United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff John Clorite ("Clorite") has filed this lawsuit against Defendants Somerset Access Television, Inc. ("SATV") and Thomas C. Norton ("Norton"), alleging retaliation pursuant to Mass. Gen. L. c. 151B (Count I) (against both Defendants), retaliation pursuant to the Massachusetts Equal Rights Act, Mass. Gen. L. c. 93, § 102 ("MERA") (Count II) (against both Defendants), defamation (Count III) (against both Defendants), interference with advantageous business or contractual relationships (Count IV) (against Norton only), intentional infliction of emotional distress (Count V) (against both Defendants), violation of free speech rights under the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights (Count VI) (against SATV only) and retaliation under 42 U.S.C. § 1981 (Count VII) (against both Defendants). First Amended Complaint, D. 14. Defendants have now moved to dismiss, D. 17, and also to strike portions of the amended complaint, D. 27. For the reasons stated below, the Court ALLOWS IN PART and DENIES IN PART Defendants' motion to dismiss and DENIES Defendants' motion to strike.
II. Standard of Review
This Court determines, in considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), whether the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citing Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)). Though "the plaintiff need not demonstrate [he] is likely to prevail" at this stage, he must show that his "claims are facially plausible." García-Catalán v. United States, 734 F.3d 100, 102 (1st Cir. 2013) (citation omitted). A complaint must include facts sufficient 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)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). First, the Court must distinguish between factual and conclusory legal allegations in the complaint. Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012). Second, taking the plaintiff's allegations as true, the Court must draw "the reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011). "In determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.... This context-specific inquiry does not demand a high degree of factual specificity." García-Catalán, 734 F.3d at 103 (internal citations and quotations omitted).
III. Factual Background
This summary is drawn from the factual allegations in the amended complaint. D. 14. Clorite is a resident of Somerset with training as a broadcast operations engineer. Id . ¶¶ 5, 6. He served as the chairperson of the negotiating committee which advocated for the creation of SATV. Id . ¶ 8. In November 2004, the Somerset Board of Selectmen created the station and appointed Clorite to SATV's board of directors as its representative. Id . ¶¶ 9-10.
SATV's operations are overseen by the board of directors. Id . ¶ 17. SATV employs individuals to record local government civic activities and events, edit footage, broadcast local programming, organize and present workshops on video production and editing, maintain the SATV facility and document its activities, among other activities. Id . ¶ 19. During the time Clorite served as a board member, he also provided services to SATV for compensation, including recording and production services. Id . ¶ 22.
Clorite alleges that in January 2010 he learned that Norton, SATV's president, was sexually harassing SATV's executive director. Id . ¶ 24. Later that month, Clorite, on the executive director's behalf, sent a letter to Norton requesting cessation of the harassment and informing Norton that such behavior could create a sexually hostile working environment and expose SATV's board of directors to legal liability. Id . ¶¶ 26, 27. Clorite alleges that at some point after he sent the letter, Norton told the executive director that she would be fired if she employed Clorite for any SATV production or recording jobs. Id . ¶ 55. In April 2011, the executive director filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") alleging sexual harassment against SATV and Norton. Id . ¶ 28. Clorite assisted the MCAD in its investigation and the SATV board of directors was aware of his cooperation. Id . ¶¶ 29-31.
In July 2011, SATV's board of directors notified Clorite that they planned to hold a special meeting later that month to discuss the sexual harassment. Id . ¶ 32. The board also notified Clorite that he was not allowed to attend and would be removed should he attempt to do so. Id . The board voted to terminate the executive director, effective immediately, and to remove Clorite from his position on the board at its next formal meeting, held in May 2012. Id . ¶¶ 33-34. Clorite was then formally removed at the May 2012 meeting. Id . ¶ 34.
Clorite alleges that SATV has refused to broadcast his content since receiving his letter. Id . ¶ 35. He further alleges that Norton and SATV have engaged in a pattern of false, negative and critical public statements about his professional skills. Id . ¶ 36. Clorite also contends Norton has maligned his professional ability to officials and residents of Somerset, calling his work "not up to [SATV] standards" and his equipment "substandard." Id . ¶ 37. Clorite alleges these statements negatively affected Clorite's professional relationship with Diman Regional Vocational-Technical High School ("Diman"), for which he had videotaped events during the previous seven years. Id . ¶¶ 38-41. Specifically, Clorite alleges that, in or about 2012, Norton called the superintendent of Diman and stated Clorite's video equipment was substandard, resulting in Diman declining Clorite's further services. Id . ¶¶ 44-48.
In January 2013, the Somerset Economic Development Committee asked Clorite to record a meeting. Id . ¶ 50. Clorite alleges that after he arrived and set up his equipment, he received a telephone call from an agent of SATV who told him that SATV had the exclusive right to tape the meeting. Id . ¶¶ 51-52. Shortly thereafter, SATV's agent arrived and disassembled Clorite's video equipment. Id . ¶ 52. In May 2013, Clorite alleges that an individual acting as an agent of SATV told a member of the Board of Selectmen that Clorite was "useless, " or words to that effect, and that his video equipment was substandard. Id . ¶ 54. In December 2013, Norton allegedly appeared at a public meeting of the Somerset Board of Selectmen (a meeting broadcast throughout Somerset by SATV) and made derogatory comments about Clorite's professional skills and his character and fitness to serve the town. Id . ¶¶ 56-57.
IV. Procedural History
Clorite filed this action in Bristol Superior Court on January 23, 2014. D. 1-3. Defendants removed the case to this Court on February 24, 2014. D. 1. On March 24, 2014, Clorite filed his first amended complaint. D. 14. Defendants moved to dismiss, D. 17, or in the alternative, for summary judgment as to Count I, the Mass. Gen. L. c. 151B retaliation claim. D. 18-20. Defendants also moved to strike a portion of the amended complaint. D. 27. The Court heard the parties on the pending motions on September 17, 2014 and took these matters under advisement. D. 34.
At the outset, the Court notes Defendants have moved for summary judgment as to Count I, the Mass. Gen. L. c. 151B claim, on the basis that Clorite is not an employee of SATV and that SATV lacked the requisite number of employees to be considered an employer under the statutes. D. 17. Pursuant to Fed.R.Civ.P. 56, Defendants filed a statement of undisputed facts and supporting affidavits, D. 18-20, supporting their motion as to Count I. Clorite's complaint does not specify under which subsection of § 4 he seeks relief, although Count I is labeled "retaliation." Defendants' summary judgment motion, however, addresses only so much of a claim under § 4 that falls under § 4(1) or so much as § 4(4) that may apply to an employeremployee relationship. Mass. Gen. L. c. 151B § 4(1) (prohibiting discrimination by an "employer"), § 4(4) (prohibiting discrimination by an "employer, " but also by "any person"). As discussed further below, however, since Clorite has stated, at a minimum, a c. 151B claim under § 4(4), prohibiting retaliation by "any person" against "any person, " the Court declines to dismiss this claim.
That is, to the extent that Defendants claim that Clorite was not an employee and that they have fewer than the requisite number of employees to subject them to liability under § 4(4), such contentions, which are contrary to the allegation in the complaint, D. 14 ¶ 21, are not a defense to a § ...