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Fox v. Town of Framingham

United States District Court, D. Massachusetts

September 12, 2016

KEVIN FOX, Plaintiff,
v.
TOWN OF FRAMINGHAM, FRANMINGHAM SCHOOL COMMITTEE, MICHAEL WELCH, in his Individual and Official Capacities, JEFFRY CONVERY, in his Individual and Official Capacities, and STACY L. SCOTT, in his Individual and Official Capacities, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          Leo T. Sorokin United States District Judge

         Plaintiff Kevin Fox (“Fox”), a former social worker at Framingham High School (“FHS”), brings this action against the Defendants in connection with his alleged retaliatory constructive discharge. Specifically, Fox asserts that Defendants attempted to quiet him through intimidation when he spoke out about incidents of alleged sexual assault between students at FHS. Fox's claims are for Violation of the Massachusetts Whistle Blower Statute, M.G. L. ch. 149 § 185 (Count I), Violation of 42 U.S.C. § 1983 (Count II), Violation of Title IX of the Education Amendments of 1972 (Count III), and Violation of the Massachusetts Civil Rights Act, M.G.L. ch. 12 §§ 11H and I (Count IV). For the following reasons, Defendants' Motion for Summary Judgment, Doc. 77, is ALLOWED IN PART and DENIED IN PART.

         I. MATERIAL FACTS

         The following material facts are viewed in light of the non-moving party, which in this case is Fox.[1]

         From August 2002, to March 27, 2013, Fox was employed as a social worker at FHS. Doc. 88 at 2. Around May 2, 2012, a female student (“Student 1”), told Fox that she and a male student (“Student 2”) had an unwanted sexual encounter in the school. Doc. 88 at 28. Fox reported to the school resource officer what Student 1 had told him. Id. at 28-29. Fox also filed a report with the Department of Children and Families. Id. at 29. On May 3, 2012, Student 1's mother called Fox and relayed additional details relating to the sexual encounter. Id. Fox relayed this new information to Defendant Convery (FHS' Vice Principal). Id. An administrative meeting was held around this time. Id. The meeting included Fox, Defendant Welch (FHS Principal), and several other FHS employees. Id. FHS then took some measures to safeguard Student 1, which included removing Student 2 from the cafeteria during the study hall he shared with Student 1, and placing Student 2 in the Academic Development Center. Id. at 8, 29. Student 2 was instructed not to interact with Student 1, not to contact Student 1, and not to have friends or acquaintances contact Student 1. Id. at 8. According to Fox, these measures were wholly inadequate. Id. at 30.[2]

         Then, in early June, another female student (“Student 3”), reported to Fox that she too had an unwanted sexual encounter with Student 2. Id. Student 2 was suspended for five days. Id.

         Beginning in September 2012, when school resumed, Fox sought to have FHS take additional measures with respect to Student 2. Id. at 30-31. Fox attended a meeting with Welch and Convery in the fall of 2012. In that meeting Fox advocated for getting the District Attorney's (“DA”) office involved. Id. at 31. According to Fox, Defendant Welch responded: “Kevin, just how public do you want to make this?”[3] Id. Also, according to Fox, Welch then “leaned in closer” to Fox and said, “Kevin, how well do you know Gerry Leone [the Middlesex DA]?” Id. Fox describes Welch as “leaning in” and implies that the statement was made in a threatening manner. Id.; Doc. 90 at 5. Fox replied that he knew he was the Middlesex DA and that it would be helpful if he or a representative from his office could explain why no charges were filed. Doc. 88 at 31. According to Fox, Welch then said: “I am on a first name basis with Gerry” and that Welch “would look into having such a meeting.” Id. Fox continued to press his disagreement with FHS's handling of the sexual assault complaints as well as his view that the school was sending the wrong message to the student body. Id. Fox reports that Welch responded, “Kevin if you don't like my leadership style you don't have to work here.” Id.

