Connolly v. Woburn Public Schools

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

JESSICA CONNOLLY, )

)

Plaintiff, )

) Civil Action No.

v. ) 22-10695-FDS

)

WOBURN PUBLIC SCHOOLS, et al., )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTIONS TO DISMISS

SAYLOR, C.J.

This case arises from a series of disputes between a teacher and a public school system.

Plaintiff Jessica Connolly alleges that defendants Woburn Public Schools, the City of Woburn,

Matthew Crowley, and Michael Baldassarre engaged in discrimination, retaliation, and a

campaign of workplace bullying against her. Connolly contends that defendants treated her

adversely because she requested workplace accommodations for disabilities and because of her

advocacy on behalf of disabled children.

The complaint asserts claims under the Rehabilitation Act, 29 U.S.C. § 701 et seq.; under

the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq.; under Mass. Gen. Laws ch.

151B; and for intentional infliction of emotional distress. Baldassarre has moved to dismiss the

complaint for failure to state a claim against him. The other defendants have moved to dismiss

the complaint for failure to state a claim and on the ground that the claims are time-barred.

In this case, assessing the allegations of the complaint to determine the validity of the

claims is an unusually difficult exercise. Among other things, the complaint asserts four

different forms of disability discrimination, arising out of two different sets of disabilities:

(1) discrimination on the basis of plaintiff’s own physical disability (asthma) and mental

disability (general anxiety disorder); (2) retaliation for actions arising out of her own disabilities

(such as requesting accommodations or filing a complaint); (3) discrimination in the form of

retaliation for her advocacy for the rights of other disabled persons (her students); and (4)

discrimination in the form of a hostile work environment (apparently arising out of both her own

disabilities and her advocacy efforts). Those four theories are intermingled across three different

counts arising under both federal and state law. Furthermore, some of those claims fall outside

the limitations period, and some have been waived under state law. Finally, it asserts common-

law tort claims against two individuals.

For the following reasons, the motions to dismiss will be granted in part and denied in

part.

I. Background

A. Factual Background

In light of the complexity of the claims asserted, a detailed review of the complaint is

required.

1. The Parties

Jessica Connolly is a resident of Wilmington, Massachusetts. She is a special-education

teacher employed by the Woburn Public Schools. (Compl. ¶ 10). She has taught for thirteen

years. (Id.). According to the complaint, she suffers from general anxiety disorder and asthma.

(Id.).

Woburn Public Schools (“the District”) is a school district in Woburn, Massachusetts.

(Id. ¶ 2).

The City of Woburn (“the City”) is a municipality in Massachusetts. (Id. ¶ 3).

Matthew Crowley is a resident of Lexington, Massachusetts. (Id. ¶ 4). Crowley was the

superintendent of the District during the events described in the complaint.

Michael Baldassarre is a resident of Concord, Massachusetts. (Id. ¶ 5). Baldassarre was

the assistant superintendent of the District during the events described in the complaint.

2. The Dispute

The complaint alleges a lengthy series of disputes between Connolly, defendants, and

other school officials over a two-year period from August 2020 to May 2022. Essentially, it

alleges that Connolly has objected to the school’s special-education policies, requested various

teaching accommodations, and clashed with various school and District officials. It alleges that

as a result, she has been “continuously belittled, spied upon, intimidated, harassed and asked to

do things she believes are illegal.” (Id. ¶ 82).

a. Connolly’s Request to Teach Remotely

In August 2020, Connolly submitted a request to Kenneth Kessaris, the principal of her

school, to teach remotely “due to a personal health issue.” (Id. ¶ 11).1 The complaint alleges

that Kessaris approved the request, but when she tried to make arrangements with the school’s

human-resources director, “she was met with anger and hostility and was sent away.” (Id.).

On September 3, she received a call from the human-resources director telling her that

Baldassarre had rejected her request. (Id. ¶ 12). She “politely protested,” and later the human-

resources director “reluctantly said” that after talking with Baldassarre, her request had been

approved. (Id.).

According to the complaint, shortly afterward, Baldassarre called Connolly and asked her

to come back for in-person teaching because “parents were sad to see her go,” thus “reneging on

1 The complaint does not specify the school at which Connolly taught during the relevant events.

the accommodation he had promised.” (Id. ¶ 13). It alleges that “[m]eanwhile,” she had

received “an intense workload that far exceeded her job description and was disproportionate to

her peers.” (Id. ¶ 14). She “requested training and resources and was denied and ignored.” (Id.).

Despite her “fears about COVID,” Connolly “reluctantly agreed” to Baldassarre’s request

to return. (Id. ¶ 15). On September 17, 2020, she “rescinded” her request to teach virtually.

(Id.).

On September 21, Connolly attended a meeting arranged by the District to “‘discuss[ ]

accommodations’ . . . for her health issues.” (Id. ¶ 16). She read “an emotional personal

statement . . . about her circumstances and health concerns and the lack of support she had

received.” (Id.). According to the complaint, Crowley and Special Education Director Maureen

Ryan “shamed,” “embarrassed,” and “ridiculed” her at the meeting. (Id.).

b. The 2020-2021 School Year

The complaint alleges that Connolly was mistreated repeatedly throughout the rest of the

2020-2021 school year. It alleges that she was given “another assignment as a virtual teacher”

despite returning to teach in person. (Id. ¶ 17). It further alleges that Ryan falsely accused her of

“not being in compliance with student service times.” (Id. ¶ 18).

According to the complaint, Connolly raised concerns about her school’s deficient

special-education services and was punished by the school in retaliation. The District designated

her as its local educational agency (“LEA”) representative for individualized education program

(“IEP”) meetings, a position that she continues to hold. (Id. ¶¶ 21, 23). Connolly contends that

her appointment was inappropriate because she does not have legal authority to commit

resources on behalf of the District, which (she contends) federal law requires. (Id. ¶¶ 21-22).

The complaint alleges that after she “spoke out about this issue,” she “was the subject of further

retaliation and bullying” that took the form of “assigning her an uneven and impossible workload

and using pretexts to punish her and make her miserable and upset.” (Id. ¶¶ 22-23). It further

alleges that the District continues to assign her a disproportionate number of student evaluations

without providing coverage for student services that she misses during the evaluations. (Id.

¶ 82).

According to the complaint, Connolly protested a lack of appropriate educational

resources for disabled students. The complaint presents her efforts on behalf of L.W., a student

at her school, as its principal example. She contends that the school “promise[d] . . . additional

and comprehensive services” for L.W., but in reality provided L.W. with only an

“inexperienced” teacher. (Id. ¶ 25). Connolly personally provided support to L.W. (Id.). The

complaint alleges that Connolly “was blamed” for L.W.’s substandard care, and that the school

“failed to defend” her from the “wrath” of L.W.’s parents. (Id. ¶¶ 25-26). The complaint alleges

that Greitzer and Ryan “expected more and more” of Connolly and “gave her more and more

work,” “den[ying]” her the ability to make changes to her caseload. (Id. ¶ 27). The complaint

further alleges that Ryan and Vice Principal Stephen Gallo “demanded” and “insisted” that

Connolly provide them with her personal notes concerning L.W. (Id. ¶¶ 28-30).

c. Events of November–December 2021

On November 17, 2021, Connolly and Ryan attended a meeting over Zoom concerning a

student. (Id. ¶ 31). According to the complaint, Ryan had “predetermined the services she

wanted the student to receive,” which (Connolly contends) violated the Individuals with

Disabilities Education Act, 20 U.S.C. § 1400 et seq. (Id.). It further alleges that Ryan expected

Connolly to “pass [that decision] off as her own.” (Id.). It alleges that Ryan “berated” her in a

manner that other meeting participants found “abusive and relentless.” (Id. ¶¶ 31-32). After the

meeting, she was “shaken and upset.” (Id. ¶ 32). She sent an email to Ryan, Kessaris, and Gallo

“express[ing] how she felt devastated by the way she was treated at the meeting” and

“explain[ing] that her workload was overly burdensome.” (Id. ¶ 33). She “suggested that her

duties be lightened,” that “the chairperson play more of a hands-on role with the students,” and

that she “be relieved from oversight of LW’s case since she had been placed in an untenable

position by the administration.” (Id. ¶ 34). Ryan responded to her email “with a curt message

without offering any help” and “asked her to provide her caseload and student names.” (Id.).

