Tonneson v. Cambridge College et al

Filing 14

Judge Rya W. Zobel: Memorandum of Decision entered granting in part and denying in part 5 Motion to Dismiss; A further scheduling conference is set for 9/13/11 at 9:30 a.m. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-12004-RWZ

JENNIFER TONNESON
v.
CAMBRIDGE COLLEGE and
EILEEN BROWN

MEMORANDUM OF DECISION
August 29, 2011
ZOBEL, D.J.
Plaintiff Jennifer Tonneson brings this 15-count complaint against her former
employer, Cambridge College and its former Acting President and Chancellor, Eileen
Brown, for gender discrimination and retaliation in violation of Mass. Gen. Laws ch.
151B, § 4, breach of contract, defamation, and several additional statutory violations
and common law torts arising out of her termination. Defendants move to dismiss
several counts of the complaint.
I.

Factual Background
Tonneson was hired by Cambridge College in 2004 to be its Vice President of

Finance & Administration. Each year she executed a one-year contract which set forth
the terms of her employment. She was initially hired by then-President Mahesh
Sharma, who was himself terminated after an investigation in 2008. Defendant Brown
was then named Acting President. Tonneson’s employment was terminated shortly

thereafter.
She now contends that despite consistently receiving positive performance
reviews, she was terminated without notice in breach of her employment contract, and
that her termination was due to her allegations of improprieties regarding personal
expenses defendant Brown charged to the College. Cambridge College insists that
Tonneson was an at-will employee terminated in compliance with her employment
contract due to performance issues.
Defendants move to dismiss Counts I-VI, IX-X, and XII-XIV.
II.

Legal Standard
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) requires the court to appraise

the legal sufficiency of the complaint, not whether a plaintiff will ultimately prevail.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive a motion to dismiss,
plaintiffs must set forth “factual allegations, either direct or inferential, regarding each
material element necessary to sustain recovery.” Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008) (internal quotation marks and citation omitted). At the same time, a
court must accept all well-pleaded factual allegations in the complaint as true and
draws all reasonable inferences in favor of the non-moving party. ACA Fin. Guar. Corp.
v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008). Dismissal is only appropriate if the
pleadings fail to support “‘a plausible entitlement to relief.’” Rodriguez–Ortiz v. Margo
Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 559, 127 S. Ct. 1955, 1967 (2007)).
Several claims are based upon violations of Massachusetts law; thus the court
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must look to the constructions placed upon these statutes by Massachusetts courts.
See Woods v. Friction Materials, Inc., 30 F.3d 255, 263 (1st Cir.1994), abrogated on
other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
Defendants assert discrete grounds for dismissing each of the allegedly
inadequate counts. I address each count in turn.
III.

Discussion
A.

Count I: Breach of Contract (Against Defendant Cambridge College)

Plaintiff first claims that Cambridge College breached its employment contract
with her when it terminated her without cause and without notice.
To prevail on a claim for breach of contract, a plaintiff must allege “that there
was a valid contract, that the defendant breached its duties under the contractual
agreement, and that the breach caused the plaintiff damage.” Bosque v. Wells Fargo
Bank, N.A., 762 F. Supp. 2d 342, 351 (D. Mass. 2011) (citations omitted).
First, there is a dispute as to what constitutes the employment contract. No
contract was attached to the complaint. Defendants point to a written letter agreement
dated August 13, 2007, signed by both parties, which delineates the key parameters of
Tonneson’s employment. See Defs.’ Mem. of Law in Support of their Mot. To Dismiss,
Ex. A. Plaintiff, however, alleges the existence of a supplemental verbal agreement.
Although a court is ordinarily prohibited from looking beyond the four corners of
a complaint when appraising its sufficiency under Rule 12(b)(6), courts have long
recognized “exceptions for documents the authenticity of which are [sic] not disputed by
the parties; for official public records; for documents central to plaintiffs’ claim; or for
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documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3
(1st Cir. 1993). In the absence of any written documentation provided by plaintiff, this
court can consider the 2007 employment agreement.1
The 2007 employment agreement contains no provision requiring that
termination be for cause. While it does contain a provision requiring 30 days’ notice
prior to termination, it also states that in lieu of providing such notice, the College may
pay 30 days’ additional salary, or severance.2 Defendants contend that plaintiff was
paid 30 days’ salary. Plaintiff appears to dispute this. See Compl. ¶¶ 50-51; 65-66; 90.
In light of this dispute, dismissal of this claim is not warranted at this stage.
B.

