Estock et al v. Westfield, City of et al

Filing 30

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: Defendants Motion for Summary Judgment (Dkt. No. 20 ) is hereby ALLOWED as to all counts. The clerk will enter judgment for Defendants. This case may now be closed. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
STEVEN R. ESTOCK,
Plaintiff
v.
CITY OF WESTFIELD, HILARY
WEISGERBER, THOMAS MCDOWELL,
MICHAEL R. BOULANGER, MARY ANN
CLELAND, LAURA MALONEY, KEVIN
SULLIVAN, ROBERT J. KAPINOS,
MARY BETH OGULEWICZ-SACCO,
HEATHER SULLIVAN, JOHN YORK,
JAMES J. WAGNER, and
STEVEN PIPPIN,
Defendants

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) C.A. No. 09-cv-30218-MAP
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MEMORANDUM AND ORDER REGARDING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 20)
July 26, 2011
PONSOR, D.J.
I.

INTRODUCTION

Plaintiff’s eighteen-count complaint against thirteen
individuals and entities associated with his former
employer, Westfield Vocational Technical High School
(“WVTHS”), offers two federal claims and numerous alleged
violations of state law. 1

Defendants have moved for summary

judgment on all counts (Dkt. No. 20).

1

Plaintiff agreed at a scheduling conference to dismiss
with prejudice Counts 10 and 11 alleging violations of his
federal and state rights to a safe and healthy workplace.
(Dkt. No. 10.)

Notably, Plaintiff has attributed no specific
wrongdoing in either the complaint (Dkt. No. 1, Compl.) or
his Local Rule 56.1 Statement of Material Facts (Dkt. No.
25) to nine of the thirteen named Defendants.

Accordingly,

with no further discussion necessary, the court will allow
summary judgment on all claims as to Michael R. Boulanger,
Mary Ann Cleland, Laura Maloney, Kevin Sullivan, Robert J.
Kapinos, Mary Beth Ogulewicz-Sacco, Heather Sullivan, John
York, and the City of Westfield.
The remaining Defendants are Hilary Weisgerber, as
Director of WVTHS and in her personal capacity; Thomas
McDowell, as former Superintendent of Westfield Public
Schools and in his personal capacity; James J. Wagner,
Assistant Director of WVTHS; and Steven Pippin, Personnel
Director of WVTHS.

While these Defendants figure more

prominently in the facts of this case, the court will allow
summary judgment as to all claims against all of them.
II. FACTS
In 1994, Plaintiff began teaching at Westfield
Vocational Technical High School in the Heating,
Ventilation, and Air Cooling (“HVAC”) Program.

As a public

school teacher, he was a member of the Westfield Education
Association/Massachusetts Teachers Association Union, which
was covered by a collective bargaining agreement.
2

(Dkt. No.

21, Ex. 50.)

From the date of his hire through June 30,

2006, Plaintiff reported to then-Director of WVTHS Defendant
Steven Pippin.

On July 1, 2006, Defendant Hilary Weisgerber

assumed the position of Director and became Plaintiff’s
direct report.
Immediately upon arrival in July 2006, Defendant
Weisgerber commenced preparations for the WVTHS’s annual
General Advisory Committee meeting held at the school every
January.

In doing so, Defendant Weisgerber began a review

of the school’s twelve vocational shop programs to “put
together a five year Capital Improvement Plan, reviewing all
programs for their viability.”
Weisgerber Dep. 35:8-10.)

(Dkt. No. 27, Ex. 8,

On July 25, several weeks after

she took over as director, Defendant Weisgerber sent a
memorandum to Defendant Thomas McDowell, the Superintendent,
recommending a two-year phase-out of the HVAC department,
which, at that time, consisted of two full-time teaching
positions, one of which was held by Plaintiff.
27, Ex.7.)

(Dkt. No.

Her primary reasons for the recommendation

included Plaintiff’s inability to create a workable budget,
a lack of a written curriculum, a failure to place students
in the HVAC industry, 2 and student complaints that “they do
2

Minutes from a January 2006 HVAC Advisory Board meeting
indicate that many students in the HVAC department were unable
to participate in the school’s apprenticeship program, through
3

nothing all day in HVAC.”

(Id.)

Defendant Weisgerber noted

that she had attempted to speak with Plaintiff about his
need to prepare a budget and that, in front of several staff
members, “he became very upset and belligerent.”

(Id.)

Six months later, on January 29, 2007, the General
Advisory Meeting was held at the school.

According to a

memorandum that Plaintiff sent to Defendant McDowell on
February 2, the members of the Advisory group visited his
shop for the last five minutes of the meeting.

Plaintiff,

who had still failed to submit a budget or a five-year plan
as requested by Defendant Weisgerber, “felt attacked”
because he was asked why he had not prepared these
materials.

(Dkt. No. 27, Ex. 10.)

Plaintiff explained that

he had not understood that he was supposed to have these
materials prepared for this meeting and also stated that he
was “insulted” that the group did not stay longer to learn
about his program.

(Id.)

He later apologized for his

behavior during this interchange, stating that he regretted
“creating this horrible situation” and stating that it was
“never my intention to be rude to anyone.”

(Id.)