She did so. (Id.). The complaint alleges that “nothing was done, and her caseload remained the

same.” (Id. ¶ 35). Ryan and “her principals ignored [her] request” to be “relieved of the

responsibility for LW’s case.” (Id. ¶ 35).

On December 2, the school held a meeting with L.W.’s parents. (Id. ¶ 36). In advance of

the meeting, Connolly provided the school administration with a copy of information from

L.W.’s file; she also provided Jamie Greitzer, the chair of the school’s special-education team,

with a copy of an IEP draft. (Id.). Connolly took a personal day for December 2 and did not

attend the meeting. (Id. ¶ 37). According to the complaint, she was “unaware that personal days

required pre-approval and was made to feel stupid for not being familiar with a policy she had

rarely, if ever, had to make use of.” (Id. ¶ 37). Before the meeting with L.W.’s parents, she

answered “voicemails and texts . . . from [Kessaris] with questions pertaining to the meeting.”

(Id. ¶ 38).

According to the complaint, on the afternoon of December 2, Kessaris e-mailed

Connolly, “indicating that her presence was needed at a disciplinary meeting” the next day with

him and Marisa Boyajian, the school’s human-resources director. (Id. ¶ 39). The complaint

alleges that this scheduling violated a school policy requiring that employees be provided three

days’ notice before a disciplinary meeting. (Id.). That evening, Connolly sent an email to

Boyajian “asking her about medical leave, but . . . did not receive a reply until 7 days later.” (Id.

¶ 40).

On December 3, Connolly attended the disciplinary meeting with the City’s “Union

President,” Barbara Locke. (Id. ¶ 41). According to the complaint, Boyajian “reprimand[ed] her

for mistakenly calling the sick day a personal day,” for which she apologized. (Id.). The

complaint alleges that Boyajian told her that she “ha[d] no professional courtesy” and that she

“knew the real reason why [she] didn’t go to work the day before.” (Id.). It further alleges that

Connolly asked Kessaris “why he hadn’t told her about his concerns the day before when they

were communicating about the meeting, but he refused to answer.” (Id. ¶ 42). Locke “asked

about progressive discipline since this was the only infraction ever committed by [Connolly],”

but Kessaris “did not waiver [sic] or change his mind.” (Id. ¶ 42).

On December 7, Connolly received a disciplinary letter from Kessaris. (Id. ¶ 43). The

letter “was placed in her personnel folder via email.” (Id.). The complaint alleges that the letter

contained “skewed accusations” and “reprimanded her for items not required by her contract.”

(Id.). The complaint alleges, among other things, that the letter “violated the Woburn Policy

handbook and Massachusetts laws about personnel records.” (Id.).

On December 8, Ryan asked Connolly for “(unrequired) data and notes with a parent.”

(Id. ¶ 44). The complaint alleges that after she provided Ryan with the information, Ryan asked

Locke about Connolly’s work and “accused [Connolly] of fabricating the data.” (Id.). Locke

warned Connolly “to be cautious,” and Connolly “lock[ed] access to her personal notes for fear

they could be snatched and twisted by [Ryan].” (Id. ¶ 45).

On December 9, Greitzer e-mailed Connolly “asking her to unlock the data.” (Id.). She

did so. (Id.). The email was “copied to the parent involved.” (Id.).

According to the complaint, later on December 9, Gallo approached Connolly “alone in

her classroom and aggressively questioned [her] behind a closed door.” (Id. ¶ 46). He asked her

if she would “be present the next day for another meeting about LW.” (Id.). Connolly told Gallo

that she felt “unsafe” and “scared” because of “the treatment she had been receiving from [Ryan]

and [Greitzer].” (Id.). The complaint alleges that Gallo “snapped and yelled,” telling her, “You

are combative and disrespectful!” (Id.). She “calmly responded and asked him to explain how

her expressing concerns about the way she had been treated was combative.” (Id.). Gallo

“backed down and asked her again if she was planning to attend the meeting.” (Id.). Connolly

responded that “she would do whatever was in the best interests of the student.” (Id.).

According to the complaint, Kessaris and Gallo came to Connolly’s classroom two hours

later. (Id. ¶ 47). The complaint alleges that Kessaris asked her “how they could get through the

meeting tomorrow and how could they be assured that she would attend”; she responded that

“she felt like she was being bullied and intimidated and was not intending to be insubordinate”

and that “all she was trying to do was to make sure she would not get needlessly punished

again.” (Id.). “[A]n emergency occurred and [Gallo] left the room,” and Connolly asked

Kessaris why he had not raised concerns about her personal day before his December 7 letter.

(Id. ¶ 48). The complaint alleges that Kessaris “vaguely alluded that he was not the author of the

letter,” but otherwise “refused to provide more details.” (Id.). The complaint alleges that “this

confirmed the retaliatory nature of the letter as he was pressured by someone else (presumably

Mrs. Ryan) to find an excuse to discipline her.” (Id.).

According to the complaint, later on December 9, Connolly “learned that [Ryan] had

falsely reported her to [the] administration for lying.” (Id. ¶ 49). The complaint alleges that she

confronted Gallo, who “got angry and denied it happening.” (Id.). According to the complaint,

Connolly “felt like she was being intimidated and targeted for extra scrutiny in an attempt to

undermine her.” (Id. ¶ 50).

Later on December 9, 2021, Connolly called in sick for December 10, the day of the

school meeting about L.W. (Id.).

On the afternoon of December 10, 2021, Ryan “told [Connolly] that there was going to

be another disciplinary meeting for her” on December 13. (Id. ¶ 51). The complaint alleges that

she realized “that she was being set up and accused unjustly,” and therefore “again called in sick

on December 13.” (Id.). The complaint alleges that “it was clear” that Ryan “was doing

everything possible to retaliate against [her].” (Id.). It further alleges that at the December 10

meeting about L.W., Greitzer blamed Connolly for “things that she was not responsible for” and

told L.W.’s parents that she disagreed with Connolly’s MCAS recommendations. (Id. ¶ 52).

According to the complaint, over the next week Greitzer “continued berating” Connolly.

(Id. ¶ 53). It further alleges that Boyajian “wrongly accused [her] of deleting important files to

her supervisors”; she contends that she had only deleted her personal notes and memory aids,

“which was standard procedure.” (Id. ¶ 54).

d. The December 2021 Complaint

On December 14, 2021, Connolly filed a formal complaint with Crowley, Baldassarre,

and the Woburn Teachers Association. (Id. ¶ 56). That complaint “outlined the bullying

behavior against her,” citing the November 17 Zoom meeting, the December 17 disciplinary

letter, the “defamation of her name,” and “the intimidating nature of the confiscation of her

personal notes.” (Id.). The complaint alleges that Baldassarre was assigned to investigate the

complaint. (Id.). According to the complaint, Connolly participated in the investigation. (Id.

¶ 65).

The complaint alleges that on December 15, Baldassarre told Ryan about the December

14 complaint and said that “‘interim measures’ were to be implemented.” (Id. ¶ 57). Ryan

allegedly indicated that “she was nevertheless going ahead with her own disciplinary action

against [Connolly] because ‘she needed to move forward regardless of the complaint.’” (Id.).

On December 16, Connolly attended an IEP meeting for O.K., another student. (Id.

¶ 58). The complaint alleges that Connolly wanted Greitzer’s support at the meeting because one

of O.K.’s parents had “physically intimidated” her before. (Id.). The complaint alleges that

Greitzer refused to attend, “because she was at a holiday party with [Ryan] at the time.” (Id.

¶¶ 58-59). Connolly canceled the meeting, feeling that “Greitzer was setting [her] up to fail by

sending her to a meeting without the proper support or authority.” (Id.).

According to the complaint, on December 17, Greitzer sent a group email to Kessaris and

Connolly’s coworkers, “berat[ing] [her] for not having completed LW’s IEP.” (Id. ¶ 61). The

complaint alleges that Greitzer also wrote “misleading group e-mails” saying that Connolly

“wasn’t doing her job” and demanded that she incorporate recommendations of a psychologist,

who the complaint alleges was Ryan’s friend, into L.W.’s IEP. (Id. ¶ 60). She contends that

incorporating the psychologist’s recommendations “was against procedure” because she “was

not present at the meeting when [the psychologist] made those recommendations.” (Id.).

