Full opinion text
MEMORANDUM AND ORDER YOUNG, Chief Judge. This case arises from events surrounding the appointment of a new police chief to the Saugus, Massachusetts (“Saugus” or “Town”) Police Department. The plaintiff David Putnam (“Putnam”), a lieutenant in the Saugus Police Department, brought suit against John Vasapolli (“Vasapolli”), the former Saugus Town Manager, Andrew Bisignani (“Bisignani”), the current Saugus Town Manager, and the Town of Saugus alleging that he was unlawfully passed over for the police chief position on two separate occasions. Compl. ¶ 1 [Doc. No. 1]. Putnam alleges that he was passed over for the position in retaliation for his testimony before the State Ethics Commission regarding an incident in which a member of the Saugus Board of Selectmen was stopped by police for driving while intoxicated but, because of his political influence, was not charged. Id. Putnam claims that he was also bypassed in retaliation for a police report he drafted about the same incident. Id. at ¶ 50. Putnam alleges violations of his First Amendment rights under 42 U.S.C. § 1983 by all of the defendants and a violation of Mass. Gen. Laws ch. 149, § 185 by the Town of Saugus. The defendants have moved for summary judgment on all of Putnam’s claims. A. Factual Background The following recitation of facts is taken from Putnam’s Complaint, Putnam’s Statement of Contested Fact and exhibits attached thereto [Doc. No. 29], Defendants’ Statement of Facts of Record as to Which There is no Genuine Issue to be Tried and exhibits attached thereto [Doe. Nos. 24, 35], Putnam’s Memorandum in Support of Opposition to Summary Judgment [Doc. No. 28], and Defendants Vasapolli’s and Bisignani’s Memorandum in Support of Summary Judgment [Doc. No. 23]. For purposes of deciding Defendants’ Motions for Summary Judgment, where a factual dispute exists, the Court must take Putnam’s version of the facts as true, where supported by record evidence, and draw all reasonable inferences in Putnam’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 1. The Parties Putnam has served as an officer in the Saugus Police Department since 1978. Compl. ¶ 7. He is currently a lieutenant, a rank he obtained in 1996 at which time he was first on the Civil Service list. Id.; Pl.’s Statement of Contested Material Facts (“Pl.’s Statement of Facts”) ¶2. Throughout his tenure, Putnam has received numerous commendations and has never been disciplined. Compl. ¶ 7; Pl.’s Statement of Facts ¶ 2. Putnam holds a Bachelor’s degree in psychology and a Master’s degree in criminal justice. Pl.’s Statement of Facts ¶ 1. Additionally, Putnam has taken college-level courses in criminal justice and many in-service training programs. Id. Civil Service examinations for Saugus Police Chief were administered in 1998 and 2002. Id. Putnam received the highest score on both examinations. Id. The Town of Saugus is a municipal corporation organized under the laws of the Commonwealth of Massachusetts. Compl. ¶ 6. Vasapolli has served as Saugus Town Counsel since 1981. Pl.’s Statement of Facts ¶ 9. From August 2002 until January 2003, Vasapolli also served as Acting Town Manager of Saugus. Compl. ¶ 4; Defs.’ Statement of Material Facts (“Defs.’ Statement of Facts”) ¶ 5. As Acting Town Manager, Vasapolli was the appointing authority for the Saugus Police Department, including the position of temporary police chief. Compl. ¶ 4. Bisignani was appointed Town Manager of Saugus in January 2003. Compl. ¶ 5; Defs.’ Statement of Facts ¶ 7. As Town Manager, Bisignani was the appointing authority for the Saugus Police Department, including the position of permanent police chief. Compl. ¶ 5. 2. Incidents Creating a Contentious Relationship Between the Saugus Police Department and the Saugus Board of Selectmen During the period relevant to this case, there were hostile interactions between members of the Saugus Board of Selectman and members of the Saugus Police Department. PL’s Statement of Facts ¶ 4. During this period, Saugus police charged three of the five members of the Board with criminal activity and investigated the spouse of a fourth member. Id. a. Incident Involving Selectman Christie Ciampa One evening, sometime before July 2004, Putnam was the commanding officer on duty for the Saugus Police Department. PL’s Statement of Facts, Ex. 1, Dep. of David J. Putnam (“Putnam Dep.”) at 175-76. That evening, Selectman Christie Ciampa (“Ciampa”) was arrested for the crime of operating a motor vehicle under the influence of alcohol. Id. The arrest followed a motor vehicle accident in which Ciampa was involved. Id. b. Incident Involving Selectman Maureen Dever At some time in June 2004, the Saugus Police Department received a call from someone complaining about a speeding vehicle in the neighborhood. Id. at 176. The license plate number given by the caller was that of Selectman Maureen Dever’s (“Dever”) husband. Id. Following the call, Putnam dispatched a sergeant to Dever’s home to investigate. Id. Although the Devers were not home when the sergeant arrived, the sergeant questioned Dever’s husband on a later occasion. Id. When word of the investigation was published in a newspaper’s police log, Putnam received a telephone call from Selectman Dever who wanted to know what happened. Id. Putnam explained how the investigation arose from a complaint called in to the department. Id. at 176-77. To that, Dever replied that she and her husband were in Maine that evening and that the speeding complained of “never happened.” Id. at 177. Dever expressed her suspicion that the complaint was falsely made because of “Saugus politics.” Id. Putnam explained that if that was so, no one in the Saugus Police Department had been involved. Id. Dever appeared to accept that explanation. Id. c. Incident Involving Selectman Anthony Cogliano Selectman Anthony Cogliano (“Cogli-ano”) who operated several nightclubs in Saugus, frequently complained that he was harassed by Saugus police officers, including Putnam. Pl.’s Statement of Facts ¶ 4(a). In May 2003, shortly before Putnam was interviewed for the job of permanent police chief, Putnam ordered that criminal charges be brought against Cogliano for a liquor law violation arising from Cogliano’s operation of a nightclub. Putnam Dep. at 130; Pl.’s Statement of Facts, Ex. 3, Dep. of Anthony Cogliano (“Cogli-ano Dep.”) at 22; Defs.’ Statement of Facts ¶ 41. This charge stemmed from Cogliano’s refusal to allow Saugus police officers to investigate after-hours drinking. Putnam Dep. at 124. The reason supplied by Cogliano for his refusal was that “John Yasa-polli told me I don’t have to let you in.” Id. at 126. Cogliano pled to sufficient facts on this charge shortly before Town Manager Bisignani bypassed Putnam for the position of permanent police chief. Pl.’s Statement of Facts ¶ 18. Town Manager Bisignani admits to reading the police report of the incident involving Selectman Cogliano. Pl.’s Statement of Facts, Ex. 5, Dep. of Andrew Bisignani (“Bisignani Dep.”) at 33. Prior to this incident, in 1998, Cogliano was involved in an altercation with Saugus Police Officer Scott Crabtree (“Crabtree”), in which Cogliano spoke abusively about Saugus police officers who refused to work paid details at Cogliano’s nightclub. Pl.’s Statement of Facts ¶ 4(a). According to Crabtree, Cogliano told him, “I run that fucking department.” Pl.’s Statement of Facts, Ex. 7, Aff. of Scott Crabtree (“Crabtree Aff.”) at 4. Cogliano also complained that Saugus police had broken into his office. Cogliano Dep. at 21. At different times during the events described above, Cogliano complained about police harassment to the Town Managers at the time including Steven Angelo (“Angelo”), Vasapolli, and Bisignani. Id. at 52. Cogliano also complained to Police Chief Edward Felix and later to Police Chief James MacKay (“MacKay”). Id. at 50-52. d. Incident Involving Selectman Michael Kelleher On the evening of January 3, 2002 and early morning of January 4, 2002, Putnam was the officer.in charge of the Saugus Police Department. Pl.’s Statement of Facts ¶ 5(b). That evening, Selectman Michael Kelleher (“Kelleher”) had been socializing with then Town Manager Steven Angelo (“Angelo”) and others at various Saugus nightclubs and bars. Id. at ¶ 5(c). Kelleher’s final stop of the evening was a club managed by Selectman Cogliano. Id. Cogliano, who observed Kelleher to be intoxicated, advised him not to drive because Saugus police officers were in the club’s parking lot. Id. Apparently, Kelleher ignored Cogliano’s advice. Id. Shortly after 2:00 a.m. Putnam, who was at police headquarters, heard the radio report of Officers Matthew Vecchio (“Vec-chio”) and Kevin Cabral (“Cabral”) that they had stopped a motor vehicle on Ham-mersmith Drive in Saugus. Pl.’s Statement of Facts, Ex. 13, Jan. 16, 2002 Police Report of David J. Putnam (“Putnam Report”). Shortly thereafter, Putnam received a telephone call on his mobile telephone from Chief of Police Edward Felix (“Felix”), who ordered Putnam to call him at his home. Pl.’s Statement of Facts ¶ 5(d). When Putnam called, Felix asked him, “Do you know who they have stopped out there?” Id. Felix then informed Putnam that Officers Vecchio and Cabral had stopped Selectman Kelleher who “may be drunk.” Id. Felix told Putnam to instruct the officers to drive Kelleher home “as a personal favor to him [Felix].” Id. Felix explained to Putnam that “we’ll get a lot of mileage out of this.” Id. Felix further noted that he was trying to get a new contract and to get his son appointed to the police department. Id. As instructed, Putnam called officers Vecchio and Cabral and asked them what was happening. Id. at ¶ 5(e). They informed him that they had stopped Kelleher because he was driving erratically, that he appeared to be intoxicated, and that there was an empty beer can on the floor of his car. Id. Putnam then relayed Felix’s “personal favor” request. Id. Putnam cautioned the officers, however, that the proper course of action was “their decision and that he would back them up 100 percent.” Id. at ¶ 5(f). By this, Putnam meant that if the officers decided not to extend the “personal favor” to Felix and instead arrested Kelle-her, Putnam “would back them up and wouldn’t allow them to be harassed.” Id. Putnam then dispatched a sergeant to the scene with orders to reaffirm what he had told Vecchio and Cabral over the telephone. Id. Minutes later, Putnam received another call from Felix who demanded to know what was happening. Id. at ¶ 5(g). Putnam informed Felix that he had relayed the “personal favor” message but that he also told the officers that “if they decided to arrest Kelleher, [he] would stand behind them.” Id. To Putnam’s statement, Felix replied, “I am getting tired of this shit with you, you don’t show me any respect.” Putnam Report. Putnam replied by stating, “I am getting sick of hearing that, I work as hard, if not harder than any Lieutenant you have. I certainly work harder than you ever did and I don’t go around starting trouble like you used to. When you were a Lieutenant you used to advise me to ‘bury the chief in grievances.’ I don’t do anything like that, I just mind my business and do my job. I am standing behind my men, the way you taught me to.” Id. A few minutes later, Felix called Putnam again and ordered him to instruct Vecchio and Cabral to tell Kelleher to call him [Felix] at home. Id. Officers Vecchio and Cabral drove Kelle-her home without arresting him. Id. Later that morning, at police headquarters, Vecchio and Cabral informed Putnam that they were ready to arrest Kelleher but felt they could not after speaking to Felix on Kelleher’s phone. Id. A few minutes later, Felix entered the office. Id. He immediately apologized to Vecchio, Cabral, and Putnam. Id. He further stated to Putnam, “You did the right thing, you always back up your men.” Id. Felix added that “we will get some mileage out of this.” Id. Word of the Kelleher incident spread rapidly throughout Saugus. Pl.’s Statement of Facts ¶ 6. It was, in Vasapolli’s words, “a very public event ... discussed by anybody politically involved in the town and people not politically involved in the town.” Pl.’s Statement of Facts, Ex. 2, Dep. of John Vasapolli (“Vasapolli Dep.”) at 39. On January 16, 2002, on the advice of his attorney, Putnam filed a formal police report of the events described above including his telephone conversations with Felix. Compl. ¶ 20. Several of the police reports relating to the incident, including Putnam’s, were “leaked” to the local media and printed. Pl.’s Statement of Facts ¶ 6. Later, a complaint about the Kelleher incident was made to the State Ethics Commission, which began an investigation. Compl. ¶ 21. Some, including Felix, believed Putnam was responsible for disclosing the incident to the press and reporting it to the State Ethics Commission. Id. at ¶22. Putnam maintains that he did neither. Id. Vasapolli also believed that someone from within the Police Department had released the information but had no opinion as to who that might be. Vasapolli Dep. at 41. Within the next few days, Vasapolli and Town Manager Angelo discussed the event and Putnam’s involvement in it. Pl.’s Statement of Facts ¶ 7; Vasapolli Dep. at 18-20. Angelo was quite upset that Putnam’s report had been made public. Vasa-polli Dep. at 22-23. Vasapolli too was upset about Putnam’s , report in that it included “personal statements” about Chief Felix and because it was not filed until almost two weeks after the events which it described. Id. at 28. Aside from its inclusion of those “personal statements,” however, Vasapolli denies taking issue with the fact that the report was written. Id. In connection with the State Ethics Commission’s investigation of the Kelleher incident, Putnam was questioned and later summoned to testify before the Commission on December 16, 2002. Pl.’s Statement of Facts ¶ 11. Putnam informed Chief Felix by e-mail that he would be testifying because the date of his testimony conflicted with a scheduled officer training program. Putnam Dep. at 76. Putnam’s testimony before the State Ethics Commission came one week after Vasa-polli, who was then Town Manager, interviewed him for the position of temporary police chief. Pl.’s Statement of Facts ¶ 11. Putnam testified truthfully before the Ethics Commission about the Kelleher incident, including his exchanges with Chief Felix. Compl. ¶ 23. Four days after Putnam’s testimony, Vasapolli informed him that he had been passed over for the position. Id. ¶ 37 The Ethics Commission investigation of the Kelleher incident resulted in a letter of reprimand being issued to former Town Manager Angelo and the imposition