Rossman v. Nashoba Regional School District et al

Filing 57

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER : "Defendants' motion for partial summary judgment Dkt. No. 46 is GRANTED in part and DENIED in part. Summary judgment shall enter in favor of Defendants on counts I (breach of contract), II (Massachusetts Wage Act), III (disability discrimination), IV (failure to accommodate), and VIII (violation of the Massachusetts Civil Rights Act." (Zamorski, Michael)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DEBORAH ROSSMAN,
Plaintiff,
v.
NASHOBA REGIONAL SCHOOL DISTRICT,
LAURA FRIEND, Individually,
ANN MARIE STOICE, Individually, and
BROOKE CLENCHY, Individually,
Defendants.

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Civil No. 3:21-cv-40042-KAR

MEMORANDUM AND ORDER ON DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
(Dkt No. 46)
ROBERTSON, U.S.M.J.
Deborah Rossman (“Plaintiff”) is suing her former employer, Nashoba Regional School
District (“Nashoba”), as well as Laura Friend (“Friend”), Ann Marie Stoica (“Stoica”), and
Brooke Clenchy (“Clenchy”) (collectively, “Defendants”), variously for breach of contract
(Count I), violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148 (Count II),
disability discrimination in violation of federal and state law under both wrongful termination
and failure to accommodate theories (Counts III and IV), religious discrimination (Count VI),
retaliation (Count VII), and violation of the Massachusetts Civil Rights Act (“MCRA”), Mass.
Gen. Laws ch. 12, §§ 11H and 11I (Count VIII) (Dkt. No. 15).1 Presently before the court is a
motion by all Defendants for summary judgment in their favor on Counts I, II, III, IV, and VIII,

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Plaintiff voluntarily dismissed Counts V and IX, alleging age discrimination and a § 1983
claim, respectively.
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as well as in Clenchy’s favor on all counts alleged against her (Dkt. No. 46). The parties have
consented to this court’s jurisdiction (Dkt. No. 17). See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
For the reasons set forth below, Defendants’ motion for partial summary judgment is GRANTED
in part and DENIED in part.
I.

LEGAL STANDARD

Summary judgment is appropriate if “the movant shows that 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). “An issue is ‘genuine’ when a rational factfinder could resolve it either direction.” Mu v.
Omni Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir.), rev. denied, 885 F.3d 52 (1st Cir. 2018)
(citing Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 4 (1st Cir. 2010)). “A fact is
‘material’ when its (non)existence could change a case’s outcome. Id. (citing Borges, 605 F.3d
at 5).
A party seeking summary judgment is responsible for identifying those portions of the
record “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden either by “offering
evidence to disprove an element of the plaintiff’s case or by demonstrating an ‘absence of
evidence to support the non-moving party’s case.’” Rakes v. United States, 352 F. Supp. 2d 47,
52 (D. Mass. 2005) (quoting Celotex, 477 U.S. at 325). If the moving party meets its burden,
“[t]he non-moving party bears the burden of placing at least one material fact into
dispute.” Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at
325). The record is viewed in favor of the nonmoving party, and reasonable inferences are
drawn in the nonmoving party’s favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d

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411, 417 (1st Cir. 2017) (citing Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st
Cir. 2015)).
II.

FACTUAL BACKGROUND2

Nashoba hired Plaintiff in early September 2020 to fill the position of “Grade 7 Science
Teacher (Full Year Long Term Sub)” (Dkt. No. 54 at ¶ 1). In doing so, Nashoba elected not to
employ Plaintiff on a per diem basis, which it could have done (Dkt. No. 54 at ¶ 77). On
September 4, 2020, Nashoba sent Plaintiff an appointment letter confirming her employment
effective September 8, 2020, and providing that she would be paid in accordance with Master’s
Step 13 of the collective bargaining agreement (“the CBA”) between Nashoba Regional School
District Committee and the Nashoba Regional Education Association Unit A at an annual salary
of $92,699 (prorated) (Dkt. No. 54 at ¶¶ 2-6). Plaintiff signed and returned the appointment
letter and was assigned to the Luther Burbank Middle School, where Friend was Principal (Dkt.
No. 54 at ¶¶ 7-8). Clenchy was the Superintendent of Nashoba at the time (Dkt. No. 54 at ¶ 50).
According to Defendants, Clenchy played no active role in the decision to hire Plaintiff; instead,
her involvement, at most, consisted of a pro forma approval for the hiring decision recommended
by others (Dkt. No. 54 at ¶ 50). Plaintiffs respond by noting that, under Massachusetts law,
school principals must obtain the approval of the superintendent for hiring decisions. See Mass.
Gen. Laws ch. 70, § 59B.
On October 20, 2020, Nashoba sent Plaintiff a letter verifying Plaintiff’s employment as
a Grade 7 Science Teacher for the 2020/2021 school year based on Step 13 B30/M of the CBA

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The court draws the facts from Plaintiff’s Response to Defendant’s [sic] Statement of Material
Facts (Dkt. No. 54), which included Defendants’ Local Rule 56.1 statement of material facts, as
well as Plaintiff’s responses and Plaintiff’s own Local Rule 56.1 statement of material facts, as
well as Defendants’ responses. Unless stated otherwise, the facts are undisputed.
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with an annual salary of $90,180.01 (Dkt. No. 54 at ¶¶ 11-13). While Plaintiff, as a long-term
substitute, was not a member of the union and was so advised by the Union President in an
October 30, 2020, email, Nashoba applied the evaluation process called for by the CBA and
afforded Plaintiff the number of sick and personal days – 15 and 3, respectively – on a lump sum
basis as called for by the CBA, meaning that Plaintiff could have used up all of her sick days at
once, up front, had she needed to do so (Dkt. No. 54 at ¶¶ 14-18, 59, 66). It is Plaintiff’s position
that, even though she was admittedly not a member of the union, the parties intended her
employment to be governed by some terms of the CBA, which provides in Section V that “[n]o
employee shall be disciplined, dismissed, or reduced in rank or compensation without just cause”
(Dkt. No. 54 at ¶ 74).
While Plaintiff was employed by Nashoba, she suffered from kidney stones, which her
doctors treated by, among other things, prescribing her antibiotics and pain medication (Dkt. No.
54 at ¶¶ 19, 24). Kidney stones are a chronic condition for Plaintiff, as she will always have
them, but she can experience an acute episode when a stone gets lodged in her urinary tract (Dkt.
No. 54 at ¶ 87). Plaintiff attributed her absences from work on November 3, November 12, and
November 16, 2020, to the symptoms of her kidney stones (Dkt. No. 54 at ¶ 20). Plaintiff was
also out of work on October 26, 2020; at the time, she informed Nashoba that she had an upset
stomach likely due to eating bad sushi, but she later testified that the symptoms she had been
experiencing may have been the beginning of acute symptoms from one or more kidney stones
(Dkt. No. 54 at ¶¶ 21-22). Plaintiff visited a hospital once for the treatment of her kidney stones
while she was employed by Nashoba (Dkt. No. 54 at ¶ 23). Plaintiff was also diagnosed with a
prolapsed bladder in or around August of 2019 and was treated with a pessary (Dkt. No. 54 at ¶¶
25-26). According to Plaintiff, her symptoms from both of her conditions include the need to