Defendant

Weisgerber detailed the meeting in a memorandum to Defendant
McDowell, describing Plaintiff and his fellow HVAC teacher
which local businesses offered students opportunities to gain
experience while still in school, due to the students’ failing
grades in other courses. (Dkt. No. 27, Ex. 9.)
4

as “rude and belligerent” and expressing her concern that
Plaintiff’s presentation would impact the School Committee’s
funding decisions.

(Dkt. No. 21, Ex. 3.)

On February 6, Defendant McDowell held a meeting in his
office at which he questioned Plaintiff about his conduct at
the General Advisory Committee meeting.

In his notes from

the meeting, Defendant McDowell wrote that Plaintiff
admitted to behaving inappropriately and lying to the School
Committee and stated that he would like the opportunity to
apologize to the School Committee for his conduct.
No. 21, Ex. 5.)

(Dkt.

Defendant McDowell also noted that

Plaintiff expressed that he was “frustrated, tired [and]
sick” and had “personal problems,” and that he “broke down
crying.”

(Id.)

After the meeting, Defendant McDowell sent

Plaintiff home instead of back to his classroom due to his
“emotional state” and required that he return with a
doctor’s note verifying his ability to work.

(Dkt. No. 21,

Ex. 6.)
In a letter to the Department of Education, Plaintiff
later described this meeting as follows: “During a meeting
with our superintendent he . . . verbally assaulted me to a
point that I had to be carried out of the room to seek
emergency medical treatment.

I was subsequently out of the

shop and class for six weeks.”
5

(Dkt. No. 27, Ex. 4.)

On February 12, 2007, Defendant McDowell suspended
Plaintiff without pay for one week following his
“unprofessional and disrespectful” conduct at the General
Advisory Meeting and his continuing failure to prepare his
budget in contravention of Defendant Weisgerber’s request.
(Dkt. No. 21, Ex. 6.)

In his letter to Plaintiff, he

observed that Plaintiff was the only teacher of the twelve
vocational lead teachers to fail to turn in a budget and a
plan.

(Id.)

On March 27, 2007, roughly seven weeks after his
meeting with Defendant McDowell, Plaintiff provided a note
from his physician, Dr. Gurpal Kingra, stating, “Mr. Estock
can return to work.

He is advised to avoid stress.”

(Dkt.

No. 21, Ex. 9.)
On April 25, 2007, Defendant Weisgerber followed up her
2006 memorandum to Defendant McDowell with a recommended
“HVAC Two Year Phase Out Plan.”

(Dkt. No. 21, Ex. 10.)

Defendant Weisgerber wrote, “This proposal is being made due
to our belief that it is fiscally impossible to restructure,
replenish, and renovate the program to the degree needed to
make it a current, viable trade program which reflects the
needs of the industry.

Further, placement data historically

does not warrant its continuation.”

(Id.)

She mapped out

two potential phase-out scenarios, both of which required
6

only one full-time teacher over a two-year period.
Defendant Weisgerber concluded by stating:
I feel this is the only alternative we have at
this time. The instructors [sic] unwillingness to
cooperate with Administration, develop appropriate
lesson plans and ways to meet the demands of the
COP (Certificate of Occupational Proficiency) make
this a necessary recommendation.
(Id.)
In the spring of 2007, according to Defendant
Weisgerber, the School Committee approved closure of the
HVAC program.
4.)

(Dkt. No. 27, Ex. 8, Weisgerber Dep. 103:3-

In June 2007, the approximately eight WVTHS freshmen

who were enrolled in the HVAC program and their parents were
notified that the HVAC program would be phased out.

The

phase-out did not impact the program’s sophomores or
juniors.

(Dkt. No. 27, Ex. 8, Weisgerber Dep. 95:8-10.)

Plaintiff’s HVAC colleague was laid off at the end of the
school year, and Plaintiff remained as the sole HVAC
teacher.
On September 6, 2007, at the beginning of the new
school year, Plaintiff sent a memo to Defendant Weisgerber
notifying her that, although she had contacted all other
department heads, she had failed to communicate with him
over the summer regarding his program’s budget, which, he
wrote, “leads me to believe that I will not have any money
to operate this program for the remaining two years.”
7

(Dkt.

No. 21, Ex. 14.)

Defendant Weisgerber responded by memo

that she had, once again, never received a proposed budget
from him and so no budget prioritization meeting was
necessary, but she had budgeted $3000 for him for supplies
for the year.

(Dkt. No. 21, Ex. 15.)

On September 7, 2007, Plaintiff alerted the Westfield
Public Schools that he planned to retire when the HVAC
program closed in June 2009 “in light of the circumstances
of the past year . . . and the atmosphere that my program
has endured for the past six or so years.”

(Dkt. No. 21,

Ex. 16.)
On September 19, 2007, WVTHS held its annual fall open
house for parents.

The following day, Defendant Weisgerber

sent a memo to Defendant McDowell’s replacement,
Superintendent Shirley Alvira (who is not a defendant),
stating that “a situation” had occurred at the open house,
which she described as Plaintiff “baiting the parents into a
frenzy.”

(Dkt. No. 27, Ex. 17.)

Defendant Weisgerber

explained that she entered the HVAC shop at 7:00 P.M.,
observed pizza and soda in the room, and was confronted by a
group of angry parents questioning her about the future of
the HVAC program.

