen in Massachusetts should pause a moment and think of the courageous actions of people like Peter Antonellis. It takes somebody who has guts, integrity, and selflessness to do what he has done."

Hartstein later testified that she believed that Plaintiff believed that he was speaking out on matters of public safety, but that Plaintiff's statements were detrimental to ALR residents because "he was appearing to say that it was unsafe for residence for them to be in, which was very upsetting to the residents who were living there at the time." She also testified that Plaintiff's statement that EOEA did not have adequate oversight ability was "very detrimental both to the Agency's reputation and to the residents who lived in" ALRs.

PCH's appeal hearing before EOEA was scheduled for September 30, 2014, four days after this article appeared.

On October 6, 2014, a meeting was scheduled with Hartstein to discuss the "operational impact on the decision" they were going to make on Plaintiff. On October 14, 2014, Plaintiff

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was informed he was placed on paid administrative leave "pending the completion of an investigation into multiple instances of potentially inappropriate and unprofessional conduct."

In the following investigation, an EOHHS Labor Relations Specialist, Sheila Anderson, interviewed Plaintiff on October 16, 2014. Carrie McCoy, another Labor Relations Specialist, was present at the interview and took notes. In her report, Anderson wrote that she "asked Plaintiff if he provided any emails, documentation or communication to Mr. Herman, and he responded in the negative." The first finding in the resulting investigation report, titled "Media Policy Violation," states in part: "Press inquiries or Communication issues should be directed to Martina Jackson at ex. 2‑7429." It further states that: "Mr. Antonellis initiated direct contact with Mr. Herman without being instructed to do so by his supervisor or consulting with Martina Jackson (the EOEA Communications Director). Such contact constitutes a violation of E0EA's Communications/Legislation Protocols." The report also found that Plaintiff provided a false statement to the media because he affirmatively stated that EOEA had two ombudsman to handle thousands of complaints.

On October 27, 2014, Plaintiff received notification by letter of the allegations against him and a show cause hearing to address them. The letter stated that EOEA was contemplating discipline, up to and including termination, for alleged violations of the public records request protocol, violations of Massachusetts general laws for describing a resident with specific details, making prejudicial statements regarding an ALR, misstating facts to outside media sources, falsely identifying his position in the agency, and not being truthful during the investigation.

A show cause hearing was conducted on November 3 and 6 before Christopher Groll, a Labor Relations Specialist and Hearings Officer to determine whether Plaintiff should be disciplined. Plaintiff was represented by counsel at the show cause hearing and testified on his

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own behalf. The "hearing was.. .to determine what action, if any, would be taken against [Plaintiff] as the result of any or all of the following allegations:" (1) he "violated policies, procedures and expectations when [he] failed to adhere to public records request protocol;" (2) he "violated Massachusetts General Laws as well as the reasonable expectations of the agency when [he] described a resident with specific details which could reasonably be considered disclosing the resident's identity;" (3) he "made prejudicial statements regarding an Assisted Living residence while an appeal process was pending thereby potentially undermining the ability of the agency to undertake the appellate process;" (4) he "made statements to outside media sources that misstated the facts and disparaged the reputation of the agency;" (5) he "falsely identified [his] position with the agency;" and (6) he was "not truthful and forthcoming during the course of the investigation."

After the hearing. Groll sustained all six claims against Plaintiff.

As to the first, Groll concluded that Plaintiff "provide[d] internal EOEA emails and other documents, as well as information to media outlets in 2014, in violation of EOEA protocols." Groll also found "Antonellis was aware of EOEA's protocols regarding public record requests and media inquiries at the time he provided information and documents to the media in 2014" and that "[a]lthough Mr. Antonellis testified that he was aware of the agency's protocols while he served as an Assistant Legal Counsel, he nevertheless claimed that he was no longer aware of them while he served as a Certification Specialist." Groll found it to be "highly unlikely that [Plaintiff] would forget what the protocols were simply because he switched positions within EOEA."

