United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
Frances Hines (“Hines”) asserts claims against
Defendant Boston Public Schools (“BPS”) arising
under Mass. Gen. L. c. 151B, § 4, the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et
seq. (the “ADA”) and the Rehabilitation Act,
29 U.S.C. §§ 701 et seq. for
discrimination, retaliation and failure to accommodate based
upon her alleged disability as well as for breach of
contract. D. 22. The Court previously dismissed Hines'
claim for a violation of due process under 42 U.S.C. §
1983. D. 32. BPS has moved for summary judgment on all
remaining counts. D. 44. For the reasons stated below, the
Court ALLOWS the motion.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to 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 fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
movant bears the burden of demonstrating the absence of a
genuine issue of material fact. Carmona v. Toledo,
215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a
general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in [her] favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
following facts are drawn primarily from BPS's statement
of material facts, D. 44, Hines' statement of material
facts, D. 46,  and other supporting
documents and are undisputed unless otherwise noted.
has been an employee of BPS since 1995. D. 44 ¶ 1. Hines
currently works at Higginson Lewis K-2 School. D. 44 ¶
4. Prior to her position at Higginson Lewis, Hines worked at
the Tynan School. D. 44 ¶ 3. Prior to her current
position, Hines worked at the David Ellis School
(“Ellis School”) as a paraprofessional. D. 44
¶ 1; D. 22 ¶ 4. As defined by the Collective
Bargaining Agreement (“CBA”) between the School
Committee of the City of Boston and the Boston Teachers
Union, a paraprofessional is a “non-certified
individual employed by the Boston School Committee whose
function is to assist teachers and other school
personnel.” D. 44 ¶ 1; D. 44-4 at 19. The job
description for a paraprofessional for the Ellis School
Special Education program describes a paraprofessional as
someone who assists the classroom teacher with instructional
activities, facilitates classroom discipline and performs
“Lunch Duty/Bathroom Duty.” D. 44 ¶ 1; D.
44-2 at 4.
characterizes BPS' treatment of her from 2003 to 2015 as
“abusive.” D. 46-2 at 102. In 2003, before Hines
worked at the Ellis School, Hines was issued a “letter
of reprimand” for “insubordination” and
“making inappropriate comments.” D. 44 ¶ 6;
D. 44-6 at 42. The letter explained that on several
occasions, Hines has been “spoken to” about her
behavior by the school principal, a union representative, the
teacher in charge, Hines' previous teacher and the
current classroom teacher. D. 44-6 at 42. Hines wrote a
letter in response, asserting that she had followed
instructions while colleagues had been
“unprofessional” towards her and engaged in
“inappropriate comment[s].” D. 44-6 at 44. She
wrote further that, because another teacher's
inappropriate behavior had not been addressed in the meeting
regarding Hines' reprimand, Hines felt there was
“bias” against her. Id.
2004, Hines transferred to the Ellis School. D. 44 ¶ 1;
D. 22 ¶ 4. Hines described her relationship with Ellis
School principal Carlos Gibb (“Gibb”) at the
Ellis School as “not good.” D. 46 at 23.
Beginning with Hines' first year at the Ellis School (the
2004-2005 school year), Hines' superiors noted several
issues with Hines' performance. D. 44-5 at 12-17. Hines
was deemed to have “not met standards” in six
categories out of seventeen total categories. Id. at
12-13. Hines' evaluator noted that Hines “ha[d] not
demonstrated that she ha[d] enhanced the learning environment
in the . . . classroom. In formal and informal evaluations,
the students [did] not see her as the person who [could]
effectively help them with their daily work.”
Id. at 17. Below her signature on the evaluation,
Hines wrote that she “[did not] agree with the content
of [the] evaluation.” D. 44-5 at 12.
2005, Hines fractured her leg in a car accident. D. 46 at 16,
20; D. 46-2 at 19. Hines took six months of medical leave to
undergo surgery and physical therapy before returning to the
Ellis School. D. 44-4 at 2-5; D. 46 at 20; D. 46-2 at 19-20.
Before Hines began working for BPS, Hines was diagnosed with
a “cognitive impairment” that, according to
Hines, means she needs “things written for [her]”
and she does not “process as fast as somebody
else.” D. 46-2 at 22.
September 2006, Hines filed a complaint with the
Massachusetts Commission Against Discrimination
(“MCAD”) alleging that she had been discriminated
against by BPS, Gibb and George Martin, the Ellis School
assistant principal, on the basis of “Race [and]
Color.” D. 44 ¶ 8; D. 44-5 at 60-63; D. 46 at 11.