of civil penalties of $2,000 each on Chief Felix and Selectman Kelleher for violations of State Conflict of Interest laws. Pl.’s Statement of Facts ¶ 12. The Commission released its findings on June 25, 2003, one week before Bisignani, who by then was Town Manager, bypassed Putnam for the position of permanent police chief. Id. 3. Bypass of Putnam for Temporary Police Chief Position a. Letter From Putnam’s Attorney to Vasapolli In October 2002, it became clear Chief Felix would be retiring. Pl.’s Statement of Facts ¶ 13. On October 11, 2002 Putnam’s attorney wrote to Town Manager Vasapol-li, expressing his concern that Putnam’s involvement in the Kelleher incident would be an impediment to his appointment as chief. Pl.’s Statement of Facts, Ex. 14, Letter from Attorney Lichten to Vasapolli of 10/11/02 (“Lichten Letter”) at 2. The letter noted that Putnam was currently number one on the Civil Service list, having achieved a significantly higher score than the next ranking individual on the list. Id. at 1. The letter went on to state that “there have been numerous rumors that Lt. McKay [sic] may be named acting chief, and that the town will then bypass Lt. Putnam.” Id. The letter stated that if Putnam was bypassed, “there could be significant legal ramifications.” Id. The specific concerns noted in the letter were (1) that Putnam and Chief Felix had argued about whether or not to provide special treatment to Selectmen Kelleher; (2) that Putnam had been questioned by officials from the State Ethics Commission in relation to the Kelleher incident; and (3) that Putnam wrote a police report which criticized town officials. Id. at 1-2. The letter also raised concerns about Town Manager Vasapolli’s “significant involvement” in the Kelleher incident because of his position of Town Counsel at the time of the incident. Id. at 2. Thus, the letter asserted, Putnam was concerned that “his refusal to go along with town officials in th[e Kelleher] matter, and his subsequent cooperation with the Ethics Commission” could adversely affect his promotion. Id. Accordingly, the letter proposed that “in order to avoid the appearance of conflict, or to avoid legal challenges,” the Town utilize an independent, outside panel to select a new police chief. Id. Vasapolli responded to Putnam’s counsel with a letter of his own. Pl.’s Statement of Facts, Ex. 15, Letter from Vasapolli to Lichten of 10/28/02 (‘Vasapolli Letter”). Vasapolli’s letter noted that the position of chief had not yet become vacant and that he had not even seen the Civil Service list. Id. at 1. The letter also stated that Vasa-polli did not, in fact, have significant involvement in the Kelleher incident as “some, if not all of the individuals involved, had their own legal counsel.” Id. Vasapolli indicated his resentment of the fact that Putnam’s counsel was “attempting to control the legal process for the Town to fill a vacancy that does not even exist at the present time.” Id. Vasapolli added that the process followed in filling any vacancy in the chiefs position would be “fair and in accordance with all Civil Service rules and regulations.” Id. b. Vasapolli’s Interview of Putnam While serving as Town Manager, Angelo had numerous conversations with Putnam about the position of police chief. Putnam Dep. at 23-24. In 1998, Angelo informed Putnam, who had scored first on the Civil Service examination, that he was appointing Felix to the position of permanent chief but that Felix would only hold the position for three years. Id. at 24. After that point, Angelo explained, Putnam would be appointed to the position. Id. In exchange, Angelo requested that Putnam “not to file a bypass or make any problems.” Id. Putnam did not oppose Felix’s appointment. Id. at 25. In December 2002, Chief Felix took leave from his position due to a service connected injury and applied for disability retirement. Defs.’ Statement of Facts ¶ 45. Because Felix had not filed papers for final retirement, the position that became available was only temporary. Id. In preparation for his appointment of a temporary chief, Vasapolli sent letters to the top three candidates on the Civil Service list encouraging them to schedule an interview for the position. Id. at ¶ 46. Those candidates were Putman, Lieutenant James MacKay (“MacKay”), and Lieutenant Dominic DiMella (“DiMella”). Id. at ¶ 47. Putnam was interviewed by Vasapolli for the position on December 9, 2002, one week before his testimony before the State Ethics Commission. PL’s Statement of Facts ¶ 14. The interview was dominated by questions about the Kelleher incident. Id. Vasapolli first asked Putnam about what problems he perceived in the department. Id. Following Putnam’s response, Vasapolli said, “Let’s talk about the Kelle-her incident.” Id. Vasapolli asked a series of questions, all based on the Kelleher incident, trying, in Putnam’s mind, to get him to say that “there was nothing inappropriate that happened” on the night of the incident. Putnam Dep. at 95. In reference to the on-scene officers’ decision to drive Kelleher- home rather than arresting him, Vasapolli repeatedly asked, “Don’t officers have discretion to do this,” and “Aren’t they allowed to do that.” Id. Putnam replied that the decision was an “inappropriate use of discretion because it was done based on [Kelleher’s] position as a selectman.” Id. Vasapolli continued to question Putnam about the Kelleher incident for the next twenty minutes. Id. at 96. Vasapolli next asked Putnam about his relationship with former Town Manager Angelo. Id. at 98. Putnam responded that their relationship was “pretty good” but that Angelo felt that he, Putnam, did not know how to have a good time in life. Id. According to Putnam, Angelo’s impression stemmed from Putnam’s refusal “to go to nightclubs and strip clubs with Angelo and some selectmen.” Id. at 100. When Putnam explained to Vasapolli that he declined such invitations because, “hav[ing] a wife and daughter at home” he found them inappropriate, Vasapolli rolled his eyes and said, “I have had to be their designated driver.” Id.; ’Pl.’s Statement of Facts ¶ 14. Vasapolli asked the same questions to all three candidates for the temporary chief position. Vaspolli Dep. at 67-68. According to Vasapolli, he focused on the Kelle-her incident because he thought it was a very significant issue in the town and because he was unhappy with the way Chief Felix handled it. Id. at 68. Vasapolli claims he found Putnam’s responses to questions about the Kelleher incident to be the best of the three candidates. Id. at 70. Vasapolli viewed Putnam’s education, leadership skills, and honesty as his strengths and his lack of experience in the Executive Officer/Acting Chief position as a weakness. Id. at 73. c. Vaspolli’s Selection of Lieutenant MacKay for Temporary Chief Position Ultimately, Vasapolli selected Lieutenant MacKay for the position of temporary chief. Id. at 71. MacKay scored an 82 on his Civil Service examination (six points lower than Putnam’s score of 88) and had earned a two year Associate’s degree from North Shore Community College in 1975. Pl.’s Statement of Facts ¶ 1. The official reason Vasapolli provided for his choice of MacKay was MacKay’s superior experience which included serving as Executive Officer/Acting Chief since 1995. Vasapolli Dep. at 71-72. Vasapolli also expressed his desire to maintain the status quo, since MacKay had acted as chief on several occasions in the past. Id. at 72. Putnam was notified on December 20, 2002 that he had not been selected for the position, four days after his testimony before the State Ethics Commission. Defs.’ Statement of Facts ¶ 60; Compl. ¶ 37. d. Vasapolli’s Conversations with Officer Michael McGrath and Selectmen Cogliano and Kelleher Five days before Vasapolli interviewed Putnam, he discussed the candidates with Saugus Police Officer Michael McGrath (“McGrath”). Pi’s Statement of Facts ¶ 8. During their conversation Vasapolli asked for McGrath’s opinion on MacKay’s and DiMella’s qualifications for the position of temporary chief. Pl.’s Statement of Facts, Ex. 9, Aff. of Michael McGrath (“McGrath Aff.”) ¶ 4. Although not asked about Putnam, McGrath responded that -he believed Putnam to be the best candidate because Putnam “has the respect of all the men.” Id. (emphasis in original). McGrath then asked, “Why are you asking me for my opinion, everyone knows that you have already made your mind up on MacKay?” Id. Vasapolli, without denying McGrath’s assertion, replied that he had “a problem” with- Putnam. Id. at ¶ 5. Vasapolli noted that he disapproved of the way Putnam handled the Kelleher incident. Id. Vasapolli stated further, “The thing I don’t like about Dave [Putnam] is that he wrote the report about Eddie Felix. Once you write down something like that it becomes a document. If I have a problem like that, I go to a man face to face.” Id. at ¶ 6. Vasapolli added that, “the Chief shouldn’t have stepped on Putnam’s toes.” Id. at ¶ 7. Vasapolli denied speaking with any members of the Board of Selectmen about the three candidates, including Selectman Cogliano. Vasapolli Dep. at 65. Cogliano, however, claims that he and Vasapolli did speak about the candidates at some point. PL’s . Statement of Facts ¶ 15; Cogliano Dep. at 32-33. Additionally, it appears that Vasapolli may have also spoken to Selectman Kelleher about the candidates. PL’s Statement of Facts ¶ 15. On January 11, 2003, Kelleher approached Saugus Police Lieutenant Thomas Coogan and said, “I hope Dave Putnam doesn’t think that I have prevented him from getting the Chiefs job. They asked me about it and I stated that they were all equally qualified. Please let him know.” Pl.’s Statement of Facts, Ex. 8, Aff. of Thomas A. Coogan (“Coogan Aff.”) ¶ 3. 4. Bypass of Putnam for Permanent Police Chief Position Andrew Bisignani (“Bisignani”) was hired as Saugus Town Manager by the Board of Selectmen in January 2003. PL’s Statement of Facts ¶ 17. Bisignani was aware of both Selectman Cogliano’s heated relationship with the Saugus Police Department and the Kelleher incident. Bisignani Dep. at 16-17, 34-36. Bisignani was also aware of Putnam’s participation in the State Ethics Commission’s investigation of the Kelleher incident which he had discussed with people in Saugus. Id. at 19. After Chief Felix officially retired, Bisignani began the process of selecting a permanent replacement. PL’s Statement of Facts ¶ 17. a. Letters From Putnam’s Attorney to Bisignani On May 15, 2003, prior to scheduling any interviews for the position, Bisignani received a letter from Putnam’s attorney expressing concern that Putnam would not have a fair interview because of his involvement in both the ethics proceedings against Selectman Kelleher and the liquor law charge brought against Selectman Cogliano described above. Defs.’ Statement of Facts, Ex. Q, Letter from Lichten to Bisignani of 5/15/03 (“Licthen Letter II”) at 1. In the letter, Putnam’s counsel requested that an outside panel of police chiefs select the new permanent police chief. Id. On May 23, 2003, Bisignani responded to Putnam’s counsel with a letter stating that he, the Town Manager, is the appointing authority and therefore he would be making the appointment for police chief. Defs.’ Statement of Facts, Ex. R, Letter from Bisignani to Lichten of 5/23/03 (“Bisignani Letter”) at 1. Bisignani, however, did act on Putnam’s counsel’s recommendation to use experts to assist him in the interview process because he agreed that a Town Manager who does not have experience with police duties should seek expert advice. Bisignani Dep. at 43-44. Accordingly, Bisignani asked two retired police chiefs, James Russo (“Russo”) of Revere, Massachusetts and John Toomey (“Too-mey”) of Swampscott, Massachusetts to assist him with the interview process. Defs.’ Statement of Facts ¶ 72. Specifically, Bisignani asked for their assistance in formulating questions and for their advice and opinions on candidates’ responses. Id. The only candidate that both Russo and Toomey knew personally was MacKay. Id. at ¶¶ 73, 75. Neither Russo nor Too-mey knew the other two candidates Putnam and DiMella. Id. On May 30, 2003, Bisignani informed Putnam, who remained first on the Civil Service list, that he was arranging interviews for the appointment of permanent Police Chief and that his interview was scheduled for June 4, 2003. Id. at ¶ 63. Two days before that interview, on June 2, 2003, Bisignani received another letter from Putnam’s counsel. Id. at ¶ 67. This letter stated that, “unless our proposal for an independent selection panel is followed, there will undoubtedly be a new case arising out of the permanent chiefs selection. In addition, as you may or may not know, David Putnam has retained a prominent civil rights attorney to bring a lawsuit against the Town for violation of the First Amendment and public policy arising out of the same fact pattern.” Id. b. Bisignani’s Interview of Putnam Bisignani prepared for his interviews by reviewing the Civil Service list, researching the individual candidates’ backgrounds, discussing the interview process with Va-sapolli (who had returned to his role as Town Counsel), and reviewing the Town Charter. Bisignani Dep. at 10-11. Bisig-nani claims that when he researched the candidates’ backgrounds, he received negative feedback about Putnam from “an assistant clerk in the Lynn District Court” and Fred Riley, a former prosecutor. Id. at 21-22. Bisignani’s interview posed several hypothetical questions. Pl.’s Statement of Facts ¶ 20(a). Bisignani asked Putnam questions about a situation in which a “businessman or politician” complained to Bisignani of harassment by the police. Id. At the time of the interview, the only “businessman or politician” who complained to Bisignani about police harassment was Selectman Cogliano. Bisignani Dep. at 36. In response to Bisignani’s hypothetical, Putnam responded that he would tell Bisignani to “send him over to speak with me.” Putnam Dep. at 147-48. Bisignani was visibly angered with Putnam’s answer and “practically yelled,” “Well, they didn’t come see you, they came to see me. Now what are you going to do?” Id. at 148. After responding that he would interview the complaining person and possibly conduct an investigation, Putnam informed Bisignani that “frequently people make charges that the police are harassing them. That’s because they have been caught doing something wrong and caught red handed so they can’t dispute the evidence so they will impugn the officer’s motives.” Id. at 149. Putnam suggested that Bisig-nani take Cogliano’s complaint “with a grain of salt” until a full investigation was conducted. Id. Bisignani said nothing in