Salmon v. Lang

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 19-11378-RGS

JENNIFER SALMON

v.

ROGER LANG, et al.

MEMORANDUM ON DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

January 28, 2021

STEARNS, D.J.

During her tenure as a Chelmsford Public Schools teacher, plaintiff

Jennifer Salmon vigorously advocated on behalf of her union, pressing

school officials on numerous issues, including heating and cooling in

classrooms, workplace safety, and the failure to provide compliant Individual

Education Plans (IEPs) to students with special needs. One of Salmon’s

union forays came to a boil in November of 2017. Salmon, then a third-grade

teacher at Harrington Elementary School (Harrington), requested a meeting

with Principal Patricia Tobin and other administrators to protest safety

issues in a first-grade classroom. When the school administrators refused

her request, Eric Blanchet, a field representative for the American Federation

of Teachers (AFT), accompanied Salmon to Tobin’s office on the morning of

November 22, 2017 to demand a meeting.1

A “highly-charged altercation” with Blanchet followed, Defs.’ Mem.

(Mot.) (Dkt # 81) at 1, during which Superintendent Roger Lang and the

Chelmsford Police were summoned to the school in an effort to defuse

tensions. Although Salmon remained passive and did not emulate Blanchet’s

behavior, defendants accuse her of “personally set[ting] in motion” the series

of events and “play[ing] an important role through her dogged pursuit of the

meeting.” Id. at 1, 8. Salmon was escorted out of the building by a police

officer, put on administrative leave, and issued a written reprimand.

Salmon alleges by way of the Second Amended Complaint (SAC) (Dkt

# 39) that these disciplinary measures and other negative reactions to her

advocacy were taken in retaliation for her exercise of her First Amendment

rights. In addition to her federal constitutional claim, brought under the

Federal Civil Rights Act, 42 U.S.C. § 1983 (Count I), Salmon brings a

common-law claim of defamation (Count II), and alleges violations of the

Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12, § 11H

1 Although Salmon attempts to draw a distinction between demanding

a meeting and demanding that a meeting be scheduled, see, e.g., Opp’n (Dkt

# 87) at 8, 15, the purported distinction has no bearing on the court’s

analysis.

(Count III) and the Massachusetts Whistleblower Act, Mass. Gen. Laws

ch. 149, § 185 (Count IV). Defendants Roger Lang, Linda Hirsch, John

Moses, Jason Fredette, Kurt McPhee, and Patricia Tobin, who are

Chelmsford school administrators and Chelmsford School Committee

(School Committee) members, as well as the Town of Chelmsford move for

summary judgment. For the following reasons, the court will allow the

motion for all defendants.

BACKGROUND

Salmon joined the Chelmsford Federation of Teachers (CFT), a local

chapter of the AFT, when she was hired as a Chelmsford Public Schools

teacher in 2002. SAC ¶¶ 11-12. Salmon became President of CFT in May

of 2016. Id. ¶ 15. While teaching at Parker Middle School, Salmon, in her

role as union president, raised concerns about classroom temperatures and

unsafe working conditions. Defs.’ Ex. B (Salmon Dep.) (Dkt # 82-2) at 72:3-

16, 77:12-78:19. Convinced that the Parker school principal, Jeff Parks, had

retaliated against her for her outspokenness,2 Salmon transferred to a third-

2 As evidence of retaliation, Salmon states that she received a grade of

only “proficient” in her annual performance evaluation in June of 2017

(which was changed to exemplary after she filed a grievance) and was

separated from her co-teacher. Defs.’ Ex. B. at 76:2-23.

grade teacher’s position at Harrington for the 2017-2018 school year. SAC

¶ 21.

Salmon continued to protest unsafe workplace conditions following

the transfer. When Salmon learned that a first-grade special needs student

habitually bolted from the classroom, she emailed Tobin, Special Education

Chairperson Patricia Doherty, and the Director of Special Education Amy

Reese on November 16, 2017, objecting that the student’s misbehavior posed

a “major safety concern for . . . students and adults.” Defs.’ Ex. E (Dkt # 82-

5) at 3;3 Defs.’ Ex. F (Dkt # 82-6). In the email, Salmon admitted to having

consulted the school’s Major Incident Binder, Defs.’ Ex. F, which contained

confidential student information. Only a student’s teacher and his or her

service providers were authorized to access the binder.