As to the second ground, Groll concluded that Plaintiff "provided personal data about an ALR resident in violation of the Fair Information Practices Act (M.G.L. c. 66A)" because "the

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statute expressly includes 'description' within the definition of personal data" and the relative of the PCH resident "was clearly able to identify their relative based on a description provided to the media by Mr. Antonellis...the only finding can be that he violated these provisions."

As to the third issue, Groll found Plaintiff criticized PCH while its appeal was pending, "thereby potentially undermining the ability of EOEA to undertake its responsibilities in the appellate process." As to this issue, Groll stated that "a potential argument exists for Mr. Antonellis that the comments attributed to him...[are] protected speech under the First Amendment." However, Groll found that "the problem for Mr. Antonellis in this instance is that the information he provided to the media about PCH was knowingly incomplete" because Plaintiff "had personal knowledge as early as August 5, 2014 that the health and sanitary violations referenced in the internal emails he provided to Herman were both outdated.. .as PCH had been cleared of these violations by the [BOH] ... [W]hen these old and inaccurate claims surfaced in a news article a week before the meeting on PCH's appeal, and were directly attributed to Mr. Antonellis, there can be no doubt that they had a prejudicial effect on EOEA's ability to appear neutral and fulfill its appellate responsibilities."

As to the fourth issue, Groll found that Plaintiff could also allege his First Amendment rights in defense of the allegation that he "made multiple statements to outside media sources that misstated facts and/or disparaged the reputation of EOEA." However, Gross found that as Plaintiff "readily acknowledged, both in his investigative interview and at the Show Cause hearing, that some of these statements were factually incorrect." Groll rejected Plaintiff's claim that he was misquoted or that someone else was the source, and "considering that many of these statements were based on documents he supplied, it is more probable than not that he was accurately quoted in the various articles. And since he was clearly aware that some of these

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statements were factually inaccurate, he cannot avail himself of the protections afforded by the First Amendment."

As to the fifth issue, that Plaintiff falsely identified himself as a compliance officer, Groll concluded that "there can be no finding other than he unquestionably did so... .In doing so, he undoubtedly, and most likely intentionally, lent an air of added credibility to his claims against EOEA and PCH."

Finally, as to the sixth issue, Groll wrote that "there is the most damaging allegation against [Plaintiff], that he was not truthful and forthcoming during the course of EOEA's investigation. Here, the overwhelming preponderance of the evidence presented at hearing readily satisfies Management's burden in proving this claim" because "[b]oth Sheila Anderson and Carrie McCoy testified that [Plaintiff] was directly asked if he had provided any emails or documents to Herman or any other members of the media, and he said no, a fact corroborated by Ms. McCoy's contemporaneous notes of the interview."

As a result, Groll concluded that "Management has established by a preponderance of the evidence the veracity of all six (6) allegations against [Plaintiff]. ...disciplinary action, up to and including termination is appropriate and should be imposed in this matter," in part because Plaintiff irreparably damaged the relationship of trust between him and EOEA.

By letter dated November 26, 2014, Hartstein terminated Plaintiff's employment, "[a]fter reviewing the evidence produced at the hearing, the designated hearing officer reported his findings to me.. .which I adopt," which "indicate that you engaged in egregiously inappropriate and unprofessional behavior." She added, "EOEA no longer has the requisite trust and confidence in your ability to carry out your job duties in an appropriate and professional manner."

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DISCUSSION

A. 42 U.S.C. 1983 Claim against Hartstein

To prove a claim under 42 U.S.C. '1983 for retaliation in violation of the First Amendment, Plaintiff must establish three things: (1) that he was speaking "as a citizen on a matter of public concern"; (2) that his interests, "as a citizen, in commenting upon matters of public concern" outweighed his employer's interest "in promoting the efficiency of the public services it performs through its employees"; and (3) "that the protected expression was a substantial or motivating factor in the adverse employment decision." O'Connell v. Marrero-Recio, 724 F.3d 117, 123‑24 (1st Cir. 2013), citing Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011), quoting Curran v. Cousins, 509 F.3d 36, 44‑45 (1st Cir. 2007).