According to Defendant Weisgerber, the

parents told her that Plaintiff had informed them that he
was uncertified in certain key areas of HVAC teaching, and
8

thus their students would not receive a comprehensive
education now that the other teacher had been laid off.
Defendant Weisgerber wrote:
Other than Mrs. Hague [mother of a student], this
is the first time since this decision was made
back in the spring that I am hearing from this
group of parents. It is my belief that Mr. Estock
has fueled this situation and is creating a very
unhealthy and unsafe situation for the students.
(Id.)

According to one parent, at the open house, Plaintiff

“was without sufficient information” to answer questions
from parents about the program’s closure, and Defendant
Weisgerber was “very hostile and dismissive.”
Ex. 14, D’Astous Aff. ¶ 8.)

(Dkt. No. 27,

Another parent described

Defendant Weisgerber as “hostile and defensive.”

(Dkt. No.

27, Ex. 13, Hague Aff. ¶ 9.)
On September 27, 2007, Defendant Weisgerber placed
Plaintiff on an indefinite paid administrative leave.
leave letter stated as follows:
The basis for the leave is the pending
investigation relative to the allegation of your
improper conduct in your position as a teacher in
the Westfield Public Schools related to the Open
House held on Wednesday, September 19, 2007.
You are to have no contact with students and
parents of the HVAC program or any other school
staff related to this investigation during the
leave of absence.
(Dkt. No. 27, Ex. 18.)
The day after Plaintiff’s suspension, Defendant
Weisgerber sent a memorandum to Jeffrey Wheeler, the
9

The

Department of Education (“DOE”) Director of Career/
Vocational Technical Education, proposing elimination of the
HVAC program and outlining two potential two-year phase-out
plans.

(Dkt. No. 21, Ex. 21.)

Defendant Weisgerber stated

that she was making this proposal “due to our belief that it
is fiscally impossible to restructure, replenish, and
renovate the program to the degree needed to make it a
current, viable trade program which reflects the needs of
the industry.”

(Id.)

The letter concluded with a brief

paragraph about Plaintiff, including that he had been
unwilling to work with the administration and failed to
develop appropriate lesson plans.

(Id.)

Following Plaintiff’s suspension, Defendant Weisgerber
conducted an investigation regarding the open house.

Parent

Pandora Hague, who had expressed dismay at both the closure
and at Defendant Weisgerber’s conduct, testified that on
September 28, her son had called her from school to say that
a police officer was questioning the HVAC class about who
paid for the pizza that was served at the open house.
No. 27, Ex. 13, Hague Aff. ¶ 12.)

( Dkt.

Several days later, on

October 2, Defendant Weisgerber summoned Ms. Hague and her
husband to the school and “immediately began questioning us
about who purchased the pizza.”

(Id. ¶ 13.)

The Hagues

redirected the conversation to the closure of the HVAC
10

program, including the question why Plaintiff was replaced
by an “unlicensed, uncertified and untrained substitute
teacher.”

(Id. ¶ 10.)

On October 15, 2007, Plaintiff attended a meeting
regarding the investigation of the open house at which
Defendant Weisgerber posed the following question: “The
students reported that they have done a great deal of work
cleaning the shop and taking material such as copper to the
junk yard to buy tools [,] is this true?”
39.)

(Dkt. No. 21, Ex.

Plaintiff responded that it was true and that he had

used the money to buy pizza and soda for the open house.
(Id.)
Meanwhile, at its October 2, 2007, meeting, the
Westfield School Committee placed the closure of the HVAC
program on its agenda. 3

The room was filled to capacity,

and several police officers stood at the entrance, allowing
newcomers in only after someone else exited.

Numerous

people awaiting entry were visible through a window.
Several parents spoke in support of the program and
particularly of Plaintiff’s abilities, noting Plaintiff’s
positive impact on their children, many of whom had
difficulty academically.

Current students and HVAC-program

3

A video of this meeting was provided to the court.
(Dkt. No. 27, Ex. 20.)
11

graduates also spoke in favor of “Mr. E,” and the HVAC
program.

Also in the room were approximately ten people who

identified themselves as supporters of Defendant
Weisgerber’s recommendation to eliminate the HVAC program.
At the conclusion of the public comment portion of the
meeting, without responding to any of the public comments,
Superintendent Alvira announced that the program would be
closed and that the closure had been approved by the DOE.
The following day, on October 3, 2007, DOE Director
Wheeler sent a letter to Defendant Weisgerber approving one
of the two phase-out plans that she had submitted.

(Dkt.

No. 21, Ex. 22.)
Plaintiff, who remained on leave, subsequently
initiated arbitration proceedings against the school and
filed a discrimination complaint with the Massachusetts
Commission Against Discrimination (“MCAD”).

He also filed a

claim alleging various wrongdoings with the Massachusetts
Department of Elementary and Secondary Education.

In

January 2008, Stephen Hagen, the Director of Human Resources
for Westfield Public Schools, offered a settlement to
Plaintiff pursuant to which he would agree to “return to
work with the expectation that he will maintain professional
conduct expected of all teachers” and present his lesson
plans in writing to Defendant Weisgerber in exchange for
12

dropping the suit.

(Dkt. No. 21, Ex. 40.)

After several

weeks, Mr. Hagen contacted Plaintiff to inform him that some
response to the offer was necessary because “the District
needs to reassess its position and move forward with other
options.

This is not a threat, but a statement of concern

about the education of the students in this program.”
No. 21, Ex. 42.)