response to Putnam’s statement and simply “glared” at him. Id. at 149-150. Bisignani next asked Putnam about his vision for the Police Department. Id. Putnam responded that he felt there was a need to “flatten” the department, that it had become “top heavy with brass” and that he wanted to see the patrol force built up. Id. Putnam stated his belief that officers too often referred matters to specialized units such as the domestic violence and juvenile units, rather than dealing with the problems themselves. Id. at 150-51. He suggested that division commanders review such referrals before they are made. Id. at 151. Later in the interview when Bisignani asked Putnam if he wanted to eliminate specialty positions, Putnam clarified his position by explaining that he did not want to eliminate specialty positions but merely thought such positions were being overused. Id. at 152-53, During the interview, Putnam was asked by Russo about a hypothetical situation in which he witnessed misconduct by an officer who was also a personal friend. Id. at 153-54. Putnam replied that he would take the appropriate disciplinary action, including termination or prosecution if appropriate. Id. at 153. Putnam was also asked by Toomey, “What if you had a politician or businessman in the community who had been very supportive of the police and made a lot of donations, had been very supportive of you during budget time, and his son or daughter got a ticket or got arrested for drunk driving? Would you help him?” Id. at 154. When Putnam responded that he would not, Toomey asked, “Why not? These people have been good to you.” Id. at 154-55. Putnam responded, “If I am chief of the Police Department, this police department, there is going to be no interfering in prosecutions for any matter whether it’s a criminal matter, civil matter, moving violation. That is the court’s job to decide how those things should be resolved. We are not going to do it based on politics or friendships.” Id. at 155. No one in the interview verbally responded to Putnam’s response, however, Toomey looked at Russo and according to Putnam, “gave him a look like I was the biggest fool in the world.” Id. After the interviews, Russo expressed his opinion that DiMella had a bright future but lacked experience. Defs.’ Statement of Facts ¶ 74. Russo also stated that Putnam was academically qualified but lacked administrative experience and that he was concerned about Putnam’s idea to eliminate specialized units, although Putnam steadfastly maintains that he did not express this idea. Id. Russo also expressed his opinion that MacKay had strong administrative experience, especially on budgetary issues. Id. On July 2, 2003, Bisignani informed Putnam that he had not been selected for the police chief position. Id. at 12. On the same day, Bisignani appointed MacKay to the position. Id. In his appointment letter to the State Human Resources Division (“HRD”) explaining why he was passing over Putnam, the top-ranked person on the Civil Service list, Bisignani cited MacKay’s personality, experience, and shared vision for the Police Department. Id.; PL’s Statement of Facts, Ex. 16, Letter from Bisignani to Commonwealth of Massachusetts, Human Resources Division of 7/2/03 (“Bisignani Letter to HRD”) at 1-2. On July 18, 2003, the HRD approved the bypass of Putnam based on the reasons in Bisignani’s letter. Defs.’ Statement of Facts, Ex. X, Letter from HRD to David Putnam of 7/18/03. In contrast to what he viewed as Mac-Kay’s common vision for the Police Department, Bisignani stated that Putnam did not share his vision, which involved expanding the use of specialized operations. Bisignani Letter to HRD at 3. Putnam, Bisignani asserted, “wants to ‘flatten’ the Department by placing the most emphasis on police patrol and downgrading the special units.” Id. c. Conversations Between Bisignani and Vasapolli Regarding Candidates Vasapolli denies discussing any of the candidates with Bisignani. Vasapolli Dep. at 78-79. Specifically, Vasapolli denies saying anything to Bisignani about Mac-Kay. Id. at 79-80. Bisignani stated in his deposition testimony, however, that he and Vasapolli did have a conversation about MacKay. Bisignani Dep. at 15. According to Bisignani, he asked Vasapolli why he had not been the one to appoint a permanent chief. Id. at 14. Vasapolli responded that because Chief Felix had not yet officially retired when he appointed MacKay, that position was only temporary. Id. at 14-15. Vasapolli then stated that MacKay had been a “natural fit” for the position. Id. at 15. In contrast to Vasa-polli’s endorsement of MacKay, he said nothing to Bisignani about Putnam. Id. at 15-16. 5. MacKay’s Actions as Permanent Chief a. “Flattening Out” of Command Structure After becoming Permanent Chief, Mac-Kay eliminated a number of lieutenant positions, a change MacKay claims to have favored. Pl.’s Statement of Facts, Ex. 4, Dep. of Chief James J. MacKay (“MacKay Dep.”) at 51. MacKay admits that this change could be described as “flattening out the command structure.” Id. at 51-52. Bisignani never complained to MacKay about the elimination of these positions. Id. at 53. Additionally, MacKay stated that because of budget restrictions, he had reduced the number of officers in specialty units after becoming Permanent Chief. Id. at 57. b. Selectman Cogliano Photograph Incident After becoming Permanent Chief, Mac-Kay refused to permit Lieutenant DiMella, the head of the detective unit, to refer an investigation of Selectman Cogliano to the State Ethics Commission. Pl.’s Statement of Facts Ex. 6, Aff. of Domenic DiMella (“DiMella Aff.”) ¶5. DiMella had been working with the Essex County District Attorney’s Office to investigate violence at Saugus nightclubs, including clubs owned or managed by Cogliano. Id. at ¶¶ 3-4. At a Board of Selectmen Meeting convened to address nightclub violence and the passage of a bylaw forbidding nightclubs from operating after 2:00 a.m., Cogliano claimed that he was not affiliated with “Caruso’s Diplomat” (“Caruso’s”), one of the clubs under investigation. Id. at ¶4. Cogliano, therefore, refused to recuse himself from the Board’s rulings on nightclub issues. Id. DiMella developed evidence showing that Cogliano was in fact affiliated with Caruso’s. Id. The Essex County District Attorney instructed DiMella to refer Cogliano to the State Ethics Commission. Id. at ¶ 6. When DiMella informed Mac-Kay of his plan to do so, MacKay ordered DiMella not to, claiming that he needed Cogliano’s support for a tax override. Id. at ¶ 5. Another Saugus police officer, Stephen McCarthy (“McCarthy”) who was upset that Cogliano denied being affiliated with Caruso’s, photographed Cogliano working there. Id. at ¶¶ 8-9. Following this incident, MacKay called DiMella into his office and angrily questioned him about whether he had sent McCarthy to photograph Cog-liano. Id. at ¶ 9. MacKay said that Cogli-ano had just telephoned him and was “screaming” about the incident. Id. MacKay also mentioned that Town Manager Bisignani wanted to see him [MacKay] regarding the incident. Id. MacKay told DiMella that he wanted McCarthy punished. Id. at ¶ 10. When DiMella explained to MacKay that it was not against the law to photograph a person in public, MacKay told DiMella to “have a talk” with McCarthy. Id. The following day, MacKay told DiMella