Cloutier v. Absolute Investigations, Inc. et al

Filing 58

Judge F. Dennis Saylor, IV: ORDER entered. Memorandum and Order on Defendants' Motions to Dismiss.(Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
DIANE CLOUTIER,
)
)
Plaintiff,
)
)
Civil Action No.
v.
)
15-12780-FDS
)
CITY OF LOWELL;
)
BERNARD F. LYNCH, in his official and
)
individual capacities;
)
CHRISTINE P. O’CONNOR, in her
)
official and individual capacities;
)
MARY M. CALLERY, in her official and
)
individual capacities;
)
KAREN A. GAGNON, in her official and
)
individual capacities;
)
VICTORIA B. WOODLEY, in her official
)
and individual capacities;
)
SUSAN FOUGSTEDT, in her official and
)
individual capacities;
)
SARAH E. GILBERT, in her official and
)
individual capacities;
)
ROBERT SPARKS, individually and
)
as President of Absolute
)
Investigations, Inc.; ABSOLUTE
)
INVESTIGATIONS, INC.;
)
and DOES 1-10,
)
)
Defendants.
)
__________________________________________)
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTIONS TO DISMISS
SAYLOR, J.
This is a case involving, among other things, alleged disability discrimination and
retaliation. Plaintiff Diane Cloutier, a former assistant in the Lowell Public Library, has brought
suit against the City of Lowell, various city employees, a private corporation, and a private
individual.

The complaint is considerably over-inflated. Among other things, it alleges 21 separate
counts under federal and state law against 10 named and 10 unnamed defendants, with various
sub-parts (such as claims against individuals in both their individual and official capacities). In
response, all defendants have moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be granted.
The Court is effectively forced to do what plaintiff’s counsel should have done in the first
instance: sort through the claims and ascertain which ones are sufficiently plausible to survive a
motion to dismiss. That process has already consumed considerable resources of the defendants
and the Court; undoubtedly, the Court will be called upon to prune the claims further as the
litigation progresses. The present task, however, is to ascertain what parts of the complaint can
survive the relatively low threshold of Rule 12(b)(6).
For the reasons set forth below, the motions to dismiss will be granted in part and denied
in part.
I.

Background
The facts are as drawn from the complaint unless otherwise noted.
A.

The Parties

Diane Cloutier worked as a librarian assistant at the Pollard Memorial Library in Lowell,
Massachusetts, from January 1998 until her alleged termination on October 29, 2013. (Compl.
¶ 1). The essential functions of her job included assisting patrons, retrieving books, and
performing administrative tasks. (Id.).
The City of Lowell operates the library where Cloutier worked. (Id. at ¶ 2). Bernard F.
Lynch is the former City manager and directly managed the City’s department heads, including
Mary Callery, Christine O’Connor, and Victoria Woodley. (Id. at ¶ 4). Callery is the City’s

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human relations manager. (Id. at ¶ 6). O’Connor is the City solicitor and head of the law
department. (Id. at ¶ 7). Woodley is the director of the library. (Id. at ¶ 10). Karen A. Gagnon
works in the law department of the City and reports to O’Connor. (Id. at ¶ 8). Sarah E. Gilbert
is a physician for the City and also reports to O’Connor. (Id. at ¶ 9). Susan Fougstedt is the
assistant director of the library. (Id. at ¶ 11). The City and the various city employees will be
collectively referred to as “the City defendants.”
Robert Sparks is a licensed private detective. (Id. at ¶ 12). He owns Absolute
Investigations, Inc., a company that allegedly specializes in the “latest in GPS” and “unmanned
surveillance.” (Id.).
B.

Cloutier’s Physical Impairments

The complaint alleges that Cloutier was born with visual impairments. (Id. at ¶ 18). To
correct those impairments, she allegedly underwent many unsuccessful surgeries, and her
impairments “substantially limit the major life activity of seeing.” (Id. at ¶¶ 19-22). The
complaint alleges that Cloutier is unable to “easily focus and refocus” or “read tiny print.” (Id. at
¶ 21). It further asserts that her impairments are permanent and cannot be corrected. (Id.).
The complaint also alleges that Cloutier has severe chronic asthma that causes her to
experience “shortness of breath, chest tightness and pain, inflammation in the airways, and
coughing and wheezing.” (Id. at ¶ 23). Her asthma allegedly “substantially limits the major life
activity of breathing” and is complicated by a malfunction of her respiratory muscles that cannot
be corrected. (Id. at ¶ 24). According to the complaint, for years, Cloutier has received
treatment for her asthma and uses daily inhalers and rescue medicine to manage her condition.
(Id.).
In June 2012, Woodley instructed Cloutier to close some of the library’s windows. (Id. at

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¶ 54). The complaint alleges that as a result of closing “ten heavy windows,” Cloutier developed
adhesive capsulitis in her right shoulder. (Id.).
C.