Counts II and III: Defamation (Against Both Defendants)

Plaintiff’s claims of defamation focus on statements to various publications,
including comments by defendants to the Boston Globe which appeared in an article
published on July 14, 2008. She points to the statements by Brown that Tonneson
“was associated with the defendant College’s terminated President Mahesh Sharma”;
“was no longer with the university”; that her departure was a “mutual decision” and that

1

Plaintiff does not appear to dispute the validity of the 2007 contract; rather she
contends it is not the entirety of the agreement.
2

The 2007 employment agreement states, in pertinent part:

“The College may terminate this agreement by giving you not less than
thirty calendar days notice or, at the College’s election, in lieu of providing
you with this full notice, the College may pay you the difference between
the salary you would have received if the College had provided thirty
calendar days notice and the amount of salary you receive due to a
decision by the College to terminate your employment with less than thirty
days notice.”
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“the college had declined to grant [Tonneson] the severance package she requested.”3
See Compl. ¶¶ 69-72.
Under Massachusetts law, a defamation claim has five elements: “(1) that the
defendant published a written statement; (2) of and concerning the plaintiff; that was
both (3) defamatory, and (4) false; and (5) either caused economic loss, or is
actionable without proof of economic loss.” Noonan v. Staples, Inc., 566 F.3d 20, 25
(1st Cir. 2009); see also Phelan v. May Dep’t Store Co., 819 N.E. 2d 550, 553 (Mass.
2004).
Defendants concede making the comments at issue. Such comments, they
assert, are, however, absolutely protected under two defenses: (1) they were truthful;
and (2) the subject matter (misuse of funds) is a matter of public concern.
Truth is an absolute defense to a defamation action under Massachusetts law.
See Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595, 598 (1943).
Here, plaintiff does not argue that the allegedly defamatory statements were literally
false. At the time the statements were made, she no longer worked at the College; it
had declined to grant her the severance package she requested. Nor does she allege
the remaining comments were false, only, at worst, misleading. Accordingly, the
defamation claims may be dismissed.
C.

Count IV: Intentional Infliction of Emotional Distress (Against
Defendant Brown)

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The comments that appeared in the Boston Globe were republished in several
other academic and professional publications, including the Chronicle of Higher
Education.
5

Plaintiff’s claims of intentional and negligent infliction of emotional distress
appear to derive from defendants’ hiring the Eagan Group, a private investigation firm,
to investigate an anonymous newsletter circulated to members of the College
community which criticized the administration. As part of the firm’s investigation,
several former FBI agents interviewed plaintiff, and 24 hours later, she was terminated
without notice and without cause. Plaintiff contends that Brown’s conduct was “extreme
in degree and outrageous in character” and it resulted in “the intentional and reckless
infliction of emotional distress.” Compl. ¶ 103.
Intentional infliction of emotional distress requires proof of four elements under
Massachusetts law: “(1) defendant intended to inflict emotional distress or knew or
reasonably should have known that emotional distress was likely to result from such
conduct; (2) the conduct was “extreme and outrageous,” “beyond all possible bounds of
decency,” and “utterly intolerable in a civilized community”; (3) the defendant's conduct
proximately caused plaintiff's emotional distress; and (4) the distress was so “severe
that no reasonable man could be expected to endure it.” Davignon v. Clemmey, 322
F.3d 1, 8 (1st Cir. 2003) (citations omitted).
The intentional tort requires acts that are “extreme and outrageous,” either
reasonably viewed as an attempt to “shock and harm a person's peace of mind,” or “if
not individually such, are part of a pattern of harassment intended to accomplish the
same end.” Smith v. Jenkins, 718 F. Supp.2d 155, 172 n.26 (D. Mass. 2010) (internal
citations omitted). Here, plaintiff’s allegations do not meet the high standard for
“extreme and outrageous” behavior. At worst, plaintiff alleges that she was terminated
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without cause in retaliation for her being a whistleblower, discriminated against on the
basis of her gender, the subject of defamatory remarks, and questioned by an outside
investigatory group. Even if true, such conduct is not “beyond all bounds of decency
and ... utterly intolerable in a civilized community.” Id.
D.