that he had been called to Town Manager Bisignani’s office, where he met with Bisig-nani and Town Counsel Vasapolli. Id. at ¶ 11. MacKay told DiMella that they demanded to know why Cogliano was being investigated and “grilled him” about the incident. Id. MacKay stated that he did not reveal anything about the District Attorney’s investigation of Caruso’s and that he informed them that McCarthy had not done anything- illegal. Id. Finally, Mac-Kay stated, “They were not very happy with me at Town Hall.” Id. McCarthy made an entry in the official police log about observing Cogliano at Caruso’s and taking photographs of him there. Pl.’s Statement of Facts, Ex. 17, Saugus Police Department Log Entry Oct. 22, 2003. DiMella informed MacKay about the log entry. DiMella Aff. at ¶ 12. The following day, DiMella examined the police log and observed that the entry concerning Cogliano had been deleted. Id. MacKay denies that he deleted the log. MacKay Dep. at 39-40. MacKay acknowledges that only he and one other person in the department have the authority to delete a log entry. Id. at 41-42. While MacKay acknowledges that he discussed the Cogli-ano incident with Bisignani and Vasapolli, he asserted the attorney-client privilege when asked to discuss the conversation. Id. at 44-47. c. No Confidence Vote In February or March of 2004, the Sau-gus Police Superior Officers Union voted that they had no confidence in MacKay as police chief. Putnam Dep. at 178. Mac-Kay sent a letter to the Board of Selectmen reviewing the reasons for the vote. MacKay Dep. at 90. In the letter MacKay stated that a reporter for the newspaper which had printed an article about the vote, told him that Putnam was the source of confidential police information related to the'vote. Id. At his deposition, MacKay was shown a letter addressed to him from that reporter denying that she had ever told MacKay that she had spoken with Putnam or that Putnam was her source. Id. at 91. The letter further denied that Putnam was, in fact, her source. Id. On relevancy grounds, MacKay refused to answer questions at his deposition' as to whether the reporter had actually told him that Putnam was her source. Id. at 91-99. I. DISCUSSION A. Standard of Review Summary judgment is warranted if, after reviewing the facts in the light most favorable to the non-moving party, no genuine issues of material fact remain and that the moving party is entitled to judgment as matter of law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Fed.R.Civ.P. 56(c). A “genuine” issue of fact is one that a reasonable jury, on the record before the court, could resolve in favor of either party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A fact is material when it “might affect the outcome of the suit under the governing law.” Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In making its determination, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The movant has the initial burden of production, which it can meet either by offering evidence to disprove an element of the plaintiffs case or by demonstrating an “absence of evidence to support the non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met its burden, the non-moving party must “go beyond the pleadings, and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a material issue for trial.” Id. at 323, 106 S.Ct. 2548 (internal quotation marks omitted). Defendants Vasapolli and Bisignani have moved for summary judgment of Putnam’s 42 U.S.C. § 1983 claim that they violated Putnam’s right of freedom of speech as protected by the First and Fourteenth Amendments on the following grounds: (1) Putnam has failed to establish that he engaged in First Amendment protected activity; (2) Putnam has failed to establish a causal link between First Amendment protected activity and adverse employment action; and (3) Vasapolli and Bisignani are entitled to qualified immunity. Defs.’ Mem. at 3, 6,14. Defendant Town of Saugus (“Town”) has also moved for summary judgment of Putnam’s First Amendment section 1983 claim on the ground that Putnam has failed to adduce evidence of an unconstitutional custom or policy or that either Vasapolli or Bisignani committed an underlying constitutional violation. Def. Town of Saugus’ Mem. in Supp. of Mot. for Summ. J. (“Town’s Mem.”) at 13. Additionally, the Town moves for summary judgment of Putnam’s retaliation claim under Mass. Gen. Laws ch. 149, § 185 on the ground that he has produced no evidence of retaliation. Id. at 4. B. Putnam’s Section 1983 Claims Against Vasapolli and Bisignani Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured .... 42 U.S.C. § 1983. In his complaint, Putnam claims that both his testimony before the State Ethics Commission and his written report in relation to the Kelleher incident constituted speech protected by the First and Fourteenth Amendments to the United States Constitution. Compl. ¶ 49. Putnam maintains that Vasapolli and Bisignani passed him over for the positions of temporary and permanent chief respectively because of that speech. Id. at ¶ 50. Because Vasapolli and Bisignani acted under color of state law in their conduct, Putnam argues, their actions infringed on his right to freedom of speech protected by the First and Fourteenth Amendments, in violation of section 1983. Id. ¶¶ 51-52. 1. First Amendment Protected Activity The First Amendment to the United States Constitution protects citizens’ freedom of speech. U.S. Const, amend. I. A public employee does not relinquish her First Amendment rights to comment on matters of public concern simply by virtue of her government employment. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (citing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Absolute First Amendment protection, however, is not accorded to all public employees’ speech irrespective of its content. Tang v. State of R.I. Dep’t of Elderly Affairs, 163 F.3d 7, 11 (1st Cir.1998). Otherwise, anything said by a public employee on the job could “plant the seeds of a constitutional case.” Id. (quoting Connick, 461 U.S. at 149, 103 S.Ct. 1684). Instead, courts employ a three part test to determine whether an actionable First Amendment claim exists. Id. at 12; Mihos v. Swift, 358 F.3d 91, 102 (1st Cir.2004). First, a court must determine whether the employee made her comments “as a citizen upon matters of public concern.” Tang, 163 F.3d at 12 (quotation omitted). If the speech involved addresses only issues of personal interest rather than public concern, a First Amendment claim cannot survive absent “the most unusual circumstances” because “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Id. (quoting Connick, 461 U.S. at 147, 103 S.Ct. 1684). Second, courts must weigh the strength of the employee’s and the public’s First Amendment interests against the government’s interest in the efficient administration of the workplace. Mullin v. Town of Fairhaven, 284 F.3d 31, 37-38 (1st Cir.2002); Tang, 163 F.3d at 12 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731). Third, if the employee’s and the public’s interests outweigh a legitimate government interest in restricting the employee’s speech, the employee must show that the protected speech was a substantial or motivating factor in the adverse employment action. Mihos, 358 F.3d at 102 (citations omitted); Tang, 163 F.3d at 12 (citing O’Connor v. Steeves, 994 F.2d 905, 913 (1st Cir.1993)). a. Public Concern Requirement Whether an employee’s speech addresses a matter of public concern as opposed to her private interest is determined by “the content, form, and context” of the given statements “as revealed by the whole record.” Connick, 461 U.S. at 147-48,103 S.Ct. 1684. Speech touches upon a matter of public concern if it can be “fairly considered as relating to any matter of political, social or other concern to the community.” Id. at 146, 103 S.Ct. 1684. According to Putnam, his speech at issue includes (1) his protests in his conversation with Chief Felix regarding Felix’s request that Selectman Kelleher receive preferential treatment; (2) Putnam’s report on the Kelleher incident," (3) Putnam’s discussions with and testimony before the State Ethics Commission; and (4) as concerns Bisignani’s hiring decision, Putnam’s order that officers charge Selectman- Cogliano with a criminal liquor law violation. Pl.’s Mem. at 12. According to Putnam, the allegation that a police department improperly accorded favorable treatment to political figures is clearly a matter of public concern. Id. at 13; The State Ethics Commission’s investigation of the Kelleher incident, Putnam argues, is conclusive proof that the public was concerned about what Putnam disclosed. Id. Additionally, Putnam observes, Vasapolli himself testified that the Kelle-her incident and Putnam’s report on it were the talk of the town. Id.; Vasapolli Dep. at 17, 39. Regarding Putnam’s testimony before the State Ethics Commission, Vasapolli and Bisignani argue that Putnam was not engaged in constitutionally protected speech because there had already been extensive media reports on the Kelleher incident at the time of Putnam’s testimony. Defs.’ Mem. at 4. Therefore, Putnam “was not bringing to light any information that had not already been made public.” Id. (citing Coyne v. City of Somerville, 770 F.Supp. 740, 752 (D.Mass.1991) (Cohen, M. J.) (noting that the plaintiff could not be considered a citizen going public for the first time when there had already been wide scale press coverage of a matter)). There is no legal requirement, however, that an individual’s speech bring to light new, previously non-public information in order for it address a matter of public concern. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Tang, 163 F.3d at 12. In Coyne v. City of Somerville, the court examined prior media coverage as one factor in the overall context in which the speech was made to help determine whether the speaker’s interest was merely personal. Coyne, 770 F.Supp. at 752. The court did not announce a rule that testimony regarding matters which have received extensive press coverage fall outside the realm of public concern. See id. It can hardly be argued that media coverage of the Kelleher incident transforms Putnam’s testimony before a public body investigating misconduct by public officials into a matter only 'of private interest. See Connick, 461 U.S. at 147-48, 103 S.Ct. 1684 (emphasis added). If such were the case then virtually all testimony given before a court or other public body would fall outside the realm of protected First Amendment speech so long as the events surrounding the trial or hearing were widely publicized. Surely, this cannot be so. See Konits v. Valley Stream Cent. High Sch., 394 F.3d 121, 126 (2d Cir.2005) (citing Mandell v. County of Suffolk, 316 F.3d 368, 383 (2d Cir.2003)) (noting that speech is of particular public concern when it involves actual testimony in court or in .administrative proceedings); Scrima v. Gay, 322 F.Supp.2d 49, 51 (D.Mass.2004) (Zobel, J.) (holding that a public employee’s deposition testimony involves a matter of public concern if “arguably a statement about misconduct or corruption in [c]ity government” and regardless of whether testimony is given in employee’s official capacity) (citation omitted). Moreover, the law is quite clear that speech like Putnam’s report and testimony relating to the possible corruption of public officials addresses a matter of public concern. Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 94 (1st Cir.2004) (holding that law enforcement agent’s speech which raised the possibility of corruption in a public agency is protected under the First Amendment); Guilloty Perez v. Pierluisi, 339 F.3d 43, 53 (1st Cir.2003) (holding that law enforcement officer’s First Amendment interest is entitled to even greater weight where officer’s . reports exposed possible government corruption); O’Connor, 994 F.2d at 915. (quoting Connick, 461 U.S. at 145 n. 7, 103 S.Ct. 1684) (holding that an employee’s speech which concerns the alleged abuse of public office occupies “the highest rung of the hierarchy of First Amendment values”); Wagner v. City of Holyoke, 241 F.Supp.2d 78, 91 (D.Mass.2003) (Ponsor, J.) (holding that statements comprising evidence of possible corruption within a police department “are precisely the type of communications that demand strong First Amendment protection”). Vasapolli and Bisignani argue, however, that to the extent Putnam’s First Amendment claim is derived from his police report of the Kelleher incident, such speech is not protected in the context of public employment. Defs.’ Mem. at 4. In support of their argument they cite Tang v. State of Rhode Island, Dep’t of Elderly Affairs which ruled that an employee’s personal complaints about her working conditions did not constitute a matter of public concern. Tang, 163 F.3d at 12-13. .In Tang, the working conditions complained of included inter alia being placed on administrative leave and being relocated within the building. Id. at 12 .n. 5. There is a First Amendment distinction, however, between complaints about these types of working conditions, which are not protected and complaints about fellow employees’ official misconduct, which are protected. Guilloty Perez, 339 F.3d at 52 (holding that law enforcement agent’s internal reports of misconduct by fellow officers involved matters of public concern and contrasting such speech with employee’s complaints in Tang) (citation omitted); Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 11-12 n. 10 (1st Cir.2003) (holding that a public employee’s internal memo-randa raising concerns about public corruption are protected First Amendment speech because they addressed a matter of public concern); O’Connor, 994 F.2d at 916 (citing Givhan v. Western Line Consol. Sch. Dist. 439 U.S. 410, 415-16, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) for the proposition that First Amendment protection is not lost where an employee discloses official misconduct directly to employer rather than to the public); see also Taylor v. Keith, 338 F.3d 639, 643-46 (6th Cir.2003) (holding that police reports raising allegations of misconduct by other officers touched upon a matter of public concern even'if drafted within the scope of employment and not disclosed to the media). Therefore, Vasapolli and Bisignani’s argument that Putnam’s police report cannot be the statement of a citizen addressing a matter of public concern is unavailing. The same conclusion, however, does not extend to other “speech” which Putnam claims to be protected by the First Amendment. Specifically, Putnam’s “order” that officers charge Selectman Cogliano with a liquor