Felix v. Town of Kingston

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LINDA FELIX,

Plaintiff,

No. 15-CV-14022-DLC

v.

The TOWN OF KINGSTON, ROBERT

FENNESSY, Town Administrator

for the Town of Kingston, the

Board of Selectmen of the Town

of Kingston, ELAINE FIORE,

DENNIS RANDALL, and SANDY

McFARLAND [sic]1, as

individuals and in their

official capacities as members

of the Board of Selectmen,

THOMAS CROCE as an individual

and in his capacity as a

member of the Council on

Aging, and FLORENCE CERULLO,

Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Cabell, U.S.M.J.

I. INTRODUCTION

The Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612,

entitles eligible employees to take up to 12 weeks of leave to

address medical concerns. Plaintiff Linda Felix availed herself

1 The caption reflects the defendants as originally named in the plaintiff’s

complaint but the correct spelling based on evidence in the record is

actually “MacFarlane.”

of such leave with the assent of her employer, the Town of Kingston

(the Town). Felix’s position, a term position subject to

reappointment, expired while she was on leave, and she was not

reappointed to the position or selected to interview when the Town

set about to refill it. Felix brings claims for violation of the

FMLA, Massachusetts’ employment discrimination statute, M.G.L. c.

151B, its whistleblower protection statute, M.G.L. c. 149, § 185,

and also alleges various state common law torts. The defendants

move for summary judgment on all counts. For the reasons discussed

below, the defendant’s motion for summary judgment is GRANTED.

II. THE PARTIES

The plaintiff worked for the Town from August 2010 to January

2014.

Defendant Robert Fennessy was at all relevant times the Town

Administrator and the plaintiff’s direct supervisor.

Defendants Elaine Fiore, Dennis Randall, and Sandy MacFarlane

were at all relevant times members of the Town’s Board of Selectmen

(the Board). Randall also served as a member of the Council on

Aging (COA) for a period of time before becoming a selectman.

Defendant Thomas Croce, now deceased, was at all relevant times

a member of the COA.

Defendant Florence Cerullo conducted a review of the Senior

Center at the Board’s request.

2

III. RELEVANT FACTS

In 2010, the Board appointed Felix as the Town’s Director of

Elder Affairs (Director) for a term to run from August 2010 through

June 30, 2011. Defendants’ Concise Statement of Undisputed

Material Facts in Support of Summary Judgment (Defendants’ SUF),

at ¶ 1. In order for Felix to serve for another term after that

date the Board would have to reappoint her. Defendants’ SUF, at

¶ 3. In fact, the Board reappointed Felix to two subsequent one-

year terms; the first ran until June 30, 2012, and the second ran

until June 30, 2013. Defendants’ SUF, ¶ 4.

At some point following her initial appointment Felix became

aware that a Senior Center employee, defendant Croce’s wife, was

allegedly taking illegal paid vacations. The Plaintiff’s

Undisputed Facts in Response to the Defendants’ Motion for Summary

Judgment (Plaintiff’s SUF), at ¶ 1.2 The plaintiff reported these

findings to the acting town administrator. Id. This report caused

some friction between the plaintiff and Croce, who directed policy

for the Senior Center as a member of the COA. Id., at ¶ 2;

Defendants’ SUF, at ¶ 5.

2 The plaintiff’s memorandum asserts background facts but fails for many of

those asserted facts to list them in her Statement of Facts, and portions of

the Statement of Facts fail to contain citations to the record. The court

has considered only those facts which are undisputed and supported by

evidence in the record.

3

Further disagreements between the plaintiff and COA members

regarding the Senior Center’s operations developed over the next

two years. Defendants’ SUF, ¶ 6-10. The COA does not have

authority to hire or fire the Director but it does provide the

Board with recommendations regarding appointments. Id., at ¶ 11.

In May 2013, the COA voted to recommend that the plaintiff not be

reappointed for another term. Id., at ¶ 12.

The plaintiff was never formally disciplined or “written up”

during her employment with the Town. Plaintiff’s SUF, at ¶ 3.

However, given developing tension between the plaintiff and the

COA over the COA’s recommendation, the Board in June 2013 voted to

reappoint the plaintiff, but only for a six-month term ending

December 31, 2013, rather than for a full year. Defendants’ SUF,

at ¶ 15, 18.

