United States District Court, D. Massachusetts
LISA A. JACOBS, Plaintiff,
DAVID SOARS, DEBORAH DAVENPORT, TOWN OF WESTON, DONNA VANDERCLOCK, ED COBURN, DOUG GILLESPIE, MIKE HARRINGTON, ERIC JOSEPHSON, GARY KOGER, PAUL ZORFASS, PHYLLIS KOMINZ, ALLAN ORTH, TAMILYN LEVIN, WILLIAM O'NEIL, STEVE SHAW, JOHN LYONS, DAN McGUIRE, WILLIAM CARLO, MIKE FORTI, EFTHIMIOS BOUSIOS, KOPELMAN AND PAIGE P.C., LOUISON, COSTELLO, CONDON & PFAFF LLP, JOHN DOE ET AL., Defendants.
REPORT AND RECOMMENDATION ON DEFENDANTS DAVID SOARS, DEBORAH DAVENPORT, TOWN OF WESTON, DONNA VANDERCLOCK, ED COBURN, DOUG GILLESPIE, MIKE HARRINGTON, ERIC JOSEPHSON, GARY KOGER, PAUL ZORFASS, PHYLLIS KOMINZ, ALLAN ORTH, TAMILYN LEVIN, WILLIAM O'NEIL. STEVE SHAW, JOHN LYONS, DAN McGUIRE, WILLIAM CARLO, MIKE FORTI, EFTHIMIOS BOUSIOS AND LOUISON, COSTELLO, CONDON & PFAFF, LLP's MOTION TO DISMISS PURSUANT TO M.R.C.P. (sic) RULE 12(b)(6) (#44)
M. PAGE KELLEY, Magistrate Judge.
On May 21, 2014, plaintiff Lisa A. Jacobs filed a complaint against twenty-two named defendants in the Middlesex Superior Court; the action was subsequently removed to the federal court on June 16, 2014. In lieu of answering the complaint, twenty-one of the defendants filed a motion to dismiss for failure to state a claim (#44). Jacobs has filed an opposition (#50) to the dispositive motion.
II. The Facts
The following facts are alleged in the complaint. Jacobs is a resident of Weston, Massachusetts. (#1-3 ¶ 1) Donna Vanderclock is the Town Manager of Weston, while Ed Coburn, Doug Gillespie and Mike Harrington are selectmen in the town. (#1-3 ¶¶ 3-6) Gary Kroger is the chair of the Board of Assessors; Paul Zorfass, Phyllis Kominz, Allan Orth and Tamilyn Levin are members of the Board. (#1-3 ¶¶ 8-12) William O'Neil is the Supervisor of Weston Public Works. (#1-3 ¶ 13) Steve Shaw is the Chief of the Weston Police. (#1-3 ¶ 14) John Lyons and Dan Maguire are Lieutenants, Bill Carlo is a Detective, Mike Foti is a Sergeant, and Efthimios Bousios is an officer on the Weston police force. (#1-3 ¶¶ 15-19) David Soars is the Weston Fire Chief. (#1-3 ¶ 20) Deborah Davenport is the town clerk in Weston. (#1-3 ¶ 21) Kopelman and Paige P.C. and Louison, Costello, Condon & Pfaff LLP serve as town counsel for Weston. (#1-3 ¶¶ 22-23)
Jacobs alleges that she "is handicapped with 2 cancers, degenerative disc disease, a sensitivity/allergy to dogs, Jewish female who was born in 1966 who was discriminated against as a member of those protected classes as well as discrimination on the basis of the perception of being mentally ill and she has a caretaker alliance with her disabled mother." (#1-3 ¶ 26) According to Jacobs, on or about March 19, 2013, the Town of Weston and the named members of the Weston police department wrote up an automobile accident report untruthfully against her because she was a member of those protected classes. (#1-3 ¶ 27) Among the allegations plaintiff makes about this accident is the complaint that no charges were brought against the other driver who purportedly was at fault while the police applied to prosecute her. (#1-3 ¶ 29) Jacobs contends that a non-disabled male she knew was treated differently by the Weston police when he was in an automobile accident. (#1-3 ¶¶ 32-33)
The plaintiff alleges that over a period of years two employees at the transfer station competed for her "sexual interest, asked her out on dates, and made advances repeatedly." (#1-3 ¶¶ 36-42)
According to Jacobs, on or about October 24, 2013, she received a letter from O'Neil who is alleged to have "insulted" the plaintiff's shrubs at her family cemetery plot and notified her that the shrubs were going to be "ripped out." (1-3 ¶ 43) The plaintiff claims that this action evidences that she was treated differently from other similarly situated people and also constitutes retaliation for her prior discrimination complaints. (#1-3 ¶ 43)
Jacobs claims that on November 19, 2013 "a big not service dog sexually assaulted and battered [her] inside the federal Weston post office." (#1-3 ¶ 46) Members of the Weston police force purportedly refused to accept the police report the plaintiff attempted to file and refused to investigate the dog attack. (#1-3 ¶¶ 46-47)
Next, the plaintiff alleges that on November 18, 2013, she requested certified documents from defendant Josephson and other members of the Board of Assessors and that they refused to give her any documents. (#1-3 ¶ 52) As a result of this refusal, Jacobs filed a public accommodation discrimination complaint. (#1-3 ¶ 52) That same day the plaintiff also requested certified documents from the Weston Town Clerk's office, Weston Town Manager's Office, Kopelman and Paige P.C. and Louison, Costello, Condon & Pfaff LLP; all of these requests were refused. (#1-3 ¶ 53)
According to Jacobs, on December 4, 2013 "Davenport promised to issue an affidavit determination that Tamilyn Levin did the crime [of illegal voter registration in violation of Mass. Gen. L. c. 56 § 8] on or by 12/10/2013 and then refused to issue the affidavit." (#1-3 ¶¶ 58, 60) That same day Vanderclock and the Town of Weston are alleged to have stopped the plaintiff's real estate firm from doing business by denying her access to information only available at town offices. (#1-3 ¶ 61)
Jacobs claims that defendant Carlo discriminated and retaliated against her on December 17, 2013 by bringing "a section 12e motion maliciously whereby Jacobs was found not to be a danger to anyone and not to suffer from any major mental illness." (#1-3 ¶ 65)
The plaintiff alleges that
Tamilyn Levin's witness intimidation of Jacobs wherein Levin is identified as looking like she wants to kill Jacobs which was seen by Robert Picariello who signed an affidavit to that effect and Anthony Lewen who is a court security officer occurred on Dec. 3, 2013 and was in sufficient proximity to the protected action to constitute retaliation. #1-3 ¶ 75.
Finally, Jacobs claims that the Town of Weston refused to provided fire department services on April 28, 2014. (#1-3 ¶ 76) Further, defendant Soars' refusal to provided fire department services on April 29, 2014 is alleged to constitute retaliation for Jacobs' complaints that he was discriminating against her. (#1-3 ¶ 78)
III. The Complaint
The first two counts of the complaint are brought under federal law. Count I is a claim for unlawful discrimination in violation of 42 U.S.C. § 1981. A violation of 42 U.S.C. § 12182, the prohibition of discrimination by public accommodations under the Americans with Disabilities Act (ADA), is alleged in Count II. The remainder of the complaint consists of state law claims. A claim for unlawful public accommodation discrimination and retaliation in violation of Mass. Gen. L. c. 272 §§ 92A, 98 and 98A is alleged in Count III. Count IV is a claim for intentional infliction of emotional distress, while Count V is a claim for negligent infliction of emotional distress. A claim for intentional interference with ...