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Clorite v. Somerset Access Television, Inc.

United States District Court, D. Massachusetts

September 20, 2016

JOHN CLORITE, Plaintiff,


          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff John Clorite (“Clorite”) has filed this lawsuit against Defendants Somerset Access Television, Inc. (“SATV”) and Thomas C. Norton (“Norton”) (collectively “Defendants”) 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 freedom of expression 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). D. 14. Defendants assert counterclaims against Clorite for breach of fiduciary duty and duty of loyalty (Count I) and breach of confidentiality (Count II). D. 48.

         Defendants have now moved for summary judgment on all remaining counts against them, D. 60, and Clorite moves for summary judgment on Defendants' counterclaims, D. 58. For the reasons stated below, the Court ALLOWS Defendants' motion for summary judgment and ALLOWS IN PART and DENIES IN PART Clorite's partial motion for summary judgment.

         II. Standard of Review

         The Court grants summary judgment where there is no genuine dispute on any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A material fact is one that “carries with it the potential to affect the outcome of the suit under the applicable law.” García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014) (quoting Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 36 (1st Cir. 2014)) (internal quotation mark omitted).

         The moving party “bears the burden of demonstrating the absence of a genuine issue of material fact.” Rosciti v. Ins. Co. of Pa., 659 F.3d 92, 96 (1st Cir. 2011) (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). Once that burden is met, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “with respect to each issue on which [he] would bear the burden of proof at trial, ” he must “demonstrate that a trier of fact could reasonably resolve that issue in [his] favor, ” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). “The test is whether, as to each essential element, there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (internal quotation mark and citation omitted). As such, the “factual conflicts” the nonmoving party relies upon “must be both genuine and material.” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 396-97 (1st Cir. 2012). This requires the production of evidence that is “significantly probative, ” id. at 398 (citation omitted), rather than “merely colorable, ” DeNovellis, 124 F.3d at 306 (citation omitted).

         While the Court views the record in the light most favorable to the non-moving party, drawing reasonable inferences in his favor, “[c]onclusory allegations, improbable inferences, and unsupported speculation” are “insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (internal quotation mark and citation omitted).

         III. Factual Background

         The following facts are drawn from the parties' statements of material facts, D. 59, D. 61; D. 77; D. 82; D. 80; D. 84, and supporting documents and, unless otherwise noted, are undisputed.

         A. Clorite and SATV

          SATV is a non-profit cable access television corporation located in Somerset, Massachusetts. D. 61 ¶ 1; D. 80 ¶ 1. SATV is overseen by its board of directors, led by the board president. D. 61 ¶ 4; D. 80 ¶ 4. According to SATV bylaws, the SATV board consists of a minimum of five and a maximum of seven directors. D. 61 ¶ 3; D. 80 ¶ 3; D. 70-6 at 4 (SATV bylaws). When SATV was first created, the Somerset Board of Selectmen (“Board of Selectmen”) chose the SATV board. D. 61 ¶ 3; D. 80 ¶ 3; D. 79-15 at 107:9-108:23 (Norton Dep.); D. 70-6 at 4. Thereafter, two board members, less than a quorum, are appointed by the Board of Selectmen. D. 61 ¶ 3; D. 80 ¶ 3; D. 70-6 at 4. Between 2005 and 2015, Norton was president of SATV's board. D. 61 ¶ 2; D. 80 ¶ 2. Clorite also served on SATV's board from 2009 to 2011 and provided video recording and programming production services. D. 61 ¶ 6; D. 80 ¶ 6; D. 77 ¶ 17; D. 82 ¶ 17.

         SATV was previously funded by remittances from Comcast cable subscriber fees as a result of a license between the Town of Somerset and Comcast in addition to occasional public donations. D. 61 ¶ 5; D. 80 ¶ 5. As of July 2015, the new license with Comcast requires that remittances be paid to the Town of Somerset directly and that SATV presents its budget proposal to the Board of Selectmen to discuss how such funds will be used. D. 61 ¶ 5; D. 80 ¶ 5; D. 79-19 ¶¶ 19-20 (LeBeau Aff).