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consume more fluids and to urinate more frequently, discomfort and pain while urinating and
while sitting or standing for prolonged periods of time, and increased urinary tract and yeast
infections, although Plaintiff could not identify the number of urinary tract or yeast infections, if
any, that she experienced during her employment by Nashoba or estimate how long she could sit
or stand before becoming uncomfortable (Dkt. No. 54 at ¶¶ 27-30).
Nashoba terminated Plaintiff’s employment on December 4, 2020, before she had
completed 90 calendar days of employment (Dkt. No. 54 at ¶¶ 31-32). While Stoica, Nashoba’s
Director of Human Resources, averred in an affidavit that Plaintiff had accrued 4.5 sick days and
taken 9 during her employment, her final pay stub reflects that she had accrued fifteen and taken
8, leaving an unused balance of 7 (Dkt. No. 54 at ¶¶ 33, 45). All of Plaintiff’s requests for sick
leave had been approved, and Friend never spoke to Plaintiff about her use of sick time (Dkt. No.
54 at ¶¶ 70-71). Plaintiff also took one personal day (Dkt. No. 54 at ¶ 34). When Stoica told
Plaintiff that her employment was being terminated, she advised Plaintiff that she had exceeded
her allowed 1.5 sick days per month, a limitation which Plaintiff notes is neither a written policy
nor a provision in the CBA (Dkt. No. 54 at ¶¶ 67-68). Stoica also told Plaintiff that Nashoba was
not required to give her a reason for the termination of her employment and would not do so
(Dkt. No. 54 at ¶ 68).
Nashoba pays its teachers in either twenty-two or twenty-six equal bi-weekly payments,
depending on whether the teacher elects to be paid through the summer;3 teachers who elect
twenty-six equal payments can also elect to have their summer compensation paid in a lump sum

 The Massachusetts Wage Act provides that as to school teachers that “compensation may be

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deferred to the extent that equal payments may be established for a 12 month period including
amounts payable in July and August subsequent to the end of the school year.” Mass. Gen. Laws
ch. 149, § 148.  
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at the end of the school year (Dkt. No. 54 at ¶¶ 35, 37). Plaintiff elected to receive twenty-six
payments and was paid $3,757.50 every two weeks (Dkt. No. 54 at ¶¶ 38). According to Stoica,
when an employee is separated from employment before the end of the school year, Nashoba
calculates the final paycheck as follows: (1) it divides the teacher’s annual salary by the number
of days the teacher was scheduled to work through the entire year, which resulting figure is the
teacher’s “Daily Rate;” (2) it then calculates the number of “Compensable Days” by adding the
number of days actually taught and the number of sick days taken, and subtracting the number of
sick days taken that had not yet accrued; and (3) it multiplies the Daily Rate figure by the
Compensable Days figure, with the product representing the teacher’s “Earned Wages Upon
Separation” (Dkt. No. 54 at ¶ 40). Applying this method to calculate Plaintiff’s Earned Wages
Upon Separation, Defendants maintain that they multiplied Plaintiff’s Daily Rate of $503.80
times her Compensable Days number of 52.5 (consisting of the 57 days she worked + 9 sick days
- 4.5 unaccrued used sick days + 1 accrued used personal day), leading to a figure of $26,449.50
(Dkt. No. 54 at ¶¶ 43-47). Plaintiff had been paid $22,545.00 before the termination of her
employment, so her final paycheck was the difference between her Earned Wages Upon
Separation of $26,449.50 and her paid wages of $22,545.00, or $3,904.44 (Dkt. No. 54 at ¶¶ 4849, 48-49).
Plaintiff contests that the “Daily Rate” times “Compensable Days” method is a universal
practice or the proper way to ensure that teachers are paid their proportionally earned wages
(Dkt. No. 54 at ¶¶ 40-41). Plaintiff also notes that Stoica represented in a December 15, 2020,
email to Plaintiff that she calculated her final paycheck as follows:
Your daily rate was $503.80. Your period of employment was 57
days, for a total of $28,716.60. You used nine sick days, but were
only entitled to a pro-rated 4.5 days, for a reduction of $2,267.10.
Therefore, your earned salary was $26,449.50.
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You received six paychecks at $3,757.50 each, for a total of
$22,545. Your final additional paycheck on December 4,
therefore, was $3,904.44
(Dkt. No. 54 at ¶¶ 39, 72). In any event, Plaintiff disagrees with Defendants’ calculation of her
earned wages at $26,449.50. Plaintiff acknowledges that she elected to receive twenty-six biweekly paychecks, which, at a salary of $92,699.00 for the school year, worked out to $3,757.50
per paycheck. However, Plaintiff argues that, had she elected to receive twenty-two instead of
twenty-six bi-weekly paychecks, she would have been entitled to $4,213.59 bi-weekly, or
$2,106.795 weekly. Calculating her earnings on that basis and treating her sick and personal
days as fully accrued, Plaintiff claims that her earned wages at the time of termination following
thirteen weeks of employment were $27,388.33. According to Plaintiff, she would not have
accepted Nashoba’s offer of employment had she been told that her sick days would be prorated
if her employment ended before the end of the school year (Dkt. No. 54 at ¶ 75).
This is not the first time Plaintiff has brought an action against an employer for
discrimination. Before working for Nashoba, from June 2017 through June 2018, Plaintiff
worked for Assabet Valley Collaborative (“the Collaborative”), and, on May 11, 2018, she filed
a charge of disability discrimination with the Massachusetts Commission Against Discrimination
(“MCAD”) against the Collaborative (Dkt. No. 54 at ¶¶ 51-52). Clenchy served on the Board of
Directors of the Collaborative as a function of being the Superintendent of Nashoba (Dkt. No. 54
at ¶ 53). Clenchy was absent from the Board meeting during which Plaintiff’s employment was
discussed, which took place on May 25, 2018; at that meeting, the Board decided to extend
Plaintiff paid administrative leave (Dkt. No. 54 at ¶ 56). Clenchy maintains that she had no
knowledge or memory of Plaintiff’s employment with the Collaborative or of her MCAD charge

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against the Collaborative until after Plaintiff’s employment with Nashoba ended. Plaintiff
contends that the court should find this representation incredible (Dkt. No. 54 at ¶¶54-55).
III.

