Piccadaci, Jr. v. Town of Stoughton et al

Filing 28

Judge Richard G. Stearns: ORDER entered granting 12 Motion for Summary Judgment. The Clerk will enter judgment for defendants and close the case. (RGS, law1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-10188-RGS
GAETANO T. PICCADACI, JR.
v.
TOWN OF STOUGHTON and JOHN BATCHELDER
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
February 15, 2019
STEARNS, D.J.
Gaetano Piccadaci, Jr., brought this lawsuit in Norfolk Superior Court
against his former employer, the Town of Stoughton (Stoughton), and his
quondam supervisor, John Batchelder, 1 primarily for wrongful termination.
Piccadaci alleges that defendants discriminated against him based on his
age, disability, race and national origin, and gender in violation of state and
federal law. More specifically, the Complaint sets out one claim against
Batchelder individually for harassment and retaliation (Count VI) and six
claims against defendants collectively for violating the Age Discrimination in
Employment Act (ADEA) (Count I), the American with Disabilities Act

The Complaint misspells Batchelder as “Batcheler.” See Mot. to
Amend (Dkt # 26).
1

(ADA) (Count II), Title VII of the Civil Rights Act of 1964 (Counts III and IV),
Mass. Gen. Laws ch. 151B (Count V), and the Family Medical Leave Act
(FMLA) (Count VII).2 Defendants removed the case to the federal district
court and now move for summary judgment on all counts. 3 For the reasons
to be explained, defendants’ motion for summary judgment will be allowed.
BACKGROUND
The facts, viewed in the light most favorable to Piccadaci as the
nonmoving party, are as follows. In 2002, Piccadaci began working as a
seasonal contractor plowing snow for Stoughton. On November 4, 2013,
Stoughton hired him as a full-time truck driver and laborer for a
probationary period of one year.4 Throughout his employment, Piccadaci
was supervised by Batchelder, the Superintendent of Stoughton’s
Department of Public Works (DPW).

2

The Complaint incorrectly labels the final count as “Count IV.”

Piccadaci has withdrawn his age and gender discrimination claims.
See Opp’n (Dkt # 25) at 6. Also, while the Complaint alleges national origin
discrimination, Piccadaci does not address this claim, even in passing, in his
Opposition to Summary Judgment. The court therefore deems the national
origin claim waived.
3

After his first six months on the job, Piccadaci’s probationary period
was extended for an additional six months. Stmt of Facts (SOF) (Dkt # 14),
Ex. 2 at 30:2-9.
2
4

In January of 2014, Batchelder questioned Piccadaci’s carpentry skills.
Piccadaci represented himself as a finish carpenter, but neither Batchelder
nor Thomas Fitzgerald, the assistant DPW director, considered Piccadaci’s
woodworking skills to meet finish carpentry standards.

That winter,

Batchelder also questioned Piccadaci’s ability to drive a stick shift truck, even
though he had a Class A CDL license. Piccadaci interpreted Batchelder’s
criticisms as verbal attacks.
On August 2, 2014, Piccadaci began experiencing stomach pains, but
he continued to work.

On August 18, 2014, he presented to Dr. Louis

Silvagnoli, Jr., who opined that he could return to work. SOF, Ex. 4. On
August 26, 2014, he sought a second opinion from Dr. Syed Imam, who
advised him not to return to work that week. SOF, Ex. 5. The doctors’ notes,
which were provided to Fitzgerald, did not mention a disability or request an
accommodation.
During the year, Fitzgerald heard from several foremen that they were
not pleased with Piccadaci’s performance. They characterized him as lazy,
unreliable, and difficult to work with. In particular, Piccadaci was criticized
for failing to respond to four out of six overtime sanding requests that winter.
Fitzgerald spoke with Batchelder about the foremen’s concerns and
recommended that Piccadaci be terminated.
3