(Dkt.

In April, Plaintiff’s attorney made a

counteroffer whereby Plaintiff would be paid for the week
that he was suspended following the General Advisory Meeting
and all accusations of inappropriate conduct would be
removed from his file.

(Dkt. No. 21, Ex. 45 at 10.)

On

April 16, 2008, Helen Bowler, attorney for the City of
Westfield, agreed to nearly all of Plaintiff’s settlement
requests.

Two months later, Plaintiff declined to accept

the proposed settlement.

(Dkt. No. 21, Ex. 45 at 14.)

Meanwhile, on April 11, 2008, Plaintiff sent a letter
to the Environmental Protection Agency advising that an
unlicensed substitute teacher was running the HVAC program,
that students were working without protective gear, and that
Freon was possibly being released into the air.

(Dkt. No.

27, Ex. 5.)
On June 11, 2008, Superintendent Alvira notified
Plaintiff that his position had been eliminated “due to
declining enrollment” and that, based on his seniority and
13

licensure, he would be presented with a list of open
positions for the following school year.
30.)

(Dkt. No. 27, Ex.

Plaintiff immediately responded to Superintendent

Alvira that he would be “exercising my right under the
Collective Bargaining Agreement to bump any person in the
electrical program with less seniority.”
31.)

(Dkt. No. 27, Ex.

On July 10, 2008, Mr. Hagen responded to the effect

that the school records indicated that Plaintiff did not
hold the requisite licenses to teach in the electrical
program and that Plaintiff should contact him if this was
incorrect.

(Dkt. No. 21, Ex. 46, Hagen Aff. ¶ 8; Dkt. No.

21, Ex. 46, Attach. A.)

According to Mr. Hagen, Plaintiff

never responded.

However, in August, Plaintiff sent

(Id.)

a letter to Superintendent Alvira stating that he had yet to
receive a list of open positions.

(Dkt. No. 27, Ex. 32.)

On June 23, 2008, MCAD issued findings based on its
investigation of Plaintiff’s claims of disability and age
discrimination and concluded that the claims lacked probable
cause.

(Dkt. No. 21, Ex. 31.)

On October 16, 2008, the

Massachusetts Department of Elementary and Secondary
Education issued its findings based on Plaintiff’s
allegations and found that all of them lacked support.
(Dkt. No. 21, Ex. 36.)
III. DISCUSSION
14

A.

Legal Standard.
Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.
56.

Fed. R. Civ. P.

The moving party bears the initial burden of

demonstrating the absence of genuine issues of material
fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The burden then shifts to the opposing party who must
demonstrate that a reasonable jury could return a verdict in
its favor based on the evidence.

Id.

“A party opposing

summary judgment must present definite, competent evidence
to rebut the motion.”

Torres v. E.I. Dupont De Nemours &

Co., 219 F.3d 13, 18 (1st Cir. 2000) (citations omitted).
B.

Employment Related Claims: Count 1: Breach of Contract;
Count 2: Breach of Covenant of Good Faith and Fair
Dealing; Count 3: Breach of Promises Made by a Public
Employer; Count 7: Wrongful Termination in Violation of
Public Policy.
Defendants seek summary judgment on Plaintiff’s claims

that are related to his termination, Counts 1, 2, 3, and 7,
on the grounds that Plaintiff failed to exhaust his
administrative remedies because he did not follow the
procedures set forth in the Collective Bargaining Agreement
(“CBA”).

(Dkt. No. 21, Ex. 50.)

Plaintiff responds that he

“is challenging not the personnel decision to terminate his
position (an area clearly within the scope of the CBA), but
15

rather the malicious elimination of the HVAC program which
has the indirect but very real impact of the elimination of
his teaching position.”

(Dkt. No. 24, Pl. Mem. in Opp’n, at

11 (emphasis added).)
This argument is unavailing, as all of these counts
directly target Defendants’ decision to terminate Plaintiff.
(See, e.g., Dkt. No. 1, Compl. ¶ 24 (alleging that “as a
result of the Defendants’ wrongful actions the Defendants
violated the collective bargaining agreement by terminating
the Plaintiff’s employment without just cause”).)
Because Plaintiff essentially concedes that he did not
follow the procedures set forth in the CBA and does not
contest that a challenge to his termination falls within the
purview of the CBA, Defendants’ motion for summary judgment
will be allowed on Counts 1, 2, 3, and 7.
C.

Intentional Tort Claims.
Pursuant to the Massachusetts Tort Claims Act, public

employees sued in their official capacity are not liable for
intentional torts.

Mass. Gen. Laws ch. 258, § 10(c).

Kelley v. Laforce, 288 F.3d 1, 12 (1st Cir. 2002).

See

Thus,

the only Defendants against whom Plaintiff may allege
intentional torts are Defendants Weisgerber and McDowell,
both of whom are sued in their professional and personal
capacities.
16

1.

Count 4: Misrepresentation.

“Under Massachusetts law, a claim for misrepresentation
entails a false statement of material fact made to induce
the plaintiff to act and reasonably relied upon by him to
his detriment.”

Rodi v. S. New Eng. Sch. of Law, 389 F.3d

5, 13 (1st Cir. 2004).

