Saltzman v. Town of Hanson et al

Filing 44

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, the Town's motion for summary judgment (Docket Entry 28 ) is ALLOWED on all counts. Similarly, in accordance with the foregoing discussion, Finglas and Smith's motion for summary judgment (Docket Entry 30 ) is ALLOWED on all counts.(Garvin, Brendan)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BONITA SALTZMAN,
Plaintiff,
v.

CIVIL ACTION NO.
11-10056-MBB

TOWN OF HANSON,
MICHAEL FINGLAS, SR.
and JEAN MARIE SMITH,
Defendants.

MEMORANDUM AND ORDER RE:
MOTION OF DEFENDANT, TOWN OF HANSON, FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 28);
MOTION OF DEFENDANTS, MICHAEL FINGLAS, SR., AND JEAN MARIE
SMITH, FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 30)
March 31, 2013

BOWLER, U.S.M.J.
Pending before this court is a motion filed by defendant
Town of Hanson (“the Town”) for summary judgment and a motion
filed by defendants Michael Finglas, Sr. (“Finglas”) and Jean
Marie Smith (“Smith”) (collectively “defendants”) for summary
judgment.

(Docket Entry ## 28 & 30).

(“plaintiff”) opposes both motions.

Plaintiff Bonita Saltzman

On October 11, 2012, this

court held a hearing and took the motions (Docket Entry ## 28 &
30) under advisement.

PROCEDURAL HISTORY
The five count pro se complaint filed on December 16, 2010,
sets out the following claims against defendants:

(1) a due

process claim under 42 U.S.C. § 1983 (“section 1983”) for
refusing to produce transcripts of a municipal hearing (Count
One); (2) wrongful termination (Count Two); (3) breach of the
implied covenant of good faith and fair dealing (Count Three);
(4) termination without just cause (Count Four); and (5)
intentional infliction of emotional distress (Count Five).

On

May 3, 2012, defendants filed an amended answer adding a statute
of limitations defense.

(Docket Entry # 24).

The Town filed the summary judgment motion on June 29,
2012.

(Docket Entry # 28).

Finglas and Smith also filed a

motion for summary judgment on June 29, 2012.
30).

(Docket Entry #

Accompanying both motions were memorandums of law in

support of summary judgment and a joint statement of material
facts pursuant to LR. 56.1.

(Docket Entry ## 29, 31 & 32).

Plaintiff filed an opposition to both motions on July 23, 2012,
to which defendants filed a reply on August 2, 2012.

(Docket

Entry ## 33 & 34).

Plaintiff filed an “answer & opposition” to

defendants’ reply.

(Docket Entry # 37).

On January 24, 2013,

this court denied defendants’ motion to strike the answer and

2

opposition but allowed them the opportunity to respond by
January 31, 2013.

Defendants did not file a response.
STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.”

Rule 56(c), Fed. R. Civ. P.

“A

dispute is genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the nonmoving party.”

Am. Steel Erectors, Inc. v. Local Union No. 7,

Int’l Ass’n of Bridge, Structural, Ornamental & Reinforcing Iron
Workers, 536 F.3d 68, 75 (1st Cir. 2008).

“A fact is material if

it carries with it the potential to affect the outcome of the
suit under the applicable law.”

Id.

Facts are viewed in favor of the non-movant.
Staples, Inc., 556 F.3d 20, 23 (1st Cir. 2009).

Noonan v.

“Where, as here,

the non-movant has the burden of proof and the evidence on one
or more of the critical issues in the case is not significantly
probative, summary judgment may be granted.”

Davila v.

Corporacion De Puerto Rico Para La Difusion Publica, 498 F.3d 9,
12 (1st Cir. 2007); accord Clifford v. Barnhart, 449 F.3d 276,
280 (1st Cir. 2006) (if moving party makes preliminary showing,
non-moving party must “produce specific facts, in suitable
evidentiary form, to establish the presence of a trial worthy

3

issue” with respect to each element on which he “would bear the
burden of proof at trial”).
Defendants submit a LR. 56.1 statement of undisputed facts.
Uncontroverted statements of fact in the LR. 56.1 statement
comprise part of the summary judgment record.

See Cochran v.

Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the
plaintiff’s failure to contest date in LR. 56.1 statement of
material facts caused date to be admitted on summary judgment);
Stonkus v. City of Brockton School Dep’t, 322 F.3d 97, 102 (1st
Cir. 2003) (citing LR. 56.1 and deeming admitted undisputed
material facts the plaintiff failed to controvert); Kenda Corp.,
Inc. v. Pot O’Gold Money Leagues, Inc., 329 F.3d 216, 225 (1st
Cir. 2003) (citing principle that “‘[p]ro se status does not
insulate a party from complying with procedural and substantive
law’”).
FACTUAL BACKGROUND
Plaintiff worked for the Town’s Multi Service Center (“the
Senior Center”) as the Assistant Supportive Day Program
Coordinator from October 2004 until December 17, 2008.
Entry # 1) (Docket Entry # 32, Ex. 1, pp. 11-17).

(Docket

The

Supportive Day Program provides services for elderly clients,
most of whom suffer from Alzheimer’s or another form of
dementia.

(Docket Entry # 32, Ex. 2 & 9).

4

Smith served as

Director of Elder Affairs the entire time plaintiff was employed
at the Senior Center and was responsible for the management of
the Senior Center.

(Docket Entry # 1).

Diane McCarey

(“McCarey”) was the Supportive Day Program Coordinator and
plaintiff’s immediate supervisor throughout her employment.
(Docket Entry # 32, Ex. 1, p. 17).
The Town is a municipal corporation governed by a five
member Board of Selectmen (“the Board”).
Ex. 6).

(Docket Entry # 32,

At the time of plaintiff’s termination, the Board

consisted of Chairman James A. Egan (“Egan”), Vice Chairman
Christopher L. Colclough (“Colclough”), James E. Armstrong
(“Armstrong”), Stephen M. Amico (“Amico”) and Donald H. Howard
(“Howard”).

(Docket Entry # 1).

The Board is the appointing

authority for plaintiff’s position of Assistant Supportive Day
Program Coordinator at the Senior Center.
Ex. 6).

(Docket Entry # 32,

It also served as the Personnel Board of the Town.

(Docket Entry # 32, Ex. 10).
Finglas served as the Town Administrator for the duration
of plaintiff’s employment at the Senior Center.
1, Ex. 1; Docket Entry # 32, Ex. 8).

(Docket Entry #

As Town Administrator, he

also served as the Personnel Director of the Town and was
responsible for the administration of all personnel matters.1

1 As set out in the by-laws:

5

(Docket Entry # 32, Ex. 10).

The Town Administrator was

responsible for making any necessary recommendations to the
Board about the dismissal of employees whose positions fell
under the Board’s jurisdiction.
138).

(Docket Entry # 32, Ex. 1, p.

The Assistant Supportive Day Program Coordinator

position, plaintiff’s position, fell under the jurisdiction of
the Board.

(Docket Entry # 32, Ex. 9).

Section 8G of the Town’s personnel classification and
compensation by-law allows termination of an employee “for just
cause.”

(Docket # 32, Ex. 10).

In particular, the by-law

states:
an employee may be terminated from employment by the Town
Administrator for just cause after the employee has been
given written warning by the Department Head, fails to show
adequate improvement in work performance during the warning
period and the relevant appointing body votes affirmatively
for termination.
(Docket Entry # 32, Ex. 10).

Prior to discharge of an employee

recommended for termination, the Board conducts a hearing to
review the recommendation to terminate.
10 & 11).

(Docket Entry # 32, Ex.

As noted above, if the Board voted affirmatively in

The Town Administrator shall serve as Personnel Director of
the Town and be responsible for the administration of all
personnel matters, including by-laws and all personnel
policies and regulations that the Board of Selectman may
adopt, including the enforcement of such personnel
policies, rules and regulations.
(Docket Entry # 32, Ex. 10, § 2B).

6

favor of termination, the Town Administrator may terminate the
employee for “just cause.”