By December 21, Connolly allegedly felt “extreme emotional distress,” and perceived a

“coordinated effort to belittle, demean and harass her, orchestrated by [Ryan] and assented to by

her principal, vice principal, chairperson, HR director, and others, all because she had asked for

accommodations and advocated for her disabled students.” (Id. ¶ 62). On the same day,

Connolly attended an investigatory meeting led by Baldassarre. (Id. ¶ 65). According to the

complaint (and without further explanation), at the meeting she “was heavily encouraged” to

remove Kessaris from “protective measures,” and she did so. (Id.).

On December 23, 2021, Greitzer allegedly sent an email to Connolly, copying

Baldassarre, “demand[ing]” her progress notes for an unidentified student. (Id. ¶ 64). According

to the complaint, those notes were not due until January 6, 2022. (Id.).

On January 3, 2022, Connolly allegedly sent an email to Kessaris “documenting that she

was continuing to be put in an illegal role for which she was not qualified or trained.” (Id. ¶ 66).

“At the same time,” Greitzer, Ryan, and Kessaris “failed to produce the IEP for LW as promised

and left [her] to deal with the wrath of LW’s parents and lawyer.” (Id.).

On January 20, 2022, Connolly and her union representatives attended an investigatory

meeting with Baldassarre. (Id. ¶ 67). The complaint alleges that Baldassarre told Connolly that

“she could end the investigation and mend relationships with him personally serving as

mediator.” (Id.). The complaint alleges that Baldassarre “implied that one case/event sparked

repeated retaliatory/intimidating behaviors.” (Id.).

On January 28, Baldassarre distributed a “dismissive and irresponsible 5½ page” report

about his investigation into Connolly’s complaint. (Id. ¶ 68). According to the complaint, the

report concluded that the District “needed to get legal advice about [Connolly] serving as the

LEA representative at union meetings,”2 that her “unequal caseload be the subject of a [Woburn

Teachers Association] grievance,” that the District “‘would offer opportunities to explore further

conversations’ with a trained mediator,” and that Kessaris “should remove the [December 7]

disciplinary letter from [Connolly’s] personnel file.” (Id.). The complaint alleges that the report

contained “lies” and “dismissed any acknowledgment of wrongdoing.” (Id.). It further alleges

that the report was “released to unauthorized parties,” “directly resulting in further adverse

actions and emotional damage.” (Id.). Connolly filed an appeal “rebutt[ing] all of the items” in

2 Although plaintiff contends that Baldassarre’s report referred to her serving as an LEA representative at

“union meetings,” the complaint alleges elsewhere that she objected to serving as an LEA representative at IEP

meetings.

the report, although the complaint does not indicate where the appeal was filed. (Id.).

e. Events of February–May 2022

According to the complaint, none of the recommendations in Baldassarre’s report “ever

came to fruition.” (Id. ¶ 69). The complaint alleges that she “voluntarily participated in efforts

to ‘repair relationships’” with Kessaris without a trained mediator. (Id.). Kessaris and Renee

Morgan, the school’s assistant special-education director, allegedly “scolded” Connolly for not

working well with Greitzer. (Id. ¶ 70). It alleges that Kessaris and Gallo “‘lurk[ed]’ outside her

classroom door,” and that Kessaris asked “several colleagues . . . to spy on [her], by keeping

track of her movements throughout the day.” (Id. ¶ 71). And it alleges that Greitzer “drafted

many emails that were sent to [her] supervisors, commanding [her] to do her job and insinuating

she wasn’t.” (Id. ¶ 72). Connolly “asked [Greitzer] to stop sending correspondence, but she

refused.” (Id.).

On February 10, Connolly met with Kessaris. (Id. ¶ 73). Kessaris allegedly failed to

allocate a substitute teacher to help Connolly with her responsibilities, but did so for another

teacher. (Id.).

On February 17, Connolly attended an IEP meeting for O.K. (Id. ¶ 74). The complaint

alleges that Greitzer, who led the meeting, “denied the child the accommodation [Connolly]

recommended that the child needed . . . and misstated the law.” (Id. ¶ 74). The complaint

alleges that Greitzer did so “[l]ikely to spite [Connolly] in front of her colleagues.” (Id.). The

complaint alleges that “[t]he team disagreed adamantly with [Greitzer’s] incorrect denial of this

accommodation.” (Id.). Connolly, who was the meeting’s note-taker, wrote that the school had

approved O.K.’s accommodations “due to the majority sentiment” and provided her notes to

O.K.’s parents. (Id.). According to the complaint, several days later, O.K.’s mother called

Connolly and told her that Greitzer had called her and “made disparaging remarks about

[Connolly].” (Id. ¶ 75). Several days after that phone call, Greitzer allegedly sent Connolly a

revised copy of the meeting notes that did not contain her recommended accommodations and

“commanded” Connolly to send the revised notes to O.K.’s mother. (Id. ¶ 76). She refused.

(Id.).

On March 11, Connolly “was unexpectedly asked to report to [Crowley’s] [o]ffice with

the union leader.” (Id. ¶ 77). The complaint alleges that after Connolly asked “about options for

hiring an independent investigator for her appeal,” Crowley yelled, “I don’t have time for this. I

have already hired someone. I am trying to run a school district here.” (Id.). Crowley also

“threw his glasses down.” (Id. ¶ 124). Crowley then “stormed” out of the room. (Id. ¶ 77).

Some time later, Crowley hired Regina Ryan to handle Connolly’s appeal. (Id. ¶ 78).

On March 14, Kessaris removed his December 7 disciplinary letter from Connolly’s file.

(Id. ¶ 79). Kessaris’s “failure to immediately act to remove the wrongful letter [on Baldassarre’s

recommendation] caused [her] even more stress.” (Id.).

On March 17, Greitzer sent an email to Connolly and her supervisors. (Id. ¶ 80). The

complaint alleges that the email “mistakenly stat[ed] that [Connolly] was out of compliance with

a student’s IEP in an attempt to embarrass her.” (Id.).

On March 21, Kessaris created a new schedule for the school’s special-education

students. (Id. ¶ 81). The complaint alleges that the schedule was “poorly designed, not in legal

compliance, would require re-structuring of six other schedules, and would have negatively

impacted the child’s whole education.” (Id.). Connolly “spoke out again for her students, stating

it would ‘be detrimental’ to put this into place.” (Id.).

On April 7, Connolly allegedly “politely requested guiding documents” from her

supervisors on how to “run[ ] meetings where she was to commit resources or defend the district

to an advocate.” (Id. ¶ 83). The complaint alleges that her supervisors “evaded her questions all

three times she asked that day.” (Id.). Later, in “direct retaliation,” Kessaris approached

Connolly “alone in her classroom” and asked her to run a meeting “to be attended by an

advocate” starting in “about 15-20 minutes.” (Id.). The complaint alleges that Kessaris

“demanded that she run the meeting, and that he and [Greitzer] would be there ‘for support’”;

that Connolly was “intimidated, scared, and completely unequipped without proper preparation

and without the documentation that she requested”; that “[t]his was not pertaining to her job

description”; that Ryan, Kessaris, and Greitzer “habitually run similar meetings for her

colleagues”; and that this request was “in direct contrast of what the Woburn Teacher’s Union

has stated is the policy and on an internal document signed by [Ryan].” (Id.). According to the

complaint, she experienced a “medical episode as a direct result of this retaliation,” and the

school nurse sent her home and advised her not to drive. (Id. ¶ 84). The complaint alleges that

Connolly’s departure “was documented as [her] ‘refusing’ to lead the meeting in violation of her

principal’s instructions.” (Id.).

On April 8, Connolly returned to the school. (Id. ¶ 85). The complaint alleges that

Greitzer sent an email to Connolly and her supervisors “commanding [her] to reschedule the

meeting with the advocate because of her medical episode - even though [she] was taking time

off for her own wedding.” (Id.).

Around this time, Connolly spoke to O.K.’s mother. (Id. ¶ 86). The complaint alleges

that O.K.’s mother was “extremely upset” that Greitzer had denied “her child’s proper MCAS

accommodations.” (Id.). The complaint alleges that O.K’s mother could not reach Baldassarre

by phone and instead spoke to Morgan, who “asserted that OK did not meet the qualifications.”

