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Cloutier v. City of Lowell

United States District Court, D. Massachusetts

December 14, 2015

CITY OF LOWELL; BERNARD F. LYNCH, in his official and individual capacities; CHRISTINE P. O'CONNOR, in her official and individual capacities; MARY M. CALLERY, in her official and individual capacities; KAREN A. GAGNON, in her official and individual capacities; VICTORIA B. WOODLEY, in her official and individual capacities; SUSAN FOUGSTEDT, in her official and individual capacities; SARAH E. GILBERT, in her official and individual capacities; ROBERT SPARKS, individually and as President of Absolute Investigations, Inc.; ABSOLUTE INVESTIGATIONS, INC.; and DOES 1-10, Defendants.


F. DENNIS SAYLOR, IV, District Judge.

This is a case involving, among other things, alleged disability discrimination and retaliation. Plaintiff Diane Cloutier, a former assistant in the Lowell Public Library, has brought suit against the City of Lowell, various city employees, a private corporation, and a private individual.

The complaint is considerably over-inflated. Among other things, it alleges 21 separate counts under federal and state law against 10 named and 10 unnamed defendants, with various sub-parts (such as claims against individuals in both their individual and official capacities). In response, all defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

The Court is effectively forced to do what plaintiff's counsel should have done in the first instance: sort through the claims and ascertain which ones are sufficiently plausible to survive a motion to dismiss. That process has already consumed considerable resources of the defendants and the Court; undoubtedly, the Court will be called upon to prune the claims further as the litigation progresses. The present task, however, is to ascertain what parts of the complaint can survive the relatively low threshold of Rule 12(b)(6).

For the reasons set forth below, the motions to dismiss will be granted in part and denied in part.

I. Background

The facts are as drawn from the complaint unless otherwise noted.

A. The Parties

Diane Cloutier worked as a librarian assistant at the Pollard Memorial Library in Lowell, Massachusetts, from January 1998 until her alleged termination on October 29, 2013. (Compl. ¶ 1). The essential functions of her job included assisting patrons, retrieving books, and performing administrative tasks. ( Id. ).

The City of Lowell operates the library where Cloutier worked. ( Id. at ¶ 2). Bernard F. Lynch is the former City manager and directly managed the City's department heads, including Mary Callery, Christine O'Connor, and Victoria Woodley. ( Id. at ¶ 4). Callery is the City's human relations manager. ( Id. at ¶ 6). O'Connor is the City solicitor and head of the law department. ( Id. at ¶ 7). Woodley is the director of the library. ( Id. at ¶ 10). Karen A. Gagnon works in the law department of the City and reports to O'Connor. ( Id. at ¶ 8). Sarah E. Gilbert is a physician for the City and also reports to O'Connor. ( Id. at ¶ 9). Susan Fougstedt is the assistant director of the library. ( Id. at ¶ 11). The City and the various city employees will be collectively referred to as "the City defendants."

Robert Sparks is a licensed private detective. ( Id. at ¶ 12). He owns Absolute Investigations, Inc., a company that allegedly specializes in the "latest in GPS" and "unmanned surveillance." ( Id. ).

B. Cloutier's Physical Impairments

The complaint alleges that Cloutier was born with visual impairments. ( Id. at ¶ 18). To correct those impairments, she allegedly underwent many unsuccessful surgeries, and her impairments "substantially limit the major life activity of seeing." ( Id. at ¶¶ 19-22). The complaint alleges that Cloutier is unable to "easily focus and refocus" or "read tiny print." ( Id. at ¶ 21). It further asserts that her impairments are permanent and cannot be corrected. ( Id. ).

The complaint also alleges that Cloutier has severe chronic asthma that causes her to experience "shortness of breath, chest tightness and pain, inflammation in the airways, and coughing and wheezing." ( Id. at ¶ 23). Her asthma allegedly "substantially limits the major life activity of breathing" and is complicated by a malfunction of her respiratory muscles that cannot be corrected. ( Id. at ¶ 24). According to the complaint, for years, Cloutier has received treatment for her asthma and uses daily inhalers and rescue medicine to manage her condition. ( Id. ).

In June 2012, Woodley instructed Cloutier to close some of the library's windows. ( Id. at ¶ 54). The complaint alleges that as a result of closing "ten heavy windows, " Cloutier developed adhesive capsulitis in her right shoulder. ( Id. ).