When Salmon requested a meeting with Reese to discuss the issue, see

Defs.’ Exs. G, I, K (Dkt ## 82-7; 82-9; 82-11), Reese declined on grounds that

3 Salmon argues that defendants “should be prohibited from relying on

th[is exhibit] as they asserted attorney-client privilege to protect the

investigator’s mental impressions.” Opp’n at 6 n.2. The court, however, had

previously (at Salmon’s request) ruled that defendants had waived the

privilege by producing the exhibit, referred to as the Vasudevan Report, to

Salmon without a “clawback” provision. The court also allowed Salmon an

additional two hours to depose Lang about the report and its attached emails.

Aug. 18, 2020 Order (Dkt # 62). In light of this history, there is no present

basis on which to suppress the Vasudevan Report.

student-related matters are not a proper union concern. Defs.’ Ex. J (Dkt

# 82-10). Tobin was willing to meet with Salmon,4 but not on the date she

requested, November 22, 2017. Defs.’ Exs. K, L. Undeterred, Salmon and

Blanchet proceeded to Tobin’s office on November 22, 2017, where Blanchet

became “agitated and combative.”5 Pl.’s Ex. 9 (Lang Dep.) (Dkt # 88-9)

at 152:17-153:22. Lang hurried to Harrington when he became aware of what

had happened and confronted Blanchet, who “put[] his hands on Lang.” Pl.’s

Statement of Material Facts (Pl.’s SOF) (Dkt # 88) ¶ 24. Blanchet was

subsequently escorted from the building by a police officer. Although

Salmon “remained seated at the table during this encounter,” Defs.’

Statement of Material Facts (Defs.’ SOF) (Dkt # 82) ¶ 67; see also id. ¶ 52,

Lang ordered Salmon home for the day and asked a detective in plain clothes

4 From the record, it appears that Tobin met with Salmon on November

20, 2017. Defs.’ Ex. L (Dkt # 82-12) (email from Tobin following up on a

“meeting . . . during [Salmon’s] lunch period in response to [her] email

request to meet about an issue . . . in first grade”).

5 Exactly what occurred in the confrontation is disputed. Defendants

allege that Blanchet raised his voice and pointed his finger menacingly in

demanding that Tobin produce her calendar diary, Defs.’ Ex. D (Tobin Dep.)

(Dkt # 82-4) at 135:24-136:11; Salmon maintains that Tobin aggressively

responded, “who’s going to make me?” or “make me.” Pl.’s Ex. 1 (Salmon

Dep.) (Dkt # 88-1) at 118:5-119:6. Defendants also claim that Blanchet took

Tobin’s cell phone when Tobin walked out of the office and refused to return

it to anyone other than Tobin. Pl.’s Ex. 4 (Blanchet Dep.) (Dkt # 88-4) at

46:2-24, 48:1-17, 53:10-21.

to escort her from the building. He stated in a subsequent meeting with

Harrington teachers that he was “shocked and disappointed with the actions”

of “some individuals” and that there was “a right way and a wrong way” to

bring issues to the attention of school administrators. Pl.’s Ex. 10 (Dkt # 88-

10) ¶¶ 15-16.

Salmon was then placed on administrative leave. She was not

permitted to attend parent-teacher conferences or drop her children off at

the school while the lawyers for the School Committee conducted an

investigation. On the lawyers’ recommendation, Salmon was permitted to

resume her teaching position on December 6, 2017, but had a reprimand

placed in her file for insubordination by persisting “in demanding a meeting”

and for accessing confidential student information without permission.

Defs.’ Ex. V (Dkt # 82-22).

The November 22, 2017 incident became a matter of local controversy.