(Docket Entry # 32, Ex. 10).

On June 19, 2008, an incident occurred at the Senior Center
during which a client wandered away (“the missing client
incident”).

(Docket Entry # 32, Ex. 1, pp. 59-62 & 67).

police were called and a search commenced.
Ex. 1, pp. 59-62).

The

(Docket Entry # 32,

The client was eventually found in the Town

library next door to the Senior Center a few hours later.
(Docket Entry # 32, Ex. 1, pp. 59-62).

During the time the

client went missing, plaintiff had left the Senior Center and
gone to the same library to renew her library books.

(Docket

Entry # 32, Ex. 1, pp. 59-62).
Plaintiff’s job description includes “providing assistance
to the Supportive Day Program Clients to [the] Senior Center
Van.”

(Docket Entry # 32, Ex. 13).

A November 2007 memorandum

to staff from McCarey dictates that all clients are assisted to
vans.

(Docket Entry # 32, Ex. 4).

This entails “one person to

assist with the van [and wait] until van leaves” and another
person “stay[ing] with the SDC2 Program.”
Ex. 3).

(Docket Entry # 32,

Plaintiff testified that a “verbal directive” required

escorting clients to the van but did not designate the
individual responsible.

(Docket Entry # 32, Ex. 1, pp. 62-67).

SDC is an acronym for the Supportive Day Center Program at the
Senior Center.
2

7

She also remembered that McCarey passed out “literature” during
a 2007 staff meeting “that said the aide shall go to the van.”
(Docket Entry # 32, Ex. 1, pp. 62-67).

Plaintiff testified that

she handled the matter appropriately because she had informed
another staff member that she was leaving the floor to renew her
library books so that staff member was therefore the individual
responsible for the clients at the time of the missing client
incident.

(Docket Entry # 32, Ex. 1, pp. 62-67).

As a result

of the incident, Smith issued plaintiff a written warning on
June 24, 2008, informing her that if there were any more
infractions she would be recommending plaintiff’s dismissal to
the Town Administrator.

(Docket Entry # 32, Ex. 14).

In a letter dated July 8, 2008, to plaintiff, McCarey gave
plaintiff a written warning about two complaints she had
received about plaintiff from the staff at the Senior Center.
(Docket Entry # 32, Ex. 19).

The complaints involved plaintiff

delegating her clients and duties to other staff members and
wandering away from the floor.

(Docket Entry # 32, Ex. 19).3

Plaintiff was issued another written warning from Smith on July
18, 2008, advising her not to discuss details of personnel
meetings with other staff members and clients at the Senior

3
At her deposition, plaintiff states that she did not see this
written warning until she received a copy of her personnel
folder. She also testified that the date on the warning should
be August 8 not July 8, 2008.

8

Center.

(Docket Entry # 32, Ex. 15).

The memorandum states

that plaintiff discussed a personnel meeting held on July 7,
2008, regarding the June 24, 2008 written warning on the floor
with other staff members in front of clients.
32, Ex. 15).

(Docket Entry #

The memorandum also notes that this behavior had

been discussed previously, which plaintiff disputes, and was
unacceptable.

(Docket Entry # 32, Ex. 15).

On July 31, 2008, Smith sent a written warning to plaintiff
informing her that personal items could not be delivered to work
at any time.

(Docket Entry # 32, Ex. 16).

Plaintiff testified

that she was never given this written warning and only saw it
when she received a copy of her personnel folder.
# 32, Ex. 1, pp. 74-77).

(Docket Entry

The written warning came as a result

of an incident involving a potential delivery to the Senior
Center of a “pot grinder,” which plaintiff explained was used to
grind marijuana buds (“pot grinder incident”).
32, Ex. 1, pp. 74-80 & Ex. 16).

(Docket Entry #

Plaintiff heard her daughter

speaking on the telephone that the pot grinder was being
delivered to the Senior Center.
74-80).

(Docket Entry # 32, Ex. 1, pp.

Plaintiff had a conversation with Karyn Ken (“Ken”)

about the delivery of the pot grinder to the Senior Center.
(Docket Entry # 32, Ex. 1, pp. 74-80).

Plaintiff testified that

the pot grinder was ordered by her daughter and for her

9

daughter’s friend, not for plaintiff.

(Docket Entry # 32, Ex.

1, pp. 74-80).
On August 25, 2008, there was an incident where McCarey
claims that plaintiff arrived at work smelling of marijuana
(“the marijuana incident”).
83 & Ex. 17).

(Docket Entry # 32, Ex. 1, pp. 81-

McCarey’s notes for this date state that

plaintiff arrived at work smelling of marijuana and that she has
noticed plaintiff smelling of marijuana “many times.”
Entry # 32, Ex. 17).

(Docket

McCarey further states that she told

plaintiff to go outside and air out her clothes and warned
plaintiff that she cannot come to work “smelling of pot.”
(Docket Entry # 32, Ex. 17).

Plaintiff admits that there was an

incident where she came into work smelling of marijuana.
(Docket Entry # 32, Ex. 1, pp. 81-83 & 183).

During her

deposition, plaintiff denied smoking marijuana on this occasion
but claimed to have been around someone else who was smoking
marijuana on that occasion.

(Docket Entry # 32, Ex. 1, p. 82).

She did admit to smoking marijuana in the past.

(Docket Entry #

32, Ex. 1, pp. 82 & 182).
On August 28, 2008, another written warning was given to
plaintiff about not having personal items delivered to the
Senior Center.

(Docket Entry # 32, Ex. 18).

Smith issued the

warning after a bank statement was delivered to the Senior

10

Center for plaintiff.

(Docket Entry # 32, Ex. 18).

At her

deposition, plaintiff testified that Smith never discussed with
staff not to receive personal mail or packages at work.

(Docket

Entry # 32, Ex. 1, p. 80).
On September 9, 2008, Finglas placed plaintiff on
administrative leave after an incident occurred between
plaintiff and McCarey in a public area at the Senior Center.
(Docket Entry # 32, Ex. 1, p. 114).

Although the details of the

incident are disputed, the incident involved a “discussion” on
the floor between McCarey and plaintiff about another Senior
Center employee, Donna Baker (“Baker”).
1, p. 114 & Ex. 17).

(Docket Entry # 32, Ex.

Plaintiff agrees that an incident occurred

on this date and that she apologized to clients at the Senior
Center about the incident.
187).

(Docket Entry # 32, Ex. 1, pp. 185-

Plaintiff also suggested to McCarey that she do the same.

(Docket Entry # 32, Ex. 1, pp. 185-187).

Smith recalled that

“staff members” reported to her a “disagreement on the floor”
involving plaintiff.

(Docket Entry # 32, Ex. 21).

Smith spoke

to plaintiff and plaintiff was then asked to leave the Senior
Center on paid administrative leave.
pp. 185-187).

(Docket Entry # 32, Ex. 1,

Plaintiff returned to the Senior Center later in

the day and requested a copy of her personnel folder.
Entry # 32, Ex. 1, pp. 185-187).

11

(Docket

On September 10, 2008, Smith requested that Finglas
terminate plaintiff from her position at the Senior Center.
(Docket Entry # 32, Ex. 22).

Plaintiff telephoned McCarey on or

about September 16, 2008, and they discussed various matters
pertaining to the Senior Center.
106-110 & Ex. 23).

(Docket Entry # 32, Ex. 1, pp.

By letter dated September 19, 2008, Finglas

advised plaintiff not to:

visit the Senior Center; contact the

Senior Center by telephone; contact any employees or clients of
the Senior Center to discuss plaintiff’s ongoing disciplinary
matter; and attempt to influence “the truthful cooperation of
any witness in the disciplinary matter.”

(Docket Entry # 32,

Ex. 24).
On October 13, 2008, plaintiff hand delivered a letter to
each member of the Board addressing her administrative leave,
the incident on September 9, 2008, three falsified documents in
her personnel folder and certain actions taken by Smith.
(Docket Entry # 32, Ex. 7).