Count V: Negligent Infliction of Emotional Distress (Against Both
Defendants)

Negligent infliction of emotional distress requires plaintiff to demonstrate: “(1)
[defendant’s] negligence; (2) [her] emotional distress; (3) causation; (4) objective
evidence of physical manifestation of mental distress; and that (5) a reasonable person
would have suffered emotional distress under the circumstances of the case.” Baldwin
v. Pilgrim Nuclear Power Station, 529 F. Supp. 2d 204, 212 (D. Mass. 2008) (citing
Sullivan v. Boston Gas Co., 414 Mass. 129, 132, 137-138, 605 N.E.2d 805 (1993)).
Plaintiff has failed to allege any physical manifestation of mental distress. Accordingly,
her claim is dismissed.
E.

Count VI: Intentional Interference with Advantageous and/or
Contractual Relations (Against Defendant Brown)

To make out her claim that Brown “willfully and intentionally” interfered with her
advantageous and/or contractual relationship with the College, Compl. ¶ 113, plaintiff
has to establish that: “(1) [she] had an advantageous employment relationship with her
employer; (2) the defendant knowingly induced the employer to break that relationship;
(3) the defendant's interference, in addition to being intentional, was improper in motive
or means; and (4) [she] was harmed by the defendant's actions.” Cariglia v. Hertz
Equipment Rental Corp., 363 F.3d 77, 88 (1st Cir. 2004) (citing Weber v. Cmty.
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Teamwork, Inc., 434 Mass. 761, 781, 752 N.E.2d 700 (2001)).
Where, as here, the defendant is an official of the third party employer or a
supervisor of the plaintiff, courts have applied a heightened standard requiring actual,
rather than implied, malice. “[A] supervisor who discharges or recommends discharge
of an employee is not liable for interference with the employee’s contract or business
relations unless the supervisor’s actions were motivated by actual malice.” Galdauckas
v. Interstate Hotels Corp. No. 16., 901 F. Supp. 454, 465 (D. Mass. 1995). The
Massachusetts Supreme Judicial Court (“SJC”) has concluded that the heightened
standard is necessary to protect the freedom of corporate officers in “matters related to
the conduct of the internal affairs of a corporation.” Blackstone v. Cashman, 448 Mass.
255 265, n. 15 (Mass. 2007). Plaintiff does not specify which of Brown’s actions were
carried out with improper means and/or motive. Assuming plaintiff is referring to lack of
notice and/or lack of cause with respect to her termination, the termination letter is from
the College, not Brown. Elsewhere in the complaint, plaintiff contends that Brown
made defamatory statements and engaged in other misdeeds. She does not allege,
however, that those actions caused her termination. The motion to dismiss Count VI is
therefore allowed.
F.