Here, not only are Plaintiff’s

complaint and statement of facts devoid of “‘the who, what,
where, and when of the allegedly false or fraudulent
representation,’” but Plaintiff does not specifically refer
to a single statement made by any Defendant that could form
the basis of this claim.

Id. at 15 (quoting Alternative

Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st
Cir. 2004)).

Thus, Defendant’s motion for summary judgment

on Count 4 will be allowed.
2.

Count 5: Civil Conspiracy.

Count 5 alleges that Defendants acted in concert to
work “toward their mutual goal of terminating the
Plaintiff’s employment.”

(Dkt. No. 1, Compl. ¶ 46.)

Massachusetts recognizes two types of civil conspiracy: true
conspiracy and conspiracy based on vicarious liability.

See

Taylor v. Am. Chem. Council, 576 F.3d 16, 34-35 (1st Cir.
2009).

Because Plaintiff has advanced no argument under

either theory and has pointed to no facts or law to support
the claim, Defendants’ motion for summary judgment on Count
17

5 will be allowed.
3.

Count 6: Defamation.

An action for defamation requires a plaintiff to show
that
the defendant was at fault for the publication of
a false statement of and concerning the plaintiff
which was capable of damaging his or her
reputation in the community and which either
caused economic loss or is actionable without
proof of economic loss.
Stanton v. Metro Corp., 438 F.3d 119, 124 (1st Cir. 2006).
Plaintiff specifically alleges that Defendant Weisgerber
published defamatory statements to the Massachusetts
Department of Education (“DOE”) and to the parents of
students in the HVAC program.

As to statements to parents,

he has pointed to no support in the record for his
allegation that Defendant Weisgerber “began to falsely
inform the parents of the HVAC students that Mr. Estock was
not stable.”

(Dkt. No. 1, Compl. ¶ 28.)

With respect to statements to the DOE, Plaintiff
alleges that the following statement, which appears in
Defendant Weisgerber’s September 2007 letter to DOE Director
Wheeler, is defamatory:
As the Director of Westfield Vocational
Technical High School, I believe that now is the
time to make this change. I feel this is the only
alternative we have at this time. The instructors
[sic] unwillingness to cooperate with
Administration, develop appropriate lesson plans
and ways to meet the demands of the COP
18

(Certificate of Occupational Proficiency) make
this a necessary recommendation.
(Dkt. No. 21, Ex. 21.)

Plaintiff contends that Defendant

Weisgerber published this comment with “actual malice,”
which obviates any determination as to its veracity.

See

Noonan v. Staples, Inc., 556 F.3d 20, 28 (1st Cir. 2009)
(holding that in Massachusetts, “even a true statement can
form the basis of a libel action if the plaintiff proves
that the defendant acted with ‘actual malice’”).

As

evidence of actual malice, and with no further explication,
Plaintiff points to Defendant Weisgerber’s 2006 letter to
Defendant McDowell.

Although this letter evidences

Defendant Weisgerber’s serious misgivings about Plaintiff’s
ability to perform his job, it does not even remotely
suggest “actual malice,” which requires a showing of
“malevolent intent or ill will.”

Id.

For their part, Defendants argue that, even if this
statement is defamatory, a point that they do not concede,
Defendant Weisgerber is protected by the “conditional
privilege” granted where “publication is reasonably
necessary to the protection or furtherance of a legitimate
business interest.”

Bratt v. Int’l Business Machines Corp.,

467 N.E.2d 126, 131 (Mass. 1984).
Here, the court will turn directly to the statement
itself for resolution of the merits of this claim.
19

Upon

examination, it is apparent that Defendant Weisgerber’s
statement is one of opinion, not of fact and thus cannot in
any event constitute defamation.

See King v. Globe

Newspaper Co., 512 N.E.2d 241, 243 (Mass. 1987) (“Statements
of fact may expose their authors or publishers to liability
for defamation, but statements of pure opinion cannot.
Statements of pure opinion are constitutionally
protected.”).

In making this determination, the court, as

is required, has considered “the statement in its totality
in the context in which it was uttered or published.”

Cole

v. Westinghouse Broadcasting Co., 435 N.E.2d 1021, 1025
(Mass. 1982) (citation omitted).

The court also “gave

weight to cautionary terms used by the person publishing the
statement.”

Id.

Finally, as it must, the court

“consider[ed] all of the circumstances surrounding the
statement, including the medium by which the statement [was]
disseminated and the audience to which it [was] published.”
Id.
Here, Defendant Weisgerber’s statement began with
qualifiers that indicate that this was her opinion: “As the
Director of Westfield Vocational Technical High School, I
believe . . .” and “I feel this is the only alternative we
have at this time.”

(Dkt. No. 21, Ex. 21 (emphases added).)

Her charges of wrongdoing against Plaintiff were similarly
20

based on her impression of his ability to perform his job,
specifically, her judgment that Plaintiff is “unwilling[] to
cooperate,” and her judgment that Plaintiff has failed to
create what she would consider to be “appropriate lesson
plans.”

(Id. (emphases added).)

These statements, which

reflect Defendant Weisgerber’s views about Plaintiff, are
not fact-based statements that could be either true or
false, and thus, as a matter of law, they cannot be
defamatory.

Noonan, 556 F.3d at 26 (observing that “a given

statement, even if libelous, must also be false to give rise
to a cause of action”).
Accordingly, Defendants’ motion for summary judgment on
Count 6 will be allowed.
4.