DISCUSSION

A. Count I: Breach of Contract Against Nashoba
In Count I of her amended complaint, Plaintiff states a claim for breach of contract
against Nashoba for wrongful termination in violation of her employment contract (Dkt. No. 15
at 10-11). Specifically, Plaintiff alleges that she had a one-year employment contract with
Nashoba that included the benefits and protections of the CBA, notwithstanding the fact that she
did not have professional teacher status at Nashoba and was not a member of the union.
According to Plaintiff, Nashoba’s termination of her employment violated that contract.
In moving for summary judgment, Defendants maintain that Plaintiff has not proffered
any basis for finding that the entirety of the CBA, including in particular the just cause for
dismissal requirement in Article V, applied to her employment. Defendants note that Plaintiff
identified the following facts in her answers to interrogatories as the basis for her position that
her employment was to be governed by the terms of the CBA: the September 8, 2020, hiring
letter setting her salary at the Masters Step 13 level of the CBA; the October 20, 2020,
verification letter confirming that her salary would be based on Step 13 B30/M of the CBA; the
application of the evaluation provisions called for by Article V of the CBA to her, which process
does not pertain to teachers not covered by the CBA; the grant to her of the number of sick and
personal days called for by Article VII of the CBA in a lump sum in accordance with Article III
of the CBA; and Friend and the assistant principal telling her that she was covered by the CBA.
Defendants argue that these facts are insufficient to establish that the entirety of the CBA was
applicable to Plaintiff’s employment and note that Plaintiff has failed to identify any documents

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or conversations establishing an agreement as to how discipline was to be meted out or setting a
standard for the termination of Plaintiff’s employment. In addition, Defendants find fault with
Plaintiff’s theory because it relies on singling out the provisions of the CBA that are beneficial to
Plaintiff while disregarding others that are not, including, for example, the grievance and
arbitration procedures in Article III of the CBA.
By way of rejoinder, Plaintiff points to the parties’ communications and conduct that,
according to her, indicate that, at the least, Nashoba offered her certain pay and benefits,
including paid sick leave, which it later reneged on when it reduced her compensation for using
more than 1.5 sick days per month but still less than the 15 that had been issued to her in a lump
sum upon hiring. Plaintiff identifies the following evidence as support for her theory: the
SchoolSpring job posting to which she responded stated “Pay: In accordance with CBA;”
Nashoba’s offer letter to her indicated she would be paid in accordance with Master’s step 13 of
the CBA; her pay stubs reflect an allocation of 15 sick days and 3 personal days afforded on a
lump sum basis at the start of her employment as provided in Article III of the CBA; Nashoba
provided her health, dental, pension, and life insurance benefits not available to per diem
substitutes not covered by the CBA; and Nashoba’s verification letter stated that she would be
paid in accordance with Step 13 B30/M of the CBA and would receive 70% and 50%
contributions toward her health and dental plans, respectively. Plaintiff further suggests that
Friend’s evaluation of her performance in accordance with the process set forth in Article V of
the CBA means that the “just cause for dismissal” limitation of Article V also applied to her
employment. According to Plaintiff, Nashoba violated this provision when it terminated her
employment for taking more than 1.5 sick days per month, despite the fact that there was no
agreement limiting her use of her 15 sick days, which were allocated to her on a lump sum basis

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on day one of her employment; that all the sick days she took had been approved; and that no
one had ever spoken to her about her use of sick days. As a fallback position, Plaintiff maintains
that if she cannot recover traditional breach of contract damages, she should be permitted
reliance damages because she took the job and took days off based on Nashoba’s representation
concerning sick day availability.
A breach of contract claim under Massachusetts law “requires the plaintiff to show that
(1) a valid contract between the parties existed, (2) the plaintiff was ready, willing, and able to
perform, (3) the defendant was in breach of the contract, and (4) the plaintiff sustained damages
as a result.” Bose Corp. v. Ejaz, 732 F.3d 17, 21 (1st Cir. 2013); see Bulwer v. Mount Auburn
Hosp., 46 N.E.3d 24, 39 (Mass. 2016). The existence of a valid, binding contract ordinarily
presents a question of fact as to “whether any particular conduct or actions imply a contractual
understanding.” Salem Laundry Co. v. New England Teamsters & Trucking Indus. Pension
Fund, 829 F.2d 278, 280 (1st Cir. 1987) (quoting Corbin on Contracts § 18(B), at 21 (Kaufman
supp. 1984)). However, the issue may be suitable for summary judgment if “the manifestations
of intent of both parties to be bound, or of either not to be bound, are so unequivocal as to
present no genuine issue of fact.’” McGurn v. Bell Microproducts, Inc., 284 F.3d 86, 91 (1st Cir.
2002) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 415 (4th Cir. 1979)).
“The essential elements for the formation of a contract under Massachusetts law consist
of an offer, acceptance, and consideration.” Doe v. Trs. of Bos. Coll., 892 F.3d 67, 89 (1st Cir.
2018). “It is axiomatic that to create an enforceable contract, there must be agreement between
the parties on the material terms of that contract, and the parties must have a present intention to
be bound by that agreement.” Lambert v. Fleet Nat’l Bank, 865 N.E.2d 1091, 1095 (Mass. 2007)
(quoting Situation Mgmt. Sys., Inc. v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000)).