         Clorite observed that around January 2010 SATV's executive director, Joanne Breault (“Breault”), was being sexually harassed by Norton. D. 61 ¶ 16; D. 80 ¶ 16; D. 59 ¶ 7; D. 77 ¶ 7. Breault asked Clorite to keep the situation confidential and to take no action regarding the alleged harassment. D. 77 ¶ 20; D. 82 ¶ 20. The parties dispute whether Norton received a letter from Clorite in January 2010 requesting that Norton stop such behavior. D. 61 ¶¶ 17-20; D. 80 ¶¶ 17-20. Clorite did not otherwise speak with any member of the SATV board but was concerned that such conduct would expose the SATV board to liability. D. 61 ¶ 22; D. 80 ¶ 22. Clorite believed that Tom Killoran (“Killoran”), Vice President of the SATV board, D. 61 ¶ 11; D. 80 ¶ 11, was otherwise made aware of the harassment, D. 61 ¶ 22; D. 80 ¶ 22. Clorite believed that after January 2010 the harassment escalated. D. 61 ¶ 23; D. 80 ¶ 23. Between September 2009 and January 2011, Clorite kept personal notes of Norton's sexually harassing behavior and continued to speak with Breault regarding the situation. D. 77 ¶¶ 22-23; D. 82 ¶¶ 22-23.

         In April 2011, Breault filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”) against SATV and Norton alleging sexual harassment. D. 61 ¶ 24; D. 80 ¶ 24. Clorite did not participate in MCAD's investigation. D. 61 ¶ 25; D. 80 ¶ 25. Clorite did not speak with any MCAD representative regarding the complaint or provide MCAD with any documents. D. 61 ¶ 25; D. 80 ¶ 25. In May 2011, the SATV board of directors, on behalf of SATV, retained the Employment Practices Group (“EPG”), a legal and human resources consulting firm, to conduct an investigation regarding Breault's claims. D. 61 ¶ 26; D. 80 ¶ 26. The president of EPG, Julie Moore (“Moore”), interviewed Clorite and Breault but the parties dispute if Moore interviewed other SATV employees and board members. D. 61 ¶¶ 26-27; D. 80 ¶¶ 26-27. Clorite provided to Moore a memorandum dated January 2010 from Clorite to Norton with the subject “Hostile Work Environment.” D. 61 ¶ 28; D. 80 ¶ 28. Moore's report, dated July 13, 2011, concluded that Clorite had created the memorandum after the fact. D. 61 ¶ 29; D. 80 ¶ 29. Clorite disputes the facts, conclusions and admissibility of Moore's report. D. 80 ¶ 29.[1]

         Following the SATV board's receipt of Moore's report, Norton and Clorite were instructed not to attend the July 25, 2011 SATV board meeting. D. 61 ¶ 33; D. 80 ¶ 33. At the meeting, which Norton and Clorite did not attend, Moore's report was distributed to the board members. See D. 61 ¶ 33; D. 80 ¶ 33; D. 69-1 at 2 (July 25, 2011 SATV board minutes). Upon review of Moore's report, the board unanimously approved a motion to place Breault on administrative leave with pay and benefits until August 31, 2011, at which time her pay and benefits would be terminated. See D. 69-1 at 2. The board also unanimously approved a motion to consider Clorite's status as a board member at the next meeting. Id. On February 12, 2012, Breault sent a request to MCAD to withdraw her complaint certifying that she had reached a satisfactory settlement. D. 79-12 at 2. On May 17, 2012, the SATV board held a meeting and voted to remove Clorite from the board. D. 69-2 at 3; D. 61 ¶ 35; D. 80 ¶ 35. Norton abstained from the vote. D. 61 ¶ 36; D. 80 ¶ 36. The board, in considering Clorite's removal, cited his lack of loyalty to the board and his breach of fiduciary duties by, among other things, failing to notify the board of Norton's actions that he considered to create a hostile work environment and of the untruthful testimony Norton provided to the board regarding a June 21, 2011 incident at the SATV studio. D. 61 ¶ 35; D. 80 ¶ 35; D. 69-2 at 2-3.[2]