Count 12: Illegal Interference with Employment
Relationship.

Plaintiff alleges that Defendants violated a rarely
invoked statute, Mass. Gen. Laws ch. 149, § 19, which
provides that “[n]o person shall, by intimidation or force,
prevent or seek to prevent a person from entering into or
continuing in the employment of any person.”

Id.

Plaintiff

has not identified any evidence to support a charge of
intimidation or force, and, for that reason, the court will
allow Defendants’ motion for summary judgment on Count 12.
5.

Count 13: Invasion of Privacy.

Plaintiff alleges that Defendants published his
21

“private matters” to WVTHS employees, students, and parents
in violation of Mass. Gen. Laws ch. 260, § 2(A).
1, Compl. ¶ 70.)

(Dkt. No.

The first problem with this claim is that

it identifies the incorrect statute, namely Massachusetts’
statute of limitations.

Assuming that Plaintiff intended to

allege that Defendants violated his right of privacy under
Mass. Gen. Laws ch. 214, § 1B, Plaintiff has not identified,
and the court could not discern, any facts of record that
would support this claim.

See Dasey v. Anderson, 304 F.3d

148, 154 (1st Cir. 2002) (noting that Massachusetts’
invasion of privacy statute “is typically invoked to remedy
‘the gathering and dissemination of information which the
plaintiff[] contended was private”).

Accordingly,

Defendants’ motion for summary judgment on Count 13 will be
allowed.
For the reasons set forth above, Defendants are
entitled to summary judgment on Counts 4, 5, 6, 12, and 13.
D.

Counts 16 and 17: Disability Discrimination Claims.
Plaintiff alleges that he suffers from depression,

stress, and anxiety and was both discriminated against
because of these disabilities and denied reasonable
accommodations in violation of 42 U.S.C. § 12111 and Mass.
Gen. Laws ch. 151B, § 4(16).

Plaintiff’s claims fail for

the simple reason that he has presented no evidence that he
22

was disabled.

See Ruiz Rivera v. Pfizer Pharms., LLC, 521

F.3d 76, 82 (1st Cir. 2008) (holding that to establish a
prima facie case of disability discrimination under the ADA,
a plaintiff must prove: “(1) that [he] was ‘disabled’ within
the meaning of the ADA; (2) that [he] was able to perform
the essential functions of [his] job with or without
accommodation; and (3) that [he] was discharged or adversely
affected, in whole or in part, because of [his]
disability”); Dartt v. Browning-Ferris Indus., 691 N.E.2d
526, 528 (Mass. 1998) (“[T]o establish a prima facie case of
unlawful employment discrimination on the basis of handicap
under [Mass. Gen. Laws ch. 151B, § 4(16)], a plaintiff must
present credible evidence that (1) he is handicapped within
the meaning of the statute; (2) he is qualified to perform
the essential functions of the job with or without
reasonable accommodation; (3) he was terminated or otherwise
subject to an adverse action by his employer; and (4) the
position he had occupied remained open and the employer
sought to fill it.”).
The medical evidence in the record is limited to two
notes from Dr. Gurpal Kingra.

On March 27, 2007, Dr. Kingra

provided Plaintiff with a note stating, “Mr. Estock can
return to work.
21, Ex. 9.)

He is advised to avoid stress.”

(Dkt. No.

On April 3, 2007, Dr. Kingra completed a
23

disability certificate indicating that Plaintiff was
“totally incapacitated” on February 6, 2007, after which he
was “sufficiently recovered to return to work” with no
limitations.

(Dkt. No. 27, Ex. 12.)

It is beyond dispute

that these two brief medical notations, neither of which
contains a diagnosis and both of which recommend a return to
work, are insufficient to demonstrate that Plaintiff had “a
physical or mental impairment that substantially limited one
or more of [his] major life activities,” as is required for
a claim of violation under both federal and state law.
Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.
2010); see also City of New Bedford v. Mass. Comm’n Against
Discrimination, 799 N.E.2d 578, 588 (Mass. 2003).
Defendants’ motion for summary judgment on Counts 16 and 17
will accordingly be allowed. 4
E.

Counts 8 and 9: Civil Rights Violations.
Plaintiff’s claims of violation of 42 U.S.C. § 1983 and

the Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws
ch. 12, §§ 11H and 11I, arise out of Defendants’ alleged
violation of his First Amendment right to free speech.
“Section 1983 supplies a private right of action against a
4

Although unnecessary, the court observes that Plaintiff
provided no evidence of any causal link between his suspension
and any alleged disability or of any requests for
accommodations beyond Dr. Kingra’s recommendation that he
avoid stress.
24

person who, under color of state law, deprives another of
rights secured by the Constitution or by federal law.”
Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996).

The

MCRA provides a similar private right of action for state
law and constitutional violations but requires an additional
showing that the interference or attempted inference with
civil rights was “by threats, intimidation or coercion.”
Mass. Gen. Laws ch. 12, §§ 11H and 11I; see Bally v.
Northeastern Univ., 532 N.E.2d 49, 51-52 (Mass. 1989).
Plaintiff’s specific allegation, arising out of his
placement on administrative leave following the open house,
is that:
[t]he Defendants violated the Plaintiff’s free
speech rights and his rights his rights [sic] of
free association with the students in his program
and the parents of the students in his program.
The Defendants retaliated against the plaintiff
by constructively terminating his employment
because he exercised his free speech rights and
his rights of free association.
(Dkt. No. 1, Compl. ¶ 58.)
As the First Circuit has recently reasserted, “the law
is ‘settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual
to retaliatory actions . . . for speaking out.’”