At the end of August,

Batchelder informed Piccadaci that he would be fired. On August 27, 2014,
Michael Hartman, Stoughton’s Town Manager, formally notified Piccadaci
of his termination. 5
On June 4, 2015, Piccadaci filed a charge with the Massachusetts
Commission Against Discrimination (MCAD), alleging that Stoughton and
Batchelder had wrongfully terminated him. After the MCAD found a lack of
probable cause on March 31, 2017, Piccadaci initiated this lawsuit in Norfolk
Superior Court on August 11, 2017. Defendants then removed the case to this
court on January 31, 2018.
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one which has the “potential to affect the outcome
of the suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990
F.2d 701, 703 (1st Cir. 1993). For a dispute to be “genuine,” the “evidence
relevant to the issue, viewed in the light most flattering to the party opposing
the motion, must be sufficiently open-ended to permit a rational factfinder

Hartman’s letter more specifically stated that Stoughton would not be
“extend[ing] [his] temporary appointment to the position.” Opp’n, Ex. 9.
4
5

to resolve the issue in favor of either side.” Nat’l Amusements v. Town of
Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citation omitted). “Even in cases
where elusive concepts such as motive or intent are at issue, summary
judgment may be appropriate if the nonmoving party rests merely upon
conclusory

allegations,

improbable

inferences,

and

unsupported

speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990).
Disability Discrimination
To make out a prima facie case of disability discrimination under the
ADA and Massachusetts Chapter 151B, Piccadaci must show that: (1) he has
a disability within the meaning of the law; (2) he is nonetheless able to
perform the essential functions of his job, with or without reasonable
accommodation; (3) he suffered an adverse employment action; and (4) his
employer replaced him with a non-disabled person or otherwise sought to fill
the job. Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996);
Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 3 (1998). 6 If Piccadaci

In construing Chapter 151B, Massachusetts courts look to federal law
for guidance. See Tate v. Dep’t of Mental Health, 419 Mass. 356, 361 (1995)
(“In construing the Commonwealth’s employment discrimination statute, we
have looked to the considerable case law applying the analogous Federal
statute for guidance.”); Cox v. New Eng. Tel. & Tel. Co., 414 Mass. 375, 382
(1993) (noting that the Court may look to the “considerable case law
construing and applying the analogous Federal statute . . . for guidance.”).
5
6

succeeds in establishing a prima facie showing of disability discrimination,
the burden then shifts to defendants to articulate a legitimate,
nondiscriminatory reason for the employment action. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Trs. of Forbes Library v. Labor
Relations Comm’n, 384 Mass. 559, 564 (1981). If defendants meet this
burden, it then falls to Piccadaci “to prove that the adverse action was taken
‘because of his . . . handicap,’ and not for the reason proffered by the
employer.” Gannon v. City of Bos., 476 Mass. 786, 794 (2017) (citation
omitted).
The court will assume that Piccadaci has made the requisite prima facie
showing. He alleges that he suffers from irritable bowel syndrome and an
anxiety disorder, but that he is nonetheless qualified to perform the essential
functions of his job as a truck driver and laborer. His termination ten months
into his probationary period undoubtedly constitutes an adverse
employment action. Defendants, in turn, have articulated a lawful business
reason for firing Piccadaci, namely his poor work performance and spotty
attendance record.
Piccadaci contends that defendants’ proffered reason is pretextual
because he was not formally or informally disciplined prior to the

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termination.7 As evidence, he points to a fellow employee, Carlos Viveiros,
who similarly refused to work overtime, but was not terminated.8 He also
contends that Batchelder’s rejection of his August 18, 2014, medical note
“indicates a discriminatory animus” attributable to his handicap. Opp’n at
7. In this regard, he cites the close proximity of the rejection of his doctors’
notes to his termination as evidence of causation.
Defendants argue, and the court agrees, that Piccadaci has failed to
present sufficient evidence from which a reasonable factfinder could
conclude that he was terminated “because of” his disability. Prior to being
hired, Piccadaci did not identify any disabilities, and after he had reviewed
the job description, did not claim any employment restrictions. He also
never told his supervisors that he suffered from an anxiety disorder or
irritable bowel syndrome, nor did he request any accommodation for his