Hines alleged that Gibb, who is Hispanic, and Martin, who is
Caucasian, discriminated against her as an African-American
woman by yelling at her, making rude hand gestures towards
her and treating her differently than other employees. D. 44
¶ 10; D. 44-5 at 60-63; D. 46 at 13. The MCAD issued a
lack of probable cause finding on July 12, 2008. D. 44 ¶
10; D. 44-5 at 65. Hines appealed and a hearing, the MCAD
affirmed its finding. D. 44-5 at 73.
continued to receive mixed performance evaluations. For
example, in her evaluation for the 2006-2007 school year, an
evaluator noted that Hines' “handling of discipline
ha[d] improved over the past two years.” D. 44-5 at 47.
The evaluator also noted, however, that Hines failed to give
“follow up  directions” to students and did not
“inform students what she expected.” D. 44 ¶
11; D. 44-5 at 46. That year, Hines was rated as “meets
expectations” in all but two categories. D. 44-5 at
2008, Hines underwent a follow-up surgery for her leg and
received further physical therapy. D. 46-2 at 20. When Hines
returned from medical leave, she was assigned to work in a
classroom with Ms. Salant. D. 46 at 13. According to Hines,
in October 2008, Salant yelled “so very loudly that one
of [Hines'] students started crying
uncontrollably.” D. 46-1 at 9; D. 46 at 13. According
to Hines, Hines requested a transfer, but her request was not
granted. D. 46 at 13-14.
November 20, 2008, Hines filed another complaint with the
MCAD alleging retaliation by BPS for filing her previous MCAD
complaint. D. 44 ¶ 14; D. 44-5 at 75; D. 46 at 11. Hines
alleged that after returning from medical leave she had been
assigned to work with a teacher (Salant) who BPS knew had
“harass[ed]” and “disrespected” Hines
in the past. D. 44-5 at 75. Hines further alleged that when
she asked to switch to another classroom, she was ignored.
Id. The MCAD issued a lack of probable cause finding
as to the 2008 MCAD complaint on March 28, 2011. D. 44-5 at
November 21, 2008, Hines wrote to Gibb, the principal of the
Ellis School, and requested an accommodation to enter school
through the front door because walking around to the back
entrance was made difficult by a “walking
disability.” D. 46 at 14; D. 46-2 at 47. BPS asserts
that Hines did not submit this request to the BPS Office of
Equity. D. 46-2 at 93.
2010, Patricia Niles-Randolph took over for Gibb as principal
of the Ellis School. D. 44 ¶ 16. On April 9, 2010,
Niles-Randolph wrote a letter to Hines regarding Hines
“Leaving Students Unsupervised, ” “Leaving
[the] School Building during Contractual Work Time” and
“Disrupting the School Assembly by Shouting Derogatory
and Threatening statements” concerning Hines'
conduct on March 18, 2010. D. 44 ¶ 19; D. 44-7 at 10.
The letter explained that Hines' conduct was
“unacceptable.” D. 44-7 at 10. On April 18, 2013,
Hines wrote a letter in response, denying the allegations in
the letter and explaining, among other things, that at the
time in question, one of the students had
“assault[ed]” her and she had gone to the
teacher's lounge to ice her injured foot. D. 44-7 at 17.
Hines subsequently also corresponded several times with
Niles-Randolph about her perceived need for more personnel to
supervise the students with disabilities. D. 44-7 at 18. In
response, Niles-Randolph convened an “Investigatory
Meeting” with Hines on April 30, 2010. D. 44-7 at 13.
In directing Hines to attend the meeting, Niles-Randolph
advised Hines that her “allegations and concerns if
substantiated [would] constitute a sincere need to reevaluate
[Hines'] classroom placement.” D. 44-7 at 13.
3, 2010, Niles-Randolph wrote to Hines in response to her
correspondence “requesting needed support in the
workplace.” D. 44-7 at 22. Niles-Randolph wrote that
“[i]n pursuant [sic] of the earnest concern for your
safety and wellbeing within the classroom environment and to
minimize the need for you to require medical treatment for
job related stress or injuries, ” Hines would be
assigned to a kindergarten classroom at the Ellis School
beginning May 10, 2010. Id. Niles-Randolph opined
that Hines' assistance in the new classroom would be
“welcomed” and that “the change [would]
provide a safer more manageable student environment for
[Hines] to work in.” Id. The next day, Hines
wrote to Niles-Randolph that she had “never ask[ed] for
a support staff because of [her] inability to manage [her]
classroom students.” D. 44-7 at 24. Rather, Hines had
requested support staff because her students were being
“punished and disciplined for 40 minutes during Lunch
and recess in the classroom, and they [were] exhibiting
unsafe behaviors and the administrators [were] aware that
[Hines] [had] a walking disability.” Id.