Defendants’ Alleged Discriminatory and Retaliatory Actions

The complaint further alleges that from 2004 to 2011, Cloutier made several
accommodation requests that her coworkers and superiors mocked and ridiculed. (Id. at ¶ 25). It
alleges that the City and/or Lynch, O’Connor, Callery, Woodley, and Fougstedt, individually or
in concert, engaged in unlawful conduct, including attempting to force her to read “tiny print on
‘hold slips’” and refusing to allow a small fan near her desk to relieve symptoms of her asthma.
(Id.).
On February 1, 2012, Cloutier filed a complaint with the Massachusetts Commission
Against Discrimination (MCAD) against the City, Lynch, Woodley, Fougstedt, and two other
librarians alleging disability discrimination and retaliation. (Id. at ¶ 46). On May 17, 2012, the
MCAD held an investigative conference where the investigator allegedly requested a list of
witnesses to corroborate the complaint. (Id. at ¶ 50). Cloutier contends that Woodley and
Fougstedt “immediately” attempted to “harass and intimidate” those witnesses who they believed
would support her. (Id. at ¶ 52). The complaint alleges that Woodley and Fougstedt began to
reprimand Donna Deuso, Cloutier’s best friend at work, for interacting with her. (Id. at ¶ 53).
On June 25, 2012, after suffering her shoulder injury, Cloutier gave Woodley a doctor’s
note limiting her to “light duty.” Woodley and Fougstedt, however, allegedly began assigning
her tasks involving heavy and repetitive lifting. (Id. at ¶ 55). Several days later, Cloutier
presented the defendants with a second, more detailed note limiting her to “light duty.” (Id. at
¶ 55). Woodley then allegedly issued Cloutier a “Work Instruction” reprimanding her for
seeking a coworker’s assistance to lift books. (Id. at ¶ 56).

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On July 27, 2012, the library security guard allegedly warned Cloutier that Woodley and
Fougstedt had placed a hidden camera in the circulation office to watch her. (Id. at ¶ 59).
According to the guard, Fougstedt wanted to monitor Cloutier’s communications, the times that
she worked, and how long her breaks were. (Id. at ¶ 63). The guard also expressed concern that
he was afraid Woodley would fire him for talking to Cloutier, and that Woodley had instructed
him to not speak to Cloutier because she was “suing” the library supervisors and the City. (Id. at
¶ 64). On August 29, 2012, Cloutier spoke with the security guard, who confirmed that he had
seen Fougstedt using the cameras to watch her. (Id. at ¶ 65).
On September 6, 2012, Woodley provided Cloutier with a “Work Instruction” to perform
a “one-armed task” that actually required repetitive lifting and the use of two arms. (Id. at ¶ 67).
When she informed Woodley that her doctor prohibited her from completing the task, Woodley
allegedly became “incensed” and stated that the law department had already approved the task.
(Id. at ¶ 68). On September 7, 2012, Cloutier called in sick and spent the day in the emergency
room because she was having chest pains and breathing difficulties. (Id. at ¶ 71). That same day,
she received a letter from the law department stating that she was required to perform the “onearmed task.” (Id. at ¶ 72).
On September 24, 2012, Cloutier’s attorney sent a letter to the members of the City
Council complaining about the library supervisors’ ongoing discriminatory and retaliatory
conduct, which allegedly included the involvement of Lynch and O’Connor. (Id. at ¶ 73). On
October, 21, 2012, Cloutier received a letter from the City instructing her to report to City Hall
for a medical examination by Gilbert, the city physician. (Id. at ¶ 74). Gilbert allegedly
conducted the examination in a public restroom, and Gilbert informed Cloutier that the purpose
of the exam was to determine whether she could perform the “one-armed task.” (Id. at ¶ 77).

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Following the exam, Cloutier requested a copy of the results, but was initially unsuccessful in
retrieving them. (Id. at ¶¶ 78-79). On November 9, 2012, Woodley handed Cloutier another
“Work Instruction” requiring her to wear a headset while working at a public desk as assigned
“intermittently throughout the 7-hour workday.” (Id. at ¶ 82). The task allegedly violated her
vision accommodation, which had been in place for years, and her doctor’s restriction preventing
Cloutier from performing tasks that required repetitive heavy lifting or the use of two arms.
(Id.). On November 20, 2012, Cloutier received the examination report, which indicated that she
had “adhesive capsulitis, that there was no reason she could not work or do her job exactly as she
did before . . . but that new tasks that involved repetitive and/or heavy lifting [ ] should be
accommodated.” (Id. at ¶ 81).
On January 2, 2013, Cloutier’s best friend at the library, Donna Deuso, resigned after
eighteen years of employment. (Id. at ¶ 83). In her resignation letter, Deuso explained that ever
since Cloutier had filed her MCAD complaint, she had been harassed by Woodley for their
friendship. (Id. at ¶ 84). A few weeks later, Deuso allegedly received a post-termination letter
from the law department personally attacking and retaliating against her. (Id. at ¶ 85).
On March 20, 2013, a library patron threatened Cloutier with physical violence, but
Fougstedt allegedly failed to follow library protocol by either banning the patron or calling the
police. (Id. at ¶ 85). The patron returned on March 28, 2013, forcing Cloutier to call the police
herself and file her own complaint because Fougstedt again refused to take action. (Id. at ¶ 87).
After the incident, Cloutier alleges that she repeatedly asked Woodley for copies of the video
footage so that she could provide it to the police. Woodley allegedly failed to answer until April
18, 2013, claiming that she had “lent” the footage to O’Connor in the Law Department. (Id. at