After Salmon was placed on leave, Lang informed parents and teachers of

what in his mind had occurred and responded to media inquiries.6 Pl.’s Ex. 9

at 201:9-202:23. The dust-up with Salmon and Blanchet was discussed in

hotly debated posts on social media, which included comments from Moses,

6 The media inquiries appear to have been invited by the union. See

Pl.’s Ex. 9 (Dkt # 88-9) at 200:18-202:10.

a member of the School Committee. See, e.g., Pl.’s Ex. 7 (Dkt # 88-7), Defs.’

Exs. S, U (Dkt ## 82-19, 82-21). On December 5, 2017, a School Committee

meeting attended by supporters of both Salmon and the school

administration became “contentious and heated.” Pl.’s SOF ¶ 54.

Following her return to Harrington, Salmon alleges that teachers

shunned her and loitered outside her classroom. Tobin questioned Salmon’s

presence in certain areas of the school, Pl.’s Ex. 17 (Tobin Dep.) (Dkt # 88-

17) at 137:4-23, and iterated at a staff meeting in January of 2018 Lang’s

warning that there was a right way and a wrong way to raise concerns with

school administrators. A social media post critical of Salmon was posted in

several places around the school.

Feeling persecuted, Salmon attempted to transfer out of Harrington for

the 2018-2019 school year and applied for several vacant special education

positions within the Chelmsford Public Schools. Defendants Fredette and

McPhee denied her transfer applications for positions at Byam Elementary

School and McCarthy Middle School, respectively. She filed this lawsuit on

June 21, 2019.

DISCUSSION

Summary judgment is appropriate when, based upon the pleadings,

affidavits, and depositions, “there is no genuine dispute as to any material

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

P. 56(a). “[I]n ruling on a motion for summary judgment, ‘[t]he evidence of

the nonmovant is to be believed, and all justifiable inferences are to be drawn

in his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014), quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, Rule 56 “mandates

the entry of summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).

A. Section 1983 Retaliation Claim (Count I)

The elements of a First Amendment retaliation claim (brought here

against defendants Lang, Tobin, Hirsch, Fredette, and McPhee) are

“(1) whether the employee spoke as a citizen on a matter of public concern,

(2) whether the relevant government entity had an adequate justification for

treating the employee differently from any other member of the general

public, and (3) whether the plaintiff can show that the protected expression

was a substantial or motivating factor in the adverse employment decision.”

Barton v. Clancy, 632 F.3d 9, 28 (1st Cir. 2011), quoting Curran v. Cousins,

509 F.3d 36, 45 (1st Cir. 2007) (internal quotation marks omitted).

Here, the court need not address “the logically antecedent question of

whether the expression was protected in the first place.” Hennessey v. City

of Melrose, 194 F.3d 237, 245 (1st Cir. 1999). The parties agree that Salmon’s

advocacy on union matters is speech protected by the First Amendment. See

Defs.’ SOF ¶¶ 2-5; Mot. at 5. However, “[e]ven if the government employee

adduces sufficient evidence to convince a court that h[er] speech merits First

Amendment protection, [s]he still must introduce sufficient evidence to

permit a finding that [her] participation in this protected activity was a

substantial or motivating factor behind the adverse employment action.”

Guilloty Perez v. Pierluisi, 339 F.3d 43, 55 (1st Cir. 2003), citing Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Salmon does

not satisfy this element as to any defendant.

A burden shifting framework applies in determining whether a plaintiff

has shown that retaliation was a substantial or motivating factor in an

adverse employment action, which in its essence “is simply a question of

causation.” Davignon v. Hodgson, 524 F.3d 91, 106 (1st Cir. 2008). If a

plaintiff “succeeds in establishing this causal relationship, the burden of

persuasion shifts to the defendants to prove ‘by a preponderance of the

evidence,’ that the adverse employment action would have been taken ‘even

in the absence of the protected conduct.’” Pierluisi, 339 F.3d at 55 (footnote

omitted).

The question “whether speech was a motivating or substantial factor in

the adverse employment action . . . ordinarily belongs to the jury.”