On July 1, 2013, the plaintiff through her counsel sent a

letter to the Town’s labor counsel. The plaintiff cited the issues

she was having with COA members and specifically mentioned her

belief that Croce’s role in directing policy for the Senior Center

while his wife was employed there presented a conflict of interest.

Id., at ¶ 24; Plaintiff’s SUF, at ¶ 4.

In August 2013, Fennessy was hired as Town Administrator; he

oversaw the Town’s human resource functions among other

responsibilities. Defendants’ SUF, at ¶ 26-27. Fennessy noticed

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immediately that the plaintiff and COA members would quickly become

very upset and antagonistic when dealing with one another. Id.,

at ¶ 29-30. Fennessy met with the plaintiff several times to

discuss how she might improve her relationship with the COA moving

forward. Id., at ¶ 31.

During the summer of 2013, defendant Cerullo undertook at the

Board’s request an efficiency review of the various Town

departments, including the COA and the Senior Center. Id., at ¶

21-23. Cerullo completed her review in September 2013 and prepared

a document outlining her findings. Id., at ¶ 32.

At a meeting that same month, the COA happened to discuss the

status of funds the plaintiff’s daughter had raised for the Senior

Center. Id., at ¶ 33. The plaintiff believed Board member Randall

and COA member Croce were unappreciative of her daughter’s help

and were accusingly questioning how the money had been used. Id.

Also during September 2013, the plaintiff told Fennessy that

Randall had been taking meals from the Senior Center without paying

for them. Id., at ¶ 34.

At the COA’s October 2013 meeting, the topic of the

plaintiff’s daughter’s use of the raised funds came up again. Id.,

at ¶ 36. The plaintiff became upset and told Fennessy that she

needed to go home. Id., at ¶ 37. The plaintiff took some sick

days following the meeting and was treated by her physician with

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prescribed medication for anxiety. Id., at ¶ 38; Plaintiff’s SUF,

at ¶ 7. The plaintiff subsequently received workers’ compensation

benefits due to emotional distress. Defendants’ SUF, at ¶ 40;

Plaintiff’s SUF, at ¶ 6.

On October 28, 2013, the plaintiff submitted a request for

FMLA leave. Plaintiff’s SUF, at ¶ 8; Defendants’ SUF, at ¶ 41.

By letter dated the next day, Fennessy granted the plaintiff’s

request for the maximum twelve-week period, from October 28, 2013

to January 20, 2014. Plaintiff’s SUF, at ¶ 9; Defendants’ SUF, at

¶ 43-44. Fennessy’s letter also stated that “[w]hen your leave is

completed, you will be entitled to be restored to your current

position or an equivalent position with equivalent benefits, pay

and other terms and conditions of employment. However, you will

not have any greater rights to restoration or benefits that you

would have had if you had remained employed during the leave

period.” Plaintiff’s SUF, at ¶ 10.

As the plaintiff’s six-month term neared its end, the Board

did not hold a vote on whether to extend her term beyond December

31, 2013. Id., at ¶ 11; Defendants’ SUF, at ¶ 45. Consequently,

the plaintiff’s term expired as of January 1, 2014, even though

she was still to be out on FMLA leave for another three weeks,

through January 20, 2014.

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It appears that no one initially fully comprehended that the

Board’s failure to vote on Felix’s reappointment (one way or the

other) meant that she was, effective January 1, 2014, on medical

leave from a position she no longer held. The Town’s labor

counsel, for example, emailed the plaintiff’s counsel on January

16, 2014, seeking an update on whether and when the plaintiff

intended to return to work given that her medical leave period was

nearing its end. Plaintiff’s SUF, at ¶ 13; Defendants’ SUF, at ¶

49. Similarly, the plaintiff’s counsel responded that the

plaintiff did intend to return to work and asked for information

on applying for reasonable accommodations. Plaintiff’s SUF, at ¶

14; Defendants’ SUF, at ¶ 50. (The plaintiff never submitted any

documentation that she would be able to return to work with or

without accommodation.) Defendants’ SUF, at ¶ 51.