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¶ 88). Cloutier contends that O’Connor refused to provide a copy of the footage even after the
Assistant District Attorney prosecuting the case asked for it. (Id. at ¶ 89).
On May 13, 2013, Woodley suspended Cloutier from work after calling her into a
meeting and allegedly stating that she could “do what she wanted [to Cloutier]” regardless of the
law. (Id. at ¶ 90). The next day, Cloutier’s union representative, Corey Robinson, went to the
library and informed Woodley that she needed to produce a written order that Cloutier had been
suspended. (Id. at ¶ 92). Woodley allegedly gave him a typed note that read “Diane is
suspended.” (Id.). Later that day, Cloutier, Robinson, and Woodley met with Callery to discuss
the suspension. (Id. at ¶ 93). After Callery allegedly claimed that Woodley “had every right” to
send Cloutier home, Robinson informed her that Woodley needed to issue a verbal and written
warning before suspension, and also needed a legitimate reason for the suspension. (Id. at ¶ 95).
When Cloutier requested that the suspension letter be rescinded, Callery stated that she was
unaware of a suspension letter, “brushed [off]” the suspension, and allowed Cloutier to return to
work. (Id. at ¶ 97). On May 17, 2013, Cloutier’s attorney notified the City Council about the
allegedly ongoing discriminatory and retaliatory conduct. (Id. at ¶ 98).
From June to September 2013, Cloutier requested to open the library windows multiple
times. She provided Woodley and Fougstedt a doctor’s note stating “that [d]ue to [Ms.
Cloutier’s] breathing difficulties, she needs a functioning air conditioning system [in the library]
or to be allowed to open windows for fresh air while at work.” (Id. at ¶¶ 99-105). Cloutier
contends that Woodley and Fougstedt repeatedly refused her requests. (Id.). She further
contends that on September 10, 2013, after sending Woodley an instant message about opening
the windows, Woodley “came screaming at [her] in a fit of rage.” (Id. at ¶¶ 106-07). Cloutier
allegedly “feared imminent bodily harm” and suffered further injury to her right shoulder in the

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process of shielding herself from Woodley, who was “enraged and out-of-control [and]
continued to emotionally unravel.” (Id. at ¶¶ 108-09). Cloutier’s union representative reported
the incident to Callery, but she took no action. (Id. at ¶ 110). Cloutier underwent an MRI the
next day that allegedly confirmed “an aggravation of the adhesive capsulitis,” and her doctor
ordered her “to remain out of work for several weeks following the assault in order to recover[,]
and for her own safety.” (Id. at ¶ 111).
In September and October 2013, Cloutier allegedly sent two letters to O’Connor
describing the assault, asking for an investigation, and requesting a transfer to another branch of
the library to distance herself from Woodley. (Id. at ¶¶ 112-13). O’Connor never responded.
(Id.). The complaint alleges that “the City took [Cloutier] ‘off’ the payroll” while she was
recovering from the alleged assault instead of offering her FMLA leave or letting her use her
accrued vacation and sick time. (Id. at ¶ 114).
Cloutier returned to work on October 7, 2013, allegedly “with much hesitancy, fear, and
trepidation.” (Id. at ¶ 116). The complaint alleges that Woodley sent her a memorandum the
next day explaining that she disagreed with the recommendation of Cloutier’s doctor about her
needing open windows, and taking issue with Cloutier missing work from September 11 through
October 6. (Id. at ¶¶ 117-18).
On October 23, 2013, O’Connor allegedly received another letter from Cloutier stating
that her request for reasonable accommodation with respect to her asthma had been ignored and
that as a result, she had been suffering severe asthma attacks while at work. (Id. at ¶ 120). The
letter also stated that “O’Connor would be held personally responsible for her long-standing
gross indifference and reckless disregard for Ms. Cloutier’s legally protected rights and utter
refusal to do anything to address [it].” (Id. at ¶ 121).

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On October 28, 2013, “the Defendants [allegedly] conspired to have Defendant Sparks
and Absolute secretly video-record Ms. Cloutier” while at work. (Id. at ¶ 122). On October 29,
2013, Callery and Gagnon asked Cloutier to leave the library and handed her a letter signed by
Gagnon, copied to Lynch, O’Connor, Callery, and Woodley, stating that the Law Department
recommended that she “‘not be allowed to work [for] the City’ unless [she] can work ‘full
unrestrictive duty’ or ‘when the City can implement a reasonable accommodation.’” (Id. at
¶¶ 124-26). The letter further stated that Gilbert had concluded that Cloutier could not do her
job. (Id. at ¶ 126). Cloutier contends that the letter did not explain why she was no longer
allowed to work, and that while she was escorted from the library, Callery and Gagnon
“purposefully and with the intent to humiliate her, paraded her through the main public floor of
the [l]ibrary . . . .” (Id. at ¶¶ 127-28).
On November 14, 2013, Cloutier filed a second complaint with the MCAD, naming the
City, Lynch, O’Connor, Callery, Gagnon, Woodley, and Fougstedt as defendants. (Id. at ¶ 129).
That same day, the City Defendants allegedly authorized Sparks and Absolute to conduct a “new
round of surveillance of Ms. Cloutier.” (Id. at ¶ 130). The complaint alleges that in December
2013, after the local media published several news articles about the City’s discriminatory and
retaliatory termination of Cloutier, Lynch and O’Connor disclosed that they had “surveillance”
that showed her “committing fraud.” (Id. at ¶ 132).
On January 2, 2014, the City appealed a Department of Unemployment Assistance
(DUA) decision awarding benefits to Cloutier. (Id. at ¶ 133). At the end of April 2014, the
DUA held a hearing on the City’s appeal regarding Cloutier’s unemployment benefits, and the
City allegedly paid Gilbert and another witness to testify against Cloutier. (Id. at ¶ 135). The
DUA hearing examiner suggested that Cloutier subpoena Callery and Gagnon for the continued