Although Piccadaci claims to have “never received any complaints
about his work performance,” Opp’n at 5, he conceded in his deposition that
Batchelder spoke with him in January of 2014 about his deficient carpentry
and driving skills and in March of 2014 about his failure to respond to
overtime requests. SOF, Ex. 1 at 112, 117: 11-20.
7

Piccadaci further argues that overtime street sanding was not
required. But he acknowledged in his deposition that “[p]low time was
always mandatory” for truck drivers. SOF, Ex. 1 at 109:1-4.
8

7

alleged disabilities. 9 While Piccadaci’s daughter’s testified that she was told
by a Stoughton employee that Batchelder would refuse to accept the August
18, 2014 medical note, see Opp’n, Ex. 8, Piccadaci concedes that Fitzgerald
took the note and placed it is his personnel file. 10 He also concedes that
neither of his doctors’ notes referred to any medical conditions.
Further, the fact that Piccadaci, unlike Viveiros, was terminated for
failing to respond to overtime calls does not reasonably support an inference
that defendants’ business reason for his termination was pretextual.
Batchelder testified that Piccadaci was the only probationary employee who
did not sand or answer his phone. SOF, Ex. 2 at 36:2-9. Viveiros, in contrast,
had been a full-time Stoughton employee for over twenty years. Id. at 41:46. Fitzgerald explained in his deposition that there was “no determination
for whether we were going to keep Mr. Viveiros as a permanent employee, as
opposed to Mr. Piccadaci,” SOF, Ex. 3 at 65:17-24, and that Piccadaci’s case
was judged on his own merits. Whether there might have been a better way
to handle Piccadaci’s firing is not for the court to decide. See Mesnick v. Gen.

Piccadaci acknowledges that he “did not inform [defendants] about a
specific disability.” Opp’n at 4.
9

Piccadaci testified that his daughter delivered the August 26, 2014
doctor’s note (and not the August 18, 2014 note), SOF, Ex. 1 at 52:4-8, but
the discrepancy is immaterial.
8
10

Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) (“Courts may not sit as super
personnel departments, assessing the merits – or even the rationality – of
employers’ nondiscriminatory business decisions.”); see also Matthews v.
Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997) (“If the
defendant’s reasons are not discriminatory, and if the plaintiff does not prove
that they are pretexts, the plaintiff cannot prevail.”).
Race Discrimination
To make out a prima facie case of race discrimination under
Massachusetts law and Title VII of the Civil Rights Act of 1964, Piccadaci
must show that: (1) he is a member of a protected class; (2) he was qualified
for his position; (3) his employer took an adverse employment action against
him; and (4) there is evidence of a causal connection between his
membership in the protected class and the adverse employment action. See
Bhatti v. Trs. of Boston Univ., 659 F.3d 64, 70 (1st Cir. 2011); Bulwer v.
Mount Auburn Hosp., 473 Mass. 672, 680 (2016). Piccadaci fails on at least
the fourth element of his prima facie case.
Piccadaci’s claim is based on a single incident in July of 2014, when
Batchelder remarked that an African American worker was playing “the
black card.” SOF ¶ 24. Piccadaci was offended by the remark because the
worker was a friend of his, and because he was then engaged to a black
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woman of Indian and Cape Verdean descent.11 He also argues that, as “a selfidentified

dark-skinned,

Sicilian/Italian,”

he

“felt

prejudiced

by

[Batchelder’s] racial comments.” Opp’n at 8. Piccadaci, however, offers no
evidence that defendants considered race when deciding to terminate him.
The isolated remark attributed to Batchelder is insufficient to establish a
prima facie case of race discrimination, let alone to withstand summary
judgment. See Lehman v. Prudential Ins. Co. of Am., 74 F.3d 323, 329 (1st
Cir. 1996) (“Isolated, ambiguous remarks are insufficient, by themselves, to
prove discriminatory intent.”); Finney v. Madico, Inc., 42 Mass. App. Ct. 46,
50-51 (1997) (“[A]n isolated, ambiguous, or stray remark is insufficient,
standing alone, to prove discriminatory employment action.”).
Harassment
Piccadaci’s “harassment” claim is, in essence, a hostile work
environment claim. To prevail on this claim, Piccadaci must establish that
he worked in an environment so hostile as to unreasonably interfere with his
ability to perform his work. Muzzy v. Cahillane Motors, Inc., 434 Mass. 409,