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Furthermore, “the determination of whether parties intended to be bound ‘must be premised on
the totality of all such expressions and deeds given the attendant circumstances and the
objectives that the parties are attempting to attain.’” Sinotau Pharm. Grp. v. Navidea
Biopharmaceuticals, Inc., 211 F. Supp. 3d 375, 379-80 (D. Mass. 2016) (quoting Black Horse
Capital, LP v. Xstelos Holdings, Inc., No. Civ. A. 8542-VCP, 2014 WL 5025926, at *12 (Del.
Ch. Sept. 30, 2014)).
Against this backdrop, none of Defendants’ words or actions viewed in the light most
favorable to Plaintiff could be viewed by a reasonable factfinder as establishing that Nashoba
intended to be bound by the just cause for termination provision of the CBA with respect to the
termination of Plaintiff’s employment. The undisputed facts that Nashoba offered Plaintiff
salary, sick leave, and health and dental benefits that mirrored those set forth in the CBA does
not mean that Nashoba’s offer of employment incorporated every other unmentioned provision
in the 27-page CBA, including the just cause for termination requirement. Plaintiff has not cited
any authority supporting this novel proposition, and the court rejects it. The same is true with
respect to Plaintiff’s suggestion that Nashoba breached its contract with her by deducting the
value of 4.5 sick days from her pay. While the record supports a finding that Nashoba intended
to offer Plaintiff employment with up to 15 paid sick days per year and that Plaintiff could use
those 15 sick days immediately, the record does not similarly support a finding that Nashoba
agreed to pay Plaintiff for sick days that she used before they had accrued.
Nor can Plaintiff avail herself of the theory of reliance damages to survive summary
judgment. Setting aside the issue – raised by Defendants – of whether Plaintiff should be
permitted to raise this new theory in response to a summary judgment motion, it is inapplicable
on the facts. Plaintiff relies principally on McAndrew v. Sch. Comm. of Cambridge, 480 N.E.2d

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327 (Mass. App. Ct. 1985), in which the defendants, the superintendent and school committee,
appealed a judgment against them for breach of contract brought by the plaintiff following the
termination of his employment. The plaintiff, a resident of Georgia, had been offered a one-year
“permanent” band leader and orchestra teacher position by the director and assistant director of
music at the school, who also told him that his appointment would have to be approved by the
school committee. Id. at 329. The plaintiff quit his teaching job in Georgia and, at a cost of
approximately $3,000, moved to Massachusetts, where he taught for three weeks before the
directors fired him without ever presenting his name to the school committee. Id. The appeals
court reversed the judgment for the plaintiff on his breach of contract claim, finding that the jury
had been incorrectly charged that they could find a breach of contract on common law principles
because authority to employ the plaintiff was vested solely in the school committee by law. Id.
Nevertheless, the court remanded the matter limited to the issue of whether the plaintiff was
entitled to a narrow category of damages arising from the directors’ subsidiary promise to the
plaintiff that, barring some valid reason, they would submit his name to the school committee, a
promise which he accepted by moving to Massachusetts, and which itself established a contract.
Id. at 331 & 332 n.10. Here, Plaintiff has not identified a subsidiary promise that Nashoba failed
to honor, nor has she identified any expenses that she incurred in reliance on the unfulfilled
promise such as the $3,000 incurred by the plaintiff in McAndrew in moving to Massachusetts.
See Aronovitz v. Fafard, 934 N.E.2d 851, 859 (Mass. App. Ct. 2010) (“Reliance damages are
awarded only when the expenses would not have been incurred but for reliance on the
contractual obligation not performed.” (citing Doering Equip. Co. v. John Deere Co., 815 N.E.2d
234, 240 (Mass. App. Ct. 2004))). Thus, Nashoba is entitled to summary judgment on Count I of
Plaintiff’s amended complaint for breach of contract.

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B. Count II: Violation of the Massachusetts Wage Act Against All Defendants
Plaintiff brings a claim against all Defendants for violation of the Massachusetts Wage
Act, Mass. Gen. Laws ch. 149, § 148, in Count II of her amended complaint. According to
Plaintiff, Defendants may be found liable under the Wage Act for improperly setting off the
value of 4.5 sick days from her wages upon separation. Plaintiff’s theory can be broken down as
follows: (1) her salary was $92,699 per year; (2) while she elected to be paid in 26 equal biweekly paychecks, she could have elected to be paid in 22 paychecks, which would have
amounted to $4,213.59 per paycheck ($92,699 ÷ 22), or $2,106.795 in wages each week
($4,213.59 ÷ 2); (3) she was employed for 13 weeks and her weekly pay did not vary during
weeks that included holidays or during which she took sick or personal days; (4) as a result, her
total pay should have been $27,388.335 ($2,106.795 x 13); but (5) she was paid only $26,449.44,
which is $938.895 short ($27,388.335 - $26,449.44).
Defendants move for summary judgment on Plaintiff’s Wage Act claim arguing that
Nashoba paid Plaintiff more than was required by law, and, thus, there is no basis for liability for
unpaid wages. Defendants explain that Plaintiff elected to be paid in 26 equal bi-weekly
payments, rather than 22, and she was paid $3,757.50 every two weeks.4 When Nashoba
terminated Plaintiff’s employment after 13 weeks, she had received six biweekly paychecks
totaling $22,545 ($3,757.50 x 6). In order to determine if additional wages were owed, Nashoba
engaged in the following calculations, which it performs each time a teacher is separated from
employment mid-year: (1) it determines the “Daily Rate” by dividing the teacher’s annual salary
by the number of days the teacher was scheduled to work throughout the year; (2) it determines

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Neither party explains why Plaintiff was paid $3,757.50 every two weeks, as this rate of pay
would amount to an annual salary of $97,695 ($3,757.50 x 26), which is $4,996 more than her
undisputed annual salary of $92,699.
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the number of “Compensable Days” by adding the number of days actually taught, plus the
number of sick days taken, minus the number of sick days taken that had not yet accrued; and (3)
it determines the total wages earned, or “Earned Wages Upon Separation,” by multiplying the
Daily Rate figure times the Compensable Days figure. Thereafter, Nashoba pays the separated
teacher the difference between their Earned Wages Upon Separation and the wages the teacher
has been paid. Applying this methodology to Plaintiff’s employment resulted in the following
calculations: (1) Plaintiff’s Daily Rate was $503.80, representing her annual salary of $92,699
divided by the 184 days she was scheduled to work; (2) Plaintiff’s Compensable Days figure was
52.5, which Defendants fail to break down but which the court understands based on the parties
representations to consist of 47 days worked, plus 9 sick days and 1 personal day taken, minus
4.5 sick days taken but not yet accrued; and (3) Plaintiff’s Earned Wages Upon Separation figure
was $26,499.50 ($503.80 x 52.5). Thereafter, Defendants paid Plaintiff $3,904.44, representing
the difference between her Earned Wages Upon Separation of $26,499,50 and the $22,545 she
had already been paid.
Defendants maintain that it would “unquestionably [have] been lawful” had Nashoba
paid Plaintiff no more than the $22,545 it had already paid her in her first six equal bi-weekly
paychecks before it discharged her at the 13-week mark, and, thus, Nashoba’s payment to her of
$3,904.44 more than that cannot be a violation of the Wage Act. Defendants do not elaborate on
why it would have been lawful to have paid Plaintiff compensation for only twelve workweeks
when Plaintiff was not discharged until she had been in Defendants’ employ for thirteen
workweeks. Defendants then go a step further and represent that it is “possible … Plaintiff
would have received one more regular paycheck,” i.e., her seventh equal by-weekly paycheck
for 14 workweeks, bringing her total pay to $26,302.50, which Defendants note is still less than