Nethersole v. Bulger, 287 F.3d 15, 18-19 (1st Cir. 2002). However, the court

may enter summary judgment if “(1) the record evidence compel[s] the

conclusion that the plaintiff would have [suffered the adverse employment

action] in any event for nondiscriminatory reasons, or (2) the plaintiff did

not introduce sufficient evidence in the first instance to shift the burden of

persuasion to the defendants.” Pierlusi, 339 F.3d at 56.

1. Lang and Hirsch

Salmon alleges that Lang retaliated against her after the heated

exchange in November of 2017 by “directing police officers to take Salmon

on a ‘perp’ walk out of school,”7 placing her on administrative leave, issuing

the December 12, 2017 reprimand, “causing emails to be provided . . . to

union members to interfere with union relations,”8 and by “not allowing

7 Salmon also argues that being escorted from the building amounts to

a seizure in violation of art. 14 of the Massachusetts Declaration of Rights.

Opp’n at 14. The assertion, however, is irrelevant to her claim of a First

Amendment violation.

8 The allegation that Lang “provided information to detractors in

[Salmon’s] union, outside of the public records process, to foster dissent”

Salmon . . . to have any interaction with the school during her leave.” SAC

¶ 85. In moving for summary judgment, defendants argue that the measures

taken against Salmon conformed to a “standard protocol.” Mot. at 7. Salmon

responds that this argument is a pretextual, after-the-fact coverup and that

summary judgment cannot enter where motive is in dispute. Opp’n at 13.

“[T]he standard for showing an adverse employment action is lower in

the First Amendment retaliation context than it is in other contexts.”

Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004) (internal citation

omitted). Assuming that being reprimanded and involuntarily placed on

paid leave constitute adverse actions, see Delaney v. Town of Abington, 890

F.3d 1, 8-9 (1st Cir. 2018), Salmon raises an inference, albeit circumstantial,

that retaliation was a motive in defendants’ decision to discipline her. While

“[t]he mere fact that an adverse action was taken after an employee exercises

First Amendment rights is not enough by itself to establish a prima facie case

. . . [Salmon] is not required to produce ‘smoking gun’ evidence of an

also appears to be the basis of Salmon’s retaliation claim against Hirsch. See

SAC ¶ 1. Defendants argue, and the court agrees, that Salmon provides no

evidence to support this theory with respect to Hirsch. Mot. at 9. In fact,

Salmon does not even mention the First Amendment claim against Hirsch

anywhere in her briefing. See, e.g., Opp’n at 13 (“Lang, Tobin, McPhee, and

Fredette Are Liable Under § 1983.” (emphasis omitted)). Accordingly, the

court will enter judgment for Hirsch.

employer’s impermissible motive to defeat a motion for summary

judgment.” Welch v. Ciampa, 542 F.3d 927, 940 (1st Cir. 2008) (citations

omitted).

Given that Salmon has satisfied the required showing of a causal link,

under the burden-shifting framework it falls to defendants to come forward

with evidence that they would have taken the same action regardless of the

element of speech that figured in the November 22, 2017 face-off with the

school administrators. Lang argues that he had Salmon removed from the

building to minimize distraction to students, see Mot. at 6, and placed

Salmon on leave to facilitate an impartial investigation. Although Salmon

complains that the investigation was less than a model of due process (she

was not invited to submit documents of her own), Opp’n at 6, she offers no

evidence suggesting that the investigators were biased or deviated from

standard procedures or that their findings were factually inaccurate.9 Lang’s

subsequent reprimand was also consistent with the investigation’s

9 Salmon protests that defendants permitted the School Committee’s

investigating attorneys to view the same confidential student incident

reports that she was reprimanded for accessing, Opp’n at 8, although the

relevance of the complaint eludes the court given the different capacities of

the actors involved.

recommendations. Compare Defs.’ Ex. E at 12, with Pl.’s Ex. 15 (Dkt # 88-

15).