However, it did not take long for the mutual realization to

sink in. On February 6, 2014, the Town’s counsel informed the

plaintiff’s counsel that her employment had ended because her term

had expired, and that she would need to request reappointment from

the Board. Plaintiff’s SUF, at ¶ 15; Defendants’ SUF, at ¶ 52.

The Town’s counsel also suggested that the plaintiff discuss with

her doctor whatever accommodations she would need and forward those

to the Town. Id.

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On February 10, 2014, the plaintiff’s counsel notified the

Town’s counsel that the plaintiff “would like to continue as

Director of Elder Services.” Plaintiff’s SUF, at ¶ 16; Defendants’

SUF, at ¶ 53. On the same day, the Town’s counsel reiterated that

the plaintiff’s appointment had ended and that she would need to

reapply for the position. Defendants’ SUF, at ¶ 54. Town

Administrator Fennessy subsequently sent the plaintiff a formal

notice informing her that her employment had ended but that she

could apply for the vacant position. Plaintiff’s SUF, at ¶ 23;

Defendants’ SUF, at ¶ 55-56.

Between February and April 2014, the Town proceeded to select

and appoint a new Director. Plaintiff’s SUF, at ¶ 22, 24;

Defendants’ SUF, at ¶ 58-62. The Town advertised the vacancy and

a screening committee composed of Fennessy and two other town

officials reviewed resumes, discussed the candidates, and chose

three applicants to interview. Defendants’ SUF, at ¶ 58-60. The

plaintiff applied but was not one of those chosen to interview.

Id., at ¶ 60. The committee ultimately chose to recommend an

applicant whose professional experience did not include managing

a COA but whose references provided great recommendations.

Plaintiff’s SUF, at ¶ 24; Defendants’ SUF, at ¶ 61. The committee

forwarded materials for all applicants to the Board with its

recommendation, and the Board voted on April 22, 2014 to appoint

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the successful applicant for a six-month probationary period.

Defendants’ SUF, at ¶ 61-62.

IV. THE PLAINTIFF’S CLAIMS

The plaintiff asserts both statutory and common law claims.

Regarding her statutory claims, the plaintiff alleges that

the defendants violated the FMLA by failing to allow her to return

to work following her FMLA leave, and by retaliating against her

for taking FMLA leave, presumably by not allowing her to return to

work or by not selecting her to interview for the vacant Director

position. The plaintiff also alleges that the defendants violated

the state whistleblower statute, M.G.L. c. 149, § 185, by

retaliating against her for disclosing the unlawful conduct of

other Town officials. Finally, the plaintiff alleges that the

defendants discriminated against her on the basis of handicap, in

violation of M.G.L. c. 151B.

With respect to her common law claims, the plaintiff alleges

both intentional and negligent infliction of emotional distress

(IIED and NIED, respectively), and intentional interference with

advantageous business relations.

V. LEGAL STANDARD

A court shall grant a motion for summary judgment “if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to a judgment as a matter of law.”

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Fed. R. Civ. P. 56(a). The moving party bears the initial burden

of “assert[ing] the absence of a genuine issue of material fact

and then support[ing] that assertion by affidavits, admissions, or

other materials of evidentiary quality.” Mulvihill v. Top-Flite

Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). Once the moving party

meets that burden, in order to avoid summary judgment, the opposing

party must “show that a factual dispute does exist, but summary

judgment cannot be defeated by relying on improbable inferences,

conclusory allegations, or rank speculation.” Fontanez-Nunez v.

Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting

Ingram v. Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)).

Indeed, the opposing party must “produce specific facts, in

suitable evidentiary form, to establish the presence of a

trialworthy issue.” Clifford v. Barnhart, 449 F.3d 276, 280 (1st

Cir. 2006) (quoting Triangle Trading Co. v. Robroy Indus. Inc.,

200 F.3d 1, 2 (1st Cir. 1999)).

When determining whether summary judgment is appropriate, “a

court must view the record in the light most favorable to the

nonmoving party and give that party the benefit of all reasonable

inferences in its favor.” Id. (citing Nicolo v. Philip Morris,

Inc., 201 F.3d 29, 33 (1st Cir. 2000)). “Where the record taken

as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v.

10

Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal

quotation marks omitted).