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the $26,499.50 she was paid under Nashoba’s methodology. According to Nashoba, this further
reinforces the sufficiency of its payment of wages to Plaintiff under the Wage Act.
“[T]he purpose of the Massachusetts Wage Act is ‘to protect employees and their right to
wages,’” and the protections it offers are robust. Mui v. Mass. Port Auth., 89 N.E.3d 460, 462
(Mass. 2018) (quoting Elec. Data Sys. Corp. v. Attorney Gen., 907 N.E.2d 635, (Mass. 2009)).
The Wage Act provides strict liability for employer violations and treble damages in the civil
context, as well as potential criminal liability. Mass Gen. Laws ch. 149, §§ 27C, 148, 150.
Employers are required to pay each employee “weekly or bi-weekly … the wages earned by
h[er] to within six days of the termination of the pay period during which the wages were earned
if employed for five or six days in a calendar week,” and to pay any employee “discharged from
…. employment … in full on the day of h[er] discharge.” Mass. Gen. Laws ch. 149, § 148.
“’While the [Wage] Act makes clear on its face holiday pay, vacation pay, and definitely
determined commissions fall within its protections, the term “wages” is not otherwise defined.’”
Furtado v. Republic Parking Sys., LLC, No. 19-cv-11481-DJC, 2020 WL 996849, at *3 (D.
Mass. Mar. 2, 2020) (quoting Weiss v. DHL Express, Inc., 718 F.3d 39, 47 (1st Cir. 2013)).
Massachusetts courts have not adopted a broad definition of “wages,” instead looking to the
purpose of the Act – to prevent the unreasonable detention of wages - to construe “wages” as
“amounts ‘definitively determined and ... due and payable to the employee.’” Sullivan v.
etectRx, Inc., 67 F.4th 487, 496 (1st Cir. 2023) (quoting Mui, 89 N.E.3d at 462-63). “’[B]ecause
the Wage Act carries criminal penalties … courts have been reluctant to extend its reach beyond
the wages, salary, holiday pay, vacation pay, and definitely determined commissions which the
statute expressly mentions.’” Furtado, 2020 WL 996849, at *3 (quoting Roma v. Raito, Inc., No.
1:13-CV-10297-LTS, 2015 WL 1523098, at *7 (D. Mass. Mar. 31, 2015)).

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Section 148 does not address sick pay, which is instead covered separately in § 148C.
Section 148C establishes a minimum rate at which sick time must accrue (one hour for every 30
hours worked) and which employers are not required to let employees use until the employee has
been employed for 90 calendar days and even then, only as it accrues and only if the employee or
a family member is ill. Mass. Gen. Laws ch. 149, § 148C. The provisions of § 148C do not
prohibit employers from allowing the accrual of earned sick time at a faster rate, or the use of
earned sick time at an earlier date than the section requires. Id. Finally, employers are not
required to compensate employees for unused sick time. See Mass. Gen. Laws ch. 149, §
148C(d)(7). The question of whether sick time is “wages” is not a novel one. The Supreme
Judicial Court declined the invitation to broaden the scope of the term “wages” under the Wage
Act to encompass “sick pay.” Mui, 89 N.E.3d at 463. In reaching its decision, the court
reasoned that because an employee may use accrued sick time under appropriate conditions, i.e.,
illness, but may “lose” it if not used, unused accrued sick time cannot be a wage, even where the
employer had a policy allowing employees to collect unused sick time upon their departure. Id.
Given the language of the statute and the SJC’s interpretation of it, Nashoba is entitled to
summary judgment in its favor on Plaintiff’s claim. Plaintiff is correct that the SJC has held that
the Wage Act, which prohibits employers from exempting themselves from its provision by
“special contract,” Mass. Gen. Laws ch. 149, § 148, “generally prohibit[s] an employer from
deducting, or withholding payment of, any earned wages.” Camara v. Attorney General, 941
N.E.2d 1118, 1121 (Mass. 2011). Plaintiff is also correct that under Nashoba’s methodology,
Nashoba deducted the value of 4.5 used unaccrued sick days. However, given the SJC’s
unequivocal holding that unused accrued sick pay is not “wages,” it follows that unaccrued sick
pay cannot be wages. The fact that Nashoba allowed Plaintiff to use portions of her sick day

16

allowance before she had accrued the equivalent value in sick pay, as the statute allows, does not
transform the unaccrued sick pay into wages. Thus, Nashoba did not deduct, or withhold
payment of any earned wages when it deducted the value of 4.5 unaccrued sick days in the
calculation of Plaintiff’s wages. Nor is Plaintiff’s argument that Nashoba’s methodology
somehow improperly converted her into a per diem employee tenable. Nashoba’s methodology,
which it applies to all teachers who separate mid-year, avoids the problem of teachers who elect
to be paid on a nine-month schedule and are dismissed mid-year getting paid more than teachers
with an identical salary who elect to be paid on a twelve-month schedule. Not only is such a
practice logical, but also such a calculation may be required by the statute, which provides that
“[c]ompensation paid to public … schoolteachers shall be deemed to be fully earned at the end of
the school year, and proportionally earned during the school year.” Mass. Gen. Laws ch. 149, §
148.
Moreover, Plaintiff’s calculation that she was owed at least $27,388.335 in wages is
premised upon the notion that she could have elected to be paid in 22 equal bi-weekly payments
rather than 26 bi-weekly payments. She does not point to any authority that would give her the
right to change her election halfway through the year. In any event, while this likely would be a
lawful way to calculate Plaintiff’s wages, which were “proportionately earned during the school
year,” rather than over the calendar year, Nashoba would still be entitled to reduce the figure by
the value of the 4.5 unaccrued used sick days, which, again, were not “earned wages.” Using
Defendants’ daily rate, this would result in a figure of $25,121.235 ($27,388.335 – ($503.80 x
4.5)), which is less than the $26,499.50 that Nashoba paid Plaintiff. Thus, Plaintiff presents no
factual or legal basis for imposing strict liability and treble damages on Nashoba for nonpayment
of wages under the Wage Act.