Diaz-Bigio

v. Santini, No. 09-2575, 2011 U.S. App. LEXIS 13257, *16
(1st Cir. June 29, 2011) (quoting Hartman v. Moore, 547 U.S.
250, 256 (2006)).

Of course, it is equally well settled
25

that “this prohibition is not absolute.

‘In recognition of

the government’s interest in running an effective workplace,
the protection that public employees enjoy against speechbased reprisals is qualified.’”

Id. (quoting Decotiis v.

Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)).
To prove that Defendants unlawfully retaliated against
him based on his speech, Plaintiff
must establish that (1) his expression involved
matters of public concern; (2) his interest in
commenting upon those matters outweighed
[Defendants’] interests in the efficient
performance of [their] public services; and (3)
his protected speech was a substantial or
motivating factor in [Defendants’] adverse
employment actions.
Lewis v. City of Boston, 321 F.3d 207, 218 (1st Cir. 2003).
Plaintiff easily satisfies this third prong as it is
undisputed that his “improper conduct in [his] position as
teacher in the Westfield Public Schools related to the Open
House” formed the basis of the administrative leave.
No. 27, Ex. 18.)

(Dkt.

Moreover, while on leave, Plaintiff was

prohibited from contacting students, parents, and staff
about the investigation into his conduct at the Open House.
As to the first prong “a court must determine ‘whether
the employee spoke as a citizen on a matter of public
concern.’”

Decotiis, 635 F.3d at 29 (quoting Curran v.

Cousins, 509 F.3d 36, 45 (1st Cir. 2007)).

Assuming

arguendo that Plaintiff’s comments about the HVAC program at
26

the open house “related to matters of public concern”
because they included “his views on the public school
curriculum,” Hennessy v. City of Melrose, 194 F.3d 237, 246
(1st Cir. 1998), Plaintiff’s status at the moment of his
expression is less clear.

As the First Circuit has pointed

out, “the more intertwined the speech is with the employee’s
work station the less likely it is that the speech is
Decotiis, 635 F.3d at 33

protected as citizen speech.”
n.12.

“[A] court must ask, ‘what are the employee’s

official responsibilities?’ and . . . ‘was the speech at
issue made pursuant to those responsibilities?’”
(citations omitted).

Id. at 31

The second inquiry requires “a hard

look at the context of the speech.”

Id. at 32.

Here,

although Plaintiff’s tone at the open house is contested,
all accounts of his speech are that he was answering
parents’ questions about the future of the HVAC program and
his ability to teach it.

Rather than speaking as a citizen,

he was speaking at a school-sponsored open house as the sole
teacher in the HVAC program, which gave his speech the mark
of “official significance” because he was performing “‘the
duties an employee actually is expected to perform,’” namely
discussing a school program with parents at an open house.
Id. at 34 & 31 (quoting Mercado-Berrios v. Cancel-Alegria,
611 F.3d 18 (1st Cir. 2010)).

Thus, Plaintiff cannot
27

satisfy the first prong of the analysis because he was not
expressing himself as a citizen offering his opinions on
matters of public concern.

Rather, he was speaking as a

public employee on school grounds at a school event about
matters at the heart of his employment.

Analysis of the

second prong, while unnecessary given the court’s ruling on
the first, demonstrates this point even more clearly.
Resolution of prong two requires the court to apply a
balancing test first articulated in Pickering v. Board of
Education, 391 U.S. 563 (1968), in which, as the First
Circuit explained:
the value of an employee’s speech -- both the
employee’s own interests and the public’s interest
in the information the employee seeks to impart -[is balanced] against the employer’s legitimate
government interest in preventing unnecessary
disruptions and inefficiencies in carrying out its
public service mission.
Guilloty Perez v. Pierluisi, 339 F.3d 43, 52 (1st Cir. 2003)
(citations omitted).

See also Pickering, 391 U.S. at 568

(describing prong two as requiring the court to strike “a
balance between the interests of the teacher, as a citizen,
in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees”).

In its analysis, the court should not consider

the speech “in a vacuum; the manner, time, and place of the
28

employee’s expression are relevant, as is the context in
which the dispute arose.’”

Hennessy, 194 F.3d at 247

(quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
Underlying the analysis are the well-accepted tenets that
“[t]he successful operation of a [public] school requires
the person in charge to be in charge and to maintain close
working relationships with each of her teachers” and that a
school has a “strong interest in preserving a collegial
atmosphere, harmonious relations among teachers, and respect
for the curriculum.”

Id. at 248-49.

Applying these factors to the undisputed facts of this
case -- Plaintiff’s classroom as the location of the speech,
the relationship between Plaintiff and Defendant Weisgerber
as teacher and principal, and the angry reaction of parents
-- Plaintiff’s interest in public expression here cannot be
said to outweigh Defendants’ “interests in the efficient
performance of its public services.”

Lewis, 321 F.3d at

218.
Furthermore, to the extent that Plaintiff’s allegation
includes restrictions on future speech, the restrictions
were minimal.