Even if Plaintiff establishes these three elements, a Defendant escapes liability if he or she shows an entitlement to qualified immunity, an affirmative defense. DiMarcoCZappa v.  Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001). "[Q]ualified immunity shields government officials performing discretionary functions from civil liability for money damages when their conduct does not violate clearly established statutory authority or constitutional rights of which a reasonable person would have known." Id. (citation, quotation omitted); see also Baker v. Gray, 57 Mass. App. Ct. 618, 622 (2003); Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006). A defendant can show that qualified immunity applies if he or she shows that, even if there was a violation of the plaintiffs Federal constitutional or statutory rights, at the time of the violation, those rights were not clearly established and a reasonable person in the defendant's position would not have understood that his or her conduct violated them. See Nelson v. Salem  State College, 446 Mass. 525, 531 (2006); see also Saucier v. Katz, 533 U.S. 194, 200‑201 (2001); White v. Gurnon, 67 Mass. App. Ct. 622, 627 (2006).

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Although an inquiry into whether there is qualified immunity is "separate and distinct" from the assessment of merits of plaintiffs case, they sometimes "overlap" in that the first element of the claim and the first question to be addressed in determining whether qualified immunity applies both turn on whether Plaintiff can prove that the Defendant violated his or her First Amendment rights. See Clancy v. McCabe, 441 Mass. 311, 322 (2004), quoting Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). The threshold inquiry on this issue is whether Plaintiff spoke as a citizen and on a matter of public concern. See Decotiis, 635 F.3d at 29, citing Curran, 509 F.3d at 45 and Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Cristo, 90 Mass. App. Ct. at 589 (first factor has two subparts: whether the plaintiffs were speaking as citizens and whether the subject of the speech was of public concern). If Plaintiff spoke "pursuant to [her] official duties," the speech would not constitute citizen speech subject to First Amendment protection, since "restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties." Garcetti v. Ceballos, 547 U.S. 410, 421‑22 (2006).

Determining whether Plaintiff spoke in his official or private capacity is not as easy as either side would have it. "In Garcetti v. Ceballos, the Supreme Court held that "the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities." The relevant inquiry under Garcetti thus has two basic componentsC(1) what are the employee's official responsibilities? and (2) was the speech at issue made pursuant to those responsibilities?Cboth of which are highly context‑sensitive." Mercado‑Berrios v. Cancel‑Alegria, 611 F.3d 18,26 (1st Cir. 2010) (citations omitted).

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On the one hand, as Plaintiff argues, Plaintiff was not authorized to speak to the Commonwealth writer[2] as a representative of EOEA and that speaking to the press or public was not part of his normal duties C although a reader of Commonwealth might conclude to the contrary, since Plaintiff portrayed himself as an EOEA "Compliance Officer." The fact that the substance of what Plaintiff said was obtained by the Plaintiff during his employment is not determinative; "Nile 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." Lane v. Franks, 573 U.S. 228, 239‑40 (2014). On the other hand, Plaintiff, as part of his job, was in the midst of assisting EOEA in responding to a public records request made by Commonwealth and spoke about the substance of those requests C and, indeed, produced to Commonwealth, on his own and without authority from EOEA, documents sought by Commonwealth.

The First Circuit in Mercado‑Berrios struggled with drawing the distinction between employee and citizen speech when the two are muddled, as they are here. There, the issue was whether an employee's complaints about her superiors' interference with her fulfillment of her job responsibilities was protected under the First Amendment:

The relevant question is whether those complaints were made pursuant to her official responsibilities.