(Id.). The complaint further alleges that O.K. “is in the <1st percentile for her reading

disability,” and “should have never been the victim[ ] of [Greitzer] and [Morgan’s] coordinated

retaliatory pursuits against [Connolly].” (Id.). Connolly was “sickened.” (Id.).

On April 20, Connolly filed a complaint “outlining the above series of events” with the

Massachusetts Commission Against Discrimination. (Id. ¶ 87).

On May 5, the school’s assistant special-education director requested a meeting on May 9

with Connolly. (Id. ¶ 88). According to the complaint, the subject of the meeting was “an IEP

that [Connolly] recently worked on,” and the email warned that “you have the right to

representation as [the meeting] may result in disciplinary action.” (Id.). The complaint alleges

that this request “was unjustified” and that the assistant special-education director sent the email

after work hours “in an effort to upset [Connolly] during her time with her family.” (Id. ¶ 89).

The complaint further alleges that Connolly’s counsel wrote to defendants’ counsel and

requested “a postponement of the meeting.” (Id. ¶ 90). However, “Defendant;s [sic] attorney

refused to cancel or postpone the disciplinary meeting.” (Id.).

The complaint alleges that Connolly “reports to work in a state of abject fear” and that

“[h]er physical and mental health are declining.” (Id. ¶ 92). “She does not know who she can

trust to help and protect her from the abuse.” (Id.).

B. Procedural Background

As noted, on April 10, 2022, Connolly filed a complaint with the Massachusetts

Commission Against Discrimination. She withdrew that complaint on May 6, 2022.

On May 8, 2022, Connolly filed the present complaint in this court. The complaint

asserts six counts: discrimination and retaliation under the Rehabilitation Act, 29 U.S.C. § 701

et seq. (Count One); discrimination and retaliation under the Americans with Disabilities Act, 42

U.S.C. § 12101 et seq. (Count Two); violation of Mass. Gen. Laws ch. 151B (Count Three);

violation of the Massachusetts Whistleblower Statute, Mass. Gen. Laws ch. 149, § 185 (Count

Four); intentional infliction of emotional distress (Count Five); and violation of civil and

constitutional rights under 42 U.S.C. § 1983 (Count Six). Counts One, Two, and Four are

against the City and the District. Count Five is against Crowley and Baldassarre. Counts Three

and Six are against all defendants. The complaint seeks both compensatory and punitive

damages.3

Baldassarre filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim upon which relief can be granted. The City, the District, and Crowley separately filed a

motion to dismiss for failure to state a claim.

On July 2, Connolly voluntarily dismissed Count Four and Count Six.

II. Standard of Review

To survive a motion to dismiss, the complaint must state a claim that is plausible on its

face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, the “[f]actual

allegations must be enough to raise a right to relief above the speculative level, . . . on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555

(citations omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it

asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). When determining whether a

complaint satisfies that standard, a court must assume the truth of all well-pleaded facts and give

the plaintiff the benefit of all reasonable inferences. See Ruiz v. Bally Total Fitness Holding

Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)).

Dismissal is appropriate if the complaint fails to set forth “factual allegations, either direct or

3 The complaint also sought “treble damages and attorneys’ fees pursuant to Mass. Gen. Laws ch. 149,

§ 185.” (Id. ¶ 132). Connolly has since dismissed her § 185 claim.

inferential, respecting each material element necessary to sustain recovery under some actionable

legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico

del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).

III. Analysis

A. Counts One, Two and Three: Disability Discrimination and Retaliation

As noted, Counts One, Two, and Three allege four different forms of disability

discrimination and retaliation: (1) discrimination on the basis of plaintiff’s own physical and

mental disabilities; (2) retaliation in response to actions arising out of her own disabilities; (3)

retaliation in response to her advocacy for disabled students; and (4) discrimination in the form

of a hostile work environment arising out of both her physical and mental disabilities and her

advocacy for disabled students.

All three counts contain the following summary paragraph:

Defendants have taken adverse actions against the Plaintiff which include, but are

not limited to: 1) improperly and without foundation imposed discipline on the

Plaintiff; 2) engaged in continuous harassment of Plaintiff and permitted

employees to harass the Plaintiff; 3) contributed to and condoned a hostile and/or

abusive workplace; 4) purposefully given her an overly burdensome and unequal

case load; 5) taken away requested accommodations without justification; and 6)

scheduled an unfounded disciplinary hearing knowing that it will negatively affect

her chances of receiving the district transfer she applied for.

(Compl. ¶¶ 96, 102, 110).

1. Discrimination Based on Health Conditions

Counts One, Two, and Three allege, in part, claims against all defendants for disability

discrimination based on plaintiff’s asthma and general anxiety disorder.

Under the ADA, the Rehabilitation Act, and Chapter 151B, a plaintiff can establish a

prima facie claim of disability discrimination by showing that (1) “[s]he suffers from a disability

or handicap”; (2) that “[s]he was nevertheless able to perform the essential functions of [her] job,

either with or without reasonable accommodation”; and that (3) “[the 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); 29 U.S.C. § 794(d) (requiring

that Title I of the ADA be used to determine whether a Rehabilitation Act violation has

occurred).

To be considered disabled or handicapped under those statutes, a plaintiff must

“demonstrate a physical or mental impairment that substantially limit[s] one or more of [her]

major life activities.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003). The

ADA requires that courts construe its definition of “disability” “in favor of broad coverage of

individuals under this chapter, to the maximum extent permitted by the terms of this

chapter . . . [and] consistently with the findings and purposes of the ADA Amendments Act of

2008.” 42 U.S.C. § 12102(4)(A)-(B). The findings and purposes section of the statute explicitly

rejects several Supreme Court cases limiting the definition of “disability” and declares that

determining whether an individual has a qualifying disability “should not demand extensive

analysis.” Pub. L. No. 110-325, § 2, 122 Stat. 3553 (2008). Massachusetts courts have

approvingly cited this amendment, suggesting that the same standard should apply to Chapter

151B claims. See Massasoit Indus. Corp. v. Massachusetts Comm’n Against Discrimination, 91

Mass. App. Ct. 208, 212-13, 213 n.6 (2017).

Plaintiff contends that her asthma and general anxiety disorder are impairments that

substantially limit her ability to breathe, work, and interact with other people. Asthma may

qualify as a substantially limiting impairment, particularly because plaintiff’s claim of disability

discrimination centers on her ability to teach during the first year of the COVID-19 pandemic.

See, e.g., Peeples v. Clinical Support Options, Inc., 487 F. Supp. 3d 56, 62-63 (D. Mass. 2020).

The complaint further alleges that plaintiff has a general anxiety disorder that “causes

shaking, increased heart rate, chest pains and hyperventilation which affects her nervous and

circulatory systems.” (Id. ¶ 106).4 She contends that her disorder “affects her ability to work

and interact with people.” (Pl. Opp. Defs. at 10).5 “[W]orking” and “interacting with others” are

major life activities within the meaning of the ADA. 29 C.F.R. § 1630.2(i)(1)(i).

Under the circumstances, the complaint sufficiently alleges that plaintiff has one or

more qualifying disabilities.

The complaint likewise sufficiently alleges the two remaining requirements. It alleges

that plaintiff was capable of performing the essential functions of her job, having taught for

thirteen years. (Compl. ¶ 10). It describes at least one instance in which plaintiff could not

continue working because of an anxiety-induced medical episode. (Compl. ¶ 84). It obliquely

refers to plaintiff’s anxiety by alleging that she took sick days because of her “mental state” and

“nerves.” (Compl. ¶¶ 37, 40, 50, 51). According to the complaint, school officials responded to

plaintiff’s absences with formal discipline that (according to the complaint) did not comply with

school policy (Compl. ¶¶ 39, 42, 43), as well as informal discipline, such as Assistant Principal

Gallo’s confrontation with plaintiff. (Compl. ¶ 46). Taken together, the allegations are sufficient

at this stage to establish that plaintiff’s employer took an adverse action against her at least in

part because of her disability.

In summary—and before consideration of the statute of limitations issue—the complaint

4 The complaint mentions one instance in which a tense conversation with Kessaris caused plaintiff to

experience a “medical episode,” requiring the intervention of a school nurse. (Compl. ¶ 84).

