Antonellis v. Dep't of Elder Affairs

98 Mass.App.Ct. 251

152 N.E.3d 798

Peter ANTONELLIS

v.DEPARTMENT OF ELDER AFFAIRS & another.¹

No. 19-P-475

Appeals Court of Massachusetts, Suffolk..

Argued April 7, 2020.

Decided August 17, 2020.

The case was submitted on briefs.

Joseph L. Sulman & Andrea L. Haas, Waltham, for the plaintiff.

Anne M. McLaughlin, Assistant Attorney General, for the defendants.

Present: Meade, Massing, & Desmond, JJ.

DESMOND, J.

Peter Antonellis commenced this action, alleging that Ann Hartstein, the former Secretary of the Department of Elder Affairs (agency or EOEA), terminated him for speaking out publicly about elder endangerment in assisted living residences (ALRs).² He appeals from a summary judgment dismissing his Federal civil rights claim against Hartstein individually (count I), and his claim under the Massachusetts public employee whistleblower statute against EOEA (count II).³ We affirm.

1. Background. From the same record as the motion judge, we set forth the facts in the light most favorable to Antonellis.⁴ See Welch v. Barach, 84 Mass. App. Ct. 113, 118-119, 993 N.E.2d 742 (2013).

In March, 2000, Antonellis, an attorney, accepted a position at EOEA as an assistant general counsel. In 2006, at Antonellis's request, EOEA transferred him to the position of program coordinator II (also known as a certification specialist) in the assisted living unit.⁵ There is no "compliance officer" position at EOEA.

In 2009, Antonellis began raising concerns to his supervisors about EOEA's administration and oversight of ALRs. Between 2010 and 2014, he regularly voiced these concerns to both supervisors and colleagues.

Pursuant to EOEA's 2011 "public records protocol," all EOEA employees were required to send public record requests to the legal department for handling.⁶ EOEA protocol also called for staff to refer "press inquiries [and] communication issues" to Martina Jackson, the EOEA communications director. Antonellis understood that personal information about residents of ALRs could not be disclosed without the consent of the resident or the resident's representative. See G. L. c. 66A, the Fair Information Practices Act (FIPA).⁷

In 2012, at EOEA's request, the Providence Cliff House (PCH) in Athol submitted an application for certification. Antonellis conducted several site visits in connection with the application. Following EOEA's denial of PCH's application and its request to waive certain certification requirements, PCH exercised its right to an informal appeal hearing.

On March 6, 2013, Antonellis was scheduled to make a presentation as part of a webinar on EOEA's new electronic incident reporting system. Shortly before the webinar, Antonellis left the office without informing his immediate supervisor, Duamarius Stukes, and went to the State House. There, he requested a joint meeting with Governor Deval Patrick and John Polanowicz, the Secretary of the Executive Office of Health and Human Services (EOHHS), to discuss his concerns about elder endangerment. After filling out a request form, he went home for the day without informing anyone at EOEA. On the following day, Antonellis went directly from his home to Pocasset to conduct an ALR site visit. He did not tell anyone at EOEA his whereabouts ahead of time. For this conduct, he subsequently received a one-day suspension without pay.⁸

When Hartstein discovered that Antonellis went over her head with his concerns, she was disappointed. Stan Eichner, EOEA's general counsel, directed Antonellis to articulate his concerns in writing, and to give the assignment "top priority." On March 19, 2013, Antonellis provided Eichner with a lengthy memorandum, claiming that the lack of incident reporting standards, poor management, and understaffing were endangering the health, safety, and welfare of ALR residents. Antonellis attached thirty exhibits to his memorandum, including e-mails and incident reports. He sent a copy to Secretary Polanowicz. On June 27, 2013, Hartstein informed Antonellis that Eichner had determined that Antonellis's "perceptions" were unsubstantiated and that she concurred with Eichner's findings.⁹

In December, 2013, Colman Herman, a reporter for CommonWealth Magazine, submitted a public records request to EOEA. At Stukes's direction Antonellis assisted with the response. When Antonellis learned from an internal e-mail months later that some of Herman's request was still pending, he reached out to Herman, beginning in August, 2014.¹⁰ He did not tell management what he was doing. Thereafter, Antonellis met and spoke with Herman several times about his concerns regarding PCH and his objections to EOEA's practices. Without notice to his supervisors or management, Antonellis provided Herman with copies of EOEA documents, including his March 19, 2013 memorandum (and some of the attached exhibits), and his February 7 and February 14, 2013 site visit reports to Stukes detailing the shortcomings of PCH. In addition to Herman, Antonellis also spoke multiple times about his objections to EOEA's practices with Boston Globe health reporter, Kay Lazar, and gave her a copy of his March 19, 2013 memorandum.