That is not an easy question to answer. On the one hand, MercadoCBerrios's complaints were not made "pursuant to" her job duties in the most literal sense. ... The record contains no hint that her superiors ... expected her to raise broad policy and safety concerns in carrying out her official duties. ...

Garcetti can be read to suggest that unofficial communications that are not "part of what [the plaintiff] ... was employed to do," like MercadoCBerrios's complaints, fall outside the scope of its rule. The Supreme Court was deliberate in its choice of words. It referred thirteen times to speech made "pursuant to" an employee's job duties, most notably in its statements of the question presented and the holding. Elsewhere, it described the relevant

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[2] While Plaintiff also spoke to the Globe, his comments to and actions regarding Commonwealth drive the analysis.

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class of speech in similar terms.[3] The Court did not expressly indicate that it meant to sweep more broadly and include, for example, all speech that relates to, contributes to, or incidentally facilitates the performance of official functions.

On the other hand, some of the considerations identified in Garcetti such as the importance of "affording government employers sufficient discretion to manage their operations," may suggest a wider scope. Several courts of appeals, focusing on those cues, have construed the decision to cover all speech made "during the course of performing an official duty" that "reasonably contributes to or facilitates the employee's performance of [an] official duty." On that view, complaints like MercadoCBerrios's might be unprotected, since they could be said to facilitate job performance by removing (or attempting to remove) an obstacle. The D.C. Circuit has explicitly embraced such a view. See Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir. 2009) ("[W]e have consistently held that a public employee speaks without First Amendment protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.").

In short, there are strong arguments that the "pursuant to official duties" doctrine of Garcetti does not apply to MercadoCBerrios's complaints to her superiors, but there are also strong arguments to the contrary.

Mercado‑Berrios, 611 F.3d at 27 (citations omitted).

This case is thus not like Pickering, 391 U.S. 563, where the issue was whether a teacher had a First Amendment right to send a letter to a local newspaper in connection with a proposed tax increase that was critical of the way in which the school board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. That speech was related to, but sufficiently distant from, the teacher's duties and was clearly the kind of speech citizens are entitled to make. $ee also Lane, 573 U.S. at 240 (citation omitted) ("speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment" and are thus "uniquely qualified to comment' on 'matters concerning government

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[3]"For example, the Court referred to speech that "owes its existence to a public employee's professional responsibilities," speech that the employer "has commissioned or created," speech that the employee "was paid to" make, speech that the employee's "duties ... required him to" make, speech that amounts to the employee's "work product," and speech that is an "official communication[ ]." Mercado‑Berrios, 611 F.3d at 27 (citations omitted).

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policies that are of interest to the public at large'). Here, some of what Plaintiff said constituted citizen speech C for instance, his criticism that EOEA failed to properly analyze data it gathered to determine the number of residents in assisted living facilities who suffered from falls and other issues. That part of Plaintiff's speech also concerned a matter of public concern and was the subject of legitimate news interest. Lane, 573 U.S. at 241; see also Garcetti, 547 U.S. at 425 ("Exposing governmental inefficiency and misconduct is a matter of considerable significance"). But other expressive conduct in which Plaintiff engaged in connection with the Commonwealth  interaction was not protected by the First Amendment, such as disclosing EOEA documents without authorization. But it is not necessary for this prong of the analysis to fully catalogue which of Plaintiff's conduct fell on either side of the First Amendment line; because some of Plaintiff's expressive conduct enjoyed First Amendment protection, the Court concludes that Plaintiff has adduced sufficient evidence on the first prong of the 42 U.S.C. '1983 analysis to survive Defendants' motion for summary judgment.