Count IX: Invasion of Privacy (Against Both Defendants)

Plaintiff next claims invasion of privacy by the College in that it “condon[ed],
releas[ed] and/or fail[ed] to prevent Tonneson’s employment records to be released, in
violation of M.G.L. ch. 214, § 1B and M.G. L. 149, § 52C.” Complaint ¶¶ 127-129. It did
so by revealing her employment status when commenting to the Boston Globe that she
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“was no longer with the university.” Id. at ¶¶ 69, 76.
To prevail on a claim for invasion of privacy, plaintiff must establish “that the
disclosure was both unreasonable and either substantial or serious.” Mass. Gen. Laws
ch. 214, § 1B; Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 382 (2005).4 In the
employment context, courts have recognized that they must “balance the employer’s
legitimate business interest in obtaining and publishing the information against the
substantiality of the intrusion on the employee’s privacy relating from the disclosure.”
Id. at 383.
The SJC has held that “disclosures ... limited to the plaintiff’s professional
involvement in a matter that already was the focus of a high degree of public scrutiny
and interest ... are outside the protection of M.G.L. ch. 214, § B.” Id. at 384-385. Here,
Tonneson’s employment was in the public eye due to media coverage of the change in
personnel at the College. The College provided truthful information about her
employment status, which was by then a matter of public interest.
Mass. Gen. Laws ch. 149, § 52C governs how employers handle personnel
records with regard to “employment, promotion, transfer, additional compensation or
disciplinary action.”5 It further allows an employee to review her personnel record upon

4

Mass. Gen. Laws ch. 214, § 1B provides “A person shall have a right against
unreasonable, substantial or serious interference with his privacy. The superior court
shall have jurisdiction in equity to enforce such right and in connection therewith to
award damages.”
5

Mass. Gen. Laws ch. 149, § 52C provides, in relevant part: “‘Personnel record’
a record kept by an employer that identifies an employee, to the extent that the record
is used or has been used, or may affect or be used relative to that employee’s
qualifications for employment, promotion, transfer, additional compensation or
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written request. Plaintiff has failed to describe how defendants allegedly violated this
statute.

G.

Count X: Violation of Title IX of the Higher Education Amendments of
1972 (Against Both Defendants)

Title IX of the Higher Education Amendments of 1972 guarantees that “no
person in the United States shall, on the basis of sex, be excluded form participating in,
be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a).
The gravamen of plaintiff’s complaint is that defendants terminated her on
account of her gender and paid her less in severance than her terminated male
colleagues. See Compl. ¶¶ 32-33; 74. She further contends that she was terminated in
retaliation for reporting defendants’ illegal use of federal and College funds. See
Compl. ¶¶ 80-81, 140.
First, Title IX’s right of action “extends only to claims against the educational
institution itself.” Frazier v. Fairhaven Sch. Cmte., 276 F.3d 52, 65 (1st Cir. 2002).
Consequently, this claim is dismissed as to defendant Brown.
Second, to state a claim for a violation of Title IX, plaintiff must allege facts
sufficient to demonstrate “(1) protected participation or opposition under Title [IX]
known by the alleged retaliator; (2) an ... action or actions disadvantaging persons
engaged in protected activities; and (3) a causal connection between the first two

disciplinary action.”
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elements[,] that is[,] a retaliatory motive playing a part in the adverse ... actions.”
Frazier v. Fairhaven Sch. Committee, 122 F. Supp.2d 104, 113 (D. Mass. 2000) (citing
Hazel v. U.S. Postmaster General, 7 F.3d 1, 3 (1st Cir. 1993)).
Here, plaintiff has alleged that she was terminated in retaliation for her
“complaining of [the College’s] disparate gender treatment.” Compl. ¶ 74. She has
thus adequately pled a claim against the College under Title IX.
H.

