Smith v. Northborough Town of et al

Filing 23

District Judge Timothy S Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________________
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Plaintiff
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v.
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THE PUBLIC SCHOOLS OF NORTHBOROUGH)
SOUTHBOROUGH MASSACHUSETTS, A.K.A.
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NORTHBOROUGH PUBLIC SCHOOLS, and
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TOWN OF NORTHBOROUGH,
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MASSACHUSETTS,
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Defendants.
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________________________________________________)
ANGELA F. SMITH,

CIVIL ACTION
NO. 14-40165-TSH

MEMORANDUM OF DECISION AND ORDER
September 24, 2015
Background
Angela Smith (“Smith” or “Plaintiff”) has brought an action against the Public Schools of
Northborough-Southborough (“NPS”) and the Town of Northborough (“Northborough,” and,
together with NPS, “Defendants”) alleging that she was constructively discharged and/or
subjected to a hostile work environment such that she suffered an adverse employment action.
See Pl’s First Amended Comp. (“Complaint”). More specifically, Smith, a former special
education teacher with NPS, alleges that she was retaliated against for attempting to protect the
rights of disabled students, and that the Defendants failed to provide reasonable accommodations
for her disability, Post-Traumatic Stress Disorder (“PTSD”). She has asserted claims against the
Defendants for disability discrimination and retaliation, in violation of the Rehabilitation Act of
1973, § 504, 29 U.S.C. §794 (“Rehabilitation Act”) and Titles I, II and V of the Americans with
Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”). Smith has also brought corresponding state

law claims under the Massachusetts anti-discrimination statute, Mass. Gen. L., ch. 151B
(“Chapter 151B”), and a state law claim for breach of contract. This Memorandum of Decision
and Order addresses Defendants’ Motion to Dismiss (Docket no. 16). For the reasons set forth
below, that motion is allowed, in part, and denied, in part.
Standard of Review
To overcome a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint
must allege sufficient facts “to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 667, 129 S. Ct. 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
546, 127 S. Ct. 1955 (2007). The plausibility of a claim is evaluated in a two-step process.
Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). First, the court must
separate the complaint’s factual allegations, which must be accepted as true, from its conclusory
legal allegations, which are not entitled to the presumption of truth. A.G. ex rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013); Manning, 725 F.3d at 43. Second, the court must
accept the remaining factual allegations as true and decide if, drawing all reasonable inferences
in the plaintiff’s favor, they are sufficient to show an entitlement to relief. Manning, 725 F.3d at
43 The court draws on judicial experience and common sense in evaluating a complaint, but
may not disregard factual allegations even if it seems that actual proof of any particular fact is
improbable. Iqbal, 556 U.S. at 667, 129 S. Ct. 1949; Twombly, 550 U.S. at 556, 127 S. Ct. 1955.
A motion to dismiss must focus not on whether the plaintiff will ultimately prevail, but whether
he or she is entitled to offer evidence to support the claims. Mitchell v. Mass. Dep’t of Corr.,
190 F. Supp.2d 204, 208 (D. Mass. 2002) (quoting Scheur v. Rhodes, 416 U.S. 232, 236, 94 S.
Ct. 1683 (1974)).