As stated in the letter, plaintiff

enclosed some “very serious documentation” and attached a letter
from Attorney Callanan on Smith’s behalf to Finglas addressing
“certain statements of a sexual nature that [Finglas] made to
[her] in [Finglas’] office on August 3, 2005” which were
“unwelcome and very offensive to Ms. Smith.”
32, Ex. 7) (emphasis added).

(Docket Entry #

Plaintiff’s letter concluded with

12

a request to appear before the Board to discuss her employment
status.

(Docket Entry # 32, Ex. 7).

Plaintiff also sent copies

of the letter to Attorney General Martha Coakley, District
Attorney Timothy Cruz and the State Ethics Commission.

(Docket

Entry # 32, Ex. 7).
During plaintiff’s paid administrative leave, Finglas
conducted an investigation about the complaints of plaintiff’s
work conduct and performance.

(Docket Entry # 32, Ex. 8 & 9).

On October 20, 2008, plaintiff received a written notice of a
hearing from Finglas.

(Docket Entry # 32, Ex. 2).

The notice

advised plaintiff that the hearing would take place on October
28, 2008, and could result in his recommendation for her
dismissal.

(Docket Entry # 32, Ex. 2).

The letter informed

plaintiff of the charges and directed her to attend the hearing
and provide information related to the charges.
32, Ex. 2).

(Docket Entry #

Prior to the hearing, plaintiff provided the Town

with a list of witnesses, including several Town employees, who
the Town made available for the hearing.

(Docket Entry # 32,

Ex. 1, pp. 133-135).
The letter sets out the following four charges:

(1)

plaintiff “neglected [her] duties on June 19, 2008 and caused a
Supportive Day Program elderly client to be lost for almost two
hours”; (2) plaintiff “openly admitted to smoking marijuana,”

13

plaintiff came to work smelling like she had smoked marijuana
and before being stopped plaintiff “had arranged to have a ‘pot
grinder’ delivered to [her] at the Multi-Service Senior Center”;
(3) plaintiff “repeatedly abused break times and left clients
unattended so that [she] could smoke cigarettes and socialize,
causing management to have to put all Monday-Thursday staff on a
set schedule for breaks”;4 and (4) while on paid administrative
leave, plaintiff “made a harassing phone call to Ms. McCarey at
work.”

(Docket Entry # 32, Ex. 2).

The letter also advised

plaintiff “that any single charge or any combination of the
charges set forth below, if proven, could result in your
dismissal.”

(Docket Entry # 32, Ex. 2).

On October 27, 2008,

Finglas amended the notice in a letter to plaintiff by adding a
charge that plaintiff violated the September 19, 2008 directive
not to contact the Senior Center or any of its employees or
clients about the disciplinary action.

(Docket Entry # 32, Ex.

25).
As part of Finglas’ investigation, on November 3 and 6,
2008, he conducted a hearing.

The Town’s Labor Counsel

presented evidence related to the charges at the hearing.

4
In reference to this charge, the letter further notes that
plaintiff “then began to show up on Friday, when [she was] not
scheduled to work, and disrupt activities at the center by
confronting management and staff[,] including in front of
clients and the public[,] as to why Friday staff was not on a
break schedule.”

14

(Docket Entry # 32, Ex. 1, pp. 86, 132, 150 & Ex. 9).

Plaintiff

testified at the hearing, offered documentary evidence,
presented all of the witnesses of her choosing and asked
questions of all of the witnesses.

(Docket Entry # 32, Ex. 1,

pp. 143, 171-177 & 180-182).
Plaintiff represented herself at the hearing.
Entry # 32, Ex. 1, pp. 129-133 & 180).

(Docket

At her deposition,

plaintiff also noted she had hired an attorney after receiving
notice of the hearing.
180 & Ex. 9).

(Docket Entry # 32, Ex. 1, pp. 129-133,

The attorney requested a transcript of the

hearing which was not available due to the absence of a
stenographer.

(Docket Entry # 32, Ex. 1, pp. 147-150).

On December 8, 2008, Finglas issued a recommendation to
Eagan as Chairman of the Board finding just cause to dismiss
plaintiff and asked the Board to authorize him to dismiss her.
(Docket Entry # 32, Ex. 26).

The 17 page, single space

recommendation exhaustively details the five complaints lodged
against plaintiff about her work conduct and performance.
(Docket Entry # 32, Ex. 26).

Finglas found the first charge

“substantiated” because plaintiff “was ultimately responsible
for making sure that Ms. Foley and the other clients got safely
on the van on June 19th” and plaintiff neglected these duties
when “she left the clients at 2:55 p.m. to do a personal

15

errand.”

(Docket Entry # 32, Ex. 26).

Finglas also found that

plaintiff should have taken steps to have someone else take
responsibility for getting the clients to the van if she was not
going “to do so” and should not have assumed that someone else
would take over this responsibility.

(Docket Entry # 32, Ex.

26).
Finglas also found the second charge substantiated because
plaintiff admitted to McCarey that she smoked marijuana in the
past; she admitted coming to work smelling of marijuana on at
least one occasion and was told to go outside and air out her
clothing; and she told an administrative assistant at the time
“that her daughter had ordered a pot grinder to be delivered to
the Senior Center.”

(Docket Entry # 32, Ex. 26).

Finglas found

it unacceptable for “any employee, never mind a supervisor, to
come to work smelling of marijuana.”5
26).

(Docket Entry # 32, Ex.

Finglas found that there was just cause to dismiss

plaintiff “for this conduct alone or in combination with her
misconduct” with respect to the first charge.

(Docket Entry #

32, Ex. 26).

5
The letter acknowledges plaintiff’s contention that she
advised others at the Senior Center that she had “stopped the
plan” thus preventing the delivery from occurring. The letter
notes, however, that plaintiff “left these details out of her
discussion with [the administrative assistant]” thereby leaving
the assistant “with the impression that a ‘pot grinder’ was on
its way to [plaintiff] at the Senior Center.” (Docket Entry #
32, Ex. 26).

16

As to the third charge, Finglas found that plaintiff’s
actions were confrontational and inappropriate on September 9,
2008, when she involved clients of the Senior Center in a
dispute she was having with McCarey.
26).

(Docket Entry # 3, Ex.

Not only did plaintiff have the discussion on the floor of

the Senior Center, which she had been told not to do previously,
but she involved clients and told McCarey, in the presence of
clients, that McCarey should apologize to them.

(Docket Entry #

32, Ex. 26).
With respect to the fourth charge, Finglas found just cause
to discipline plaintiff.

(Docket Entry # 32, Ex. 26).

He noted

that the facts were not in dispute and that plaintiff telephoned
McCarey after plaintiff’s placement on paid administrative leave
and hung up the telephone after stating, “How’s your program
running now?

I think you need a few more volunteers!”

(Docket

Entry # 32, Ex. 26).
Finglas also found the fifth charge substantiated because
plaintiff violated his directive in the September 19, 2008
letter to not attempt “to influence” the cooperation of any
disciplinary hearing witnesses.

(Docket Entry # 32, Ex. 26).

The decision explains that plaintiff violated the directive by
her communication with Baker on October 24, 2008.
# 32, Ex. 26).

(Docket Entry

Finglas acknowledged that while there is just

17

cause for disciplinary action under both counts four and five,
neither count would constitute just cause for dismissal
separately.

(Docket Entry # 32, Ex. 26).

Plaintiff received a copy of the recommendation and written
notice that the Board would consider the matter on December 16,
2008 at 8:00 p.m.

(Docket Entry # 32, Ex. 26).

The December 8,

2008 written notice invited plaintiff “to attend and be heard on
the recommendation.”

(Docket Entry # 32, Ex. 26).

On December 16, 2008, the Board conducted a hearing to
address the recommended dismissal.

(Docket Entry # 32, Ex. 28).

Plaintiff attended the hearing and various Board members
questioned her about each of the five charges while they were
under discussion.

(Docket Entry # 32, Ex. 28).