law violation is not protected First Amendment speech because it was issued in the normal course of his duties and fails to address a matter of public concern such as official misconduct. While information relating to Cogliano’s liquor law violation could be considered information of “general public interest,” that fact alone does not make it of “public concern” for First Amendment purposes. Morris v. Crow, 142 F.3d 1379, 1381-82 (11th Cir.1998) (citing Connick, 461 U.S. at 148 n. 8, 103 S.Ct. 1684). In Morris v. Crow, the Eleventh Circuit Court of Appeals held that an accident investigator’s report on the traffic accident of a fellow Sheriffs Department employee did not involve a matter of public concern even though the report addressed negligent conduct that jeopardized public safety. Id. at 1381. Although the report reflected information of “general public interest” it was not intended to address a matter of “public concern” for First Amendment purposes as it was mandator-ily written in the normal course of the investigator’s duties. Id. at 1382 (emphasis added). The court contrasted such speech with a voluntarily written police report bringing to light the official misconduct of fellow officers. Id. (citations omitted) (emphasis added). Such speech, the court ruled, is not in the normal course of an officer’s duties because its purpose is to raise issues of public concern, namely official misconduct. Id. (emphasis added); Scrima, 322 F.Supp.2d at 51 (citing Morris, 142 F.3d at 1382 for the proposition that there is a First Amendment distinction between speech related to the normal course of an employee’s duties and speech which reports specific wrongs and abuses within city government). The report in Morris was within the normal course of the investigator’s duties because there was no evidence indicating that his purpose included the exposure of official misconduct. Morris, 142 F.3d at 1382. Unlike Putnam’s report on the Kelleher incident which he drafted because of the public’s concern over the incident, See Putnam Dep. at 34; Pl.’s Mem. at 19, and which specifically addressed instances of official misconduct, there is no indication that Putnam intended to address a matter of public concern by ordering Cogliano to be charged with a liquor law violation. Id. at 130, 149. Rather, Putnam ordered Cog-liano to be charged because Cogliano had broken the law. Id. Such an order is presumably within the normal course of a police officer’s duties and Putnam makes no claim that it was issued for any reason other than because it was part of his job to do so. See id. Cogliano’s position as a selectman does not convert Putnam’s order into a matter of public concern as the charge against him was not tied to any official misconduct attendant to his position as Selectman. Rather, the charge stemmed from Cogliano’s capacity as a nightclub operator. Id. at 129-30. Thus, Putnam’s order cannot be considered protected First Amendment speech because it did not address a matter of public concern. Connick, 461 U.S. at 147, 103 S.Ct. 1684. Similarly, Vasapolli and Bisignani argue that Putnam drafted his report of the Kelleher incident not to address a matter of public concern but rather to advance his personal interests including becoming Chief of Police. Defs.’ Mem. at 5; see also Mullin, 284 F.3d at 38-39 (observing that motive is relevant in determining whether an issue raised by a government employee is of public concern). They support this argument by citing Putnam’s inclusion in the report of his heated exchange with Felix in which Putnam stated, “I don’t go around starting trouble like you used to.” Defs.’ Mem. at 5. This, they argue, combined with the timing of the report, demonstrates that Putnam filed the report not to speak to a matter of public concern but to address a personal grievance with Felix. Id. Vasapolli and Bisig-nani also cite Putnam’s actions following his writing of the report and observe that “this suit was preordained” and became “inevitable when Putnam’s counsel interfered with the appointment process by sending threatening letters to both Vasa-polli and Bisignani prior to interviews ever being posted.” Id. These letters, they argue were designed to place Putnam in a better position than other candidates. Id. at 6. While Putnam’s filing of the Kelleher report and subsequent actions may permit the inference that he was motivated by his own personal interest, an alternative inference is also available. Based on the record evidence, a jury could permissibly find that Putnam wrote the report because he wanted to bring to light the issue of official misconduct and because he wanted to clarify his role and the roles of Officers Vee-chio and Cabral in the Kelleher incident. Putnam Dep. at 34-35; Pl.’s Mem. at 19. Additionally, a jury is entitled to believe Putnam that the letters sent by his attorney were motivated solely by his desire to receive fair consideration for the positions. Putnam Dep. at 87. Here, at the summary judgment phase, the Court must view the evidence in the light most favorable to Putnam and draw all reasonable inferences in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Therefore, Vasapolli’s and Bisignani’s argument that Putnam was not publicly motivated in his speech does not entitle them to summary judgment because Putnam’s motivation is a genuine issue of material fact. Id.; Fed.R.Civ.P. 56(c). 2. Causal Link Between Protected Activity and Adverse Employment Action As mentioned above, the third requirement of a valid First Amendment claim in the public employment context is that the employee show that her protected activity was a substantial or motivating factor in the adverse employment action. Mihos, 358 F.3d at 102 (citations omitted). Once a plaintiff has made this showing, the burden shifts to the employer to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected speech. Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 30 (1st Cir.2004); O’Connor, 994 F.2d at 912. Vasapolli and Bisignani argue that Putnam has failed to meet this requirement. Defs.’ Mem. at 6. a. Awareness of Putnam’s Ethics Commission Testimony First, Vasapolli argues, a causal connection between Putnam’s activity and his being passed over for the position of temporary chief is lacking because Vasa-polli was not even aware that Putnam had testified before the State Ethics Commission and certainly not the substance of that testimony. Id. at 7. Furthermore, he argues, Putnam did not testify until after his interview. Id. Vasapolli’s alleged lack of awareness, however, is refuted by evidence in the record before the Court. The October 11, 2002 letter from Putnam’s attorney to Vasapolli stated that “Lt. Putnam has been questioned by the Ethics Commission” about the Kelleher incident. Licthen Letter at 2. The letter also noted Putnam’s “subsequent cooperation with the Ethics Commission” following the Kelleher incident. Id. According to Vasapolli, this letter is “too vague” to provide a basis for retaliation. Defs.’ Mem. at 7 n. 3. Although this letter was sent prior to Putnam’s actual testimony, it placed Vasapolli on notice that Putnam had been approached by the Ethics Commission and that he was questioned regarding the Kelleher incident. Therefore, Vasapolli’s own self-serving statement that he did not know about Putnam’s testimony is in