Additionally, Hines asserted she had not received a response
from Niles-Randolph regarding “verbal abuse” by
Catherine MacCuish, the coordinator for a cluster of
classrooms at the Ellis School. Id. Finally, Hines
requested that she remain in the Special Education Program,
rather than switching to the new kindergarten, regular
education classroom as Niles-Randolph had proposed.
Id.; D. 44 ¶ 19.
12, 2010, Hines submitted a “Voluntary
Self-Identification Form” for employees with
disabilities to the BPS Office of Equity, requesting that BPS
“modify [her] work schedule” to accommodate her
disabilities. D. 44 ¶ 24; D. 44-7 at 32; D. 46-2 at 49.
Where asked to describe the nature of her disabilities on the
form, Hines wrote: “[w]alking disability, Attention
Deficit, Learning Disability, On File at Central Office.
Please accomdate [sic] as needed.” D. 46-2 at 49. Hines
also wrote that she had previously requested accommodations
that had not been provided from Gibb, Niles-Randolph and
MacCuish. Id. With the form, Hines submitted a
letter from her doctor explaining that Hines had a
“weak left leg, ” a “stiff knee, ”
attention deficit disorder and a “learning
disability.” D. 44-7 at 34; see D. 44-7 at 36.
Hines' doctor did not, however, list any recommended
accommodations for these disabilities. D. 44 ¶ 24; D.
44-7 at 34. Larry Faison (“Faison”), the senior
equity specialist at the BPS Office of Equity, attests that
he and Hines discussed her request for an accommodation over
the phone, in person and over email in months after Hines
submitted her request. D. 44-7 at 27; see D. 44
Hines' initial exchanges with Faison in the BPS Office of
Equity, and while Hines' 2008 MCAD complaint was pending,
Hines filed two more administrative complaints against BPS.
Hines first filed a complaint with the United States
Department of Education Office for Civil Rights
(“OCR”) on July 19, 2010 alleging retaliation by
BPS against Hines for having filed the 2006 and 2008 MCAD
complaints. D. 44 ¶ 15; see D. 44-5 at 84. OCR
closed the complaint effective January 14, 2011, finding
insufficient evidence of her claims. D. 44 ¶ 20; D. 44-6
at 9. On December 22, 2010, Hines filed a complaint with the
United States Equal Employment Opportunity Commission
(“EEOC”), alleging age-based discrimination by
BPS against Hines. D. 44 ¶ 15; D. 44-6 at 12. After an
investigation, the EEOC closed the file on Hines' charge
on June 7, 2011. D. 44 ¶ 21; D. 44-6 at 20.
September 2010, Faison requested further documentation from
Hines regarding her disability, D. 44 ¶ 25; D. 44-7 at
36, but, according to Faison, the Office of Equity did not
hear back from Hines until February 25, 2011, D. 44 ¶
26; D. 44-7 at 27. On February 25, 2011, Hines submitted a
letter from her doctor dated January 19, 2011, which noted
that Hines was feeling “under alot of pressure at her
job resulting in poor sleep and increasing alopecia”
and recommended Hines take three months off of work to
recover. D. 44 ¶ 26; D. 44-7 at 27, 38. Hines attached a
clinical neuropsychology report to her letter, in which the
clinician recommended the following accommodations for Hines:
assigning Hines to a small class with a single teacher,
giving Hines written instructions to make her job
responsibilities clear, having Hines attend professional
development workshops and assigning a peer mentor to Hines to
“help her learn ways to cope with difficult class
situations and for support.” D. 44-7 at 42.
February 2011, Norman Townsend (“Townsend”)
became the principal of the Ellis School. D. 44 ¶ 22; D.
44-6 at 50. At the time, Hines was on a leave of absence as
was recommended by her doctor. D. 44 ¶ 22; D. 44-6 at
50. Faison attests that he spoke to Hines before she returned
from her medical leave in April 2011, explaining that he was
working with Townsend to respond to Hines' requested
accommodations. D. 44 ¶ 27; D. 44-7 at 27. Townsend
confirmed that he spoke with Faison regarding Hines'
accommodation. D. 44-6 at 51. According to Faison, Hines
declined the support of a peer mentor. D. 44-7 at 28. When
Hines returned from medical leave on April 15, 2011, Townsend
attests that he met with Hines to discuss her new assignment,
which would last until the end of the school year. D. 44-6 at
51. Townsend attests that he explained ...