Just because some of the speech at issue is citizen speech, that "does not settle the matter' Lane, 573 U.S. at 242; where that is the case, "the next 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. ... [where] 'a stronger showing [of government interests] may be necessary if the employee's speech more substantially involve[s] matters of public concern" Id. at 242, citing Garcetti, 547 U.S. at 418, and quoting Connick v. Myers, 461 U.S. 138, 150‑51 (1983). This is essentially a balancing test, weighing the citizen's right to comment upon matters of public concern against his or her employer's interest in promoting efficiency of the public service it performs through its employees. "[G]overnment employers often have legitimate `interest[s] in the effective and efficient

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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." Lane, 573 U.S. at 242 (citations omitted).

The parties joust over whether and when Hartstein's motivation in terminating Plaintiff is relevant. It is, on this prong of the analysis. See Mihos v. Swift, 358 F.3d 91, 103‑06 (1st Cir. 2004). On the undisputed record, however, the Defendant has demonstrated that she had substantial reasons to terminate Plaintiff in fulfillment of her responsibilities to the public, including promoting efficiency and integrity in the discharge of official duties, and maintaining proper discipline, which outweighed Plaintiff's interest in exercising his First Amendment rights. As noted above, not all of Plaintiff's expressive conduct enjoyed First Amendment protection.

Further, Lane found that employee speech that is "false or erroneous or ... unnecessarily disclosed any sensitive, confidential or privileged information" weighs against according it First Amendment protection. 573 U.S. at 242 (citations omitted). Plaintiff's expressive conduct suffered from all three of these failings. Plaintiff made erroneous, perhaps false, statements, such as about his title at EOEA. He disclosed information about PCH which was outdated and hence conveyed an erroneous impression. He revealed privileged information describing a PCH resident in sufficient detail for her to be identified by a relative, in violation of state law. $ee G. L. c. 66A, ''1, 2 (protecting from disclosure "personal data," defined to include any "description [that] can be readily associated with a particular individual"). Moreover, Plaintiff did not just speak, he provided EOEA documents to the Commonwealth reporter which Plaintiff had no right to produce, improperly bypassing EOEA's public records request response process, and spoke at a time when the EOEA was considering PCH's appeal, which undermined EOEA's ability to adjudicate that appeal. And, separately but seriously, Plaintiff was untruthful when he was asked

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by investigators whether he provided documents to Commonwealth. Thus, while Plaintiff would have been privileged to comment about EOEA's performance, he had no right to take any of these latter actions, which Hartstein justifiably concluded diminished her trust in him. Hartstein thus has shown that she had ample justification for taking action against Plaintiff which was separate from Plaintiff's protected commentary about EOEA's performance. Hartstein is thus entitled to summary judgment on this point alone.

Even were that not the case, Hartstein would still prevail. The last prong of the '1983 analysis, which asks whether the protected expression was a substantial or motivating factor in the adverse employment decision, is ordinarily a question of fact for the jury, not a question of law. See Davignon v. Hodgson, 524 F.3d 91, 100‑‑01 (1st Cir. 2008); Garcetti 547 U.S. at 418-20. [4] But on the undisputed facts, Plaintiff has not shown that his termination was attributable to his exercise of First Amendment rights as opposed to those reasons outlined by Groll and accepted by Hartstein which described conduct far outside of them. See Mihos, 358 F.3d at 108 ("In short, the issue is the causal link between the protected conduct and the adverse employment action"); Wagner v. City of Holyoke, Massachusetts, 404 F.3d 504, 508 (1st Cir. 2005) ("While individuals are entitled to speak on matters of public concern free from the threat of retaliation... this does not entitle those same individuals to use whatever methods or instrumentalities they see

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[4]On this point, "the employee must meet the 'burden of producing sufficient direct or circumstantial evidence from which a jury reasonably may infer that his constitutionally protected conduct ... was a 'substantial' or 'motivating' factor behind his dismissal.' If an employee succeeds in establishing this causal relationship, an employer can still defeat the claim 'by proving by a preponderance of the evidence that the governmental agency would have taken the same action against the employee 'even in the absence of the protected conduct." These two criteria ... 'ensure[] that a plaintiff‑employee who would have been dismissed in any event on legitimate grounds is not placed in a better position merely by virtue of the exercise of a constitutional right irrelevant to the adverse employment action." Diaz‑Bigio v. Santini, 652 F.3d 45, 51‑52 (1st Cir. 2011) (citations, footnote omitted). While EOEA had ample justification to terminate Plaintiff, Groll's analysis should not necessarily stand as the last word on this issue, as there is at least some evidence that Hartstein harbored an interest in disciplining Plaintiff soon after the first Commonwealth article appeared, before Groll uncovered the full details of Plaintiffs conduct.