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hearing on June 3, 2014. (Id. at ¶ 136). During that hearing, the City allegedly asserted that
Cloutier’s vision impairment rendered her “unable to do her job,” and Gagnon testified that
“Gilbert and O’Connor were directly involved in both ordering the unlawful surveillance and
in . . . terminat[ing] [Cloutier].” (Id. at ¶¶ 139-40).
On April 22, 2014, a Division of Industrial Accidents (DIA) judge held the City liable for
Woodley’s September 2012 assault and time away from work. (Id. at ¶ 134). On June 9, 2014,
the City allegedly turned over a “small portion” of the surveillance video created by Sparks and
Absolute, along with two investigation reports and an affidavit signed by Sparks to Cloutier in
the DIA proceeding. (Id. at ¶ 148). The affidavit stated that Absolute took approximately forty
hours of surveillance video of Cloutier during the day and night, including footage that zoomed
in on several bedrooms of her home. (Id. at ¶¶ 149-51). The complaint further alleges that the
defendants acted in concert to violate Cloutier’s civil rights without a warrant authorizing the
surveillance. (Id. at ¶¶ 152, 155). On July 11, 2014, the law department allegedly sent Cloutier
a letter, refusing to provide all of their surveillance because Cloutier had “no reasonable
expectation of privacy” as to any of the depictions in the video. (Id. at ¶ 158). On July 22, 2014,
Cloutier demanded that the law department produce all of the surveillance footage. (Id. at
¶ 159). Several days later, the City allegedly dropped its appeal of the DIA Judge’s order. (Id. at
¶ 160).
In August 2014, the City Manager Kevin Murphy, Mayor Rodney Elliot, and other
members of the City Council publicly commented on the City’s surveillance of Cloutier, and the
Mayor allegedly “demanded a probe into the issue.” (Id. at ¶ 162). O’Connor allegedly refused
to comply with the City Council’s requests for any non-law enforcement surveillance dating
back to 2009 and Mayor Elliot “filed a motion requiring the City Auditor, Hannah York, to

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gather and supply the information to the City Council.” (Id. at ¶ 163). On August 22, 2014,
York submitted a report to the City Council, allegedly stating that she had been unsuccessful in
locating the records “because there was very little information entered into Munis [software used
by the City].” (Id. at ¶ 165). York also allegedly reported that numerous invoices were missing,
that the law department had issued at least “one ‘blank’ check for over $30,000” to Absolute, and
that “the overwhelming majority of the public monies used for surveillance of City employees––
a total of $158,000––was for surveillance commissioned by the [l]aw [d]epartment.” (Id. at
¶ 167).
D.

Procedural Background

On August 15, 2014, Cloutier filed a complaint in Massachusetts Superior Court, and at
the same time withdrew her second MCAD charge. On January 26, 2015, Cloutier voluntarily
dismissed that complaint. Cloutier’s first MCAD charge from February 2012 is still pending and
she does not seek to recover damages from the events alleged in that complaint.
Cloutier filed the complaint in this matter on June 24, 2015. As noted, it contains 21
counts against 10 named and 10 unnamed defendants. In summary, it alleges as follows: (1)
failure to accommodate in violation of Title I of the Americans with Disability Act (ADA)
against the City; (2) disability discrimination in violation of Title I of the ADA against the City;
(3) unlawful medical examination in violation of Title I of the ADA against the City; (4)
disability discrimination by a public entity in violation of Title II of the ADA against the City;
(5) retaliation in violation of Title V of the ADA against the City; (6) failure to accommodate in
violation of Section 504 of the Rehabilitation Act of 1973 against the City, Lynch, O’Connor,
Callery, and Woodley; (7) disability discrimination in violation of Section 504 of the
Rehabilitation Act of 1973 against the City, Lynch, O’Connor, Callery, and Woodley; (8)

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retaliation in violation of Section 504 of the Rehabilitation Act of 1973 against the City, Lynch,
O’Connor, Callery, and Woodley; (9) failure to accommodate in violation of Mass. Gen. Laws
ch. 151B, §§ 4(16) against the City, Lynch, O’Connor, Callery, Gagnon, Woodley, Fougstedt,
and Gilbert; (10) disability discrimination in violation of Mass. Gen. Laws ch. 151B, § 4(16)
against the City, Lynch, O’Connor, Callery, Gagnon, Woodley, Fougstedt, and Gilbert; (11)
retaliation in violation of Mass. Gen. Laws ch. 151B, § 4(4) against the City, Lynch, O’Connor,
Callery, Gagnon, Woodley, Fougstedt, and Gilbert; (12) violations under 42 U.S.C. § 1983
against all of the defendants; (13) invasion of privacy in violation of Mass. Gen. Laws ch. 214,
§ 1B against all of the defendants; (14) violation of the common-law right to privacy against all
of the defendants; (15) assault against Woodley; (16) violations of the Massachusetts Civil
Rights Act (MCRA) under Mass. Gen. Laws ch. 12, § 11(I) against all of the defendants; (17)
violations of the Massachusetts Equal Rights Act (MERA) under Mass. Gen. Laws ch. 93, § 103
against all of the defendants; (18) civil conspiracy against all of the defendants; (19) intentional
infliction of emotional distress against all of the defendants; (20) interference with contractual or
advantageous business relations against Lynch, O’Connor, Callery, Gagnon, Woodley,
Fougstedt, and Gilbert; and (21) defamation against Callery and Gagnon.
II.

Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and

give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the

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allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the facts as alleged do
not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer
Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations omitted) (internal quotation marks
omitted).
III.

Analysis
Defendants urge the Court that it should, without converting their motion into one for

summary judgment, take judicial notice of documents referred to by the complaint and official
public records from prior proceedings. (Defs.’ Mem. 2). However, given the state of the record
and the parties’ seeming inability to agree on even routine issues, the Court will focus only on
the complaint’s allegations and whether, if assumed to be true, they state a claim for which relief
can be granted on each of the 21 counts.
A.