VI. DISCUSSION

A. The FMLA Claims

Felix contends that the defendants violated the FMLA in two

ways. First, they failed to allow her to return to her position

as Director when her FMLA leave ended. Second, they retaliated

against her for taking FMLA leave by allowing her term of

appointment to expire without voting on her reappointment, and by

declining to interview her when she reapplied for the position.

1. Interference

Regarding the plaintiff’s first claim, the FMLA entitles

eligible employees to take up to a maximum of twelve weeks of leave

for a personal or medical reason. 29 U.S.C. § 2612(a)(1)(D). An

employee who takes FMLA leave is entitled to return to the same or

an equivalent position. 29 U.S.C. § 2614(a)(1)(A)-(B). An

employer may not “interfere with, restrain, or deny the exercise

of or the attempt to exercise, any right provided [by the FMLA],”

29 U.S.C. § 2651(a)(1), or “discharge or in any other manner

discriminate against any individual for opposing any practice made

unlawful [by the FMLA].” 29 U.S.C. § 2615(a)(2). Employers who

violate the FMLA are liable to the employee for damages and such

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equitable relief as may be appropriate. 29 U.S.C. § 2617(a)(1).

To establish a claim for FMLA interference, a plaintiff must show:

(1) she was eligible for the FMLA’s protections; (2) her employer

was covered by the FMLA; (3) she was entitled to leave under the

FMLA; (4) she gave her employer notice of her intention to take

leave; and (5) her employer denied her FMLA benefits to which she

was entitled. Carrero-Ojeda v. Autoridad de Energia Electrica,

755 F.3d 711, 722 n.8 (1st Cir. 2014).

Applied here, the parties do not dispute that (1) the

plaintiff was eligible for the FMLA’s protections, (2) the Town as

her employer was covered by the FMLA, (3) the plaintiff was

entitled to leave under the FMLA, and (4) she gave the Town notice

of her intention to take leave. However, as it relates to the

last element --the denial of FMLA benefits to which she was

entitled, the plaintiff cannot prove that element on these facts.

The FMLA instructs that an employee is not entitled to “any

right, benefit, or position of employment other than . . . [those]

to which the employee would have been entitled had the employee

not taken the leave.” 29 U.S.C. § 2614(a)(3)(B). Where, for

example, “an employee was hired for a specific term, . . . the

employer has no obligation to restore the employee if the

employment term . . . is over and the employer would not otherwise

have continued to employ the employee.” 29 C.F.R. § 825.216(a)(3);

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see also 29 C.F.R. § 825.209(f) (employer’s obligation to maintain

benefits and restore employee ceases when among other things

employment relationship ends).

That is the case here. Felix was the Director when she took

FMLA leave and she thus had the right to return to that position

as if she had not taken leave, as long as her position existed.

Because the Board did not vote to reappoint the plaintiff to

continue in her position after her term expired on December 31,

2013, and because she did not attempt to return to work until weeks

after that date, there was no longer any position for her to return

to and the Town consequently had no obligation to restore her to

the Director’s position or any other position. See e.g., Bellone

v. Southwick-Tolland Reg'l Sch. Dist., 748 F.3d 418, 424–25 (1st

Cir. 2014) (no obligation under the FMLA to reinstate employee to

his or her previous position, or even to equivalent position, after

the employee’s period of leave expires); see also Throneberry v.

McGehee Desha Cty. Hosp., 403 F.3d 972, 977–78 (8th Cir. 2005) (no

violation of employee’s FMLA rights if the employer would have

terminated employment for lawful reasons unrelated to the

employee’s leave). The defendants are thus entitled to summary

judgment on this portion of the plaintiff’s FMLA claim.

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2. Retaliation

Regarding the second prong of the plaintiff’s FMLA claim, a

plaintiff alleging retaliation for taking FMLA leave must

establish that she availed herself of a protected FMLA right, that

she was adversely affected by an employment decision, and that

there was a causal connection between her protected conduct and

the adverse employment action. Carrero-Ojeda, 755 F.3d at 719

(citing Orta-Castro v. Merck Sharp & Dohme Química P.R. Inc., 447

F.3d 105, 107 (1st Cir. 2006)). Where, as here, a plaintiff

presents only circumstantial evidence of retaliation, retaliation

claims are analyzed under the same McDonnell Douglas burden-

shifting framework used to assess discrimination claims. Hodgens

v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998);

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under this framework, the plaintiff bears the initial burden

of establishing a prima facie case of discrimination or

retaliation. McDonnell Douglas Corp., 411 U.S. at 802. If so

established, the burden shifts to the employer to articulate some

legitimate, nondiscriminatory reason for the adverse action. Id.