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fit to convey their message. If the use of such inappropriate means of expressionCrather than the speech itselfCprompts discipline, there is no first amendment violation").

Even had Plaintiff prevailed on this point, qualified immunity would still apply, meaning that even if Plaintiff had a triable case on the merits, Hartstein would still be entitled to judgment as a matter of law.

In assessing qualified immunity, A[w]e apply a three‑part test which asks `(1) whether the facts taken in the light most favorable to the plaintiff demonstrate that there was a violation of the plaintiffs ... constitutional or statutory rights; ... (2) if so, whether at the time of the violation those rights were clearly established; and (3) whether a reasonable person in the defendant's position would understand that his conduct violated those clearly established rights." Krupien  v. Ritcey, 94 Mass. App. Ct. 131 at *2 (2018) (citations omitted). "Qualified immunity 'gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.' Under this doctrine, courts may not award damages against a government official in his personal capacity unless 'the official violated a statutory or constitutional right,' and 'the right was 'clearly established' at the time of the challenged conduct.' The relevant question for qualified immunity purposes is this: Could [Hartstein] reasonably have believed, at the time he fired [Plaintiff], that a government employer could fire an employee on account of' the acts in question? Lane 573 U.S. at 243 (citations omitted).

As Plaintiff properly points out, the principle that public employees have a protected First Amendment right to speak out on issues of public concern without differing retaliation was well‑established by 2013,[5] but that right was "not absolute." Diaz‑Bigio, 652 F.3d at 51‑2 (citations,

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[5]Plaintiff also cited two prior restraint cases in support of his qualified immunity argument, but those decisions are irrelevant here. This was not an instance of prior restraint, and neither case is controlling. In any event, one of the two non‑authoritative cases he cited concluded that press policies restraining government employee speech, like that at issue here, are not unlawful mr se. Harman v. City of New York, 140 F.3d 111, 124 (2d Cir. 1998) ("This is not to say that any policy that restricts speech beyond the information statutorily required to be kept confidential could not withstand constitutional scrutiny. Given the City's compelling interest in protecting such information, a less burdensome regulation may well survive the [applicable] balancing test. We hold only that the City has not met its burden to justify the comprehensive sweep of the policies at issue here").

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footnote omitted) ("The law is 'settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out,' but this prohibition is not absolute. `[I]n recognition of the government's interest in running an effective workplace, the protection that public employees enjoy against speech‑based reprisals is qualified").

The record here simply does not show that a reasonable person in Hartstein's position would have known that taking adverse employment action against Plaintiff under these facts violated that clearly established right. On the contrary, the record shows that the Defendants realized that Plaintiffs conduct was potentially protected by the First Amendment B Groll's report expressly recognizes this to be the case. But the fact that part of Plaintiff's conduct constituted protected speech did not insulate the rest of his conduct from employment action, a point recognized by the First Circuit:

The general right ... to engage in speech on matters of public concern without retaliation C was clearly established ... But qualified immunity requires that the general right be placed in a reasonably specific context; and given the facts surrounding [a public employee's] discipline, this is not a case in which reasonable officers, in light of clearly established law, "must have known that [they were] acting unconstitutionally." To the contrary, [the employee's] broad range of complaints (some consisting of unprotected and antagonistic speech), coupled with his disregard of confidentiality protocols and his disobedience in following the department's chain of command, would have permitted a reasonable superior officer to believe that he was entitled to discipline [him] regardless of the content of his speech, consistent with the protections of the first amendment. Even if this reasoning were mistaken, it would not have been egregiously so and, accordingly, qualified immunity is available.