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Facts
Smith had worked as a special education teacher in Massachusetts since 1992. She
worked for NPS from July 2003 until her resignation in May 2012. Complaint, ¶¶ 6, 54. In
2008, while teaching at the Robert E. Melican Middle School (“Melican”), Smith was diagnosed
with PTSD as a result of repeated assaults by a student with severe special needs and violent
tendencies. Id., at ¶¶ 9, 10. As a result of her PTSD, Smith, grinds her teeth at night,
experiences loss of appetite, has trouble sleeping, and suffers from anxiety. Id., at ¶¶ 11, 12.
She has had these symptoms continuously since her diagnosis. Id., at ¶ 14.
Smith filed a complaint against NPS with the EEOC on November 30, 2010, alleging
disability discrimination, age discrimination, and retaliation based on her PTSD. Id., at. ¶15. On
September 21, 2011, a settlement was reached among Smith, the Northborough Teachers’
Association (“NTA”), and NPS. Id., at ¶ 16. The settlement agreement provided that Smith
would withdraw her EEOC complaint and work as a special education teacher at a different
school, the Fannie E. Proctor Elementary School (“Proctor”), that she would be provided with
“mutually agreeable professional development opportunities for growth consistent with her
professional development plan and building needs,” and that Proctor’s principal, Margaret
Donohoe (“Donohoe”), would “establish a transition plan detailing the performance expectations
after consultation with Ms. Smith and a representative of her choosing.” Id., at ¶¶ 16-19. Smith
withdrew her EEOC complaint and began working at Proctor on September 22, 2011. Id., at ¶¶
21, 112.
Smith did not have a license to teach Pre-Kindergarten through Grade 5 and was given a
waiver in order to hold her position at Proctor. Id., at ¶40. Soon after starting at Proctor, Smith
complained that service providers and general education teachers were not consulting with each

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other. This led to special needs students being pulled out of general education classes to
accommodate Smith’s provision of services in accordance with the students’ Individualized
Education Programs (“IEPs”). Id., at ¶ 22. Students were also not provided services required by
their IEPs because of scheduling conflicts, i.e., Smith was scheduled to be an aide in other
classrooms during the time periods the IEPs stated Smith was scheduled to provide those
services to special needs students. See id., at ¶ 28.
On November 10, 2011, Smith sent a written request for accommodations for her PTSD
to NPS. Id., at ¶41. NPS did not provide the requested accommodations. Id. On November 14,
2011, Smith received a letter from Donohoe, dated November 9, 2011, which informed her
(Smith) that her job performance was not meeting NPS standards. Id., at ¶¶ 37, 38. The same
day, Smith requested accommodations for her disability, including various tools for the formal
evaluation of students. Id., at ¶ 42. On November 23, 2011, Smith’s counsel sent a letter to NPS
Superintendent Charles Gobron requesting accommodations for Smith, along with a letter from
Smith’s treating psychologist requesting specific accommodations, including providing Smith
with a mentor, providing training on the use of formal assessments she was not previously
trained to conduct, and providing a clear schedule. Id., at ¶¶ 43-44. The letter from Smith’s
psychologist was also provided to Donohoe. Id. Counsel for NPS responded, indicating that
Smith had been provided accommodations and that NPS would continue providing
accommodations. Id., at ¶¶ 45. According to Smith, NPS paid only “lip service” to the
requested accommodations, and Donohoe began harassing her. Id., at ¶¶ 46.
On November 28, 2011, Donohoe asked to see a document draft from Smith five minutes
before a meeting with a student’s parents and interrupted and contradicted Smith during the
meeting. Id., at ¶47a. On December 1, 2011, she asked Smith on two occasions if she had taped

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a door lock open; she also sent a school-wide email asking that the responsible person “turn
themselves in.” Id., at ¶ 47b. Donohoe once issued a schoolwide “all call” page to locate Smith
when she was in a room across the hall from the room she was scheduled to meet Donohoe in,
then spoke to Smith about how she had needed to interrupt the school to find her. Id., at ¶47c.
On December 16, 2011, Smith was scheduled for meetings throughout the holiday season when
other teachers were not. Id., at ¶47d. On December 20, 2011, Smith’s mentor and another
teacher told her that Donohoe was trying to make Smith quit. Id., at ¶47e. During a state audit
in January 2012, Smith was not allowed to be interviewed by the Department of Education in
relation to a student that she complained had not received services in accordance with his IEP.
Id., at ¶47h. Throughout Smith’s employment at Proctor, Donohue was critical and gave
contradictory instructions. Id., at ¶47i. Smith was not scheduled time to complete required IEP
consults. Id., at ¶47j. Smith’s last day of work at Proctor was February 3, 2012. Id., at ¶54. She
notified NPS that she was resigning on May 18, 2012. Id. 1
Discussion
Retaliation for Advocating on Behalf of Students (Counts 1 and 2)
Smith has asserted claims for retaliation under the Rehabilitation Act, and the ADA.
More specifically, she alleges that the Defendants retaliated against her for engaging in protected
conduct, i.e., advocating for the rights of disabled students entitled to receive a Free Appropriate
Public Education (“FAPE”) in the least restrictive environment (“LRE”) in accordance with the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.§§ 1400-1482.2 The Defendants