If the employer succeeds in doing so, the burden shifts back to

the plaintiff to demonstrate that the employer’s proffered reason

was not the true reason for the employment decision. Id. at 803.

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Applying that framework here, the plaintiff’s claim fails

because she cannot make out a prima facie case of retaliation.

Regarding the first element, it is undisputed that the plaintiff

availed herself of a protected FMLA right when she took leave from

October 28, 2013 to January 20, 2014. Regarding the second

element, the plaintiff alleges that she suffered adverse

employment decisions when the Board failed to vote to reappoint

her, and when the search committee failed thereafter to select her

to interview for the Director’s position. The court will assume

for present purposes that each of these events constitutes an

adverse employment decision.3 But even viewing the evidence in a

light most favorable to her, Felix cannot establish a causal

connection between her taking FMLA leave and her failure to be

reappointed to or selected to interview for the Director position.

That is because, most simply put, she has not adduced any evidence

3 With respect to the failure to reappoint the plaintiff after her term ended,

the court notes that the Board did not affirmatively vote to decline to

reappoint the plaintiff; rather, the Board simply did not vote. This

distinction is arguably meaningful because the plaintiff has not produced any

evidence that the Board was actually obligated to hold a vote, although

holding a vote may have been the custom or practice, and this court has not

been directed to any decision finding an employer’s failure to act where it

had no obligation to act to be an adverse employment decision for FMLA

purposes. That being said, the court is mindful that the failure to hold a

vote here arguably was, in context, tantamount to a decision to decline to

renew the plaintiff’s employment. With respect to the search committee’s

failure to interview the plaintiff for the vacant Director position, the

plaintiff was technically no longer a Town employee at the time she applied

but the First Circuit has held that the FMLA may also protect prospective

employees who complain that they were not hired because they had used FMLA

leave in the past. See Duckworth v. Pratt & Whitney, Inc., 152 F.3d 1 (1st.

Cir. 1998).

15

to support the allegation that the Town acted as it did to

retaliate against her for taking protected leave.

On the contrary, the record reflects that Felix and the COA

had a contentious relationship that began at least several months

before she requested FMLA leave, punctuated by the COA’s

recommendation in the spring of 2013 that the Board not reappoint

her for another term. Indeed, the fact that the Board subsequently

voted in June 2013 to reappoint the plaintiff, but for only a six-

month term rather than the typical year-long term suggests that

she was, for all intents and purposes, on probation and already in

a precarious position when she took FMLA leave in October 2013.

There is also no indication that Fennessy as Town

Administrator held the plaintiff’s taking of protected leave

against her, particularly where he immediately approved the

plaintiff’s leave request for the maximum 12-week period and the

record is bereft of any suggestion he thereafter held her leave-

taking against her.

In that regard, the only reference in the record reflecting

some official Town discussion of the plaintiff’s potential

reappointment after she took FMLA leave comes from the minutes of

the Board’s November 5, 2013 meeting, held approximately one week

after the plaintiff went out on leave. Those minutes are hardly

inflammatory. Board member Richard Arruda “asked that the matter

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of the Director of Elder Affairs six-month appointment be put on

the next agenda to discuss what approach to take. [Board member

and defendant] MacFarlane stated that she did not think it was a

good idea and that Mr. Fennessy should check with Labor Counsel.”

It is not clear why MacFarlane did not believe discussing the

plaintiff’s reappointment would be a good idea. Possibly, it was

because of uncertainty over how to proceed where Felix was at the

time out on leave, hence the suggestion that Fennessy seek legal

advice. Regardless, the record does reflect that the Town’s

counsel did contact the plaintiff’s counsel in January 2014 to

discuss whether and when she planned to return to work. As noted

above, those communications appeared to expose the lawyers’ mutual

unawareness that the plaintiff’s position had already expired at

the end of the previous month. But because those communications

also contemplated their understanding that the plaintiff might

soon return to work, they tend to undermine the plaintiff’s

contention that the Town sought to rid itself of her for having

taken leave.