The court assumes, without deciding, that “Black by Association,”
Opp’n at 9, is a valid claim under state and federal law. Cf. Flagg v. AliMed,
Inc., 466 Mass. 23, 37 (2013) (“[W]e hold that associational discrimination
based on handicap is prohibited under [Mass. Gen. Laws ch. 151B] § 4(16).”);
Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009) (“Title VII
forbids discrimination on the basis of association with or advocacy for a
protected party.”).
10
11

411 (2001).

The hostile conduct alleged must have been severe and

pervasive, and would have been perceived as such by a reasonable person.
Sahir v. Suffolk Cnty. Sheriff’s Dep’t, 67 Mass. App. Ct. 596, 603 (2006).
Piccadaci alleges that Batchelder harassed him based on his “fiancé’s
race and national origin, [his] age, gender and/or handicap.”12 Compl. ¶ 68.
Piccadaci alludes to “a pattern of harassment” based on Batchelder’s
questioning of his carpentry and driving skills, as well as Batchelder’s calling
him and another employee “assholes.” Opp’n at 8. Even accepting these
allegations as true, they do not amount to an environment “‘pervaded by
harassment or abuse.’” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass.
521, 532 (2001), quoting College-Town, Div. of Interco, Inc. v.
Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 162 (1987);
see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“‘[M]ere
utterance of an . . . epithet which engenders offensive feelings in a[n]
employee’ does not sufficiently affect the conditions of employment to
implicate Title VII.”) (alteration in original and citation omitted).
Retaliation
To make out a prima facie case of retaliation under Massachusetts law,
Piccadaci must show that: (1) he engaged in a protected activity; (2) he

12

Batchelder testified that he never met Piccadaci’s fiancé. SOF ¶ 28.
11

suffered a materially adverse action; and (3) the adverse action was causally
linked to his protected activity. Mole v. Univ. of Massachusetts, 442 Mass.
582, 591-592 (2004). Piccadaci stumbles here over the first element of his
prima facie case because he does not identify a protected activity.
While the protected activity element may be satisfied by a plaintiff’s
opposition to what is reasonably perceived as a discriminatory employment
practice, the most that Piccadaci alleges is that Batchelder would not
personally accept his doctor’s note. Even if the tendering of the note could
be considered a petitioning activity of some sort, the medical note in question
flagged no issue that might conceivably have incited an urge for
discriminatory retaliation. It did not mention Piccadaci’s disability, nor did
it request an accommodation. See Ritchie v. Dep’t Of State Police, 60 Mass.
App. Ct. 655, 664-665 (2004) (providing examples of protected activities).
Piccadaci’s retaliation claim, therefore, fails as a matter of law.
Wrongful Termination
Piccadaci alleges that “Stoughton wrongfully terminated [him] by not
allowing him to present a disability note and by denying him use of
sick/vacation time or the Family Medical Leave Act or equivalent
Massachusetts law.” Compl. ¶ 71. The FMLA entitles an eligible employee to
twelve work weeks of leave that may be taken intermittently for “a serious
12

health condition.” 29 U.S.C. § 2612(a)(1)(D). To establish entitlement,
Piccadaci must demonstrate by a preponderance of the evidence that: (1) he
was an “eligible employee”; (2) Stoughton is a “covered employer”; (3) he
gave adequate notice of his request for the protected leave; and (4) the leave
was necessitated by reasons covered by the FMLA. Furtado v. Standard
Parking Corp., 820 F. Supp. 2d 261, 280 (D. Mass. 2011). Even assuming
that he was an eligible employee, Piccadaci did not notify Stoughton of any
request for an FMLA leave, hence his prima facie case collapses.
ORDER
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED. The Clerk will enter judgment for defendants and close the
case.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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