C. Defendants' Alleged Discriminatory and Retaliatory Actions

The complaint further alleges that from 2004 to 2011, Cloutier made several accommodation requests that her coworkers and superiors mocked and ridiculed. ( Id. at ¶ 25). It alleges that the City and/or Lynch, O'Connor, Callery, Woodley, and Fougstedt, individually or in concert, engaged in unlawful conduct, including attempting to force her to read "tiny print on hold slips'" and refusing to allow a small fan near her desk to relieve symptoms of her asthma. ( Id. ).

On February 1, 2012, Cloutier filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) against the City, Lynch, Woodley, Fougstedt, and two other librarians alleging disability discrimination and retaliation. ( Id. at ¶ 46). On May 17, 2012, the MCAD held an investigative conference where the investigator allegedly requested a list of witnesses to corroborate the complaint. ( Id. at ¶ 50). Cloutier contends that Woodley and Fougstedt "immediately" attempted to "harass and intimidate" those witnesses who they believed would support her. ( Id. at ¶ 52). The complaint alleges that Woodley and Fougstedt began to reprimand Donna Deuso, Cloutier's best friend at work, for interacting with her. ( Id. at ¶ 53).

On June 25, 2012, after suffering her shoulder injury, Cloutier gave Woodley a doctor's note limiting her to "light duty." Woodley and Fougstedt, however, allegedly began assigning her tasks involving heavy and repetitive lifting. ( Id. at ¶ 55). Several days later, Cloutier presented the defendants with a second, more detailed note limiting her to "light duty." ( Id. at ¶ 55). Woodley then allegedly issued Cloutier a "Work Instruction" reprimanding her for seeking a coworker's assistance to lift books. ( Id. at ¶ 56).

On July 27, 2012, the library security guard allegedly warned Cloutier that Woodley and Fougstedt had placed a hidden camera in the circulation office to watch her. ( Id. at ¶ 59). According to the guard, Fougstedt wanted to monitor Cloutier's communications, the times that she worked, and how long her breaks were. ( Id. at ¶ 63). The guard also expressed concern that he was afraid Woodley would fire him for talking to Cloutier, and that Woodley had instructed him to not speak to Cloutier because she was "suing" the library supervisors and the City. ( Id. at ¶ 64). On August 29, 2012, Cloutier spoke with the security guard, who confirmed that he had seen Fougstedt using the cameras to watch her. ( Id. at ¶ 65).

On September 6, 2012, Woodley provided Cloutier with a "Work Instruction" to perform a "one-armed task" that actually required repetitive lifting and the use of two arms. ( Id. at ¶ 67). When she informed Woodley that her doctor prohibited her from completing the task, Woodley allegedly became "incensed" and stated that the law department had already approved the task. ( Id. at ¶ 68). On September 7, 2012, Cloutier called in sick and spent the day in the emergency room because she was having chest pains and breathing difficulties. ( Id. at ¶ 71). That same day, she received a letter from the law department stating that she was required to perform the "onearmed task." ( Id. at ¶ 72).

On September 24, 2012, Cloutier's attorney sent a letter to the members of the City Council complaining about the library supervisors' ongoing discriminatory and retaliatory conduct, which allegedly included the involvement of Lynch and O'Connor. ( Id. at ¶ 73). On October, 21, 2012, Cloutier received a letter from the City instructing her to report to City Hall for a medical examination by Gilbert, the city physician. ( Id. at ¶ 74). Gilbert allegedly conducted the examination in a public restroom, and Gilbert informed Cloutier that the purpose of the exam was to determine whether she could perform the "one-armed task." ( Id. at ¶ 77). Following the exam, Cloutier requested a copy of the results, but was initially unsuccessful in retrieving them. ( Id. at ¶¶ 78-79). On November 9, 2012, Woodley handed Cloutier another "Work Instruction" requiring her to wear a headset while working at a public desk as assigned "intermittently throughout the 7-hour workday." ( Id. at ¶ 82). The task allegedly violated her vision accommodation, which had been in place for years, and her doctor's restriction preventing Cloutier from performing tasks that required repetitive heavy lifting or the use of two arms. ( Id. ). On November 20, 2012, Cloutier received the examination report, which indicated that she had "adhesive capsulitis, that there was no reason she could not work or do her job exactly as she did before... but that new tasks that involved repetitive and/or heavy lifting [ ] should be accommodated." ( Id. at ¶ 81).

On January 2, 2013, Cloutier's best friend at the library, Donna Deuso, resigned after eighteen years of employment. ( Id. at ¶ 83). In her resignation letter, Deuso explained that ever since Cloutier had filed her MCAD complaint, she had been harassed by Woodley for their friendship. ( Id. at ¶ 84). A few weeks later, Deuso allegedly received a post-termination letter from the law department personally attacking and retaliating against her. ( Id. at ¶ 85).