In sum, the record chronicles the precipitous breakdown of

the parties’ relationship from the spring of 2013 into early 2014

and suggests that it was this factor more than any other that led

to the Board’s failure to vote to reappoint the plaintiff at the

end of December 2013. Even if the record is not definitive on

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this issue, the plaintiff has failed to produce sufficient evidence

to create a genuine issue of dispute as to whether the failure to

reappoint her was retaliation for her taking protected FMLA leave.

To be sure, the Town declined subsequently to interview Felix

for the Director position. Again, though, and for essentially the

same reasons discussed above, the record suggests that poor

chemistry rather than retaliation was behind the Town’s actions,

and the plaintiff has failed to adduce evidence to the contrary

that it was because she took protected leave.

The defendants therefore are entitled to summary judgment on

the plaintiff’s FMLA claims.

B. The Whistleblower Claim

The plaintiff contends that the defendants retaliated against

her for reporting purportedly unlawful conduct of other Town

officials, in violation of Massachusetts’ whistleblower protection

statute, M.G.L. c. 149, § 185. Presumably, the plaintiff proceeds

under subsection (b)(1) of that statute, which prohibits an

employer from retaliating against an employee who discloses to a

supervisor “an activity, policy or practice of the employer or

public body which the employee reasonably believes is in violation

of the law.” M.G.L. c. 149, § 185(b)(1). The employee also must

show that her whistleblowing “played a substantial or motivating

part in the retaliatory action.” Pierce v. Cotuit Fire Dist., 741

F.3d 295, 303 (1st Cir. 2014) (quoting Welch v. Ciampa, 542 F.3d

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927, 943 (1st Cir. 2008). The plaintiff contends that the

defendants retaliated against her for reporting to Fennessy and/or

the Town’s counsel that Croce’s wife had taken paid vacation as a

part-time employee, and that Randall was not paying for meals at

the Senior Center.

As it relates to Randall, the record reflects that the

plaintiff complained to Fennessy in an email that Randall had on

two prior occasions eaten a meal at the Senior Center without

paying for the meal, once the prior week when he entered “through

the kitchen delivery door and asked for a meal” and another time

during a “Senior Olympics” event. Assuming that complaining about

such conduct could suffice to serve as the basis for a claim under

the statute, it fails to do so here because the Town did not know

of Randall’s conduct before the plaintiff’s email and the conduct

at issue therefore was not “an activity, policy or practice of the

employer.” See Tyron v. MBTA, No. SUCV201402654, 2016 WL 5874408,

at *3 (Mass. Super. Ct. Aug. 17, 2016) (dismissing claim where

plaintiff “blew the whistle” on fellow employees, not on the

employer).

As it relates to Croce’s wife, the plaintiff in or around

August 2010 learned that her predecessor had allowed Croce’s wife

to take a week off each year with pay, and she reported the same

to the Town through an oral discussion with the acting town

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administrator. Plaintiff’s Exh. 1, Nancy Howlett Depo, at pg. 78-

79. This conduct also cannot be the basis of a whistleblower claim

here because section (c)(1) of the whistleblower statute requires

that notice of the improper activity be brought to the employer’s

notice “by written notice” and there is no evidence that the

plaintiff so complied. See M.G.L. c. 149, § 185(c)(1).

Independently, the plaintiff has not adduced any evidence to

support her assertion that the defendants failed to reappoint her

to her position or to interview her thereafter in retaliation for

having complained about Randall and/or Ms. Croce. Her speculation

to that effect is not sufficient to create a dispute of material

fact. See Shea v. Emmanuel College, 425 Mass. 761, 763-64 (1997).

Summary judgment is therefore appropriate on this claim.

C. The M.G.L. c. 151B Claims

Under Chapter 151B, an employer may not “dismiss from

employment or refuse to hire, rehire or advance in employment or

otherwise discriminate against, because of [her] handicap, any

person alleging to be a qualified handicapped person, capable of

performing the essential functions of the position involved with

reasonable accommodation.” M.G.L. c. 151B, § 4(16). Felix alleges

that she suffered from anxiety and depression, which the First

Circuit has recognized as mental impairments, see Calero-Cerezo v.

