17, 2016, Filed
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS'
MOTION TO DISMISS
L. Ullmann, Justice
Massachusetts Executive Office of Public Safety and Security
(" EOPSS"), Massachusetts Department of Correction
(" DOC"), and individual defendants Luis Spencer,
Robert Murphy and Andrea Cabral (the " Individual
Defendants") moved to dismiss all counts of the
Complaint filed by the plaintiff, Karen Hetherson ("
Hetherson"). The Court held a hearing on May 5, 2016.
For the below reasons, the defendants' motion is
ALLOWED in part and DENIED in part.
The Legal Standard
motion to dismiss, " argues that the complaint fails to
state a claim upon which relief can be granted."
Jarosz v. Palmer, 436 Mass. 526, 529, 766 N.E.2d 482
(2002), quoting J.W. Smith & H.B. Zobel, Rules Practice s.
12.16 (1974). In considering such a motion, the Court takes
as true the allegations of the complaint, as well as such
inferences as may be drawn from them in favor of the
non-moving party. Nader v. Citron, 372 Mass. 96, 98,
360 N.E.2d 870 (1977). However, the court disregards legal
conclusions cast in the form of factual allegations.
Schaer v. Brandeis Univ., 432 Mass. 474, 477, 735
N.E.2d 373 (2000). To survive the motion, the complaint must
contain " allegations plausibly suggesting (not merely
consistent with)" an entitlement to relief and "
must be enough to raise a right to relief above the
speculative level." Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A "
formulaic recitation of the elements of a cause of action
will not do." Twombly, 550 U.S. at 555.
Application of the Legal Standard
1: Employment Discrimination in Violation of G.L.c. 151B,
Complaint sufficiently alleges that Hetherson's
employers, EOPSS and DOC,  terminated her for failing to
discipline certain correction officers, while not terminating
men who were in a comparable position to discipline those
same correction officers, and that the reason for the
employers' decision to terminate her was gender
discrimination. Therefore, dismissal of this Count must be
DENIED as to EOPSS and DOC.
liability of non-employers under G.L.c. 151B, § 4,
however, is limited to subsections 4(4), claims of
retaliation, 4(4A), claims of coercive interference with the
exercise of protected rights, and 4(5), aiding and abetting.
If Hetherson wishes to proceed against any of the Individual
Defendants under Count 1, she must move for leave to file an
Amended Complaint setting forth the one or more subsections
that each defendant allegedly violated, and enough
specificity to raise her right to relief above a speculative
level. See Iannacchino, 451 Mass. at 636. Therefore,
Count 1 is DISMISSED as to the Individual
Defendants, but without prejudice to plaintiff's
right to seek leave to file an Amended Complaint.
2: Violation of Federal Civil Rights Under 42 U.S.C. §
and DOC moved to dismiss this count, but defendants'
brief argues for dismissal only in favor of the Individual
Defendants. See Def. Br. at 7-9. In any event, dismissal
against EOPSS and DOC must be DENIED on this count
for the reasons set forth above with regard to Count 1,
because " the four elements necessary to establish a
prima facie case for an equal protection claim filed pursuant
to § 1983 are substantially the same as the requirements
necessary to establish an employment discrimination claim
pursuant to G.L.c. 151B." Beal v. Board of Selectmen
of Hingham, 419 Mass. 535, 546, 646 N.E.2d 131 (1995).
the Individual Defendants, based on Beal and this
Court's ruling on Count 1, Count 2 must be DISMISSED,
without prejudice to plaintiff's right to seek to
file an Amended Complaint with enough specificity to raise
the right to relief above a speculative level.
3: Violation of State Civil Rights Under G.L.c. 12, ...