United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
Sorokin United States District Judge
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.
following material facts are viewed in light of the
non-moving party, which in this case is Fox.
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.
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.
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?” 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.
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
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
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.
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.
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
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