On March 20, 2013, a library patron threatened Cloutier with physical violence, but Fougstedt allegedly failed to follow library protocol by either banning the patron or calling the police. ( Id. at ¶ 85). The patron returned on March 28, 2013, forcing Cloutier to call the police herself and file her own complaint because Fougstedt again refused to take action. ( Id. at ¶ 87). After the incident, Cloutier alleges that she repeatedly asked Woodley for copies of the video footage so that she could provide it to the police. Woodley allegedly failed to answer until April 18, 2013, claiming that she had "lent" the footage to O'Connor in the Law Department. ( Id. at ¶ 88). Cloutier contends that O'Connor refused to provide a copy of the footage even after the Assistant District Attorney prosecuting the case asked for it. ( Id. at ¶ 89).

On May 13, 2013, Woodley suspended Cloutier from work after calling her into a meeting and allegedly stating that she could "do what she wanted [to Cloutier]" regardless of the law. ( Id. at ¶ 90). The next day, Cloutier's union representative, Corey Robinson, went to the library and informed Woodley that she needed to produce a written order that Cloutier had been suspended. ( Id. at ¶ 92). Woodley allegedly gave him a typed note that read "Diane is suspended." ( Id. ). Later that day, Cloutier, Robinson, and Woodley met with Callery to discuss the suspension. ( Id. at ¶ 93). After Callery allegedly claimed that Woodley "had every right" to send Cloutier home, Robinson informed her that Woodley needed to issue a verbal and written warning before suspension, and also needed a legitimate reason for the suspension. ( Id. at ¶ 95). When Cloutier requested that the suspension letter be rescinded, Callery stated that she was unaware of a suspension letter, "brushed [off]" the suspension, and allowed Cloutier to return to work. ( Id. at ¶ 97). On May 17, 2013, Cloutier's attorney notified the City Council about the allegedly ongoing discriminatory and retaliatory conduct. ( Id. at ¶ 98).

From June to September 2013, Cloutier requested to open the library windows multiple times. She provided Woodley and Fougstedt a doctor's note stating "that [d]ue to [Ms. Cloutier's] breathing difficulties, she needs a functioning air conditioning system [in the library] or to be allowed to open windows for fresh air while at work." ( Id. at ¶¶ 99-105). Cloutier contends that Woodley and Fougstedt repeatedly refused her requests. ( Id. ). She further contends that on September 10, 2013, after sending Woodley an instant message about opening the windows, Woodley "came screaming at [her] in a fit of rage." ( Id. at ¶¶ 106-07). Cloutier allegedly "feared imminent bodily harm" and suffered further injury to her right shoulder in the process of shielding herself from Woodley, who was "enraged and out-of-control [and] continued to emotionally unravel." ( Id. at ¶¶ 108-09). Cloutier's union representative reported the incident to Callery, but she took no action. ( Id. at ¶ 110). Cloutier underwent an MRI the next day that allegedly confirmed "an aggravation of the adhesive capsulitis, " and her doctor ordered her "to remain out of work for several weeks following the assault in order to recover[, ] and for her own safety." ( Id. at ¶ 111).

In September and October 2013, Cloutier allegedly sent two letters to O'Connor describing the assault, asking for an investigation, and requesting a transfer to another branch of the library to distance herself from Woodley. ( Id. at ¶¶ 112-13). O'Connor never responded. ( Id. ). The complaint alleges that "the City took [Cloutier] off' the payroll" while she was recovering from the alleged assault instead of offering her FMLA leave or letting her use her accrued vacation and sick time. ( Id. at ¶ 114).

Cloutier returned to work on October 7, 2013, allegedly "with much hesitancy, fear, and trepidation." ( Id. at ¶ 116). The complaint alleges that Woodley sent her a memorandum the next day explaining that she disagreed with the recommendation of Cloutier's doctor about her needing open windows, and taking issue with Cloutier missing work from September 11 through October 6. ( Id. at ¶¶ 117-18).

On October 23, 2013, O'Connor allegedly received another letter from Cloutier stating that her request for reasonable accommodation with respect to her asthma had been ignored and that as a result, she had been suffering severe asthma attacks while at work. ( Id. at ¶ 120). The letter also stated that "O'Connor would be held personally responsible for her long-standing gross indifference and reckless disregard for ...

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