Although Plaintiff alleges that he was told

that “he was to have no contact with any students . . .
[and] to keep his mouth shut regarding the Westfield School
Department phase out of the HVAC program,” (Dkt. No. 1,
29

Compl. ¶ 25), in fact, Defendant Weisgerber’s letter
contained a very specific restriction: a temporary
prohibition (duration of the investigation) from contact
with specific people (students, parents, and school staff)
about a specific topic (the investigation).

(See Dkt. No.

27, Ex. 18 (“You are to have no contact with students and
parents of the HVAC program or any other school staff
related to this investigation during the leave of
absence.”).)
Because Plaintiff is unable to satisfy the requirements
of a § 1983 or MCRA free speech claim, the court will allow
Defendants’ motion for summary judgment on Counts 8 and 9.
F.

Miscellaneous Claims.
1.

Count 14: Involuntary Retirement of Public
Employee.

Massachusetts General Laws chapter 32, section 16,
which outlines early retirement procedures based on
disability, provides that an employee may appeal an
involuntary retirement decision made by the Contributory
Retirement Appeal Board (“Board”) to the Massachusetts
district court.

Mass. Gen. Laws 32, § 16.

The statute

provides no cause of action for Plaintiff, who, at least as
reflected by the record, never appealed any decision to the
Board.

Therefore, Defendants’ motion for summary judgment

on Count 14 will be allowed.
30

2.

Count 15: Public School Employee Tenure.

Massachusetts General Laws chapter 71, section 41
defines the tenure status of public school teachers and
administrators and provides that a teacher seeking review of
dismissal may file a petition with the commissioner for
arbitration.

Mass. Gen. Laws ch. 71, § 41.

The only

evidence in the record concerning arbitration is Plaintiff’s
request to hold his petition for arbitration in abeyance
while he considered Defendants’ settlement offer.
21, Ex. 43.)

(Dkt. No.

The statute provides that “the arbitral

decision shall be subject to judicial review.”
Laws ch. 71, § 41.

Mass. Gen.

Because there was no such decision,

Defendants’ motion for summary judgment on Count 15 will be
allowed.
3.

Count 18: Whistle Blower Protection.

The Massachusetts Whistle Blower statute prohibits
public employers from retaliating against employees for
disclosing or threatening to disclose an unlawful policy or
practice by the employer.

Mass. Gen. Laws ch. 149, § 185.

To demonstrate violation of the statute, “a plaintiff must
show that he engaged in protected activity and that his
participation in that activity played a substantial or
motivating part in the retaliatory action.”
Ciampa, 542 F.3d 927, 943 (1st Cir. 2008).
31

Welch v.

As a threshold matter, Plaintiff’s claim fails because
“[t]he Whistleblower statute permits only an ‘employer’ to
be sued, not individual supervisors.”
(quotation marks omitted).

Id. at 943 n.6

Employers include “the

commonwealth, and its agencies or political subdivisions,
including but not limited to, cities, towns, counties and
regional school districts, or any authority commission,
board or instrumentality thereof.”
§ 185 (2).

Mass. Gen. Laws ch. 149,

The only defendants who could be liable under

the statute are the City of Westfield and the School Board,
yet Plaintiff alleged no facts pertaining to any conduct,
wrongful or otherwise, on the part of the City or any Board
members.

For this reason alone, summary judgment on Count

18 would be proper.
Substantively, Plaintiff’s claim is no more viable.
First, Plaintiff alleges that his employment was terminated
“to prevent the Plaintiff from disclosing to a public body
an activity, policy or practice” that he believed was in
violation of a law.
added).)

(Dkt. No. 1, Compl. ¶ 87 (emphasis

The statute prohibits retaliatory conduct on the

part of an employer, not preventative conduct.

Assuming

arguendo that Plaintiff intended to allege that Defendants
retaliated against him for past conduct, it is significant
that Defendant Weisgerber first recommended elimination of
32

the HVAC program in 2006, prior to any of Plaintiff’s
documented complaints –- specifically to the School
Committee about safety issues in January 2007 (Dkt. No. 27,
Ex.10), to parents at the open house in September 2007, and
to the Environmental Protection Agency in April 2008.

(Dkt.

No. 27, Ex. 5.)
Moreover, throughout this time, although Defendant
Weisgerber continued to seek elimination of the program,
Defendants engaged in settlement discussions with Plaintiff,
all of which included offers to Plaintiff to return to his
position and all of which Plaintiff declined.

Further, when

Plaintiff’s position was officially eliminated by
Superintendent Alvira, it is noteworthy that he was
immediately informed that his seniority provided him with a
means to “bump” other teachers.

(Dkt. No. 27, Ex. 30.)

Plaintiff’s allegation that Defendants refused to “bump”
junior teachers lacks support in the record, with the only
evidence demonstrating that Plaintiff sought only to “bump”
teachers from positions for which he was not licensed.
(Dkt. No. 27, Ex. 31.)

Even if true, Plaintiff’s charge

that Defendants failed to send him a list of open positions
has no obvious, or even inferential, connection to any
retaliatory motivation on Defendants’ part.
For these reasons, Defendants’ motion for summary
33

judgment on Count 18 will be allowed.
IV.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for
Summary Judgment (Dkt. No. 20) is hereby ALLOWED as to all
counts.

The clerk will enter judgment for Defendants.

case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

34

This