Counts One, Two, Three, and Five: Title I and Title V ADA Claims

The complaint alleges violations of Title I of the ADA for failure to accommodate (Count
One), disability discrimination (Count Two), and unlawful medical examination (Count Three)
against the City. The complaint also alleges a violation of Title V of the ADA for retaliation
(Count Five) against the City. The City contends that those counts should be dismissed for
failure to exhaust administrative remedies before the MCAD and the EEOC. Specifically, the
City contends that Cloutier has failed to file a right-to-sue letter with her complaint.
“[T]he ADA mandates compliance with the administrative procedures specified in Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and that, absent special

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circumstances, . . . , such compliance must occur before a federal court may entertain a suit that
seeks recovery for an alleged violation of Title I of the ADA.” Bonilla v. Muebles J.J. Alvarez,
Inc., 194 F.3d 275, 277 (1st Cir. 1999); see also Rivera-Diaz v. Humana Ins. of P.R., Inc., 748
F.3d 387, 389 (1st Cir. 2014) (“Claims of employment discrimination and retaliation under the
ADA are subject to the procedural requirements of Title VII.”). The Title VII provisions require
that before filing suit, a plaintiff must file a claim with the EEOC “‘within one hundred and
eighty days after the alleged unlawful employment practice occurred’ or within 300 days if ‘the
person aggrieved has initially instituted proceedings with [an authorized] state or local agency,’”
in this case the MCAD. Bonilla, 194 F.3d at 278 (quoting 42 U.S.C. § 2000e-5). The employee
may sue in federal court only if the EEOC or MCAD dismisses the administrative charge, or if it
does not bring civil suit or enter into a conciliation agreement within 180 days of the filing of the
administrative charge. 42 U.S.C. § 2000e-5(f)(1); see also Franceschi v. U.S. Dep’t of Veterans
Affairs, 514 F.3d 81, 85 (1st Cir. 2008). “In either case, the EEOC must send the employee
notice, in the form of what is known as a right-to-sue letter.” Franceschi, 514 F.3d at 85; see
also Goldstein v. Brigham & Women's Faulkner Hosp., Inc., 80 F. Supp. 3d 317, 323-24 (D.
Mass. 2015) (“[A] plaintiff cannot file a federal claim until she has received a notice of right-tosue from the EEOC, which is provided upon dismissal by the EEOC or at the request of the
plaintiff after the EEOC has had the complaint for 180 days.”).
Here, on August 15, 2014, Cloutier filed a request with the MCAD for permission to
dismiss her second MCAD claim and bring a private right of action. That same day—despite not
receiving permission from the MCAD or obtaining a right-to-sue letter—she filed suit in
Middlesex Superior Court. The MCAD dismissed her claim on December 29, 2014. On January
26, 2015, Cloutier dismissed the action pending in state court, and filed her complaint in this

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Court on June 24, 2015. Cloutier did not file a right-to-sue letter with the complaint, nor is there
any evidence in the record that Cloutier ever requested a right-to-sue letter from the MCAD.
Under Titles I, V, and VII, the “unexcused failure to exhaust administrative remedies
effectively bars the courthouse door.” Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005).
“Administrative remedies [can]not be considered to [be] exhausted . . . until the EEOC [or
MCAD] issue[s] [the plaintiff] a right-to-sue-letter.” Franceschi, 514 F.3d at 85 (citing 42
U.S.C. § 2000e-5(f)(1)). Therefore, by not filing a right-to-sue letter from the MCAD or EEOC,
Cloutier appears to have failed to exhaust the administrative remedies required in order to file
her ADA claims in this Court.
Accordingly, Counts One, Two, Three, and Five will be dismissed in their entirety.
B.

Counts Six, Seven, and Eight: Rehabilitation Act Claims

Two sets of federal laws govern disability discrimination: the ADA, which applies to
private employers with more than fifteen employees and state and local governments, and the
Rehabilitation Act, 29 U.S.C. § 794, which applies to federal agencies, contractors, and
recipients of federal financial assistance.1 Cloutier has sued under both statutes. The complaint
alleges violations of Section 504 of the Rehabilitation Act, 29 U.S.C. §§ 705(9)(B), 20(B) for
failure to accommodate (Count Six), disability discrimination (Count Seven), and retaliation
(Count Eight) against the City, Lynch, O’Connor, Callery, and Woodley in their official and
individual capacities.
Defendants contend that the claims under the Rehabilitation Act should be dismissed to

1

The Rehabilitation Act states that:

[n]o otherwise qualified individual with a disability in the United States, as defined in [29 U.S.C.
§ 705(20)], shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance. See 29 U.S.C. § 794(a).

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the extent that they are filed against defendants in their individual capacities because they are not
recipients of federal financial assistance. It is well-established that individual defendants cannot
be sued in their individual capacities under the Rehabilitation Act; however, they can be sued for
injunctive or equitable relief in their official capacities. Diaz-Fonseca v. Puerto Rico, 451 F.3d
13, 29 n.17 (1st Cir. 2006) (noting that “Rehabilitation Act claims against [ ] individual
defendants [are] correctly dismissed); see also Doe v. Town of Bourne, 2004 WL 1212075, at *3
(D. Mass. May 28, 2004) (collecting cases and noting that “individuals in their individual
capacities are not liable under § 504 [of the Rehabilitation Act], which applies only to recipients
of federal financial aid”).
Accordingly, Counts Six, Seven, and Eight will dismissed as to the defendants in their
individual capacities.
C.