5 Defendants contend that plaintiff is not disabled, but their argument is based on cases predating—and

relying on Supreme Court precedent rejected by—the ADA Amendments Act of 2008 and a 2012 First Circuit case

that does not apply the Act. (See Defs. Mem. at 7-8 (first citing Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S.

184 (2002); and then citing McDonough v. Donahoe, 673 F.3d 41 (1st Cir. 2012)).

plausibly alleges claims of disability discrimination under the ADA, Rehabilitation Act, and

Chapter 151B.

2. Unlawful Retaliation under Federal Law

Counts One and Two allege, in part, claims against the District and the City for

unlawfully retaliating against plaintiff in response to (1) actions she took arising out of her own

disabilities (such as requesting accommodations and filing an MCAD complaint) and (2) her

advocacy on behalf of disabled students, all in violation of the ADA and Rehabilitation Act.

To prove a claim of unlawful retaliation under the ADA and the Rehabilitation Act, a

plaintiff must prove that “(1) he or she engaged in protected conduct, (2) he or she was subjected

to an adverse action by the defendant, and (3) there was a causal connection between the

protected conduct and the adverse action.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 41

(1st Cir. 2012).

a. Plaintiff’s Own Disabilities

As to plaintiff’s asthma, the complaint alleges that she requested that the school allow her

to teach remotely “due to a personal health issue” and her “fears about COVID,” but that she was

later pressured to rescind her request, and “shamed” and “embarrassed” for having made it.

(Compl. ¶¶ 11-16). Those allegations are sufficient to state a claim for retaliation for requesting

an accommodation for a physical disability.

As to plaintiff’s anxiety disorder, the complaint alleges that she experienced an

unidentified “medical episode,” apparently on April 7, 2022, in response to a conversation with

Kessaris about leading a meeting; that she left school; and that “[t]his was documented” as her

“‘refusing’ to lead the meeting.” (Id. ¶ 84). It further alleges that plaintiff filed a complaint on

April 10, 2022, with the Massachusetts Commission Against Discrimination “outlining the above

series of events.” (Id. ¶ 87). And it alleges that on May 5, 2022, the school’s assistant special-

education director emailed plaintiff:

Good Evening Jessica, I am writing to request a meeting with you to discuss

details related to an IEP you recently worked on. We have scheduled the meeting

for 11 am on Monday, May 9th. Please be advised that you have the right to

representation as it may result in disciplinary action.

(Id. ¶ 88). It alleges that this email was “a blatant act of retaliation” for her MCAD complaint.

(Id. ¶ 89). The actual MCAD complaint is not part of the record.

Filing a formal complaint about discriminatory behavior is protected conduct. Cf. Wright

v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir. 2003). An email about possible disciplinary

action “may constitute adverse employment action, subject to the facts of a particular case.”

Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 37 (1st Cir. 2011). A relatively short

period between the protected activity and the adverse action may suggest causation. Noviello v.

City of Boston, 398 F.3d 76, 86-87 (1st Cir. 2005).

Read very generously, the complaint can be construed to allege that plaintiff had a

medical episode due to her anxiety disorder, that she had to leave school as a result, that the

school mischaracterized what happened, that she then filed an MCAD complaint, and that she

was then threatened with disciplinary action. Although threadbare and vague, at this stage the

allegation that she suffered retaliation arising out of her anxiety disorder is sufficient to survive a

motion to dismiss.

b. Plaintiff’s Advocacy on Behalf of Disabled Students

The complaint also alleges that plaintiff reported multiple issues with the District’s

treatment of disabled students to school officials, causing them to demean her and assign her

large workloads. The complaint alleges several instances in which she complained that the

District was not providing adequate resources for disabled students. (E.g., Compl. ¶¶ 23, 33-34,

81). Advocacy on behalf of disabled students to protect their rights “plainly constitutes protected

conduct under these statutes.” D.B., 675 F.3d at 41. According to the complaint, the school

administration, in response to plaintiff’s actions, assigned her an “uneven and impossible

workload,” took disciplinary action not permitted by school policy, and sanctioned a bullying

campaign against plaintiff. (Compl. ¶¶ 23, 39, 43, 82). Those actions, if proved, “might well

dissuade a reasonable person from making or supporting a charge of discrimination.” D.B., 675

F.3d at 41-42. To be sure, the complaint is somewhat cryptic and vague about the identity of the

individuals to whom plaintiff reported her complaints and those who took action against her.

However, at this stage, the allegations that at least some of the disciplinary actions were causally

connected to her reporting are sufficient to survive a motion to dismiss.

In summary, the complaint plausibly alleges claims of unlawful retaliation under the

ADA and the Rehabilitation Act.

3. Unlawful Retaliation under State Law

Count Three alleges, in part, a claim against all defendants for unlawful retaliation under

state law in violation of Chapter 151B.

Under Chapter 151B, an employer may not “discharge, expel, or otherwise discriminate

against any person because he has opposed any practices forbidden under this chapter.” Mass.

Gen. Laws ch. 151B, § 4; see also Abramian v. President and Fellows of Harvard College, 432

Mass. 107, 121 (2000). A prima facie case of retaliation under 151B parallels the ADA and

Rehabilitation Act requirements: protected conduct, adverse action, and causation. Chi-Sang

Poon v. Massachusetts Inst. of Tech., 74 Mass. App. Ct. 185, 199-200 (2009). Here, there are

two issues concerning the state-law retaliation claim that do not apply to the parallel federal

claims: (1) whether that claim has been waived as to defendants the City, the District, and

Crowley and (2) whether the factual allegations are sufficient to state a claim as to defendant

Baldassarre.

a. Waiver under Section 185(f)

The Massachusetts Whistleblower Statute prohibits employers from retaliating against

employees who report or refuse to participate in activities, policies, and practices of their

employer that they reasonably believe are unlawful or pose a risk to public health, safety, or the

environment. Mass. Gen. Laws ch. 149, §§ 185(b)(1)–(3). Employees may bring a civil action

under § 185 and seek “[a]ll remedies available in common law tort actions.” Id. § 185(d).

However, a plaintiff who brings a § 185 claim must waive certain other claims. “[T]he

institution of a private action in accordance with subsection (d) shall be deemed a waiver by the

plaintiff of the rights and remedies available to [the plaintiff], for the actions of the

employer . . . under any . . . state law, rule or regulation, or under the common law.” Id.

§ 185(f). Massachusetts courts have held that a waiver under § 185(f) extends to “statutory and

common law damage claims that in substance derive from the same conduct forming the basis

for a [§ 185] retaliation claim.” Fitzgerald v. Commonwealth, 2015 WL 924984, at *2 (Mass.

Super. Ct. 2015) (collecting cases). That waiver applies to all of an employer’s retaliatory

conduct—although not, as defendants contend, to “other claims, such as intentional infliction of

emotional distress, that are distinct from the claim to recover for the retaliatory action.” Bennett

v. City of Holyoke, 230 F. Supp. 2d 207, 220 (D. Mass. 2002), aff’d, 362 F.3d 1 (1st Cir. 2004).

Count Four, the § 185 claim, alleged that the District and City retaliated against plaintiff

because she reported that school policies were “in violation of the law and/or which she believed

posed a risk to public safety.” (Compl. ¶ 114). In substance, it alleged that plaintiff reported

issues with the school’s IEP meetings and her treatment by her colleagues to her supervisors.

(See, e.g., id. ¶ 22 (“[W]hen she spoke out about [an alleged IDEA violation], she was the

subject of further retaliation and bullying.”)).

By filing a complaint with a § 185 claim, plaintiff waived all other statutory and

common-law claims related to her retaliation claim. That includes her claims of unlawful

retaliation and hostile work environment arising out of her advocacy for disabled students under

Chapter 151B, as set forth in Count Three.

The fact that plaintiff has since dismissed her § 185 claim does not affect that waiver.

The text of the statute provides that “institution” of a private action waives state and common-

law claims. Mass. Gen. Laws ch. 149, § 185(f). Under Massachusetts law, a plaintiff institutes a

private action by filing a complaint. Brickett v. Davis, 38 Mass. 404, 410-11 (1838) (using

“institution of a suit” and “file a plea” synonymously); Connihan v. Thompson, 111 Mass. 270,

271-272 (1873) (using “institution of a suit” and “commencing an action at law” synonymously).