As set out in

the minutes of the meeting, plaintiff acknowledged that:

(1)

taking clients to the van was part of her responsibilities and
duties at the Senior Center and that she only “took 5 minutes at
the end of the day”; (2) she came to work smelling like
marijuana because her teenage daughter and some friends were
smoking it at her house; (3) on September 9, 2008, McCarey
approached her on the floor and “twisted the whole incident”;
(4) plaintiff made a harassing telephone call to McCarey at the

18

Senior Center after her placement on administrative leave;6 and
(5) she telephoned a Senior Center staff member at home
regarding testifying on her behalf.
28).

(Docket Entry # 32, Ex.

After the conclusion of plaintiff’s statements, the five

member Board voted unanimously to affirm Finglas’ recommendation
thereby giving him the authority to terminate plaintiff.
(Docket Entry # 32, Ex. 28).

In accordance with the Board’s

decision, in a letter dated December 17, 2008, Finglas
referenced the Board’s vote and terminated plaintiff’s
employment effective as of that date.

(Docket Entry # 32, Ex.

29).
Plaintiff filed a charge with the Massachusetts Commission
Against Discrimination (“MCAD”) on or about December 10, 2009.
(Docket Entry # 32, Ex. 32).

The charge alleged she was

discharged from the Senior Center in retaliation for reporting
Finglas’ inappropriate sexual behavior towards Smith to the
Board in the October 13, 2008 letter.
32).

(Docket Entry # 32, Ex.

The Town was the only named respondent in the MCAD charge.

(Docket Entry # 32, Ex. 32).

On July 30, 2010, the MCAD

dismissed the charge finding a lack of probable cause on July
30, 2010, based upon a failure to have engaged in a protected

6
The minutes reflect that plaintiff did not dispute the charge
but explained she had “been under a lot of stress.” (Docket
Entry # 32, Ex. 28).

19

activity and a lack of causation.

(Docket Entry # 32, Ex. 33).

Plaintiff filed this action on December 16, 2010.
DISCUSSION
The Town as well as Finglas and Smith separately seek
summary judgment on all counts.

This court turns first to the

Town’s motion and thereafter Finglas’ and Smith’s motion.
I.

TOWN OF HANSON’S SUMMARY JUDGMENT MOTION
A.

Procedural Due Process (Count One)

The Town argues the procedural due process claim under
section 1983 is subject to summary judgment because plaintiff
was an employee at will.

(Docket Entry # 28).

According to the

Town, plaintiff failed to establish a constitutionally protected
right to continued employment and she received all of the
process to which she was due.

(Docket Entry # 28).

Plaintiff asserts the Town “denied her procedural due
process” when it refused to produce transcripts of the November
3 and 6, 2008 hearing and did not honor her “requests for these
transcripts.”

(Docket Entry # 1).

Plaintiff submits she was

“denied the right to effective preparation for her dismissal
hearing before” the Board on December 16, 2008, because she was
denied the transcripts.

(Docket Entry # 1).

In addition,

plaintiff claims Finglas was biased and therefore not a neutral
decision maker.

(Docket Entry # 33).

20

Plaintiff generally

maintains that the Town’s “purposeful and willful behavior
denied her a valuable property right under the United States
Constitution and the Massachusetts Declaration of Rights.”
(Docket Entry # 1).
In order to prevail under such a section 1983 claim, a
plaintiff must establish “a constitutionally protected interest
in his [or her] continued employment.”
F.3d 148, 156-157 (1st Cir. 2002).

Dasey v. Anderson, 304

Specifically, “a public

employee,” such as plaintiff, “must first demonstrate that he
[or she] has a reasonable expectation, arising out of statute,
policy, rule, or contract, that he [or she] will continue to be
employed.”

Wojcik v. Mass. Lottery Comm’n, 300 F.3d 92, 101 (1st

Cir. 2002).

If an employee has a stated property interest that

rises to the level of a “legitimate claim of entitlement,” the
employee cannot be dismissed without being afforded due process.
Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 9
(1978); Gomez v. Rivera Rodriguez, 344 F.3d 103, 111 (1st Cir.
2003).

In the context of public employment, due process

typically includes “some kind of hearing” and an “opportunity to
respond.”

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542 (1985); accord Wojcik, 300 F.3d at 102.
1.

Establishing a Constitutionally Protected Right

21

As the non-moving party with the underlying burden of
proof, plaintiff must show sufficient evidence of a trial worthy
issue that she had a “reasonable expectation, arising out of a
statute, policy, rule, or contract that” she would “continue to
be employed.”

Wojcik, 300 F.3d at 101.

Here, plaintiff

admitted she was an employee at will and that she could be fired
for “virtually anything.”

(Docket Entry # 32, Ex. 1, p. 148).

Plaintiff also signed a pre-employment statement which
explicitly acknowledged that she understood “that [her]
employment and compensation can be terminated with or without
cause or notice, at any time at the option of either the Town or
[her]self.”

(Docket Entry # 32, Ex. 36).

The document further

states that “no manager or representative of the Town, other
than the Selectmen, or specific Board or Department has any
authority to enter into any agreement with [her] for employment
for any specified period of time or to make any agreement
different from or contrary to the foregoing.”
32, Ex. 36).

(Docket Entry #

This evidence eviscerates any reasonable basis of

continued employment.
There is no evidence that plaintiff had a written
employment contract preventing termination or setting out a
specific time period of employment.

Such facts, combined with

plaintiff’s admission that she understood she could be

22

terminated with or without cause or notice at any time,
establishes that she had no reasonable basis to believe her
employment would continue.

Accordingly, plaintiff has no

constitutionally protected property right that was violated by
the Town or any other defendant.

See Concepcion Chaparro v.

Ruiz-Hernandez, 607 F.3d 261, 264 (1st Cir. 2010); Wojcik, 300
F.3d at 101.
2.

Plaintiff Received Due Process

In addition to a constitutionally protected property
interest in continued employment, a plaintiff must show that
defendants denied her due process.

Gomez, 344 F.3d at 111.

In

the alternative, the Town therefore contends plaintiff failed to
show a denial of due process.

(Docket Entry # 28).

Plaintiff’s due process challenge to the procedure she
received is twofold.

First, she maintains that Finglas was not

a neutral decision maker.

(Docket Entry # 33).

In particular,

she argues that Finglas was biased because of her October 13,
2008 letter to the Board in which she attached the 2005
complaint showing Finglas’ inappropriate sexual misconduct with
Smith.

(Docket Entry # 33).

Second, she claims a

constitutional right to a stenographer or transcripts of the
November 3 and 6, 2008 hearing.

(Docket Entry # 33).

The nature of the process due depends upon the nature of

23

the proceeding.

Chmielinski v. Mass. Office of the Comm’r of

Probation, 513 F.3d 309, 316 (1st Cir. 2008).

A “termination

hearing is not a court of law, and the same level of process is
not required.

The Constitution requires only that [the

plaintiff] was provided notice and a meaningful opportunity to
respond.”

Id.

In other words, “‘the root requirement’ of the

Due Process Clause is ‘that an individual be given an
opportunity for a hearing before he is deprived of any
significant property interest’” and “an employee holding such an
interest in his employment must be afforded ‘some kind of a
hearing’ before he may be discharged.”

Brasslett v. Cota, 761

F.2d 827, 836 (1st Cir. 1985) (quoting Loudermill, 470 U.S. at
542-46).
With respect to plaintiff’s neutrality argument, “there is
no requirement that the hearing officer be impartial; indeed,
the terminating employer may preside.”

Chmielinski, 513 F.3 at

318 (examining procedures afforded Chief Probation Officer of
town during pre-termination hearing under Due Process
Clause).

Although Finglas’ impartiality is not necessarily

required, the degree of his bias, assuming it exists, may be so
severe as to interfere with the due process afforded at the
hearings.

See Id. (“that impartiality is not demanded does not

itself determine whether bias can be so severe as to interfere

24

with due process at the hearing itself”).

The employee’s

opportunity to set out his or her version of the factual events
that led to the termination is an important concern in the
calculus.

Id. (“key concern in Loudermill was” employee’s

“opportunity to present his side of things to correct errors of
fact on which the termination decision is based”).
Here, plaintiff received ample opportunity to present her
side of the story.