Count Twelve: Section 1983 Claim

The complaint alleges a violation of Cloutier’s Fourth Amendment rights to be free of
unlawful searches and seizures, naming the City, the City defendants, Sparks, and Absolute as
defendants. Specifically, the complaint alleges that the defendants violated her Fourth
Amendment rights by placing a GPS monitoring device on her car without a warrant. (Compl.
¶ 150).
The claims in Count Twelve against Sparks and Absolute will be dismissed because they
are not state actors. Section 1983 “creates a private right of action for redressing abridgements
or deprivations of federal constitutional rights.” McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.
1995). “A claim under § 1983 has two ‘essential elements': the defendant must have acted
under color of state law, and his or her conduct must have deprived the plaintiff of rights secured
by the Constitution or by federal law.” Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008).

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Only in limited circumstances, where their actions are “fairly attributable to the State,” are
private individuals and entities found to be state actors liable under § 1983. Lugar v. Edmondson
Oil Co., 457 U.S. 922, 937 (1982). Those circumstances include where the private actor
(1) “assumes a traditional public function,” (2) “the challenged conduct is coerced or
significantly encouraged by the state,” or (3) the state and private party are in a “position of
interdependence.” Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011).
The actions of Sparks and Absolute, as alleged in the complaint, do not fit into any of
those three categories. They were allegedly hired and paid by the City to conduct surveillance of
Cloutier. But being hired and paid by a city, alone, does not constitute being “significantly
encouraged by the state.” See id. at 72 (“A private party cannot be transformed into a state actor
simply because it is paid with government funds for providing a service.”).
Furthermore, the City defendants contend that Count Twelve should be dismissed
because they are entitled to qualified immunity. A government official facing a § 1983 or Bivens
action is protected from suit unless the official's conduct violated clearly established law at the
time of the alleged wrongdoing. See Pearson v. Callahan, 555 U.S. 223, 227 (2009). Qualified
immunity shields officials “from civil damages liability as long as their actions could reasonably
have been thought consistent with the rights they are alleged to have violated.” Anderson v.
Creighton, 483 U.S. 635, 638 (1987). Qualified immunity does not protect “those who
knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), but a plaintiff may
overcome the qualified immunity defense only if “the contours of the right [are] sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Anderson,
483 U.S. at 640. Government officials are entitled to immunity for their actions unless “in the
light of pre-existing law the unlawfulness [is] apparent.” Id.

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In January 2012, the Supreme Court, relying on a trespass theory, held that installing a
GPS tracking device on a vehicle and using the device to monitor the vehicle’s movements
intrudes on an individual’s reasonable expectation of privacy and violates the Fourth
Amendment. See United States v. Jones, 132 S. Ct. 945 (2012). However, there were also two
concurring opinions, including Justice Alito’s “mosaic theory” concurrence, joined by three
other Justices, which concluded that the Court should “analyze the question . . . by
asking whether respondent’s reasonable expectations of privacy were violated by the long-term
monitoring of the movements of the vehicle he drove.” Id. at 958 (Alito, J., concurring).
Normally, questions of qualified immunity should be resolved at the earliest possible
stage, and courts can address them on a motion to dismiss. See Haley v. City of Boston, 657 F.3d
39, 47 (1st Cir. 2011) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). However, the Court
will defer on the issue at this early stage of the case for several reasons. First, the allegations of
an unlawful search in the complaint are unclear, and although they currently state a plausible
claim for relief, they nevertheless appear tenuous. The only allegations in the complaint
concerning a GPS device are based on “information and belief.” (Compl. ¶ 150). Moreover, it is
unclear from the complaint when exactly the defendants allegedly installed the GPS tracker on
Cloutier’s car, and for how long they tracked her movements. Furthermore, the Supreme Court
decided Jones relatively close in time to the alleged actions of the defendants here, and the
Court’s three opinions in Jones relied on different Fourth Amendment theories. In short, a more
settled factual record is necessary before the Court can determine whether the defendants’
alleged surveillance even violated Cloutier’s Fourth Amendment rights at all, and whether they
did so at a time when the law was clearly established.
Accordingly, Count Twelve will be dismissed as to Sparks and Absolute.

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D.

Counts Thirteen, Eighteen, and Nineteen: Intentional Tort Claims

The complaint alleges that the defendants violated Cloutier’s statutory privacy rights
under Mass. Gen. Laws ch. 214, § 1B (Count Thirteen), committed common-law civil conspiracy
(Count Eighteen), and committed intentional infliction of emotion distress (Count Nineteen).
However, the City cannot be held liable for intentional torts under the Massachusetts Tort Claims
Act, and therefore those three counts will be dismissed as to the City. See Mass. Gen. Laws ch.
258, § 10(c) (municipalities are immune for “any claim arising out of an intentional tort,
including . . . intentional mental distress . . . [and] invasion of privacy”).
Accordingly, Counts Thirteen, Eighteen, and Nineteen will be dismissed as to the City.
E.

Count Fourteen: Common-Law Invasion of Privacy Claim

The complaint alleges that the defendants violated Cloutier’s common-law right of
privacy. However, Massachusetts does not recognize a common-law cause of action for invasion
of privacy. See Spencer v. Roche, 659 F.3d 142, 151 n.6 (1st Cir. 2011) (“To the extent that the
appellant couches his invasion of privacy claim in the common law, Massachusetts has never
recognized such a tort and it is not our place to create new causes of action under state law.”).
Accordingly, Count Fourteen will be dismissed in its entirety.
F.