         On December 3, 2012, Corinne Nye, the head of the special education department, emailed Welch advising that Fox had not been meeting with a particular student as required by that student's Individual Education Plan (“IEP”). Id. at 16. On December 4, 2012, Fox sent an email to Welch again raising dissatisfaction with FHS' response to the sexual assault complaints as well as the more general issue of sexual assaults. Doc. 88-1 at 38. According to Fox, “shortly after” Welch began to review Fox's work records and employment history. Doc. 88 at 33-34. Then, on or about December 7, 2012, Welch issued a formal reprimand to Fox having to do with Fox's failure to provide counseling services to a student at FHS. Id. at 34 Fox asserts he was never advised of the student's counseling requirement. Doc. 87 at 6. Fox followed the school's grievance procedures and after a level III hearing was held on January 29, 2013, the reprimand was removed from his file pursuant to a decision of Defendant Scott (the Superintendent) on February 12, 2013. Doc. 88-1 at 42.

         Following the reversal of his discipline, Welch told Fox to take an administrative leave of absence. Doc. 88 at 34-35. Also, during this period and on at least six separate occasions, Welch asked Fox if Fox intended to resign. Id. at 35.[4] Welch, according to Fox, also said that Welch could “make” Fox take an administrative leave. Doc. 88-3 at 46. Fox declined to take leave. Id. at 46-47.There is no evidence that Welch took further steps to impose a leave. See id. According to the Defendants, Welch's questions were prompted by (1) the fact that Fox was seen by colleagues and students cleaning out his office, and (2) because Fox made statements suggesting to colleagues he might resign. Doc. 90 at 8-9. Fox does not recall telling anyone that he was going to “resign, ” Doc. 88 at 21, but he admits to having conversations with colleagues regarding how he wanted to “finish off his social work career, ” and he did tell them he was “contemplating what [he was] going to do, ” id. at 20.

         On or about January 7, 2013, the “Framingham Whistleblower” Facebook page was launched to shed light on the alleged sexual assaults at FHS, which contained comments and revealed confidential information, including the names of the alleged victims. Id. at 35. Welch testified at deposition that he was concerned about the release of the confidential information and he interviewed Fox and several students in an effort to determine how the information was released. Doc. 88-4 at 157-64. After Welch questioned Fox, Welch found no evidence that Fox released any confidential information. Doc. 88 at 35-36. According to Fox, Welch conducted the interviews relating to the Facebook page to “discover information that could be used to terminate” Fox. Id. at 24. At the hearing on the instant motion, Fox argued that the investigation was unwarranted and was designed to intimidate him.

         At some point during the 2012-2013 school year, Welch and Scott, in part, arranged for the “White Ribbon” organization to conduct an assembly regarding sexual assaults and proper treatment of women. Id. at 36. The assembly was scheduled for March 27, 2013. Id. No one invited Fox to participate in the assembly despite the fact that he was the most senior social worker at FHS. Id. There is no dispute that a flyer from the Principal invited every student and every faculty member (thus including Fox) to attend the assembly. Id. at 23.

         On March 27, 2013, Fox submitted a letter of resignation which was effective immediately, and published on March 28, 2013, in the Framingham Patch. Doc. 31 at 55-56. Therein, Fox writes about his reason for resigning from FHS. In relevant part, he states:

Today is my last day as an employee in the Framingham Public School District and at Framingham High School. My moral and ethical standards will not allow me to stay.
To be perfectly clear, I am making the decision to leave because of Mike Welch's indifference toward the emotional development of the students at FHS and his disregard for the expertise of the social workers in the building. Drug involvement has proliferated (and it is not the legislatures' doing), binge drinking among teens and unwanted sexual incidences continue to put people at great risk, and the leadership has turned a blind eye toward the fraying social civility within the building.
. . .
Sadly, I was asked to take a paid administrative leave in December (which I refused) and then had to file a grievance against Mike Welch for attempting to discipline me for an unrelated matter. The “discipline” was a clear act of retaliation and an attempt to quiet me relative to his mishandling of the sexual assault. I won the grievance and the letter was expunged.
So, it is time to move on. I know some of you are aware of the Framingham Whistleblower facebook page. I did not create the page-proudly, I barely know what a mouse is-but some civic minded people concerned about an institutional cover up ...

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