U.S. Dep’t of Justice, 355 F.3d 6, 20 (1st Cir. 2004), and that

the defendants discriminated against her on the basis of that

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disability where they (1) treated her less favorably during her

employment and failed to reasonably accommodate her disability,

(2) terminated her by failing to vote to reappoint her, and (3)

failed thereafter to consider her for the vacant Director position.

Regarding the first prong of this claim, the plaintiff has

not adduced any evidence to suggest that any defendant treated her

differently at any time before she took FMLA leave because of a

perceived or actual disability. On the contrary, assuming arguendo

that the plaintiff was suffering from a mental health related

disability before she requested FMLA leave in late October 2013,

there is no suggestion anywhere in the record that any defendant

knew of or had a basis to know of that condition. It follows that

the plaintiff cannot show that any defendant discriminated against

her at any time before she took medical leave.

Regarding the Board’s failure to vote to reappoint the

plaintiff as her term expired, the record is similarly devoid of

evidence suggesting that the Board (or any other defendant) was

motivated by a discriminatory animus. Indeed, the record shows

that the Board clearly had already been contemplating the

possibility of ending the plaintiff’s tenure months before she

took FMLA leave, as evidenced by its May 2013 decision to extend

the plaintiff’s term by only six months rather than a year, a

decision which notably followed the COA’s recommendation that the

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plaintiff’s term not be renewed at all. The record thus reflects

that various Town employees had interpersonal conflicts with the

plaintiff and had already expressed an objection to her

reappointment months before she took leave or otherwise signaled

that she might be suffering from a handicap. Even assuming that

members of the Board had reason to know by December 2013 that the

plaintiff was suffering from a mental health related condition,

the plaintiff simply has not produced any evidence to suggest that

the Board failed to hold a vote on her reappointment because of

that condition, or to rebut the notion that personal conflict more

than anything else accounted for the defendants’ actions (or

inaction).

Turning then to the last part of her 151B claim, the plaintiff

contends that the defendants failed to interview her for the

Director position because they perceived that she suffered from a

handicap. In order to prevail on this claim the plaintiff must

show that: (1) she suffers from a “handicap,” (2) she was a

“qualified handicapped person,” that is, she was capable of

performing the essential functions of her job with reasonable

accommodation, and (3) she was not hired (or interviewed) solely

because of her handicap. Mulloy v. Acushnet Co., 460 F.3d 141,

154 (1st Cir. 2006) (citing Labonte v. Hutchins & Wheeler, 424

Mass. 813, 859 (1997)). The plaintiff cannot make this showing on

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this record because she cannot show she suffered from a handicap

within the meaning of chapter 151B.

Chapter 151B defines a “handicap” as (a) a physical or mental

impairment which substantially limits one or more major life

activities, (b) a record of having such an impairment, or (c) being

regarded as having an impairment which substantially limits one or

more major life activities. M.G.L. c. 151B, § 1(17). The

plaintiff contends that she was “regarded as” having an impairment

here and, presumably, contends that the “major life activity”

affected by her perceived mental health related impairment was her

ability to work. See M.G.L. ch. 151B § 1(20) (including “working”

in the definition of “major life activities”). Where “working” is

the major life activity at issue, a plaintiff must “demonstrate

not only that the employer thought [s]he was impaired in [her]

ability to do the job held, but also that the employer regarded

[her] as substantially impaired in ‘either a class of jobs or a

broad range of jobs in various classes.’” Sullivan v. Neiman

Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir. 2004) (quoting

Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999));

Izzo, 171 F. Supp. 3d at 9; Murray, 2013 WL 5202693, at *6.

Here, the court has not found or been directed to any specific

evidence in the record suggesting that any town official had any

concerns that the plaintiff, as a result of a perceived handicap,

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would not be able to perform her actual job or other similar

positions.

Summary judgment is therefore appropriate on the plaintiff’s

chapter 151B discrimination claims.4

4 The plaintiff makes two additional 151B related claims meriting brief

attention. She contends first that the defendants violated chapter 151B when

they “requested information about her disability” and required her to “answer

medical questions” as conditions for being interviewed for the vacant

Director position. M.G.L. c 151B, § 4(16) prohibits employers from “mak[ing]

preemployment inquiry of an applicant as to whether the applicant is a

handicapped individual or as to the nature or severity of the handicap,” but

it is unsettled whether this language provides for a private cause of action.