17

C. Counts III and IV: Wrongful Termination and Failure to Accommodate in Violation
of Federal Law Against Nashoba and in Violation of State Law Against Nashoba,
Friend, and Clenchy
In Counts III and IV of her amended complaint, Plaintiff claims that Nashoba, in
violation of federal and state law, and Nashoba, Friend, and Clenchy, in violation of state law,
discriminated against her by terminating her employment because of and by failing to reasonably
accommodate her disabilities, namely kidney stones and a prolapsed bladder. Defendants move
for summary judgment on the ground that Plaintiff has not established that she is disabled within
the meaning of the ADA or ch. 151B due to kidney stones or a prolapsed bladder. Plaintiff
disagrees.
“The statutory definitions of ‘disability’ under the ADA and ‘handicap’ under chapter
151B are ‘essentially the same.’” Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 87 n.5 (1st Cir.
2012) (quoting Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 n.2 (1st Cir. 2010)). The two
statutes, therefore, can be considered together.” Sutherland v. Peterson Oil Serv., Inc., Civil
Action No. 21-10902-MRG, 2024 WL 1924251, at *3 (D. Mass. Mar. 31, 2024). “In order to be
considered disabled under the definition of the ADA, a person must ‘(1) have a physical or
mental impairment that substantially limits one or more life activity; (2) have a record of having
such impairment; or (3) be “regarded as” having such an impairment.’” Sutherland, 2024 WL
1924251, at *4 (citing 42 U.S.C. § 12102(2)); Cosme-Perez v. Municipality of Juana Diaz, 110
F. Supp. 3d 357, 365 (D.P.R. 2015)). “Courts apply a three-prong test to determine disability,
considering (1) whether plaintiff has a physical or mental impairment; (2) whether the life
activities plaintiff relies upon are ‘major’ or ‘of central importance to daily life’; and (3) whether
the impairment substantially limits plaintiff’s major life activities.” Together Emps. v. Mass
Gen. Brigham Inc., 573 F. Supp. 3d 412, 429 (D. Mass. 2021), aff’d, 32 F.4th 82 (1st Cir. 2022)

18

(quoting Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002)). Evidence of a medical
diagnosis by itself is insufficient. It is well-established that there must also be evidence of
substantial impairment to at least one major life activity. Id. (citing Ramos-Echevarría v.
Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011)).
In urging summary dismissal of Plaintiff’s disability discrimination claims, Defendants
address each of Plaintiff’s impairments separately. Regarding Plaintiff’s kidney stones,
Defendants note that Plaintiff had at most four absences due to kidney stones and made only one
visit to the hospital for kidney stones while in Nashoba’s employ. They characterize Plaintiff’s
kidney stones as a temporary illness and cite to cases in which courts have found kidney stones
not to be disabling in circumstances where the plaintiffs’ conditions were far more severe than
Plaintiff’s. See Pérez-Maspons v. Stewart Title P.R., Inc., 208 F. Supp. 3d 401, 422 (D.P.R.
2016) (granting summary judgment to the defendants on the plaintiff’s ADA discrimination
claim where he had a kidney stone which required a 9-day hospitalization followed by a 3-week
recovery but suffered no limitations thereafter because it was a “brief and temporary medical
condition with discrete beginning and end points” that did not substantially limit the plaintiff’s
major life activities); Mastrio v. Eurest Servs., Inc., Civil Action No. 3:13-cv-00564 (VLB),
2014 WL 840229, at *6 (D. Conn. Mar. 4, 2014) (dismissing the plaintiff’s ADA discrimination
claim based on insufficient allegations of a disability where he alleged that he missed one month
of work while undergoing treatment for kidney stones but alleged no continuing impairments
thereafter); Clay v. Campbell Cnty. Sheriff’s Office, No. 6-12-cv-00062, 2013 WL 3245153, at
*3 (W.D. Va. June 26, 2013) (same where the plaintiff alleged that he suffered a temporary, onetime issue with kidney stones that resolved within two weeks).

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Regarding Plaintiff’s prolapsed bladder, Defendants point out that, despite the fact that
Plaintiff became aware of the condition in 2019, she had no absences from work due to it while
in Nashoba’s employ, that her sole treatment was a pessary, and that, while Plaintiff alleged
symptoms of frequent urination, discomfort, pain, and increased urinary tract and yeast
infections, “she was unable, or unwilling” to provide details about how those symptoms limited
her activities. Defendants contrast the lack of evidence in the record of limitations from
Plaintiff’s prolapsed bladder condition with two cases in which courts found that the plaintiffs
were disabled within the meaning of the ADA due to the same condition where the factual
records supported findings of severe limitations. See Kauffman v. Petersen Health Care VII,
LLC, 769 F.3d 958, 961 (7th Cir. 2014) (reversing grant of summary judgment in favor of the
defendant where the plaintiff’s disability due to her prolapsed bladder, which had required a
hysterectomy and bladder reconstruction, was not contested because of the resulting limits in her
ability to lift and push and in her vaginal and bladder functions); Zemrock v. Yankee Candle,
Case No. 14-cv-30107-KAR, 2017 WL 506249, at *11 (D. Mass. Feb. 7, 2017) (finding the
plaintiff disabled because her hysterectomy, which resulted in a bladder prolapse, substantially
limited the major life activity of reproduction).
Plaintiff disputes the characterization of her kidney stones as a temporary illness.
According to Plaintiff, the cases cited by Defendants are distinguishable because those plaintiffs
did not show or allege that they suffered any limitations due to their kidney stones, while
Plaintiff has shown that she has chronic kidney stones5 that lead to repeated acute episodes