Moreover, the discipline Salmon received was imposed for misconduct

on her part – namely, insubordination in the workplace and her

unauthorized access of confidential student information – that had no

plausible connection to her role as a union spokesperson.10 These instances

of misconduct independently provided an “ample nondiscriminatory reason

to discipline” Salmon. McCarthy v. City of Newburyport, 252 F. App’x 328,

332 (1st Cir. 2007). At bottom, the First Amendment does not immunize

workplace misconduct disguised in the name of free speech. Salmon’s acts

of insubordination and spying on confidential student records more than

justified Lang’s measured disciplinary response (whatever his displeasure

with Salmon’s strident approach) and no reasonable jury could conclude

otherwise.

10 Salmon argues that the delay between Tobin learning that she had

accessed the Major Incident Binder on or around November 16, 2017 and

Lang’s disciplinary action following the November 22, 2017 confrontation

suggests that Salmon’s unauthorized perusal of the confidential records had

not “actually been a significant concern of [Tobin’s].” Opp’n at 15.

Regardless of this temporal relationship, Salmon’s access of confidential

information was not itself protected speech, but rather an independent basis

for imposing discipline apart from any disapproval of her advocacy.

2. Tobin

Salmon alleges that Tobin retaliated by “berat[ing] [her] and curs[ing]

at her over the phone” on October 13, 2017 after Salmon raised concerns

about working conditions and by fueling a hostile work environment

following the November 22, 2017 incident. SAC ¶ 26; see also id. ¶ 86.

Defendants argue that Tobin’s phone call with Salmon was “simply a genuine

reaction by a supervisor to an employee’s insubordinate behavior,” and that

Salmon’s discomfort in the workplace was “a natural consequence” of her

conduct on November 22, 2017, for which she alone was responsible. Mot.

at 7-8. According to Salmon, Tobin’s “oppositional conduct toward [her] in

October and November [of 2017] set in motion the chain of events that

caused this hostility in her work environment.” Opp’n at 16.

The court need not resolve the dispute because Salmon has not

established any adverse employment action that was taken by Tobin. Salmon

maintains that Tobin called her on October 13, 2017 during class, “yelled at

her,” and stated that “the principal at Parker [Middle School] had ‘warned

her about [Salmon].’” Pl.’s Resps. to Defs.’ SOF (Dkt # 89) ¶¶ 13-14, quoting

Pl.’s Ex. 2 (CFT Hearing Tr.) (Dkt # 88-2) at 94:5-95:11. By contrast, Tobin

states that she “was stern with Salmon” in response to Salmon’s objections

to her student placement decisions. Defs.’ SOF ¶¶ 13-14. Whoever is right

about the tone of the conversation, a contentious telephone call is not an

adverse employment action, much less a matter of constitutional import.

Isolated “comments by [a] supervisor that were critical of plaintiff[] . . .

without more, [a]re too trivial to deter a person of ordinary firmness from

exercising First Amendment rights.” Barton, 632 F.3d at 30, citing McKee

v. Hart, 436 F.3d 165, 170-171 (3d Cir. 2006).

While “[r]etaliatory actions that are not materially adverse when

considered individually may collectively amount to a retaliatory hostile work

environment,” Gomez-Perez v. Potter, 452 F. App’x 3, 9 (1st Cir. 2011)

(citation omitted), the alleged pattern of harassment must at a minimum

“have a chilling effect on the employee’s exercise of First Amendment

rights,”11 Barton, 632 F.3d at 29. Courts apply an objective standard in

making this determination. See, e.g., id. (analyzing whether an adverse

action “would deter a ‘reasonably hardy individual[]’ from exercising his

constitutional rights” (citation omitted)).

11 While the threshold for an adverse action in the First Amendment

context is set more generously for plaintiffs than in other contexts, First

Circuit “precedent derives primarily from the employment setting, and the

standards are thus typically articulated for that context.” Barton, 632 F.3d

at 29 n.19. In the employment context, the alleged harassment must be

“severe or pervasive” to amount to an adverse employment action. Gomez-

Perez, 452 F. App’x at 9, quoting Che v. Mass. Bay Transp. Auth., 342 F.3d

31, 40 (1st Cir. 2003).