A plaintiff therefore waives her statutory and common-law claims under § 185 when she files a

complaint. See Fitzgerald, 2015 WL 924984, at *2 (collecting cases).

Plaintiff’s state-law discrimination claim is not, however, affected by that waiver to the

extent that it does not derive from the same conduct (that is, retaliation in response to her

advocacy for disabled students) as her § 185 whistleblower claim. To the extent, therefore, that

the claim is based on discriminatory or retaliatory conduct directed to her own physical and

mental disabilities, the claim is not waived.6

b. Discrimination Claim against Baldassarre

Count Three alleges, in part, a claim under Chapter 151B against Baldassarre for

unlawful discrimination.

6 Count Five asserts a claim for intentional infliction of emotional distress against Crowley and

Baldassarre. Because § 185 only bars claims against “employer[s],” Mass. Gen. Laws ch. 149, § 185(b), those

claims are “legitimate[ly] independent” from the § 185 claim. Bennett, 230 F. Supp. 2d at 221; see also Jones v.

Maloney, 74 Mass. App. Ct. 745, 750-51 (2009) (analyzing a claim for intentional infliction of emotional distress

against an assistant principal separately from a claim against the school district). Her claim for intentional infliction

of emotional distress is therefore unaffected by the waiver.

The complaint describes Baldassarre’s conduct in only five paragraphs.7 It alleges that he

was assigned to investigate plaintiff’s December 2021 complaint, (id. ¶ 56); that he told Ryan

that (unidentified) “interim measures” (apparently favorable to plaintiff) should be implemented

in response to that complaint (id. ¶ 57); that he led an investigatory meeting during which

plaintiff was “heavily encouraged” to remove Kessaris from (unexplained) “protective

measures,” (id. ¶ 65); that, at a later meeting, he told plaintiff that “she could end the

investigation and mend relationships” by letting him mediate the dispute; that during the same

meeting, he “tried to turn the tables and implied that one case/event sparked repeated

retaliatory/intimidating measures which was a form of blaming the victim” (id. ¶ 67); and that he

issued a report that “contained lies about ‘pertinent facts’ and ‘findings,’” “dismissed any

acknowledgement of wrongdoing,” and was “released to unauthorized parties directly resulting

in further adverse actions,” (id. ¶ 68).

Baldassarre has moved to dismiss the claims against him in Count Three on the ground

that the complaint does not allege that he committed any specific acts of discrimination. In her

opposition to that motion, plaintiff contends—for the first time—that he should be held liable as

an aider and abettor of retaliation in violation of Chapter 151B and for his failure to investigate

her claims of harassment (Pl. Opp. Baldassarre at 7-8).

It is true that Chapter 151B provides for an action for aiding and abetting discrimination.

Mass. Gen. Laws ch. 151B, § 4(5). The complaint, however, makes no such allegation. In any

event, the complaint does not allege sufficient facts to establish aiding and abetting liability.

7 The complaint’s use of the passive voice makes it difficult in many instances to attribute specific

instances of conduct to specific individuals. (See, e.g., Compl. ¶ 65 (“At an investigatory meeting led by Dr.

Baldassarre on 12/21/22, Ms. Connolly was heavily encouraged to remove Principal Kessaris from ‘protective

measures.’”).)

To prove an aiding and abetting claim under Massachusetts law, a plaintiff must establish

(1) that the defendant committed a wholly individual and distinct wrong separate

and distinct from the claim in main; (2) that the aider or abetter shared an intent to

discriminate not unlike that of the alleged principal offender; and (3) that the aider

or abetter knew of his or her supporting role in an enterprise designed to deprive

[the plaintiff] of a right guaranteed him or her under G.L. c. 151B.

Lopez v. Commonwealth, 463 Mass. 696, 713 (2012) (internal quotation marks and punctuation

removed) (quoting Harmon v. Malden Hosp., 19 Mass. Discrimination L. Rep. 157, 158 (1997)).

The complaint here does not contain allegations that fit neatly within that framework.

First, the complaint does not allege that Baldassarre “committed a wholly individual and

distinct wrong separate and distinct from the claim in main.” The “claim in main” is presumably

the claim under Ch. 151B for retaliatory discrimination and for a hostile work environment. And

Baldassarre’s “distinct wrong” presumably arises from the creation and release of his report, as

the remaining allegations as to him do not even suggest wrongful conduct. The complaint,

however, contains no specifics about the alleged “lies” in that report (such as what the lies were,

and who told them), who released it, the unauthorized parties to whom it was released, and the

adverse actions that resulted. At a minimum, those omissions make it difficult to evaluate the

claim for aiding and abetting—in particular, how the alleged “distinct wrong” committed by

Baldassarre intersects with the “claim in main.”

Furthermore, the complaint does not allege that Baldassarre had the intent to

discriminate, or that he shared that intent with the alleged principal offender (presumably, the

District and/or City).8 Nor does it allege that he knew of his “supporting role” in “an enterprise

designed to deprive [plaintiff] of a right guaranteed [to her]” under Chapter 151B. It seems to

8 Furthermore, the complaint alleges that the report included recommendations favorable to plaintiff—for

example, suggesting that the District obtain legal advice as to whether plaintiff could serve as an LEA

representative; that plaintiff’s unequal caseload be adjudicated as part of the union grievance process; and that

Kessaris’s earlier disciplinary letter be removed from her file.

suggest that Baldassarre’s report led to “further adverse actions and emotional damage,” but does

not specifically allege that he knew or intended that his report would have that effect. (Compl.

¶ 68).

Finally, the Chapter 151B claim is waived to the extent that it relies on claims for

retaliatory conduct arising out of plaintiff’s advocacy efforts. If the “claim in main” has been

waived—that is, the claim against the principal offender—it must follow that the aiding and

abetting claims have been waived as well. It would certainly be odd and illogical for a claim of

aiding and abetting to proceed if the claim against the principal offender were barred.

In sum, the complaint does not state a Chapter 151B claim against Baldassarre, and will

be dismissed as to him.9

4. Hostile Work Environment

Counts One, Two, and Three appear to allege, in part, that defendants discriminated

against plaintiff by creating a hostile work environment in violation of federal and state law.

A plaintiff making a claim of hostile work environment must show that “the complained-

of conduct was so severe or pervasive that it altered the terms or conditions of her employment.”

Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006); see also Carmona-Rivera

v. Puerto Rico, 464 F.3d 14, 19 (1st Cir. 2006). Relevant factors include “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

9 Plaintiff also contends that a supervisor’s failure to investigate credible allegations can itself create a

hostile work environment. It is certainly true that a failure to investigate can be a component of such a claim.

However, in the cases that plaintiff cites, the defendants did not investigate the complaints at all. See Chapin v.

University of Mass. at Lowell, 977 F. Supp. 72, 79-80 (D. Mass. 1997); Munford v. James T. Barnes & Co., 441 F.

Supp. 459, 466 (E.D. Mich. 1977). Here, Baldassarre did investigate plaintiff’s complaint, and in any event

plaintiff’s allegations about the inadequacies of that report are part of her claim of a hostile work environment. But

that does not provide a basis for concluding that Baldassarre can be found to have aided and abetted discrimination.

performance.” Pomales, 447 F.3d at 83.

Some of the allegations in the complaint clearly reflect mere disagreements about

plaintiff’s work performance, or the content of student IEPs. Murray v. Warren Pumps, LLC,

821 F.3d 77, 87 (1st Cir. 2016) (noting that “minor instances of employment skirmishes” are not

sufficient to form a hostile work environment). Others appear to reflect rude, contentious, and

discourteous behavior by some school officials. But rudeness and insults, without more, cannot

support a hostile work environment claim. See Smith v. The Public Schools of Northborough-

Southborough Massachusetts, 133 F. Supp. 3d 289, 293, 296 (D. Mass. 2015) (finding that a

principal’s interrupting and contradicting plaintiff teacher during a meeting, using a schoolwide

paging system to locate plaintiff, scheduling meetings during holiday season, and issuing critical

instructions did not create a hostile work environment). Noviello, 398 F.3d at 92 (“[R]udeness or

ostracism, standing alone, usually is not enough to support a hostile work environment claim.”).

Nonetheless, taken as a whole, the complaint appears to allege sufficient facts to support a claim

of a hostile work environment under federal law.