Count XII: Violation of the Massachusetts Civil Rights Act, Mass.
Gen. Laws ch. 12, §§ 11H and 11 I (Against Both Defendants)

Count XII alleges that defendants violated the Massachusetts Civil Rights Act
(“MCRA”), Mass. Gen. Laws ch. 12, §§ 11H and 11I, by terminating her in retaliation for
reporting defendants’ “illegal appropriations of federal and College funds.” See Compl.
¶¶ 80-81, 140. By so doing, she further alleges, the College violated her “rights under
state law to be free from harassment, threats, intimidation and/or coercion.” Id. at ¶
140.
To sustain a claim under Mass. Gen. Laws ch. 12, § 11H, a plaintiff must
demonstrate that “(1) [her] exercise or enjoyment of rights secured by the Constitution
or laws of either the United States or the Commonwealth, (2) has been interfered with,
or attempted to be interfered with, and (3) that the interference or attempted
interference was by threats, intimidation or coercion.” Meuser v. Federal Express Corp.,
524 F. Supp. 2d 142, 147 -148 (D. Mass. 2007) (internal citations omitted).6
6

Mass. Gen. Laws ch. 12, § 11H provides, in pertinent part: “Whenever any
person or persons, whether or not acting under color of law, interfere by threats,
intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with
the exercise or enjoyment by any other person or persons of rights secured by the
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Under the MCRA,
a threat consists of the intentional exertion of pressure to make another
fearful or apprehensive of injury or harm.... Intimidation involves putting in
fear for the purpose of compelling or deterring conduct... Coercion is the
application to another of such force, either physical or moral, as to
constrain him to do against his will something he would not otherwise
have done.
Id. at 147 (citing Haufler v. Zotos, 446 Mass. 489, 845 N.E.2d 322, 335 (2006) (internal
quotation marks and citations omitted)).
Courts have recognized that the statute’s language gives rise to some ambiguity.
Courts initially required some “actual or potential physical confrontation accompanied
by a threat of harm.” Carvalho v. Town of Westport, 140 F. Supp.2d 95, 101 (D. Mass.
2001). However, that requirement has since been relaxed. See Buster v. George W.
Moore, Inc., 438 Mass. 635, 783 N.E.2d 399, 411 (2003).
The question of whether termination is sufficient economic coercion under the
statute has also been unsettled. However, several courts have found that termination
in retaliation for protected speech does in fact give rise to a cause of action under the
statute. See Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 502 N.E.
2d 1375 (1987), Acciavatti v. Professional Servs. Group, 982 F. Supp. 69, 78-79 (D.
Mass. 1997) and Bally v. Northeastern Univ., 403 Mass. 713, 719 (1989). But see Korb
v. Raytheon Corp., 410 Mass. 581, 585 (1991).

constitution or laws of the United States, or of rights secured by the constitution or laws
of the commonwealth, the attorney general may bring a civil action for injunctive or
other appropriate equitable relief in order to protect the peaceable exercise or
enjoyment of the right or rights secured.” Mass. Gen. Laws ch. 12, § 11I provides
individuals with a private right of action to remedy violations of § 11H.
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Accordingly, plaintiff has adequately alleged an MCRA claim against Cambridge
College. However, she has not done so with respect to defendant Brown, as it was the
College that issued the termination letter, not Brown, and she has not sufficiently
alleged that Brown was responsible for her termination.
I.

Counts XIII and XIV: Violations of 42 U.S.C. § 1983, First and
Fourteenth Amendments (Against Both Defendants)

Plaintiff’s final counts allege violations of her First and Fourteenth Amendment
rights by a defendant acting “under color of” state law. 42 U.S.C. § 1983. Plaintiff now
concedes that she cannot establish state action and has withdrawn Counts XIII and
XIV. See Docket # 10, Pl’s Mem. of Law in Opp. to Deft’s Mot. to Dismiss at 25.
Accordingly, these counts are dismissed.
IV.

Conclusion
Defendants’ motion to dismiss (Docket # 5) is ALLOWED as to Counts II-VI, IX,

and XIII and XIV and DENIED as to Count I. With respect to Counts X and XII, the
motion to dismiss is ALLOWED as to defendant Brown and DENIED as to defendant
Cambridge College.

August 29, 2011
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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