GALLAGHER et al v. TOWN OF BARNSTABLE et al

Filing 28

Judge George A. OToole, Jr: ORDER entered granting 13 Motion to Dismiss as to counts I,II,III, and VIII and denied as to counts IV and V. Counts VI and VII are dismissed as against Van Cor. (Lyness, Paul)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-11005-GAO
ROBERT J. GALLAGHER,
Plaintiff,
and
TOWN OF BARNSTABLE, BARNSTABLE SCHOOL DISTRICT, BARNSTABLE
SCHOOL COMMITTEE, PATRICIA GRENIER, PATRICIA GRAVES, and
KENNETH W. VAN COR,
Defendants.

ORDER
March 19, 2012
O’TOOLE, D.J.
The defendants in this employment discrimination case have moved to dismiss
some of the claims brought by the plaintiff. After review of the parties’ submissions, the
motion is granted.
The state law claims in Counts I, II, and III are precluded by the existence of a
remedy under Mass. Gen. Laws ch. 151B. The plaintiff has set forth claims under that
statute in Counts IV and V.
The claims under Title VII that are asserted against the individual defendant Van
Cor in Counts VI and VII are precluded because it is settled that Title VII does not
authorize suits against supervisory employees in their individual capacities. See Fantini v.
Salem State College, 557 F.3d 22, 28 (1st Cir. 2009). Counts VI and VII stand as against
the School District.
Finally, the plaintiff has not adequately pled a claim for interference with his First
Amendment rights. See Garcetti v. Ceballos, 547 U.S. 410 (2006). On the account given

by the plaintiff in the complaint, the adverse employment actions predated his public
statements on the matter. For that reason, the adverse actions could not have been in
retaliation for what had not yet occurred. Count VIII fails to state a claim.
Accordingly, the motion (dkt. no. 13) is GRANTED as to counts I, II, III, and
VIII and DENIED as to count IV and V. Counts VI and VII are dismissed as against Van
Cor.
It is SO ORDERED.

/s/ George A. O’Toole, Jr.
United States District Judge

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