Count Fifteen: Assault Claim

The complaint alleges that Woodley assaulted Cloutier on September 10, 2013.
Specifically, it alleges that Woodley angrily approached Cloutier, placing her in fear of imminent
bodily harm, after she had asked to open the library windows. (Compl. ¶¶ 99-111). Woodley
contends that the claim should be dismissed because the Massachusetts Worker’s Compensation
Act (MWCA) is the exclusive remedy for the assault claim.
The exclusivity provision of the MWCA precludes common-law actions for both

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negligence and intentional torts against employers that arise “out of and in the course of [the
plaintiff’s] employment.” Doe v. Purity Supreme, Inc., 422 Mass. 563, 565 (1996) (claims for
negligence, assault and battery, false imprisonment, and negligent and intentional infliction of
emotional distress barred by Act; summary judgment properly granted for defendant-employer).
“‘An injury arises out of the employment if it arises out of the nature, conditions, obligations, or
incidents of the employment; in other words, out of the employment looked at in any of its
aspects.’” Id. at 566 (quoting Caswell's Case, 305 Mass. 500, 502 (1940)). Injuries do not arise
out of employment if a plaintiff is engaged in purely personal activity on the employer’s
premises, but only if he is “occupying himself consistently with his contract of hire in some
manner pertaining to or incidental to his employment.” Souza’s Case, 316 Mass. 332, 335
(1944).
The Act not only bars suits for negligence and intentional torts against an employer, but
also against co-workers “if the fellow employee also was acting in the course of employment.”
Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 124 (1988); see also Mulford v.
Mangano, 418 Mass. 407, 410 (1994) (if employee commits an intentional tort in the course of
his employment, he is immune from liability under the MWCA). “Conduct of an agent is within
the scope of employment if it is of the kind he is employed to perform . . . ; if it occurs
substantially within the authorized time and space limits . . . ; and if it is motivated, at least in
part, by a purpose to serve the employer . . . .” Purity Supreme, 422 Mass. at 568 (citations
omitted). Courts must apply an “objective test which assesses what the employee did and other
facts in order to determine whether he acted at least in part for a job-related purpose.” Mulford,
418 Mass. at 412; see also Grant v. John Hancock Mut. Life Ins. Co., 183 F. Supp. 2d 344, 365
(D. Mass. Jan. 8, 2002) (dismissing assault claim against security officers because they “were

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escorting [plaintiff-employee] at the direction of [his supervisor], and were supervising his
departure as part of their responsibilities as security officers . . . [defendants] were engaged in the
type of action that [the company] employed them to perform”). Even the fact that an employee
may have been acting illegally “will not automatically bring an intentional tort claim out of the
class of those torts barred by the Worker’s Compensation Act” because “[t]he key remains
whether the acts of the offending employer or agent were in the course of the employment
relationship and whether she acted in furtherance of the employer’s interest.” See Boyle v.
Boston Found., Inc., 788 F. Supp. 627, 631 (D. Mass. 1992) (dismissing a claim of intentional
infliction of emotional distress in the context of an employee’s firing as being barred by the
MWCA because the supervisor was acting in the interest of the defendant corporation in firing
plaintiff); but see O’Connell v. Chasdi, 400 Mass. 686, 690 (1987) (finding that defendant’s
conduct in making unwanted sexual advances toward the plaintiff and criticizing plaintiff for
rejecting such advances “was in no way within the scope of employment furthering the interests
of the employer”).
Here, Cloutier’s injury clearly arises out of her employment; therefore, the question is
whether Woodley committed the alleged assault in the course of her employment as the director
of the library and purportedly did so in furtherance of her employer’s interest. See O’Connell,
400 Mass. at 690 (“Where a fellow employee commits an intentional tort not related to the
interests of the employer . . . the policies behind the act would not be served by immunizing the
coemployee.”). According to the complaint, Cloutier notified Woodley several times during the
summer of 2013 that the air conditioning was not working properly and repeatedly asked if she
could open a window to alleviate her asthma symptoms. (Compl. ¶¶ 99-105). Woodley
apparently decided that the windows should remain closed. (Id. at ¶¶ 100-02). On September

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10, Cloutier sent Woodley an instant message asking her again to open the windows. (Id. at
¶ 106). In response, Woodley allegedly reprimanded Cloutier by “screaming” at her in a “fit of
rage.” (Id. at ¶ 107). She also “physically backed her into a closed office and forced her to sit in
a chair” and “gesticulated” at her. (Id. at ¶¶ 107-08). Cloutier allegedly raised her arm in fear of
being hit by Woodley and aggravated her shoulder injury. (Id.).
Even assuming the truth of those allegations, it is nonetheless clear that Woodley was
acting in the course of her employment as the supervisor of the library. She was responding to
an employee (Cloutier) concerning actions taken by the employee in the course of her
employment (making complaints about the workplace) by taking disciplinary action
(reprimanding her for her conduct). Woodley was not acting on her own personal account or
dealing with personal matters. Moreover, Woodley was purportedly acting in furtherance of the
library’s interests, not her own. The fact that she may have acted improperly or
unprofessionally, by raising her voice and gesticulating in a manner that Cloutier believed was
menacing, does not transform the event into an intentional tort that falls outside the protections
of the MWCA. Even an employee’s unlawful actions, if done in furtherance of his employer’s
interests, fall within the scope of the MWCA. See Boyle, 788 F. Supp. at 631.2
In summary, Cloutier’s claim against Woodley for assault falls within the scope of the
MWCA and is therefore barred. Accordingly, Count Fifteen will be dismissed.
G.

Count Sixteen: Massachusetts Civil Rights Act Claim

The complaint alleges that the defendants, by video recording Cloutier and using that
video to pressure her to drop her MCAD actions, attempted to interfere with her civil rights

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That conclusion is reinforced by the fact that Cloutier has already recovered compensation from the City
under the MWCA for Woodley’s alleged assault. (See Compl. ¶ 134) (stating that in April 2014 Cloutier was
awarded $1,500 in connection with her § 34 worker’s compensation claim).