1
Smith did not include any factual assertions regarding the circumstances under which she left her
employment on February 3, 2012 and what happened from that date until her resignation on May 18, 2012. Given
the tenuousness of her claims, that omission is conspicuous.
2
Smith has not alleged that the Defendants violated her First Amendment rights by retaliating against her
for expressing her opinion that NPS was not in compliance with state and federal laws pertaining to the needs of
special education students. See Decotiis v. Whittemore 635 F.3d 22 (1st Cir. 2011). Her failure to allege such a claim

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assert that Smith’s retaliation claims must be dismissed for failure to state a claim because
advocating on behalf of disabled students is insufficient to state a violation under the
Rehabilitation Act, the ADA and Chapter 151B.
“Both the Rehabilitation Act, through its implementing regulations, see 28 C.F.R. §
42.503(b)(1)(vii), and the ADA, see 42 U.S.C. § 12203(a), prohibit retaliation against any
person, whether disabled or not, for opposing disability-based discrimination made unlawful by
those statutes. D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 40-41 (1st Cir. 2012).3
To state a claim for retaliation under the Rehabilitation Act or the ADA, a plaintiff must allege
that: (1) s/he engaged in protected conduct, (2) s/he 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., at 41. Smith has pled that she advocated for disabled students who were not
receiving the educational services to which they were entitled under the IDEA. Such educational

is understandable as Smith would have to establish that she was speaking as a citizen, and not as a public employee
carrying out her official duties. See id.
3
More specifically, Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The antiretaliation provision contained in Title V of the ADA provides that “[n]o private or public entity shall discriminate
against any individual who has opposed any act or practice made unlawful by this part or because such individual
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). The Rehabilitation Act provides that “[n]o otherwise qualified individual with a
disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial
assistance.... 29 U.S.C. § 794(a) (codifying Section 504). Furthermore, the Rehabilitation Act incorporates the antiretaliation provision of Title VI of the Civil Rights Act of 1964: “The remedies, procedures, and rights set forth in
title VI of the Civil Rights Act of 1964 ... shall be available to any person aggrieved by any act or failure to act by
any recipient of Federal assistance....” 29 U.S.C. § 794a(2). Thus, the Rehabilitation Act’s protections apply to “‘any
individual’ who has been intimidated, threatened, coerced, or discriminated against ‘for the purpose of interfering
with [protected rights]’ under Title VI of the Civil Rights Act or the Rehabilitation Act.” Weber v. Cranston Sch.
Comm., 212 F.3d 41, 48 (1st Cir. 2000)(quoting 34 C.F.R. § 100.7(e)) (citing § 104.61) (granting standing under
section 504 of Rehabilitation Act to mother who claimed school system had retaliated against her personally for
attempting to enforce her disabled child’s rights); see also Barker v. Riverside Cnty. Office of Educ., 584 F.3d 821,
825 (9th Cir. 2009).