As discussed, plaintiff has waived her Chapter 151B claim to the extent that it is based on

retaliation in response to her advocacy on behalf of disabled students. Accordingly, to the extent

that the claim of hostile work environment arises out such retaliatory conduct, it cannot form the

basis of her Chapter 151B claim.

B. Count Five: Intentional Infliction of Emotional Distress

Count Five alleges a claim for intentional infliction of emotional distress against Crowley

and Baldassarre. Under Massachusetts law, a claim for intentional infliction of emotional

distress requires proof

(1) that the defendant intended to cause, or should have known that his

conduct would cause, emotional distress; (2) that the defendant's conduct was

extreme and outrageous; (3) that the defendant's conduct caused the plaintiff's

distress; and (4) that the plaintiff suffered severe distress.

Sena v. Commonwealth, 417 Mass. 250, 263-34 (1994).

The standard of proof for extreme and outrageous behavior is very high. “[L]iability has

been found only where the conduct has been so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Foley v. Polaroid Corp., 400 Mass. 82, 99 (1986)

(quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (Am. L. Inst. 1965)). Mere

embarrassment, or sharp questioning by a supervisor, does not qualify as extreme and outrageous

conduct that is beyond all possible bounds of decency. See Anderson v. Boston Sch. Comm., 105

F.3d 762, 766-67 (1st Cir. 1997) (holding that a principal’s accusing a teacher of breaking a lock

did not support the teacher’s intentional infliction of emotional distress claim). Similarly, mere

expressions of anger or frustration by supervisors, without more, do not qualify. See Gindi v.

Norton, 216 F. Supp. 3d 199, 206 (D. Mass. 2016). And even insults and threats are normally

insufficient. Foley, 400 Mass. at 82.

1. Crowley

In her opposition memorandum, plaintiff contends that Crowley should be found liable

for intentional infliction of emotional distress based on his conduct on five occasions. (Pl. Opp.

Defs. at 19-20).

First, plaintiff contends that Crowley denied her August 2020 request for virtual teaching

and then pressured her to rescind her request. However, the complaint alleges that Baldassarre,

not Crowley, was the school official who denied her request and later called her to discuss

returning to in-person teaching. (Compl. ¶¶ 13-15).

Second, the complaint alleges that a meeting on September 21, 2020, Crowley “shamed”

her after she read “an emotional personal statement in good faith about her circumstances and

health concerns and the lack of support she had received.” (Id. ¶ 16). It further alleges that he

“embarrassed her about returning to school,” and asked whether she had put parents up to

contacting Baldassarre in support of her virtual teaching request. (Id.).10

Third, Count Six—which alleged a violation of 42 U.S.C. § 1983, and which has been

voluntarily dismissed—alleges that Crowley “knowingly allowed five different administrators to

relentlessly harass [her].” (Id. ¶ 124).11 Aside from that conclusory allegation, the complaint

does not allege that Crowley knew anything about school officials’ conduct toward plaintiff

before her December 2021 complaint, other than the meeting on September 21, 2020. And after

December 2021, it appears that Crowley delegated the investigation of her complaint to

Baldassarre. The complaint alleges no specific details concerning Crowley’s knowledge,

actions, or intent with respect to school officials’ conduct toward plaintiff.

Fourth, Count Six alleges that “when [plaintiff] rightly requested an independent

investigation and questioned the fairness of the selection process, Dr. Crowley lost his temper,

threw his glasses down, and yelled at [plaintiff].” (Id. ¶ 124). It further alleges that Crowley

“stated [that] he didn't have time for this, as he is running a school district, and abruptly left the

room.” (Id.).

Fifth, Count Six alleges that Crowley “arranged for [plaintiff] to be independently

investigated by an attorney closely aligned with the district’s own lawyers, making a complete

mockery of an ‘unbiased’ investigative process.” (Id.). The complaint does not describe the

basis for the claim of a close alignment, the outcome of the lawyer’s investigation, or the

10 In her opposition memorandum, plaintiff alleges that at the September 2020 meeting Crowley also “made

fun of her disability.” (Pl. Opp. Defs. at 20). That allegation, however, is nowhere in the complaint, and

accordingly cannot be considered by the Court.

11 Count Five did not incorporate by reference the allegations in Count Six (which, again, has been

dismissed).

lawyer’s conduct during the investigation. Nor does it allege that Crowley intended to cause

plaintiff emotional distress by making the hire, or whether the hiring caused her emotional

distress.

Those allegations, taken together—and even taking into account the allegations in Count

Six—are insufficient to make out a plausible claim for intentional infliction of emotional

distress. Whatever the merits of plaintiff’s factual claims, they do not amount to extreme and

atrocious conduct that is beyond all possible bounds of decency. Accordingly, the claim against

Crowley for intentional infliction of emotional distress will be dismissed.

2. Baldassarre

In her opposition memorandum, plaintiff asserts that her claim of intentional infliction of

emotional distress against Baldassarre is based on five grounds: that he pressured her to rescind

her virtual teaching accommodations; that, during his investigation, he pressured her into

rescinding “protective measures”; that his investigation was inadequate and biased; that he

released his report to her peers; and that he failed to carry out his report’s recommendations.

First, according to the complaint, Baldassarre called plaintiff and “asked” her to return to

the classroom “because parents were sad to see her go.” (Id. ¶ 13). Days later, she rescinded her

request to teach virtually.

Second, plaintiff now contends (in her opposition to Baldassarre’s motion to dismiss, but

not in her complaint) that Baldassarre “threaten[ed] her in an attempt to get her to drop the

protections in place against her abusers.” (Pl. Opp. Baldassarre at 11). The complaint refers to

“interim measures” and “protective measures” that Baldassarre implemented during his

investigation, but provides no detail as to what those measures were, and how they affected

plaintiff. It alleges that at a meeting led by Baldassarre, plaintiff was “heavily encouraged” to

remove Kessaris from the “protective measures.” (Compl. ¶ 65). Because of the complaint’s

use of the passive voice, it is unclear whether Baldassarre himself was the one doing the

encouraging. In any event, there is no allegation in the complaint that he threatened her in any

way.12

Third, plaintiff now contends that Baldassarre’s investigation was “a sham.” According

to the complaint, Baldassarre’s investigation took one month. During the investigation,

Baldassarre apparently implemented (unspecified) measures to protect plaintiff, conducted

interviews, reviewed documents, and held meetings with plaintiff. His report, as described in the

complaint, contained “lies about ‘pertinent’ facts and ‘findings.’” (Compl. ¶ 68). But the

complaint also alleges that the report suggested that the parties should meet with a trained

mediator, and also directly addressed several of plaintiff’s greatest concerns: her serving as an

LEA representative illegally, her unequal caseload, and Kessaris’s disciplinary letter. It is

possible that Baldassarre’s investigation was not as sweeping or favorable as plaintiff may have

wanted, but the complaint describes an investigation that was, at worst, inaccurate and

inadequate—not extreme or outrageous. See Jones v. Maloney, 74 Mass. App. Ct. 745, 751

(2009).

Fourth, plaintiff now contends that Baldassarre released his report to her peers, causing

her emotional distress. However, the complaint itself does not actually allege that Baldassarre

released the report; it simply alleges that the report “was . . . released.” (Compl. ¶ 68). Nor does

the complaint identify which “unauthorized parties” received the report, or what “adverse

actions” those parties took in response to the report. At worst, Baldassarre committed

“procedural missteps” in his distribution of the report, but such missteps do not suggest intent—

12 Plaintiff’s further contention in her opposition that Baldassarre “exploited” her anxiety disorder “as

leverage” to threaten her into withdrawing the measures is likewise not set forth in the complaint. (Pl. Opp.

Baldassarre at 11).

nor are they extreme or outrageous. Chakrabarti v. Cohen, 31 F.3d 1, 6 (1st Cir. 1994).

Finally, plaintiff now contends that Baldassarre failed to carry out any of his report’s

recommendations. The complaint, however, alleges that Kessaris removed his disciplinary letter

from plaintiff’s file, which was one of the report’s recommendations (albeit several months after

the report’s release). It is not clear whether Baldassarre’s report required him personally to

follow through on his own recommendations; it would be odd, for example, for an assistant

superintendent to file a union grievance over a teacher’s caseload.