See Martino v. Forward Air, Inc., 609 F.3d 1, 4 (1st Cir. 2010). Assuming a

private cause of action is available, the claim fails here because any

inquiry was immaterial in context. As the Court noted in Martino, it would,

assuming a cause of action exists, be insufficient to merely show a

“technical violation” of the statute by asking preemployment questions about

disability; rather, a plaintiff would need to show some resulting harm. Id.

at 5. In the present case, the evidence on this issue suggests that any

violation was technical, and that the plaintiff did not suffer any ostensible

harm. The evidence on this issue consists of a brief email exchange between

the Town’s counsel and the plaintiff’s counsel shortly following the end of

the plaintiff’s FMLA leave. The Town’s counsel informs the plaintiff’s

counsel that the plaintiff can forward to the Town a list of any

accommodations she might need along with her request to be reappointed to her

position. Counsel further advises that any discussions the Town might have

regarding accommodations would take place out of the public eye, between the

counsel and Town Administrator (Fennessy). When the plaintiff’s counsel

responds by saying that the plaintiff “would like to continue as Director,”

the Town’s counsel clarifies that she would have to reapply where her current

appointment had ended, and asks whether the topic of accommodations is no

longer an issue where the plaintiff’s counsel did not mention it. In the

court’s view, this exchange was innocuous and does not rise to the level of a

preemployment inquiry within the meaning of the statute. Moreover, there is

no evidence that the Town’s counsel and Fennessy discussed the issue of

accommodations, and Fennessy testified that the Town’s counsel was not even

involved in the selection process. Plaintiff’s Exh. 14, Fennessy Depo, at

pg. 123.

Second, the plaintiff contends that the defendants failed to provide her with

a reasonable accommodation, but this claim is unavailing because the record

clearly shows that the plaintiff never requested an accommodation. See Leach

v. Comm’r of the Mass. Rehab. Comm’n, 63 Mass. App. Ct. 563, 567 (2005)

(noting that an employer is not obligated to attempt to accommodate a

handicapped employee until the employee brings her needs for an accommodation

to the employer’s attention); see also Faiola v. APCO Graphics, Inc., 629

F.3d 43, 47 (1st Cir. 2010) (request for accommodation must be “direct and

specific” and “must explain how the accommodation is linked to the

plaintiff’s disability”).

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D. The State Common Law Claims

The plaintiff alleges IIED, NIED, and intentional

interference with advantageous relations but these claims are

barred.

The emotional distress claims are barred because the Workers’

Compensation Act (WCA) bars common law tort claims for injuries

sustained in the course of employment. M.G.L. c. 152, § 26; see

Andresen v. Diorio, 349 F.3d 8, 16 (1st Cir. 2003). The bar covers

“any injury that arises out of the employment relationship

regardless of whether it occurs during the precise period of

employment,” and applies to fellow employees and supervisors who

are alleged to have committed the tortious act, so long as they

were acting within the scope of employment. Id. at 16; Anzalone

v. Mass. Bay Transp. Auth., 403 Mass. 119, 124-25 (1988). There

is no dispute that the plaintiff received workers’ compensation

benefits for the emotional distress injuries she experienced while

working for the Town, and she has not presented evidence that any

of the individual defendants were acting outside the scope of

employment. She is, accordingly, barred from bringing common law

claims to recover for the same injuries. See M.G.L. c. 152, § 26;

see also Andresen, 349 F.3d at 16.

The plaintiff’s intentional interference claim is also barred

because the Massachusetts Tort Claims Act (MTCA) bars claims

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against public employers and employees for intentional torts.

M.G.L. c. 258, § 10(c); Saltzman v. Town of Hanson, 935 F. Supp.

2d 328, 350 (D. Mass. 2013). Again, the plaintiff has not

presented any evidence that the individual defendants were acting

outside the scope of employment, or in their personal capacities.

Accordingly, summary judgment is appropriate on the

plaintiff’s common law claims.

VII. CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary

Judgment (Dkt. No. 58) is GRANTED. Summary Judgment will be

entered on all claims in the plaintiff’s amended complaint.

SO ORDERED.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: July 8, 2019

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