After Smith recommended plaintiff’s

dismissal, Finglas conducted an adequate investigation, set out
the charges and provided plaintiff a copy of the charges prior
to the first hearing.

Plaintiff received ample notice and an

opportunity to be heard at the two day preliminary hearing on
November 3 and 6, 2008, before the Board and Finglas.

Plaintiff

was also given the opportunity to be represented by counsel and
the Town made available all of the witnesses she requested.
(Docket Entry # 32, Ex. 1, pp. 133-135) (Docket Entry # 32, Ex.
2 & 25).

She presented evidence in her defense, questioned

witnesses and testified at the hearing.
1, pp. 143, 171-177 & 180-182).

(Docket Entry # 32, Ex.

After the hearing, Finglas

issued a 17 page decision recommending the termination to the
Board and provided plaintiff a copy of the recommendation.

At

the second hearing, plaintiff was able to present additional
evidence, respond to the charges against her and answer

25

questions from the Board.

(Docket Entry # 32, Ex. 28).

Thereafter, the Board unanimously voted to authorize Finglas to
terminate plaintiff’s employment.
29).

(Docket Entry # 32, Ex. 28 &

Finglas terminated plaintiff’s employment by letter dated

December 17, 2008.

(Docket Entry # 32, Ex. 29).

Such process more than satisfies the Due Process Clause.
It also eviscerates plaintiff’s claim regarding Finglas’
bias.

Moreover, the degree of Finglas’ bias, if any, stems from

the letter plaintiff attached to the October 13, 2008 letter she
delivered to each Board member.

(Docket Entry # 7).

Plaintiff

submitted the letter after Finglas put plaintiff on
administrative leave and after Finglas issued plaintiff the
September 19, 2008 written directive to cease harassing staff
and clients.

Further, the incident involving Finglas predated

plaintiff’s hearing by three years and was unrelated to the
complaints of plaintiff’s job performance and conduct.
Arnett v. Kenney, 416 U.S. 134, 197 (1974).
Finglas was not the only decision maker.

Cf.

In addition,

The matter was put

before the Board whether to accept or reject Finglas’
recommendation to terminate plaintiff.

The five member Board

voted unanimously to terminate plaintiff.

Accordingly, Finglas’

alleged bias does not create a trial worthy issue regarding a
lack of due process.

26

It is also worth noting that, as Town Administrator,
Finglas had the authority to investigate any alleged wrongful
conduct by an employee recommended for dismissal, to recommend
the dismissal of such employee to the Board and to terminate the
employee where, as here, the Board decided to accept such
recommendation.

(Docket Entry ## 32, Ex. 9 & 10).

Finglas’

actions were not outside the scope of his duties as Town
Administrator when he investigated the allegations of
plaintiff’s misconduct at the Senior Center, found just cause to
recommend plaintiff’s dismissal to the Board and, having
obtained the unanimous authorization from the Board, terminated
plaintiff’s employment.
Turning to the stenographer argument, plaintiff complains
about the lack of a stenographer for the November 3 and 6, 2008
hearings.

She points out that transcripts would have allowed

her to prepare for the December 16, 2008 hearing before the
Board during which the Board accepted Finglas’ dismissal
recommendation.
The pre-termination process “need only include oral or
written notice of the charges, an explanation of the employer’s
evidence and an opportunity for the employee to tell his side of
the story.”

Gilbert v. Homar, 520 U.S. 924, 929 (1997).

Pre-

termination hearings are needed to balance “competing interests

27

at stake:

the private interest in retaining employment, the

governmental interests in expeditious removal of unsatisfactory
employees, the avoidance of administrative burdens and the risk
of an erroneous termination.”

Loudermill, 470 U.S. at 532.

“To

require more than this [notice and pre-termination hearing]
prior to termination would intrude to an unwarranted extent on
the government’s interest in quickly removing an unsatisfactory
employee.”

Id. at 546.

Plaintiff is therefore not entitled to

a stenographer or a transcript inasmuch as the Town is only
required to provide plaintiff with notice and a hearing prior to
termination.
In sum, the due process claim against the Town in Count One
does not survive summary judgment.

Plaintiff does not have a

reasonable expectation in continued employment.

In the

alternative, plaintiff received all the process that was due.
B.

Wrongful Termination – Retaliation (Count Two)

Count Two does not cite a statute or common law cause of
action for the “wrongful termination” claim against the Town
based on “retaliation.”

(Docket Entry # 1).

The claim,

however, parallels the charge in the MCAD complaint.

Mindful of

plaintiff’s pro se status, this court therefore construes the
claim as brought under Massachusetts General Laws chapter 151B

28

(“chapter 151B”) and 42 U.S.C. § 2000e-1 (“Title VII”) as well
as the common law based on a violation of public policy.
The Town argues the statutes of limitations applicable to
claims brought under chapter 151B and Title VII bar these causes
of action.

(Docket Entry # 28).

The Town also argues the claim

fails on the merits because plaintiff cannot establish that she
engaged in protected activity or that her termination was
causally related to any alleged protected activity.7

(Docket

Entry # 28).
Title VII and chapter 151B each “require plaintiff to file
claims with the Equal Employment Opportunity Commission
[(“EEOC”)] and the MCAD before filing suit in court and within
300 days of complained acts of discrimination.”

Diaz v. Jiten

Hotel Mgmt, Inc., 762 F.Supp.2d 319, 327 (D.Mass. 2011); see 42
U.S.C. § 2000e-5(e); Mass. Gen. L. ch. 151B, § 5; Windross v.
Barton Protective Serv., Inc., 586 F.3d 98, 102 (1st Cir. 2009)
(“Massachusetts law . . . requires a claimant to file a Charge
of Discrimination with [the MCAD] within 300 days of the alleged
discriminatory act”); Alston v. Massachusetts, 661 F.Supp.2d
117, 123 (D.Mass. 2009) (the “plaintiff must file a Title VII or

7
The Town, in its supporting memorandum, submits the
possibility that Count Two raised a state whistleblower statute
issue. Plaintiff does not address or rely on the state
whistleblower statute in any of her opposition briefs.
Accordingly, it is not part of Count Two.

29

151B claim within 300 days of the discriminatory act”).

The

plain language of chapter 151B states that, “any complaint filed
pursuant to this section must be so filed within 300 days after
the alleged act of discrimination.”
(emphasis added).

Mass. Gen. L. ch. 151B, § 5

Title VII likewise states that the:

charge shall be filed by or on behalf of the person
aggrieved within three hundred days after the alleged
unlawful employment practice occurred, or within thirty
days after receiving notice that the State or local agency
has terminated the proceedings under the State or local
law, whichever is earlier . . ..
20 U.S.C. § 2000e-5(e) (emphasis added).

“Only incidents that

took place within the timely filing period are actionable.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
“Discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed
charges.”

Id. at 113.

are easy to identify.

“Discrete acts such as termination . . .
Furthermore, each incident of

discrimination and each retaliatory adverse employment decision
constitutes a separate actionable ‘unlawful employment
practice.’”

Id. at 114.

Plaintiff was terminated on December 17, 2008.
Entry # 32, Ex. 29).

(Docket

She was therefore required to file the

charge of discrimination with the MCAD within 300 days of the
unlawful employment practice.

The December 17, 2008 termination

was the final discrete act to trigger the running of the 300 day

30

period.

Plaintiff did not file the charge with the MCAD until

December 10, 2009, 360 days after her termination.
Entry # 32, Ex. 32).

(Docket

Plaintiff is therefore barred from filing

Title VII and chapter 151B claims because she failed to file the
charge within the 300 day period.
In the MCAD charge, however, plaintiff argues she timely
filed her charge “within the 300 days of the Superior Court
decision.”

(Docket Entry # 32, Ex. 32 & 33).

The MCAD charge

identifies the decision as “an appeal for Judicial Review on
January 9, 2009 with the Plymouth Superior Court” which
dismissed the case on “July 30, 2009.”
32).