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services are covered under Title II of the ADA. See Decotiis v. Whittemore, 842 F.Supp.2d 354
(D.Me. 2012)(citing Barker v. Riverside County Office of Educ., 584 F.3d 821, 828 (9th Cir.
2009)). Therefore, Smith has satisfied the first prong. Whether she can establish that she
suffered an adverse employment action is a closer call and one as to which she faces a high
hurdle on summary judgment or at trial. However, at this stage of the proceedings, I find that her
allegation that she was constructively discharged is sufficient to state a plausible claim.
Likewise, her allegations state a plausible claim under the Rehabilitation Act. See Reinhardt v.
Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126 (10th Cir. 2010); Barker, 584 F.3d at
824- 826, 828; see also Decotiis, 842 F.Supp.2d at 371-72 (First Circuit has recognized that
separate analysis of Section 504 claims is not necessary when ADA claim is being considered on
same ground). For the reasons stated above Defendants’ motion to dismiss Count 1 and 2 is
denied.
Violation of the ADA and Rehabilitation Act: Disability Discrimination (Counts 3, 4 and 5)
Smith also alleges that Defendants discriminated against by failing to provide her with
requested, reasonable accommodations-- specifically in terms of additional training and
professional development. She has asserted claims under the ADA, the Rehabilitation Act and
Chapter 151B. As noted above, the First Circuit has stated that identical claims brought pursuant
to the ADA and Rehabilitation Act are subject to the same analysis. Caler-Cerezo, 355 F.3d. at
19; see also Mendez v. Brown, 311 F. Supp. 2d 134, 140 n. 3 (D. Mass. 2004)(“Disability” is
defined identically under the ADA and the Rehabilitation Act). Additionally, Chapter 151B
tracks the ADA in virtually all respects. Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 20
n.5 (1st Cir. 2009). Thus, this Court looks to federal case law interpreting the ADA as a guide to
the interpreting Chapter 151B. See Everett v. 357 Corp., 453 Mass. 585, 599 n. 20, 904 N.E.2d

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733 (Mass. 2009); Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 451 n. 6, 772 N.E.2d
1054 (Mass. 2002). The ADA provides that “no covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112. To state a prima facie case of disability discrimination under these statutes,
Smith must establish that: “(1) [she] suffers from a disability or handicap, as defined by the ADA
and Chapter 151B, that (2) [she] was nevertheless able to perform the essential functions of [her]
job, either with or without reasonable accommodation, and that (3) [her employer] took an
adverse employment action against [her] because of, in whole or in part, [her] protected
disability.” Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005). The ADA also
requires employers to provide reasonable accommodation to otherwise qualified applicants or
employees with a disability, unless the employer can demonstrate that the accommodation would
impose an undue hardship on the employer’s business. 42 U.S.C. § 12112(b)(5)(A). To state a
prima facie case for failure to accommodate, for purposes of the third prong, Smith must
establish that the Defendants “despite knowing of [her] disability, did not reasonably
accommodate it.” Tobin, 433 F.3d at 106-07.
Defendants argue that Smith has not alleged facts sufficient to establish that she has a
disability, defined as “(a) a physical or mental impairment that substantially limits one or more
major life activities”. 42 U.S.C. § 12102(1). “Major life activities include… eating, sleeping…
interacting with others, and working.” 29 C.F.R. 1630.2(h)(2)(i). When determining if a person
is substantially limited in a major life activity, the limitation is compared to the ability of people
in the general population. See C.F.R. 1630.2(j)(1)(ii). An impairment need not prevent, or