Again, those allegations suggest possible mistakes, neglect, and insensitivity. They do

not, however, amount to a plausible claim of extreme or outrageous misconduct sufficient to

establish a claim for intentional infliction of emotional distress. Accordingly, the claim against

Baldassarre for intentional infliction of emotional distress will be dismissed.

C. Statute of Limitations

Finally, defendants contend that all claims alleging discrimination or retaliation based on

events occurring before June 24, 2021, are time-barred. Plaintiff contends that defendants’

actions constituted a single unlawful employment practice and that the “continuing violation”

doctrine applies.

Counts One, Two, and Three assert claims under the ADA, Mass. Gen. Laws ch. 151B,

and Section 504 of the Rehabilitation Act.13 Under the ADA, a claimant “must [first] exhaust

administrative remedies by filing a charge with the EEOC, or alternatively, with an appropriate

state or local agency, within the prescribed time limits.” Bonilla v. Muebles J.J. Alvarez, Inc.,

13 Count Five, the claim for IIED, will be dismissed for other reasons, but it is clearly not time-barred. The

relevant statutes—the ADA, the Rehabilitation Act, and Chapter 151B—require a plaintiff to exhaust her

discrimination and retaliation claims, not her tort claims. Furthermore, Massachusetts law provides a three-year

limitations period for claims of intentional infliction of emotional distress. Pagliuca v. City of Boston, 35 Mass.

App. Ct. 820, 823 (1994). The earliest event described in the complaint is from August 2020. Count Five was

therefore filed within the applicable limitations period.

194 F.3d 275, 278 (1st Cir. 1999). The claimant must file a charge “within either 180 or 300

days of the offending conduct,” depending on the jurisdiction in which the charged conduct

occurred. Rivera-Díaz v. Humana Ins. of P.R., 748 F.3d 387, 390 (1st Cir. 2014). A claimant

who alleges a violation of Section 504 of the Rehabilitation Act, which incorporates “the

standards applied under title I [of the ADA],” must likewise exhaust her administrative remedies

within the prescribed time limit. 29 U.S.C. 794(d); Bonilla, 194 F.3d at 277-78 (holding that a

plaintiff who brings a claim under Title I of the ADA must first exhaust her administrative

remedies). In Massachusetts, a claimant alleging discrimination under Chapter 151B “may

maintain a civil action only if she has previously filed a timely complaint with the [MCAD].”

Christo v. Edward G. Boyle Ins. Agency, 402 Mass. 815, 816 (1988). Massachusetts law requires

that a Chapter 151B complainant file a complaint with the MCAD “within 300 days after the

alleged unlawful conduct.” 804 Mass. Code Regs. 1.04(3).

Plaintiff filed a complaint with the MCAD on April 10, 2022. There is no question that

any claim that she may have arising out of events occurring on or after June 24, 2021—300 days

before the filing of her MCAD complaint—is timely. Claims arising out of events before that

date may also be actionable under the “continuing violation” doctrine.

The continuing violation doctrine is an equitable exception that allows an

employee to seek damages for otherwise time-barred allegations if they are

deemed part of an ongoing series of discriminatory acts and there is some

violation within the statute of limitations period that anchors the earlier claims.

This ensures that these plaintiffs’ claims are not foreclosed merely because the

plaintiffs needed to see a pattern of repeated acts before they realized that the

individual acts were discriminatory.

O’Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir. 2001) (internal quotations and

citations omitted).

Under federal law, a claim of a “continuing violation” is evaluated according to the

following criteria: (1) whether the subject matter of the discriminatory acts was sufficiently

similar such that there was a substantial relationship between the otherwise untimely acts and the

timely acts; (2) whether the acts were isolated and discrete or occurred with frequency or

repetitively or continuously; and (3) whether the acts were of sufficient permanence that they

should have triggered an awareness of the need to assert one’s rights. See O’Rourke, 235 F.3d at

731. The “continuing violation” doctrine does not apply if, at the relevant time, plaintiff was or

should have been aware of the discriminatory practice. Sabree v. United Bhd. of Carpenters &

Joiners Local No. 33, 921 F.2d 396, 401-02 (1st Cir. 1990).

Under Massachusetts law, a plaintiff can establish a continuing violation by showing that

(1) at least one discriminatory act occurred within the limitation period, (2) the alleged timely

discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts,

and (3) earlier violations outside the limitations period did not trigger the plaintiff’s “awareness

and duty” to assert her rights. Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against

Discrimination, 441 Mass. 632, 642-43 (2004). When a plaintiff brings a claim based on an

alleged hostile work environment, the limitation period begins to run when “the plaintiff knew or

reasonably should have known that her work situation was pervasively hostile and unlikely to

improve.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 539 (2001).

The “continuing violation” doctrine may have particular force in the context of a claim of

hostile work environment.

[O]ften a sexual harassment claim will not accrue until after a period of recurring

acts of harassment. A plaintiff usually will not have a viable claim of hostile

work environment from single acts that are isolated or sporadic or not themselves

severe enough to alter the work environment and create an abusive work

environment—both from an objective and subjective viewpoint. Or they may not

of themselves appear to be discriminatory. But the recurrence of events that do

not of themselves appear to be discriminatory may, over time, come to

demonstrate both an increasingly difficult environment and that the events lack an

innocent explanation. A plaintiff may be unable to appreciate that he is being

discriminated against until he has lived through a series of acts and is thereby able

to perceive the overall discriminatory pattern.

O’Rourke, 235 F.3d at 732 (internal quotations and citations omitted).

To the extent that plaintiff is asserting claims for disability discrimination arising out of

defendants’ conduct with respect to her asthma—in particular, her request to teach remotely for

health reasons—they are time-barred.14 Assuming the truth of the allegations in the complaint,

plaintiff was aware of the alleged discriminatory practice no later than September 21, 2020,

when she was “shamed,” “embarrassed,” and “ridiculed” for her health concerns. (Compl. ¶ 16).

And the complaint does not allege that any of the acts by school officials occurring after June 24,

2021, arose from her physical condition or her request to teach remotely.

To the extent plaintiff is asserting claims for disability discrimination arising out of her

advocacy for disabled students, her general anxiety disorder, or based on a hostile work

environment, the facts are less clear. Some of the events of which she complains occurred

during the 2020-21 academic year, which likely concluded around June 24, 2021, but many of

them occurred during the 2021-22 academic year. In light of the fact-intensive nature of the

continuing violation inquiry, the Court is not prepared to say at this stage that any or all of those

claims are time-barred. The resolution of those issues must, at a minimum, await the

development of a more complete factual record.

D. Summary

To summarize:

1. To the extent Counts One, Two, and Three allege claims under federal and state

14 The complaint does not specifically describe the “personal health issue” that led plaintiff to request a

virtual teaching assignment. (Compl. ¶ 11). While the Court infers that the “personal health issue” was plaintiff’s

asthma, to the extent that plaintiff asserts claims for any other physical disability that led her request a virtual

teaching assignment, those claims are also time-barred.

law based on plaintiff’s asthma, they will be dismissed as time-barred.

2. To the extent Counts One and Two allege claims under federal law based on

plaintiff’s anxiety disorder, or her advocacy for disabled students, the motion to

dismiss will be denied.

3. To the extent Count Three alleges claims under state law based on plaintiff’s

anxiety disorder, the motion to dismiss will be denied.

4. To the extent Count Three alleges claims under state law based on plaintiff’s

advocacy for disabled students, it will be dismissed pursuant to Mass. Gen. Laws

ch. 149, § 185(f).

5. Count Three will be dismissed as to defendant Baldassarre.

6. Count Five, which alleges intentional infliction of emotional distress against

Crowley and Baldassarre, will be dismissed for failure to state a claim.

IV. Conclusion

For the foregoing reasons,

The motion to dismiss of defendants the City, the District, and Crowley is GRANTED as

to Counts One and Two to the extent that the claims are based on plaintiff’s physical disability

(asthma); GRANTED as to Count Three to the extent that the claims are based on plaintiff’s

physical disability (asthma) or advocacy for disabled students, and as to the claim against

defendant Baldassarre; GRANTED as to Count Five; and otherwise DENIED.

The motion to dismiss of defendant Baldassarre is GRANTED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: March 2, 2023 Chief Judge, United States District Court