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through threats, intimidation, and coercion in violation of the Massachusetts Civil Rights Act
(MCRA), Mass. Gen. Laws ch. 12, § 11(I).
The MCRA provides a cause of action “whenever any person or persons . . . interfere by
threats, intimidation or coercion . . . with the exercise or enjoyment . . . of rights secured by the
Constitution of law of the United States . . . .” Mass. Gen. Laws ch. 12, § 11(H). However, it is
well-established that cities and city officials in their official capacities are not “persons” subject
to suit under the MCRA. See, e.g., Wentworth Precious Metals v. City of Everett, 2013 WL
441094, at *12 (D. Mass. Feb. 4, 2013) (“[A]s a matter of well-settled Massachusetts law, the
City is not a ‘person’ subject to suit, as the MCRA contemplates that term . . . . Claims against
city officials in their official capacities are subject to the same restrictions as claims against the
City itself . . . .”).
Sparks and Absolute further contend that Count Sixteen should be dismissed because the
complaint does not allege that they used threats, intimidation, or coercion. Although they
conducted surveillance of Cloutier, and the City defendants allegedly may have used that
surveillance footage after-the-fact to intimidate her, there are no allegations in the complaint that
Sparks or Absolute threatened, intimidated, or coerced Cloutier in any way. In fact, Cloutier
concedes that she did not know about the surveillance until the City defendants sent it to her.
The SJC has consistently held that, in the context of the MCRA, “the direct violation of a right
by itself is not the equivalent of coercion.” Currier v. National Bd. of Med. Examiners, 462
Mass. 1, 13 (2012); see also Longval v. Commissioner of Corr., 404 Mass. 325, 333-34 (1989)
(direct violation of a person's rights does not by itself involve coercion; even unlawful conduct
lacks this quality when all it does is take someone's rights away directly); Pheasant Ridge

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Assocs. Ltd. P’ship v. Town of Burlington, 399 Mass. 771, 781 (1987) (unlawful taking did not
itself interfere with or attempt to interfere with plaintiff’s rights by coercion).
Accordingly, because the City and City defendants are not persons under the MCRA, and
because the complaint contains no allegations of threats, intimidation, or coercion specifically
against Sparks and Absolute, Count Sixteen will be dismissed as to the City, the City defendants
in their official capacities, Sparks, and Absolute.
H.

Count Seventeen: Massachusetts Equal Rights Act Claim

The complaint alleges that the defendants, by unlawfully video recording Cloutier based
on her disabilities, discriminated against her in violation of the Massachusetts Equal Rights Act
(MERA), Mass. Gen. Laws ch. 93, § 103(a). MERA provides that:
Any person within the Commonwealth, regardless of handicap or age as defined
in chapter [151], shall, with reasonable accommodation, have the same rights as
other persons to make and enforce contracts, inherit, purchase, lease, sell, hold
and convey real and personal property, sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security of persons and
property, including, but not limited to, the rights secured under Article CXIV of
the Amendments to the Constitution
Mass. Gen. Laws ch. 93, § 103(a).
While there appear to be few cases interpreting § 103, cases interpreting § 102 of MERA,
which prohibits discrimination based upon sex, race, color, creed, or national origin, are
instructive. Courts have held that for a person to be held liable under § 102, “[o]nly
discrimination that is both purposeful and based on [protected characteristics] comes within the
reach of the statute; if any element is missing, a claim under the statute fails.” LaCava v.
Lucander, 58 Mass. App. Ct. 527, 535 (2003).
Here, even if Sparks and Absolute did violate Cloutier’s protected privacy rights in
conducting surveillance, the complaint does not allege that Sparks and Absolute purposefully

24

discriminated against her––that is, decided to monitor her––because of her disabilities. The
complaint does not even allege that Sparks and Absolute were aware of her alleged disabilities.
In short, the only fair inference from the complaint is that Sparks and Absolute conducted
surveillance of Cloutier because the City hired them to do so, not because of any discriminatory
animus toward her. The alleged discriminatory animus of the City defendants does not
automatically transfer to Sparks and Absolute because the City hired them.
Accordingly, the complaint does not sufficiently allege that Sparks and Absolute were
even aware of Cloutier’s disabilities, much less that they discriminated against her based on
those disabilities. Therefore, Count Seventeen will be dismissed as to Sparks and Absolute.
I.

Cloutier’s Other Claims

For Cloutier’s other claims, the complaint appears to state a plausible claim for which
relief could be granted. Whether any of the remaining claims should be dismissed on summary
judgment will await development of the evidence.
IV.

Conclusion
Accordingly, the motions to dismiss are granted in part and denied in part. For the

foregoing reasons:
1. The motion to dismiss Counts One, Two, Three, and Five is GRANTED.
2. The motion to dismiss Counts Six, Seven, and Eight as to the defendants in their
individual capacities is GRANTED.
3. The motion to dismiss Count Twelve as to Sparks and Absolute is GRANTED.
4. The motion to dismiss Counts Thirteen, Eighteen, and Nineteen as to the City is
GRANTED.
5. The motion to dismiss Count Fourteen is GRANTED.

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6. The motion to dismiss Count Fifteen is GRANTED.
7. The motion to dismiss Count Sixteen as to the City, the City defendants in their official
capacities, Sparks, and Absolute is GRANTED.
8. The motion to dismiss Count Seventeen as to Sparks and Absolute is GRANTED.
9. The motions to dismiss all other claims are otherwise DENIED without prejudice to
defendants renewing their defenses at the summary judgment stage.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge

Dated: December 14, 2015

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