Even seen through a collective prism, Salmon’s evidence of a

pervasively hostile environment comes up short. Apart from the angry

October 13, 2017 phone call with Tobin, Salmon alleges that Tobin posted in

her office a “scathing” email from the CFT Vice President written in support

of Salmon, Pl.’s Ex. 17 (Dkt # 88-17) at 169:6-170:6, questioned Salmon

about her doings in areas of the school outside of her classroom, made veiled

remarks in a staff meeting in January of 2018 about the “proper way” to raise

concerns with school administrators, and requested that other teachers keep

an eye on Salmon’s conduct. Pl.’s SOF ¶¶ 61-62, 64-65. Salmon also argues

that Tobin’s “oppositional conduct” led other teachers to berate, ogle, and

ignore her and caused someone to display social media posts critical of

Salmon in school buildings. Id. ¶ 64; Pl.’s Resps. to Defs.’ SOF ¶ 81.

While taken together these actions reflect fractiousness and tension

within the school community, they do not meet the legal test of a hostile work

environment. Cf. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (a

plaintiff may recover on a hostile work environment theory under Title VII

when “the workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working

environment.” (internal citation and quotations omitted)); Gomez-Perez,

452 F. App’x at 8 (“[N]either extreme supervision and snubbing, nor

increased criticism, will satisfy the adverse employment action prong.”

(citations omitted)); see also Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006) (observing that federal laws banning retaliation do not

create “a general civility code for the American workplace” (quotation

omitted)). Nor has Salmon offered any evidence that Tobin incited other

members of the school community against Salmon. “[T]oleration of

harassment by other employees” may constitute an adverse employment

action, Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002), but

Salmon provides no evidence that she brought any actionable mistreatment

to the attention of Tobin, or that Tobin ignored such reports.

3. Fredette and McPhee

Salmon alleges that Fredette and McPhee retaliated against her by

denying her transfer applications to open positions at their schools. See SAC

¶ 87. In moving for summary judgment, defendants argue that Fredette and

McPhee “denied each position based on their individual assessments of

Plaintiff’s interview performance, certifications and teaching experience.”

Mot. at 9. Salmon responds that “a reasonable jury could . . . infer that they

. . . opposed Salmon’s activities” because they attended the December 5, 2017

School Committee meeting and deviated from “established policy” favoring

internal candidates for vacant teaching positions in denying Salmon’s sole

transfer applications. Opp’n at 16-17.

While refusing to transfer an employee may qualify as an adverse

employment action, see Rutan v. Republican Party of Ill., 497 U.S. 62, 79

(1990), Salmon does not provide sufficient evidence of causation to

withstand summary judgment. The association that Salmon attempts to

draw between Fredette and McPhee attending a meeting to “blindly

support[] [their] colleagues” and having a retaliatory motive towards Salmon

for speech that did not involve their schools are dots that defy connection.

Opp’n at 16. In any event, even if Fredette and McPhee improperly grouped

Salmon’s applications with external candidates,12 this error does not raise an

inference of retaliation. Disputes over employee promotions or hiring

choices, absent some strong showing of a discriminatory motive, are not

areas into which a court is lightly to tread. As the First Circuit has cautioned,

12 The agreement between CFT and the Chelmsford School Committee

that Salmon cites as evidence of a deviation from “[t]he standard policy and

procedure [that] calls for all internal transfer candidates to receive full

considerations before any external candidates,” Opp’n at 9, does little to

advance her argument. The agreement provides a “first priority” right to

“designated employees,” following which “the school department may hire

outside applicants.” Pl.’s Ex. 20 (Dkt # 88-20) §§ 10-03(g) & (j). However,

Salmon did not apply to transfer as a “designated employee.” See id. at § 10-

02(b) (“Employees are ‘designated’ when there is a decrease in the number

of classes of a particular grade and/or subject area.”).

a court does not sit as a super personnel department second guessing the

merits – or even the rationality – of an employer’s nondiscriminatory

business decisions. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st

Cir. 1991).