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significantly or severely restrict, an individual from performing a life activity in order to be
considered substantially limiting. Id. “The term “substantially limits” shall be construed broadly
in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
Substantially limits is not meant to be a demanding standard.” 29 C.F.R .1630.2(j)(1)(i)
Defendants do not contest that Smith has a mental impairment, but argue that she has alleged
insufficient facts to establish that she is substantially limited in performing one or more major
life activities. Smith, on the other hand, argues that she has sufficiently alleged that she is
substantially limited in one or more major life activities, namely sleeping, eating, and working.
She further argues that at the summary judgment stage, a plaintiff has “a modest burden to
proffer evidence from which a reasonable inference can be drawn that a major life activity is
substantially or materially limited,” and therefore, she has an even lighter burden at the motion to
dismiss stage. See Miller v. Verizon Communs., Inc., 474 F. Supp. 2d 187, 194 (D. Mass. 2007).
Given the minimal burden at this stage, I find that Smith has alleged a plausible claim that she
was a qualified individual with a disability. Again, whether Smith could survive a motion for
summary judgment is not before me.
Defendants also argue that Smith’s requested accommodation was unreasonable because
it did not flow from her disability. In general, an employer must only accommodate the
limitations that flow from the disability that affect the employee in the workplace. Crevier v.
Town of Spencer, 600 F. Supp. 2d 242, 254 (D. Mass. 2008) (citing 42 U.S.C. § 12112(b)(5);
Mass. Gen. Laws. ch. 151B, § 4(16); Peebles v. Potter, 354 F.3d 761, 768-69 (8th Cir. 2004)).
Defendants argue that the requested accommodation, training and professional development and
support, does not flow from the limitations alleged, namely anxiety involving physical
interactions. Smith argues that the Defendants are inaccurately describing the symptoms of her

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PTSD, in that it in fact manifests itself both in terms of generalized anxiety as well as specific
anxiety in situations where physically restraining children may become necessary. In Plaintiff’s
view, receiving the proper training, formal evaluation tools, a mentor, and a clear schedule for a
job she had been given a license waiver to perform would have helped to alleviate her anxiety.
At this stage of the proceedings, I find that Smith has alleged sufficient facts to state a plausible
claim for failure to provide reasonable accommodation. Therefore, except as provided below,
Defendants’ motion to dismiss Counts 3, 4 and 5 is denied.
Defendants assert that Smith’s factual allegations are insufficient to state a hostile work
environment claim under the ADA, Rehabilitation Act or Chapter 151B. To the extent that Smith
intended to assert separate hostile work environment claims under these statutes, they are not
well articulated. Assuming she is asserting such claims, I agree that they must be dismissed. In
order to state a hostile work environment claim, Smith must demonstrate “ ‘that the complainedof conduct was so severe or pervasive that it altered the terms of her employment … There is no
mathematically precise test’ .. use[d] to determine when this burden has been met, instead, [the
Court] evaluate[s] the allegations and all the circumstances, considering ‘the frequency of the
discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interfered with an employee’s work
performance.’ ” Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 19 (1st Cir. 2006)(internal
citations and citation to quoted case omitted). That Donohue was rude to Smith and occasionally
insulted her is insufficient to state a claim for hostile work environment. Therefore, to the extent
that she is alleging an independent hostile work environment claims under the ADA, the
Rehabilitation Act and Chapter 151B, such claims are dismissed because, as a matter of law,

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Smith has not alleged sufficiently pervasive or severe conduct by Defendants. See id. (rudeness
or ostracism, standing alone, is not sufficient to support a hostile work environment claim).
Breach of Contract
To state a claim for breach of contract under Massachusetts law, a plaintiff must allege, at
a minimum, that there was a valid contract, that the defendant breached its duties under its
contractual agreement, and that the breach caused the plaintiff damage. Davis v. Dawson, 15 F.
Supp. 2d 64, 128 (D. Mass. 1998). A protracted discussion is not warranted as to the viability of
Smith’s breach of contract claim: Smith alleges that Defendants violated the settlement
agreement among herself, NPS and the NTA entered on September 21, 2011. She has alleged
sufficient facts to satisfy each of the elements of her claim. At this stage of the proceedings, the
Court cannot find as a matter of law that her claims are barred by either a collective bargaining
agreement or Chapter 151B’s exclusivity provision. Therefore, she has stated a plausible claim
for breach of contract.
Conclusion
The Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint (Docket No.
16) is allowed, to the extent that Plaintiff is asserting independent hostile work environment
claims, but is otherwise denied.

/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE

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