(Docket Entry # 32, Ex.

Although the July 30, 2009 Superior Court decision is

within the 300 day period, “the discriminatory act occurred on
the date of termination, the date the parties understood the
termination to be final.”

Electrical Workers v. Robbins &

Myers, Inc., 429 U.S. 229 (1976) (for purposes of timely filing
an EEOC complaint, the date of employee’s discharge is the date
of the alleged unlawful employment practice, not the date of the
conclusion of arbitration after discharge).
Finally, although not explicitly stated in Count Two,
plaintiff’s opposition to summary judgment asserts that the Town
terminated her in violation of public policy.
33).

(Docket Entry #

Plaintiff maintains that because “liability may be imposed

31

on an employer if an at will employee is terminated for a reason
that violates a clearly established public policy,” her
termination after reporting “certain illicit wrongdoings by her
immediate supervisor and the town manager [falls] well within
the purview of protection afforded to her by case law.”

(Docket

Entry # 33).
Massachusetts courts recognize that “an at will employee
has a cause of action for wrongful termination only if the
termination violates a clearly established public policy.”
v. Driscoll, 638 N.E.2d 488, 492 (Mass. 1994).

King

Massachusetts

courts, however, interpret the public policy exception narrowly.
Id.

Specifically, the doctrine protects employees asserting “a

legally guaranteed right (e.g., filing a workers’ compensation
claim), for doing what the law requires (e.g., serving on a
jury) or for refusing to do what the law forbids (e.g.,
committing perjury).”

Smith-Pfeffer v. Superintendent of the

Walter E. Fernald State Sc., 533 N.E.2d 1368, 1368 (Mass. 1989).
The public policy exception is interpreted narrowly because to
do otherwise would “convert the general rule” into a rule that
requires just cause to terminate an at will employee.

Id.; see

Wright v. Shriners Hosp. for Crippled Children, 589 N.E.2d 1241,
1245 (Mass. 1992) (where nurse reported internal problems to
high level officials within organization, reports were internal

32

matter which could not provide basis for public policy
exception); Smith-Pfeffer, 533 N.E.2d at 1368 (where employee
expressed disagreement with superior’s management of school,
even if appropriate and socially desirable conduct, termination
not wrongful because school management was internal matter);
Mistishen v. Falcone Piano Co., 630 N.E.2d 294, 296
(Mass.App.Ct. 1994) (discharge of employee who threatened to
reveal employer’s unfair and deceptive trade practices which
were not a threat to public health or safety was not wrongful
because situation did not rise to requisite level of public
importance).
Here, the facts do not create a trial worthy issue that
plaintiff was terminated for asserting a legally guaranteed
right, for abiding the law or for refusing to violate the law.
Plaintiff alleges she was terminated only after she revealed
inculpatory information of the “known illicit conduct” (Docket
Entry # 32, Ex. 1 p. 190) about Finglas and Smith to Meredith
Marini (“Marini”), the Town of Hanson Administrative Secretary.
(Docket Entry # 1).

Plaintiff’s report of an internal incident

involving Finglas and Smith does not fall within the narrow
interpretation of the public policy exception.

The report of a

known incident of potentially prohibited discrimination
occurring years before the allegedly wrongful termination does

33

not fall within the scope of the narrowly construed public
policy exception.

In addition, plaintiff did not report the

conduct until after Finglas placed her on administrative leave
and after he wrote the September 19, 2008 letter.

Count Two is

therefore subject to summary judgment as to the Town.
C.

Breach of Implied Covenant of Good Faith and Fair

Dealing (Count Three)
The Town argues that the claim for breach of implied
covenant of good faith and fair dealing is subject to summary
judgment because plaintiff was an employee at will.
Entry # 28).

(Docket

Plaintiff argues that even though she was an

employee at will, she had an implied contract that affords her
an implied covenant of good faith and fair dealing that the Town
breached.
Massachusetts law implies a covenant of good faith and fair
dealing in every contract, “including contracts for employment
at will.”

Artuso v. Vertex Pharmaceuticals, Inc., 637 F.3d 1, 8

(1st Cir. 2011).

In the context of at will employment, however,

Massachusetts law gives the employer “‘an unfettered right to
discharge’ an at will employee.”

Id. at 8.

The implied

covenant of good faith and fair dealing therefore provides only
a limited exception to the employer’s unfettered right by
allowing the discharged employee to “recover ‘unpaid

34

compensation if the employee [was] terminated in bad faith and
the compensation is clearly connected to work already
performed.’”

Id. at 8-9; see Orioles v. Mass Mutual Fin. Group,

2011 WL 4744913, *3 (D.Mass. Sept. 6, 2011) (under covenant,
“discharged at will employee may recover ‘unpaid compensation if
the employee [was] terminated in bad faith and the compensation
is clearly connected to work already performed’”).

An employer

therefore breaches the implied covenant of good faith and fair
dealing “when it dismisses an at will employee in order to
deprive him of compensation fairly earned and legitimately
expected for services already rendered.”

Cochran v. Quest

Software, Inc., 328 F.3d 1, 8 (1st Cir. 2003).
Plaintiff makes no claim for unpaid compensation for work
she already performed.

Count Three is therefore subject to

summary judgment as to the Town.
D.

Termination without Just Cause (Count Four)

The Town argues that the claim for termination without just
cause fails because plaintiff was an employee at will.
Entry # 28).

(Docket

The Town contends she had no employment contract

and the Town had just cause to terminate her.

(Docket Entry #

28).
Plaintiff argues there was an implied contract of
employment based upon “the circumstances of her employment,

35

including her yearly salary and job description.”
# 1).

(Docket Entry

Accordingly, she could not be terminated without just

cause, which she argues the Town did not have.

(Docket Entry #

1).
As discussed previously, plaintiff did not have an
employment contract and does not fall within the limited
exception of a terminated employee owed past compensation for
services already rendered.

(Docket Entry # 32, Ex. 1, p. 148).

Plaintiff also admitted she was an employee at will who could be
terminated at any time for any reason.
1, p. 148).

(Docket Entry # 32, Ex.

Count Four therefore fails to withstand summary

judgment as to the Town.
In the alternative, the Town argues that there was just
cause to terminate plaintiff even if she could establish an
implied contract.

(Docket Entry # 29).

For purposes of

argument only, this court assumes that section 8G of the Town’s
personnel classification and compensation by-law requires just
cause to terminate plaintiff.

Under Massachusetts law, the

controlling standard for just cause is set out in Klein v.
President and Fellows of Harvard College, 517 N.E.2d 169, 170
(Mass.App.Ct. 1987).

The Klein decision explains that:

Terms such as “just cause” and like phrases have been
construed in similar or analogous contexts as meaning:
“[T]here existed (1) a reasonable basis for employer
dissatisfaction with a new employee, entertained in good

36

faith, for reasons such as lack of capacity or diligence,
failure to conform to usual standards of conduct, or other
culpable or inappropriate behavior, or (2) grounds for
discharge reasonably related, in the employer’s honest
judgment, to the needs of his business. Discharge for a
‘just cause’ is to be contrasted with discharge on
unreasonable grounds or arbitrarily, capriciously, or in
bad faith.”
Id. (quoting G & M Emp’t Serv., Inc. v. Comm., 265 N.E.2d 476,
478 (Mass. 1970)).
The factors that led to plaintiff’s dismissal were laid out
in the charges brought against her by the Town.
were:

These charges

(1) neglecting “duties on June 19, 2008 [which] caused an

elderly client to be lost for almost two hours”; (2) admitting
to smoking marijuana, coming to work smelling of marijuana and
issues regarding the potential delivery of a “pot grinder” to
the Senior Center; (3) abusing break times and leaving clients
unattended resulting in schedule changes for the Monday-Thursday
staff which plaintiff then confronted management about on
multiple occasions; (4) making a harassing telephone call to
McCarey at work; and (5) disobeying a directive by the Town
Administrator.

(Docket Entry # 32, Ex. 2 & 25).