B. Massachusetts Civil Rights Act (Count III)

Because Salmon’s MCRA claim implicates the same First Amendment

right underlying her § 1983 federal civil rights count, see Opp’n at 20-21, it

also fails to withstand summary judgment. Defendants maintain, and the

court agrees, that “[t]here is no underlying independent actionable right

created by the MCRA” that would apply in this (or any other) case. Mot. at 11.

The MCRA creates no substantive rights. See Mouradian v. Gen. Elec.

Co., 23 Mass. App. Ct. 538, 543 (1987). As under 42 U.S.C. § 1983, the

MRCA’s federal analog, “a plaintiff must assert the violation of a federal [or

state] right, not merely a violation of federal [or state] law.” Perkins v.

Commonwealth, 52 Mass. App. Ct. 175, 181 (2001), quoting Blessing v.

Freestone, 520 U.S. 329, 340 (1997). Because the MCRA is not intended to

create “a vast constitutional tort,” redress is “explicitly limited” to situations

“where the derogation of secured rights occurs by threats, intimidation or

coercion” involving a harm “directed toward a particular individual or class

of persons.” Bally v. Northeastern Univ., 403 Mass. 713, 719-720 (1989).13

Most cases decided under the MCRA involve a factual element of

physical confrontation or force, though “in certain circumstances, economic

coercion, standing alone, may be actionable under the act.” Buster v. George

W. Moore, Inc., 438 Mass. 635, 648 (2003). Here, there is no evidence of

any economic penalty exacted from Salmon, and no evidence of physical

intimidation or coercion. As the Supreme Judicial Court has held, to be

actionable, a defendant’s actions must amount to “an attempt to force

someone to do something the person is not lawfully required to

do.” Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 565 (1995).

While defendants may have exhibited hostility to Salmon’s aggressive

advocacy, there is no evidence of any attempt to prevent her from speaking

her mind or deterring her from discharging what she believed were her

duties as a union official. As Salmon cites no conduct on the part of

13 For purposes of the MCRA, a threat “involves the intentional exertion

of pressure to make another fearful or apprehensive of injury or harm”;

intimidation “involves putting in fear for the purpose of compelling or

deterring conduct”; and coercion entails “the application to another of such

force, either physical or moral, as to constrain [a person] to do against his

will something he would not otherwise have done.” Planned Parenthood

League of Mass., Inc. v. Blake, 417 Mass. 467, 474 (1994).

defendants that would satisfy the “threats, intimidation, or coercion”

element of the statute, her state civil rights claim fails.14

C. Massachusetts Whistleblower Act (Count IV)

As the basis for her Whistleblower Act claim against the Town of

Chelmsford, Salmon alleges that McPhee and Fredette retaliated against her

“written disclosures to Lang and the School Committee . . . regarding the

[classroom] heating issues” by denying her transfer requests. Opp’n at 21;

see also SAC ¶ 88. The Whistleblower Act provides that “[a]n employer shall

not take any retaliatory action [including discharge or suspension] against

an employee because the employee . . . [d]iscloses, or threatens to disclose to

a supervisor or to a public body an activity, policy or practice of the employer

. . . that the employee reasonably believes is in violation of a law . . . .” Mass.

Gen. Laws ch. 149, § 185(b)(1). In the first instance, Salmon cannot show a

causal relationship between the denial of her transfer applications and her

2016 complaints about heating in her school. More to the point, there is no

plausible argument that her complaints about HVAC problems in her school

14 The case on which Salmon relies, Reprod. Rts. Network v. President

of the Univ. of Mass., 45 Mass App. Ct. 495, 506-509 (1998), is not on point.

In Reproductive Rights, the University squelched plaintiffs’ attempt to

organize on behalf of abortion and gay rights by locking the building where

plaintiffs were to hold their forum and then sealing off the premises by

stationing seventeen police officers around the perimeter to prevent anyone

from entering.

amounted to a disclosure of an employer practice “in violation of law.”