Wagner, 404 F.3d at 509 (citations omitted). In light of the undisputed facts which show that Plaintiff committed misconduct quite apart from his protected conduct, such as lying to

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investigators about providing EOEA documents to a reporter, a reasonable supervisor in Hartstein's position would not have concluded that taking adverse employment action against Plaintiff trampled his constitutional rights. Indeed, in this case, Hartstein had the benefit of Groll's analysis of Plaintiff's First Amendment "defenses," which found them lacking after an adversary process in which Plaintiff participated, which informed her that taking adverse action against Plaintiff would not trample his First Amendment rights. Plaintiff has not shown any cogent reason to discount Groll's analysis or Hartstein's decision to rely on it.

Accordingly, even were the Court to find a dispute of material fact over whether Plaintiff's activities were protected by the First Amendment, Hartstein would be nonetheless entitled to qualified immunity. Hartstein is entitled to judgment as a matter of law on Count I. Count I is thus dismissed.

B. G.L. c. 149, 4185 Claim A2ainst EOEA

Plaintiff brings a claim under the Massachusetts Whistleblower Act, G.L. c. 149, '185 ("MWA") against EOEA, but did not cite a subsection that statute until he responded to the summary judgment motion filed by Defendants. He then cited G.L. c. 149, '185(b)(1) and (3). Under those subparts, a public employer is prohibited from taking "retaliatory action" against an employee because the employee discloses an activity, policy or practice of the employer to a supervisor or public body which the employee reasonably believes is in violation of the law or because the employee objects to or refuses to participate in such activity, policy or practice. G.L. c. 149, ''185(b)(1), (b)(3). To qualify for protection under '185(b)(1), but not under '185(b)(3), an employee must first "br[ing] the activity, policy or practice ... to the attention of a supervisor of the employee by written notice and ... afford[ ] the employer a reasonable opportunity to correct the activity, policy or practice." Id. '185(c)(1).

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"Retaliatory action" is defined in the statute as the "discharge, suspension or demotion of an employee or other adverse employment action taken against an employee in the terms and conditions of employment." G.L. c. 149, '185(a)(5). The Act provides a private cause of action to any employee aggrieved by a violation of the statute. G.L. c. 149, '185(d).

"To prevail on an MWA claim, an employee must show 'that he engaged in protected activity and that his participation in that activity played a substantial or motivating part in the retaliatory action.' The employer may subsequently avoid liability 'by proffering a legitimate, nonretaliatory reason for the [adverse action].' The burden then shifts back to the employee to 'adduce some significantly probative evidence showing both that the proffered reason is pretextual and that a retaliatory animus sparked his dismissal." Pierce v. Cotuit Fire Dist., 741 F.3d 295, 303 (1st Cir. 2014) (citations omitted).

Plaintiff concedes that his disclosure to the media does not constitute a disclosure under '185(b)(1), but claims that his statements to the media constitute an "objection" under '185(b)(3), arguing that the latter section does not require the objection be made to "anyone in particular." The argument that the Legislature intended to limit statements to public bodies under '185(b)(1) but not impose any restrictions for statements to the media under '185(b)(3) ignores the structure of the statute. Sections (b)(1) and (c) permit disclosures to a public body C that is, an entity outside of the employment relationship C only after internal disclosure to a supervisor is made, unless there is a compelling justification C an emergency or similar pressing need C to make an earlier disclosure to the public body. It would make no sense for the statute to be read to so restrict disclosures to public bodies in favor of earlier, internal disclosure, but permit unrestricted disclosures to the media. The Court is required to give full effect to the entirety of a statute and to read it to effect the Legislature's will. See Commonwealth v. Morgan,

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