All of these

charges find support in the record and fall well within the
Klein standard for just cause.
Plaintiff also alleges she was terminated after speaking
out about Smith and Finglas and that an investigation was only
done after she provided “incriminating information” about Smith

37

and Finglas to Marini and Egan. (Docket Entry # 1).

Plaintiff,

however, admitted to engaging in conduct that falls within the
reach of each charge although she denies certain details.
(Docket Entry # 32, Ex. 1, pp. 59-62, 67, 71-72, 74-76, 80-81,
104, 107-109, 111, 116, 120, 131 & 182-187).

In particular,

plaintiff admitted to leaving work, albeit for five minutes, to
renew library books during working hours and that a client went
missing during this time period.
59-62).

(Docket Entry # 32, Ex. 1, pp.

She also admitted to coming to work smelling like

marijuana on at least one occasion, although there is a
discrepancy regarding the date when this incident took place.
(Docket Entry # 32, Ex. 1, pp. 120, 182 & 183).

Plaintiff

admits to being upset about the scheduling of break times and
coming in on days she was not scheduled to work and confronting
management about her complaints.
87 & 89-90).

(Docket Entry # 32, Ex. 1, pp.

Plaintiff also admits to telephoning McCarey and

harassing McCarey at work while plaintiff was on paid
administrative leave.

(Docket Entry # 32, Ex. 1, pp. 187)

(Docket Entry # 32, Ex. 28).

Finally, she acknowledges

violating the directive by the Town Administrator by telephoning
an employee of the Senior Center trying to get her to testify on
plaintiff’s behalf.

(Docket Entry # 32, Ex. 1, pp. 131 & 187).

38

All of this conduct gives the Town ample “just cause” to
terminate plaintiff.

Summary judgment is therefore warranted in

the Town’s favor with respect to Count Four.
E.

Intentional Infliction of Emotional Distress (Count

Five)
The Town next argues that the intentional infliction of
emotional distress claim is subject to summary judgment because
it is barred by the Massachusetts Tort Claims Act.
Entry # 28).

(Docket

In opposing summary judgment, plaintiff reasserts

the allegations she made in the complaint.

(Docket Entry # 33).

Plaintiff alleges that “defendants’ act of discrimination
against her after she reported acts of misconduct involving
Smith were extreme and outrageous.”

(Docket Entry # 1).

Further, plaintiff alleges that, “defendants knew or should have
known that their extreme and outrageous behavior would cause her
to suffer severe emotional distress.”

(Docket Entry # 1).

Under the Massachusetts Tort Claims Act, it is well settled
that a public employer cannot be sued for intentional tort
claims.

Mass. Gen. L. ch. 258, § 10(c) (“MTCA”); Lafayette

Place Association v. Boston Redevelopment Authority, 694 N.E.2d
820, 836 (Mass. 1998); Petricca v. City of Gardner, 429
F.Supp.2d 216, 224 (D.Mass. 2006).
employer as a matter of law.

The Town is a public

Mass. Gen. L. ch. 258, § 2.

39

As

such, it cannot be sued for intentional torts such as
intentional infliction of emotion distress.

Count Five is

therefore subject to summary judgment as to the Town.
II.

FINGLAS AND SMITH’S SUMMARY JUDGMENT MOTION
A.

Procedural Due Process (Count One)

As previously noted, plaintiff alleges she was “denied her
procedural due process” when defendants “refused” to produce
transcripts of her hearings and did not honor her “requests for
these transcripts.”

(Docket Entry # 1).

She also contends

Finglas was biased.

According to plaintiff, Finglas’ and

Smith’s “purposeful and willful behavior denied her a valuable
property right under the United States Constitution and the
Massachusetts Declaration of Rights.”

(Docket Entry # 1).

In seeking summary judgment, Finglas and Smith incorporate
all of the arguments made by the Town in its supporting
memorandum (Docket Entry # 29).

(Docket Entry # 31).

For the

reasons fully explained in part I(A)(2), plaintiff, an employee
at will, does not have a constitutionally protected interest in
her employment.

Even if she did have such an interest she

received all the process she was due under the Due Process
Clause.

Neither Finglas’ alleged bias nor the absence of a

stenographer or transcript is required.

40

In short, Count One does not withstand summary judgment
with respect to Finglas and Smith for the same reasons the count
does not withstand the Town’s summary judgment challenge.
Accordingly, it is not necessary to address the additional
arguments posed by Finglas and Smith based on Finglas’ qualified
immunity and Smith’s lack of participation.
B.

Wrongful Termination – Retaliation (Count Two)

Finglas and Smith argue that the wrongful terminationretaliation claim is subject to summary judgment if brought
under Title VII8 because the statute only applies to employers,
not individuals.

(Docket Entry # 30).

Smith also argues

plaintiff failed to exhaust her administrative remedies as to
Smith by not naming her in the administrative charge.
Entry # 30).

(Docket

Additionally, Smith contends she played no role in

any alleged wrongful acts.

(Docket Entry # 30).

Plaintiff asserts she was wrongfully terminated from her
position as a direct result of providing incriminating
information about Smith and Finglas to Marini.
1).

(Docket Entry #

Additionally, plaintiff alleges that only after she

disclosed allegations about Smith and Finglas was she subjected

8 Finglas and Smith, in their supporting memorandum, submit the
possibility that Count Two raised a state whistleblower statute
issue. Plaintiff does not address or rely on the state
whistleblower statute in any of her opposition briefs.
Accordingly, it is not part of Count Two.

41

to an investigation by Finglas, which resulted in a retaliatory
termination of her employment by Finglas.

(Docket Entry # 1).

Plaintiff therefore contends that Smith and Finglas are liable
for wrongful termination in violation of Title VII, chapter 151B
or the common law based on a violation of public policy because
Smith and Finglas terminated plaintiff in retaliation for
plaintiff submitting the incriminating letter to each Board
member.

(Docket Entry ## 33 & 37).

As noted previously, Finglas and Smith incorporate the
arguments made by the Town with respect to its summary judgment
argument.

(Docket Entry # 29).

Thus, for the reasons fully

explained in part I(B), plaintiff’s Title VII and chapter 151B
claims do not withstand summary judgment because plaintiff
failed to file the charge within the 300 day period.
Additionally, as also previously discussed in part I(B), the
facts do not provide a basis for a wrongful termination claim
based on a public policy violation.
Count Two against Finglas and Smith is therefore subject to
summary judgment.

It is therefore not necessary to address the

additional arguments posed by Finglas and Smith with respect to
Count Two.
C.

Breach of Implied Covenant of Good Faith and Fair Dealing

(Count Three)

42

Finglas and Smith argue that the breach of implied covenant
of good faith and fair dealing claim is subject to summary
judgment because plaintiff was an employee at will, she had no
employment contract and there was just cause to dismiss her
(Docket Entry # 29).

(Docket Entry # 31).

Finglas and Smith

additionally maintain they are not parties to any alleged
contract nor actors who could have breached an implied covenant.
(Docket Entry # 35 & 34).

Smith also argues she played no role

in plaintiff’s termination.

(Docket Entry # 31).

Plaintiff alleges Finglas and Smith lacked good faith and
fair dealing in their conduct towards her as agents of the Town.
(Docket Entry # 33).

She alleges Finglas had improper and

retaliatory motives against her when he conducted his
investigation after plaintiff had provided incriminating
information about Finglas to Marini.

(Docket Entry # 1).

Plaintiff claims this was proof of Finglas’ lack of good faith
of his investigation against her.

(Docket Entry # 1).

Furthermore, plaintiff also points out she was never disciplined
until after she voiced complaints about Smith and Finglas to
Marini and was thereafter wrongfully terminated.
# 1).

(Docket Entry

She also provided a number of letters written by former

co-workers alleging incidences where Finglas and Smith harassed
employees.

(Docket Entry # 33, Ex. B, C, D, E & F).

43

As explained in part I(C), Massachusetts law provides the
employer “‘an unfettered right to discharge’ an at will
employee.”

Artuso, 637 F.3d at 8.

the employer and the employee.

The covenant runs between

See Nadberny v. Roseland Prop.

