AMY O'HARA & Another v. CITY OF REVERE & Others.

• Court: Massachusetts Appeals Court
• Decided: July 11, 2025
• Docket: 24-P-1105
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1105

AMY O'HARA & another1

vs.

CITY OF REVERE & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This interlocutory appeal arises out of a lawsuit alleging

workplace gender discrimination within the Revere police

department and related claims. One defendant, Paul Capizzi, the

solicitor for the city of Revere, appeals the denial of a motion

to dismiss as to the two counts of the plaintiffs' complaint

against him (counts 5 and 7) under Mass. R. Civ. P. 12 (b) (6),

365 Mass. 754 (1974).3 He argued that his alleged acts were

protected by either the litigation privilege or common-law

1 Michelle Mangino.

2 David Callahan, Regina Ryan, and Paul Capizzi.

3Although the first amended complaint also alleged claims against the city of Revere and two other individuals, this interlocutory appeal concerns only Capizzi. immunity.4 A Superior Court judge found that, at this stage,

Capizzi's arguments fail. We affirm.

Background. "We summarize the factual allegations set

forth in the complaint and in the undisputed documents

incorporated by reference in the complaint." Osborne-Trussell

v. Children's Hosp. Corp., 488 Mass. 248, 250 (2021). We

"accept[] as true all well-pleaded facts alleged in the

complaint." Id. at 253, quoting Ryan v. Mary Ann Morse

Healthcare Corp., 483 Mass. 612, 614 (2019).

The plaintiffs, Amy O'Hara and Michelle Mangino, are

captains in the Revere police department. In 2020, Revere Mayor

Brian Arrigo appointed defendant David Callahan to the position

of police chief without considering any other applicants.

Thereafter, Callahan repeatedly reassigned duties from O'Hara

and Mangino to lower-ranked male officers. In general, O'Hara

and Mangino claim to have experienced gender discrimination in

various ways, including differential treatment in social

environments, in pay discrepancies, and in workplace

recognition. The plaintiffs alleged that Callahan directed and

facilitated this discrimination.

4 Capizzi only seeks interlocutory review of the rulings on these two arguments. His remaining argument raised in the motion -- that he is entitled to conditional privilege -- is not before us.

2 On September 15, 2022, Mangino, on behalf of herself and

O'Hara, reported Callahan's discriminatory conduct to Revere's

human resources department. Following that report, Revere

retained Regina Ryan to investigate the plaintiffs' allegations.

On April 6, 2023, before Ryan's investigative report was

completed, the plaintiffs each filed separate but similar

charges of gender discrimination and retaliation against

Callahan and Revere with the Massachusetts Commission Against

Discrimination (MCAD).

Meanwhile, Ryan conducted interviews with Mangino and

O'Hara beginning in November 2022. After Mangino objected to

having her interview recorded, Ryan assured her that the

recording would not be produced to the city or any other party

unless mandated by a legal body or subpoena, and that Mangino's

counsel would be informed before any release was made. Ryan

offered the same assurances to O'Hara.

On or before May 30, 2023, Ryan's final report was released

to Capizzi. Capizzi sent the report in an e-mail message to the

plaintiffs, their respective counsel, and the president of the

Revere Police Superior Officers Union, Sergeant Joseph

Internocola. The report included all the exhibits and

interviews Ryan had attached, unredacted copies of the

plaintiffs' MCAD charges, and the plaintiffs' home addresses,

3 personal phone numbers, and e-mail addresses. Anyone who

received the report could immediately access the exhibits

because none of it was password protected. The recordings of

O'Hara's and Mangino's interviews were in the report, along with

video recordings of interviews conducted via Zoom. Ryan had not

advised either plaintiff that she was video recording the Zoom

interviews.

The plaintiffs filed their first amended complaint on

October 17, 2023. Capizzi and two other defendants filed a

motion to dismiss counts 5 (defamation) and 7 (interference with

business or contractual relations), and other counts not

relevant here, on December 8, 2023. In support of the dismissal

of those counts as to him, Capizzi argued that his alleged acts

were protected by (1) the litigation privilege, (2) common-law

immunity, and (3) conditional privilege. The plaintiffs opposed

dismissal of those counts. On July 19, 2024, the judge denied

the motion to dismiss as to counts 5 and 7 as against Capizzi.

Capizzi appeals from so much of the order as denied his request

to dismiss the claims against him under the litigation privilege

and common-law immunity.

Discussion. "We review the denial of a motion to dismiss

de novo." Pettiford v. Branded Mgt. Group, LLC, 104 Mass. App.

4 Ct. 287, 290 (2024). See Mass. R. Civ. P. 12 (b) (6). We

affirm.

1. Litigation privilege. The litigation privilege

protects an attorney from liability for publishing false and

defamatory matter when publication is "in the institution of, or

during the course and as a part of a judicial proceeding in

which he participates as counsel, if it has some relation

thereto." Sriberg v. Raymond, 370 Mass. 105, 108 (1976). The

privilege also protects statements made "in communications

preliminary to a proposed judicial proceeding." Id. As the

judge here correctly found, "[n]othing in Plaintiffs' complaint

indicates that Capizzi's email was made in the course of

negotiations or as a statement of the City of Revere's legal

position." Additionally, "nothing in Capizzi's email suggests

that the email related to either Plaintiffs' MCAD filings or the

present litigation." See id. at 109 ("This [privilege] is

subject to the provisions that such proceeding is not to be

employed as a shield of immunity for defamation where there is

not serious consideration of suit"). See also Smith v. Suburban

Restaurants, Inc., 374 Mass. 528, 531-532 (1978) (attorney not

entitled to privilege where "there is no indication that the

attorney seriously contemplated a judicial proceeding in good

faith"). Taking the facts alleged by the plaintiffs as true and

5 resolving all inferences in their favor, the judge properly

concluded that, based on the pleadings at this stage, the

litigation privilege did not apply.

2. Common-law immunity. Under common-law immunity, "a

public official, exercising judgment and discretion, is not

liable for negligence or other error in the making of an

official decision if the official acted in good faith, without

malice, and without corruption." Nelson v. Salem State College,

446 Mass. 525, 537 (2006). The plaintiffs alleged that

Capizzi's actions were done "out of retaliatory animus and a

spiteful purpose"; as the judge properly noted, at least at this

early stage of litigation, that was sufficient to allege

Capizzi's decision was not "in good faith, without malice, and

without corruption." Id. Accordingly, the judge also properly

concluded that Capizzi's claim of common-law immunity fails at

this early stage.

Conclusion. So much of the order entered July 19, 2024, as

denied the motion to dismiss the claims against Capizzi under

6 the litigation privilege and common-law immunity is affirmed.

So ordered.

By the Court (Vuono, Henry & Wood, JJ.5),

Clerk

Entered: July 11, 2025.

5 The panelists are listed in order of seniority.