Consequently, the claim cannot survive.

D. Defamation (Count II)

Salmon’s defamation claim against Moses is premised on his social

media comments concerning the November 22, 2017 confrontation with

Tobin and Lang. SAC ¶ 78. A defamation claim requires a plaintiff to

establish that “the defendant was at fault for the publication of a false

statement regarding the plaintiff, capable of damaging the plaintiff’s

reputation in the community, which either caused economic loss or is

actionable without proof of economic loss.” White v. Blue Cross & Blue

Shield of Mass., Inc., 442 Mass. 64, 66 (2004). “[A] threshold issue is

whether the statement is reasonably susceptible of a defamatory meaning,

and that determination is a question of law for the court.” Foley v. Lowell

Sun Publ’g Co., 404 Mass. 9, 11 (1989).

According to Salmon, Moses made three false statements on social

media. Opp’n at 19. First, Moses stated that Salmon called Tobin a “coward.”

Pl.’s Ex. 7. Salmon clarifies, however, that what she had in fact written in an

email copied to Tobin was that Reese’s “unwillingness to have a conversation

about solutions is cowardly.” Defs.’ Ex. K. In a world where all do not speak

with the precision of an Oxford don, the distinction at best lies mid-spectrum

between a quibble and a cavil. “[A] statement is not considered false unless

it would have a different effect on the mind of the reader from that which the

pleaded truth would have produced.” Masson v. New Yorker Mag., 501 U.S.

496, 517 (1991). Thus, “when a statement is substantially true, a minor

inaccuracy will not support a defamation claim.” Reilly v. Associated Press,

59 Mass. App. Ct. 764, 770 (2003). Moses’s statement is inaccurate insofar

as he mistargets the actor who Salmon labeled “cowardly,” but this

misdirection would have no bearing on a reader’s understanding of Salmon’s

contempt for the defendants. See Jones v. Taibbi, 400 Mass. 786, 795-796

(1987).

Next, Salmon alleges that Moses asserted that Blanchet had “assaulted

a staff member while children were in school,” while in fact the “children

were not in school when the incident occurred,” and “Blanchette [sic] did not

even touch [the victim] Tobin.” Opp’n at 19. While “defamation can occur

by innuendo as well as explicit assertion,” Reilly, 59 Mass. App. Ct. at 774,

Salmon’s contention that the statement, which is directed at Blanchet,

nevertheless “concern[ed]” her because “she was blamed for bringing

Blanchette [sic] into the school,” Opp’n at 19, is too far a stretch. To establish

that a statement is “of and concerning” her, Salmon must prove either that

Moses subjectively intended to refer to her, or that his words could

reasonably be understood to refer to her. See Eyal v. Helen Broad. Corp.,

411 Mass. 426, 430-431 (1991). “[I]f the person is not referred to . . . in such

manner as to be readily identifiable . . . extrinsic facts must be alleged and

proved showing that a third person other than the person [defamed]

understood it to refer to him.” HipSaver, Inc. v. Kiel, 464 Mass. 517, 528

(2013), quoting Brauer v. Globe Newspaper Co., 351 Mass. 53, 56 (1966).

Moses’s statement was clearly directed to Blanchet without any tangential

implication that Salmon was responsible for his behavior.

Salmon’s final instance of a defamatory statement also does not survive

summary judgment. Moses wrote that the “Union has no rights for

administrative process, or to confidential information. And in demanding it

an [sic] not following the rules there was actual, real danger . . . .” Pl.’s Ex. 7.

The statement on its face has no defamatory meaning and is nothing more

than a strong expression of opinion. While Salmon insists that there is no

evidence that she personally demanded confidential information, Opp’n

at 19, the statement that the union had no right to seek it is demonstrably

true.

ORDER

For the foregoing reasons, the court ALLOWS the motion for summary

judgment for all defendants. The clerk will enter judgment accordingly and

close the case.

SO ORDERED.

/s/Richard G. Stearns _____

UNITED STATES DISTRICT JUDGE