Co., Inc., 390 F.3d 44, 52 (1st Cir. 2004).

The Town and

plaintiff are the parties to the employment contract, if any.
The Board is the appointing authority of plaintiff’s position.
(Docket Entry # 32, Ex. 6) (Docket Entry # 32-6).

Plaintiff

does not dispute that the Board voted to accept Finglas’
recommendation to terminate her employment.

Finglas could not

act without the Board’s approval and authority.

Smith was a

Department Head who only had the authority to recommend
employees for termination, not terminate employees.

Finally,

plaintiff signed the pre-employment statement that she
understood that it was “the Town” that could terminate her
employment.

(Docket Entry # 32, Ex. 36).

She also understood

that no “representative of the Town” could make any different
employment agreement.

(Docket Entry # 32, Ex. 36).

The

contract and therefore the implied covenant thus ran between the
Town and plaintiff as opposed to the individual defendants.
Accordingly, neither Finglas nor Smith had a duty of good faith
and fair dealing.

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In any event, the covenant was not breached.

As discussed

in the next section, there was “just cause” for the termination.
Moreover, plaintiff was not owed compensation for past work.
Consequently, she does not fall within the exception to at will
employment under which a breach of the covenant occurs.

For

reasons expressed in part I(C), therefore, there was no breach.
Count Three is therefore subject to summary judgment as to
Finglas and Smith.
D.

Termination without Just Cause (Count Four)

Finglas and Smith argue there was just cause to terminate
plaintiff’s employment.

(Docket Entry # 31).

They also point

out that plaintiff failed to present any evidence to support
this count.

(Docket Entry # 31).

Smith also contends she did

not participate in plaintiff’s termination.

(Docket Entry #

31).
Plaintiff asserts she was wrongfully terminated without
just cause.

(Docket Entry # 1).

She alleges she had an implied

contract of employment based on the nature of her employment
that included a yearly salary and job description.
Entry # 1).

(Docket

As discussed in part I(D), plaintiff was an

employee at will and therefore could be terminated without cause
at any time.

In the alternative, part I(D) explains that the

Town had “just cause” to terminate her employment.

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Finglas and

Smith incorporated the Town’s arguments into their summary
judgment motion.

Hence, for the reasons set out in part I(D),

Count Four does not withstand Finglas’ and Smith’s summary
judgment motion.
E.

Intentional Infliction of Emotional Distress (Count Five)

Finglas and Smith argue that the intentional infliction of
emotional distress claim is subject to summary judgment because
the MTCA bars intentional tort claims against individual public
employees in their official capacity, the claim is barred by the
Workers Compensation Act’s (“WCA”)9 exclusivity provision and
plaintiff failed to provide evidence of Finglas’ and Smith’s
extreme or outrageous conduct.

(Docket Entry ## 31, 34 & 35).

For plaintiff to recover under the tort of intentional
infliction of emotional distress, she must show that:

(1) the

defendants intended to inflict emotional distress, or knew or
should have known that emotional distress was likely to result
based on their conduct; (2) the defendants’ conduct was extreme
and outrageous; (3) the defendants’ actions caused her distress;
and (4) the emotional distress suffered by her was severe and of
a nature that no reasonable person could be expected to endure
it.

See Gouin v. Gouin, 249 F.Supp.2d 62, 73 (D.Mass. 2003)

(citing Agis v. Howard Johnson Co., 355 N.E.2d 315, 318-319

The WCA is codified at Massachusetts General Laws chapter
152.
9

46

(Mass. 1976)).

As correctly stated by Finglas and Smith (Docket

Entry # 31) a defendant’s liability for intentional infliction
of emotional distress:
cannot be predicated on “‘mere insults, indignities,
threats, annoyances, petty oppressions or other
trivialities’ nor even is it enough ‘that the defendant has
acted with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or even
that his conduct has been characterized by malice or a
degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.’”
Tetrault v. Mahoney, Hawkes & Goldings, et al., 681 N.E.2d 1189,
1197 (Mass. 1997) (quoting Foley v. Polaroid Corp., 508 N.E.2d
72, 82 (Mass. 1987)).

Furthermore, the First Circuit has

consistently found that actions and statements by employers in
connection with employment disputes fail to constitute the
required extreme and outrageous conduct.

See Marques v.

Fitzgerald, 99 F.3d 1, 7 (1st Cir. 1996) (finding that while
termination may not have been pleasant for the plaintiff,
evidence did not show that jury could find extreme and
outrageous conduct).
Plaintiff failed to sufficiently allege any extreme or
outrageous acts perpetuated by Finglas or Smith.

The statements

and acts of Finglas and Smith in the summary judgment record do
not rise to the level of extreme and outrageous.
## 33 & 37).

47

(Docket Entry

In the alternative, the MTCA bars plaintiff from pursuing
the claim against Finglas and Smith in their official capacity.
Intentional infliction of emotional distress is one of the torts
listed in section 10(c) of the MTCA.
10(c).

Mass. Gen. L. ch. 258, §

Under the MTCA, an entity cannot be held liable for an

intentional tort claim.

Mass. Gen. L. ch. 258, § 1.

Additionally, the MTCA also bars “any claims based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a public employer
or public employee, acting within the scope of his office or
employment, whether or not the discretion involved is abused.”
Mass. Gen. L. ch, 258 § 10(b).

Bringing a claim against a Town

employee in his or her official capacity equates to bringing a
claim against the entity.

See Kentucky v. Graham, 473 U.S. 159,

166 (1985) (“official-capacity suit is, in all respects . . . ,
to be treated as a suit against the entity”).

Hence, an

individual acting in his or her official capacity as a Town
employee cannot be held liable for an intentional tort claim.
Howcroft v. City of Peabody, 747 N.E.2d 729, 747 (Mass.App.Ct.
2001) (MTCA bars the intentional infliction of emotional
distress claim against city and “like claims” against police
department officers).

48

As previously stated, Finglas and Smith are both employees
of the Town and acted within the official capacities of their
jobs throughout the termination process and during the time
period leading up to that process.

As the summary judgment

target, plaintiff failed to present evidence that either
individuals acted in a manner outside the scope of his or her
official capacity in regard to either disciplining plaintiff or
participating in the termination process.

As discussed

previously, Finglas’ and Smith’s actions during the dismissal
process were in the course and scope of their employment
responsibilities and authority as outlined in the Town’s by-laws
and disciplinary policy.

(Docket Entry # 32, Ex. 8 & 9).

In addition to the MTCA, the exclusivity provision of the
WCA bars the claim against Finglas and Smith for actions taken
within the scope of their employment.

The WCA applies when a

worker “receives personal injury arising out of and in the
course of his employment.”

Mass. Gen. L. ch. 152, § 26.

Failure to provide written notice at the start of employment
that an employee wishes to retain her rights at common law
results in a waiver of “any right created by statute, at common
law, . . . including, but not limited to claims for damages due
to emotional distress, . . . or the like, when such loss is a
result of any injury to the employee that is compensable under

49

this chapter.”

Mass. Gen. L. ch. 152, § 26; see Andresen v.

Diorio, 349 F.3d 8, 15-16 (1st Cir. 2003) (dismissing intentional
infliction of emotional distress claim as precluded by WCA); HDH
Corp. v. Atlantic Charter Ins. Co., 668 N.E.2d 872, 874 (Mass.
1996) (employee’s remedy for emotional injury based on bad faith
termination is barred by WCA’s exclusivity provision), reversed
in part on other grounds, 681 N.E.2d 847 (Mass. 1997).
Plaintiff in this case has neither alleged nor established that
she provided written notice to the Town that she wished to
retain her rights at common law.

Count Five is therefore

subject to summary judgment to Finglas and Smith.
CONCLUSION
In accordance with the foregoing discussion, the Town’s
motion for summary judgment (Docket Entry # 28) is ALLOWED on
all counts.

Similarly, in accordance with the foregoing

discussion, Finglas and Smith’s motion for summary judgment
(Docket Entry # 30) is ALLOWED on all counts.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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