         B. Clorite's Services for SATV and the Town of Somerset

         Clorite last received compensation from SATV for his recording services in, at the latest, 2008, D. 61 ¶ 74; D. 80 ¶ 74, and otherwise received no compensation for his service as a SATV board member, D. 61 ¶ 75; D. 80 ¶ 75. The parties dispute if Clorite ceased receiving compensation for his recording services from the Town of Somerset in 2008 or if he continues to receive a stipend for recording public meetings in the Town Hall. D. 61 ¶ 76; D. 80 ¶ 76.

         Although the parties dispute the number of recordings Clorite made, Clorite asserts that he submitted recordings of the Board of Selectmen and planning board meetings in disk form to SATV through, at the earliest, April 2013. D. 61 ¶¶ 82-83; D. 80 ¶¶ 82-83. Clorite also asserts that he submitted disks containing recordings of budget hearings and fiscal task force meetings through April 2015 and January 2015, respectively. D. 80 ¶¶ 82-83. In 2013, Clorite recorded Board of Selectmen and planning board meetings using equipment owned by the Town of Somerset for the dual purposes of broadcasting live programming over SATV and creating a DVD recording of the meetings for SATV to show as a repeat. D. 61 ¶ 86; D. 80 ¶ 86. In April 2013, as part of improvements to SATV's systems, SATV contracted with Leightronix to provide web based video on demand services for the public to view shows and events previously recorded by SATV. D. 61 ¶ 87; D. 80 ¶ 87. The DVDs produced by Clorite using the Town of Somerset's equipment do not properly load on the Leightronix system to be made available to the public on demand. D. 61 ¶ 90; D. 80 ¶ 90. Starting in June 2013, SATV began to send its own crew to the Board of Selectmen and planning board meetings to record the meetings and make them available on demand. D. 61 ¶ 91; D. 80 ¶ 91. As such, Clorite utilized the Town of Somerset's cameras to broadcast the meetings live, whereas SATV utilized its cameras to record the meetings to play as repeats on SATV and make them available on demand. D. 61 ¶ 92; D. 80 ¶ 92. Although Clorite disputes the audio quality and composition of SATV's recordings, he does not dispute that SATV's recordings contain the same content as his recordings. D. 61 ¶¶ 93-94; D. 80 ¶¶ 93-94.

         Both SATV and Clorite continued to cover and record Board of Selectmen and planning board meetings until approximately May 2014 when those meetings were moved to the town library. D. 61 ¶ 79; D. 80 ¶ 79. SATV has installed numerous robotic cameras in the town library to record those meetings. D. 61 ¶ 79; D. 80 ¶ 79. As a result, Clorite does not bring over the Town of Somerset camera to broadcast or record those meetings. D. 61 ¶ 79; D. 80 ¶ 79.

         C. Clorite and the Diman Regional Vocational Technical School

         From at least 2010 to 2013 Clorite recorded the graduation ceremonies for Diman Regional Vocational Technical School (“Diman”). D. 61 ¶ 40; D. 80 ¶ 40. At the end of the 2013 school year Marta Montleon (“Montleon”), the Superintendent-Director at Diman since 2009, D. 61 ¶ 15; D. 80 ¶ 15, informed Clorite that Diman would no longer be using his videography services, D. 61 ¶ 41; D. 80 ¶ 41. The A/V club at Diman would film all future school-related events. D. 61 ¶¶ 41, 43; D. 80 ¶¶ 41, 43. Montleon is not aware of any written agreement between Clorite and Diman regarding the recording of Diman events. D. 61 ¶ 77; D. 80 ¶ 77. The parties dispute whether Montleon had a conversation with Norton in 2012 regarding Clorite's ...

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