5

Plaintiff points to her production of medical records from 2015, 2016, 2017, 2020, and 2023
documenting the existence of kidney stones.
20

causing extreme pain, with no end point in sight.6 Plaintiff points to her deposition testimony
that the two conditions together require her to drink more fluids and urinate more frequently,
make it uncomfortable for her urinate and to sit or stand for prolonged periods, and can lead to
discomfort necessitating her absence from work. According to Plaintiff, this is sufficient to
create a triable issue as to whether she is disabled in light of the provisions of the ADA including
bladder function as a “major life activity,” 42 U.S.C. § 12102(2)(B), and providing that an
impairment that is episodic is a disability if it would substantially limit a major life activity when
active. 42 U.S.C. § 12102(4)(D).
There is no factual dispute that Plaintiff suffers from the physical impairments of chronic
kidney stones and a prolapsed bladder, and there can be no legal dispute that bladder function –
the only activity Plaintiff identifies – is a major life activity. Thus, the sole question is whether
there is a triable issue as to whether Plaintiff’s kidney stones or prolapsed bladder substantially
limit Plaintiff’s bladder function. To satisfy this standard, a plaintiff must “offer[ ] evidence that
the extent of the limitation in terms of her own experience … is substantial.” Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555, 567 (1999); Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 188 (1st
Cir. 2011). Per the EEOC, the term “substantially limits” is to be “construed broadly in favor of
expansive coverage,” and is not “meant to be a demanding standard.” 29 C.F.F. § 1630.2
(j)(1)(i). The regulations go on to provide that:
An impairment is a disability within the meaning of this section if
it substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population. An impairment need not prevent, or significantly or
severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting.

6

Plaintiff testified at her deposition that “she is always going to have kidney stones” and that
when they “decide to move,” they can get “lodged somewhere” leading to an “acute episode.”
21

Nonetheless, not every impairment will constitute a disability
within the meaning of this section.
29 C.F.R. § 1630.2(j)(1)(ii). Plaintiff’s claim is that she is substantially limited in bladder
function because, due to her kidney stones and prolapsed bladder, she must urinate more
frequently and that the act of doing so is painful.7 Plaintiff has not shown that her need for
frequent voiding or the discomfort that doing so entails substantially limits her bladder function.
While Plaintiff need not present evidence that her kidney stones and prolapsed bladder
completely prevent or severely restrict her bladder function, she must demonstrate that they
substantially limit her bladder function as compared to the general population. Her vague
references to the need to urinate more frequently and to the experience of discomfort or pain
when voiding do not meet the threshold of showing that her own experience of limitation in
bladder function is substantial. This is not to say that the need for frequent urination or painful
voiding could never constitute a substantial limitation on bladder function, but the record here
simply does not rise to that level. Substantially limiting may not be an exacting standard, but it
is not a non-existent standard. Thus, while the court agrees with Plaintiff that the chronic kidney
stone condition from which she suffers differs from that experienced by the plaintiffs in the cases
cited by Defendants, Plaintiff has nevertheless failed to create a triable issue of fact as to whether
she is disabled within the meaning of the ADA or chapter 151B. Thus, Defendants are entitled
to summary judgment on Counts III and IV of Plaintiff’s amended complaint.

7

Plaintiff has not put any evidence in the record that the alleged limitations in her ability to sit or
stand, which are unquantified in any event, have any limiting effect on her bladder function.
22

D. Count VIII: Violation of the Massachusetts Civil Rights Act Against Nashoba and
Friend
In Count VIII of her amended complaint, Plaintiff brings a claim under the Massachusetts
Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12, 11I. Section 11I creates a private right of
action for any person whose exercise or enjoyment of rights secured by the constitution or laws
of the United States, or of rights secured by the constitution or laws of the Commonwealth, has
been interfered with by threats, intimidation, or coercion by another person, whether or not
acting under color of law. See Mass. Gen. Laws ch. 12, §§ 11H, I. “To establish a claim under
the [MCRA], ‘a plaintiff must prove that (1) the exercise or enjoyment of some constitutional or
statutory right; (2) has been interfered with, or attempted to be interfered with; and (3) such
interference was by threats, intimidation, or coercion.’” Barron v. Kolenda, 203 N.E.3d 1125,
1139-1140 (Mass. 2023) (quoting Glovsky v. Roche Bros. Supermkts., Inc., 17 N.E.3d 1026,
1035 (Mass. 2014)). Plaintiff has explained that the claim is premised on the allegations that,
Friend asked Plaintiff, who is Jewish, if she really needed to take a religious holiday off work
and that doing so could affect her employment after Plaintiff requested to take a personal day on
September 28, 2020, for Yom Kippur. Thereafter, Plaintiff withdrew her request for the personal
day.
Defendants move for summary judgment arguing that Nashoba is not a person within the
meaning of the MCRA, and, therefore, cannot be sued for violating the statute. Plaintiff does not
contest this representation, and Defendants are correct as a matter of law. See Meagher v.
Andover Sch. Comm., 94 F. Supp. 3d 21, 45 (D. Mass. 2015) (“There is no dispute that [the
Andover School Committee and the Andover School Department] are municipal entities, and
‘under Massachusetts law a municipality cannot be sued under the MCRA.’” (quoting Kelley v.

23

LaForce, 288 F.3d 1, 11 n.9 (1st Cir. 2002))). Accordingly, Nashoba is entitled to summary
judgment with respect to Plaintiff’s MCRA claim.
As to Friend, Defendants argue that Plaintiff has a pending religious discrimination claim
under Mass. Gen. Laws ch. 151B, rendering her MCRA claim duplicative and subject to
dismissal. Plaintiff replies that her MCRA claim differs from her 151B claim in that her MCRA
claim does not allege that Friend took an adverse employment action against her, but rather that
she coerced Plaintiff into working on Yom Kippur in violation of a religious prohibition on
doing so, thereby interfering with her right to freedom of religion as guaranteed by Article II of
the Massachusetts Declaration of Rights.
Chapter 151B makes it unlawful for an employer to “impose upon an individual as a
condition of … retaining employment any terms or conditions, compliance with which would
require such individual to violate, or forego the practice of,” sincerely held religious beliefs, and
it requires the employer to make “such accommodation” to the religious practice “as shall not
cause undue hardship in the conduct of the employer’s business.” Mass. Gen. Laws ch. 151B, §
4(1A). In making a claim of religious discrimination, a plaintiff must meet the initial burden of
establishing a prima facie case that the employer required the plaintiff to violate a required
religious practice. Brown v. F.L. Roberts & Co., 896 N.E.2d 1279, 1283 (Mass. 2008). The
plaintiff also must “demonstrate that he or she gave the employer the required notice of the
religious obligations.” Id. (quoting New York & Mass. Motor Serv., Inc. v. Massachusetts
Comm'n Against Discrimination, 517 N.E.2d 1270, 1276 (Mass. 1988)). If the plaintiff meets
her burden, “the burden then shifts to the employer ‘to prove that accommodation of the
[plaintiff’s] religious obligations would impose ... an undue hardship’ pursuant to the statute.”
Id. (quoting New York & Mass. Motor Serv., 517 N.E.2d at 1276).