Antonellis also worked on PCH's second application for certification, which was denied by EOEA on September 12, 2014.¹¹ On the same day, CommonWealth Magazine published an article by Herman entitled, "Oversight questions raised on Elder Affairs." Herman quoted "compliance officer" Antonellis as well as Antonellis's March 19, 2013 memorandum warning that the safety of elders was at risk due to poor management at EOEA.¹²

Apprised of the article, Hartstein was again disappointed that Antonellis did not first bring his concerns to her. She informed the EOEA human resources liaison that she wanted to "possibly discipline" Antonellis.

On September 21, 2014, the Boston Globe published an article written by Lazar entitled, "Elder advocates raise concerns on assisted living." Lazar reported that elders in ALRs were "in harm's way too often" and that EOEA was "illequipped to protect the increasingly frail residents." Lazar reported that Antonellis, a "key staffer" and "compliance officer," had indicated that the agency had just "two ombudsmen to handle the thousands of complaints that pour in each year involving [ALR]s."¹³ Antonellis was also quoted as stating that although "most elders and their families think this is a regulated industry ... we don't have the staff to regulate it"; he had "repeatedly alerted his superiors that reports of serious incidents at facilities are languishing for weeks or months at the agency, and that no one seems to be analyzing them for patterns that may point to larger issues"; and "[u]nless the facilities know that we are scrutinizing what happens, they don't have to be too concerned about the system they use to keep residents safe." As reported in the article, EOEA spokeswoman, Martina Jackson, disputed Antonellis's assessment.¹⁴ The article quoted Hartstein stating that although EOEA's regulations needed "some retooling" to ensure safety, and updates were in progress, there was no need to replace the residential model used to regulate ALRs with the medical model championed by Antonellis and others.

On September 23, 2014, CommonWealth Magazine published a related article by Herman entitled, "Elder Affairs lets Athol facility remain open." Focusing on PCH, a subject of his public records request that remained outstanding, Herman quoted Antonellis, "a compliance officer at Elder Affairs who has been critical of the agency's oversight functions" as stating, "I think that right at the outset Providence Cliff should have been given 90 days to shut down and a plan developed to relocate the residents. ... [I]nstead, the matter has dragged on for 2 1/2 years and we're still dealing with it, it has been a huge waste of our limited resources." Antonellis admitted that he made the statement to Herman. The article repeated the quotes from Antonellis's March 19, 2013 memorandum about poor management endangering ALR residents and the reference to EOEA's incident reporting program as "nothing more than a hollow and dangerous facade." It also repeated Antonellis's criticisms about EOEA's failures to keep track of the injuries and abuse sustained by seniors at ALRs and to analyze the data.

The article quoted from the stale PCH site reports. First, the article noted that in his February 2013 report to Stukes, the director of the assisted living program at Elder Affairs, Antonellis had "called attention to [PCH] having units with inadequate square footage, unlockable doors and windows, and poor ventilation." Herman reported that Antonellis also wrote in that report that "[r]esidents are occupying units that do not currently appear to meet minimum requirements of the [S]tate sanitation code regarding bathrooms." Herman also listed many other sanitary code violations that PCH had been cited for "[a]t various times." Nothing was said about the correction of all these problems. The article reported that Antonellis directly asked Stukes in an e-mail, "How much longer will you allow [PCH] to continue to operate without the needed certificate?" and "Will you require [the owner] to move out a number of the residents?" The article quoted a statement by Antonellis that he had "noted that a number of the residents were wheelchair-dependent, one of whom was seemingly incoherent." According to Antonellis, Stukes failed to respond and permitted PCH to continue to operate "as an uncertified [ALR] under dangerous conditions." Around this time, Antonellis's access to his telephone and the Internet at EOEA were blocked.

After reading the article, the son of one of PCH's residents immediately concluded that Antonellis's statement referred to his mother, who had suffered a series of minor strokes.¹⁵ He indicated that neither he nor his mother, to his knowledge, had given permission to Herman or to Antonellis authorizing them to describe her in the article. At PCH's appeal hearing, the son publicly...