24

Accordingly, construing a ch. 151B religious discrimination claim to require an adverse
employment action as an element is incorrect. Nor has Plaintiff identified any alleged adverse
employment action (apart from the failure to accommodate her right to engage in an important
religious observance, which is the act that constitutes the alleged discrimination on the basis of
religion). Plaintiff maintains that she was fired for taking too many sick days, not for requesting
a personal day on Yom Kippur. Thus, Plaintiff’s claim under ch. 151B and her claim under the
MCRA are the same, and ch. 151B § 9 is the exclusive remedy for a violation of § 4, including
for religious discrimination in employment. Because “[c]omplaints constituting [ch.] 151B
claims cannot be refashioned into MCRA claims,” Butner v. Dept. of State Police, 803 N.E.2d
722, 727-28 (Mass. App. Ct. 2004) (citing Green v. Wyman-Gordon Co., 664 N.E.2d 808, 811
(Mass. 1996); Mouradian v. General Elec. Co., 503 N.E.2d 1318, 1321 (Mass. App. Ct. 1987);
see also Dexter v. Dealogic, LLC, 390 F. Supp. 233, 244 (D. Mass. 2019) (ch. 151B provides the
exclusive remedy for employment discrimination that is not based on preexisting tort law or a
constitutional protection). Friend, too, is entitled to summary judgment on Plaintiff’s MCRA
claim.8
E. All Counts Against Clenchy (Counts II, III, IV, and VII)
Plaintiff names Clenchy as a defendant in Counts II, III, IV, and VII of her amended
complaint for violation of the Wage Act, disability discrimination, failure to accommodate, and
retaliation, respectively. Defendants have moved for summary judgment on these claims as to
Clenchy. Because the court has already determined that Defendants are entitled to summary
judgment on Counts II, III, and IV, the only claim remaining to be addressed is Plaintiff’s claim

8

Plaintiff’s citation to KrupienDep v. Ritcey, 112 N.E.3d 302 (Mass. App. Ct. 2018), is not
instructive, as the sole issue before the court was whether the defendants were entitled to
qualified immunity on the plaintiff’s MCRA claim. Id. at 304.
25

in Count VII for retaliation. Retaliation is an independent cause of action under both the ADA
and chapter 151B. Wright v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir. 2003) (noting that a
plaintiff need not succeed on a discrimination claim to bring a retaliation claim); see also 42
U.S.C. § 12203(a); Mass. Gen. Laws ch. 151B, §4. The standard under both statutes is the same.
D.B. ex. rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41 (1st Cir. 2012).
To make out a prima facie case of retaliation, a plaintiff must demonstrate that she (1)
engaged in protected conduct, (2) was subjected to an adverse action by the defendant, and (3)
there was a causal connection between the protected conduct and the adverse action. Id. If the
plaintiff establishes her prima facie case, the burden shifts to the defendant to articulate a
legitimate, non-discriminatory explanation for the adverse action. Id. Finally, if the defendant
meets this burden, the burden shifts back to the plaintiff to show that the proffered legitimate
explanation is a pretext and that the defendant was actually motivated by a retaliatory animus.
Id. Defendants move for summary judgment on Plaintiff’s retaliation claim only as to Clenchy.
According to Defendants, Plaintiff has not put forth any evidence from which a factfinder could
conclude that Clenchy knew that Plaintiff engaged in protected activity or that Clenchy took any
action that could be considered retaliatory. Plaintiff responds that Clenchy signed her dismissal
letter and, by law, had to review and approve Plaintiff’s dismissal. See Mass. Gen. Laws ch. 71,
§ 42 (“A principal may dismiss or demote any teacher or other person assigned full-time to the
school, subject to the review and approval of the superintendent.”).
Here, the court agrees with Plaintiff. In support of summary judgment, Defendants argue
that “Clency … had no active involvement in Plaintiff’s employment whatsoever” (Dkt. No. 47
at 15). However, in support, Defendants cite to Clenchy’s affidavit, which only avers that she
had “no active role in the decision to hire [Plaintiff],” and that, to the extent she was involved,” it

26

was a pro forma approval of the hiring decision recommended by others (Dkt. No. 48-13 at ¶ 45). The affidavit is silent about Clenchy’s role in the termination of Plaintiff’s employment. As
to the issue of Clenchy’s knowledge of Plaintiff’s protected activity, Clenchy represents in the
affidavit that, to the best of her knowledge, she never knew about Plaintiff’s prior employment
with, or her MCAD charge against, the Assabet Valley Collaborative. As an initial matter, a jury
could choose not to credit Clenchy on this point given that she sat on the Board of Directors for
the Collaborative. Moreover, Clenchy does not aver that she was unaware of Plaintiff’s
protected activity – identified in Plaintiff’ amended complaint as a request for reasonable
accommodation – at Nashoba. Given that Clenchy signed Plaintiff’s termination letter, a
reasonable finder of fact could conclude that Clenchy knew that Plaintiff engaged in protected
activity shortly before the termination of her employment and that Clenchy was involved in
terminating her employment. See Ciccarelli v. School Dept. of Lowell, 877 N.E.2d 609, 615
(Mass. App. Ct. 2007) (finding sufficient evidence to support a jury verdict of an adverse
employment action by the deputy superintendent based the assignment of ultimate responsibility
for firing to superintendents in Mass. Gen. Laws ch. 71, § 42). Thus, Clenchy is not entitled to
summary judgment in her favor on Plaintiff’s retaliation claim.
IV.

CONCLUSION

For the above-stated reasons, Defendants’ motion for partial summary judgment (Dkt.
No. 46) is GRANTED in part and DENIED in part. Summary judgment shall enter in favor of
Defendants on counts I (breach of contract), II (Massachusetts Wage Act), III (disability
discrimination), IV (failure to accommodate), and VIII (violation of the Massachusetts Civil
Rights Act.
It is so ordered.

27

/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge
DATED: August 28, 2024

28