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recognizing that the MTCA “immunizes public employees against liability” for injuries resulting from their negligent conduct while acting within the scope of their employment
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CIVIL ACTION NO. 05-12348-RWZ.
March 26, 2007
MEMORANDUM OF DECISION AND ORDER
Plaintiff Marianne J. Fantini ("Fantini") alleges that her former employer, Salem State College ("Salem College"), by the actions of several of its employees, verbally harassed her until she finally was forced to leave work, having suffered a mental breakdown. While on disability leave, she alleges she was terminated unjustly, and as a result of this treatment, had a heart attack eight months later. In her original complaint (Docket # 1), she sought damages against defendants (1) Salem College, (2) Nancy D. Harrington ("Harrington"), Salem College President, (3) Janyce J. Napora, V.P. of Administration and Finance, (4) Matilda DelVecchio ("DelVecchio"), Supervisor of Treasury Services, (5) the Massachusetts Board of Higher Education's Office of Human Resources, (6) Stephen P. Tocco, Chairman of the Massachusetts Board of Higher Education, and (7) Peter Alcock, Jr., Salem College Representative of the Mass. Board of Higher Education, under a number of state and federal civil rights statutes. All seven defendants filed separate motions to dismiss, accompanied by supporting memoranda (Docket ## 9 — 22). Plaintiff then filed a motion for summary judgment (Docket # 28), ruling on which was deferred as it was premature. At the hearing on the motions to dismiss, the court ordered plaintiff to file a pleading delineating exactly the claims and defendants remaining in the case. In response, plaintiff filed an amended complaint (Docket # 35, "Amended Complaint"), which dropped all defendants except Salem College, Harrington, and DelVecchio (collectively "defendants") and eliminated several counts asserted in the original complaint. I shall treat the motions to dismiss as filed to the Amended Complaint. For the reasons below, defendants' motions to dismiss are granted.
I. Background
Pared to their essence, the facts alleged are these. Plaintiff, after working for several months as a temporary employee, was hired by Salem College to a full-time position as the Director of General Accounting on April 3, 2000, and was supervised by defendant DelVecchio. At some time, she notified DelVecchio of problems and errors with the financial information provided by another employee, Edward Manning ("Manning"), which she believed violated state regulations. Rather than disciplining Manning, DelVecchio discriminated against plaintiff because of her gender and retaliated against her for her repetitive complaints.
Plaintiff was also asked to assist in the unwarranted termination of one of her co-workers, and was subject to "a steady barrage of opprobrious comments" from DelVecchio when she reported this misconduct. In particular, DelVecchio denigrated plaintiff's abilities to perform her job and unfavorably compared her clothing to that of a male employee. This "campaign of verbally attacking [her] character" directly led to plaintiff's mental breakdown on November 8, 2001.
Prior to leaving work on November 8, plaintiff had never received a formal evaluation indicating that her performance was less than acceptable. While she was on twelve weeks of medical leave, however, defendants began documenting alleged errors in her prior job performance. On the recommendation of DelVecchio, and with the approval of Harrington, plaintiff was formally terminated on February 14, 2002, while still out on medical leave and without prior notice of her supposed work deficiencies or an opportunity for a hearing. She claims that as a result of this mistreatment, she suffered a heart attack some nine months later in November 2002. She did not become aware that defendants' conduct was the source of this malady until discussions with her physicians in 2005.
After her termination, pursuant to a collective bargaining agreement, plaintiff filed a grievance in April 2002; and later a complaint with the Massachusetts Commission Against Discrimination ("MCAD") alleging discrimination under Mass. Gen. L. ch. 151B, § 4(4), (16). Both the grievance and the MCAD complaint were resolved in favor of defendants.
Paragraph 4 prohibits retaliation against an employee for opposing any practice forbidden by Chapter 151B or for filing a complaint or testifying in a proceeding alleging a violation of the chapter. Paragraph 16 prohibits an employer from terminating or otherwise discriminating against an otherwise capable employee because of her handicap and requires reasonable accommodation to be made for the physical and mental limitations of the employee. Mass. Gen. L. ch. 151B, § 4(4), (16).
On November 22, 2005, she filed her original complaint in federal court alleging violations of federal and state statutes including, inter alia, Title VII of the Civil Rights Act of 1964, deprivation of rights under 42 U.S.C. § 1983, violation of 42 U.S.C. § 1981(b), violation of the Civil Rights Act of 1991, and violation of Mass. Gen. L. ch. 151B, as well as claims of negligence, res ipsa loquitur, breach of contract and both negligent and intentional infliction of emotional distress. The Amended Complaint, filed in January 2007 after the hearing on defendants' motion to dismiss, dropped defendants not directly involved in plaintiff's employment and also deleted the counts alleging res ipsa loquitur, breach of contract and infliction of emotional distress.
II. Legal Standard
A motion to dismiss appraises only the legal sufficiency of the complaint, not whether a plaintiff will ultimately prevail.Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In ruling on a 12(b)(6) motion to dismiss, I must read the complaint in the light most favorable to the plaintiff and accept all factual allegations as true. Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 62 (1st Cir. 2004). "A court confronted with a Rule 12(b)(6) motion may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. at 66 (internal quotation marks and citations omitted) (holding that there is no heightened pleading requirement in civil rights cases).
III. Statute of Limitations on Asserted Claims
Defendants argue that plaintiff's section 1983 and Chapter 151B state claims are time-barred by the Massachusetts three-year statute of limitations on personal injury and employment actions. "The accrual period in a section 1983 case ordinarily starts when the plaintiff knows, or has reason to know, of the injury on which the action is based." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir. 1992) (holding that the accrual period in a case alleging wrongful termination without a hearing guaranteed by due process "is the date when the employee reliably knew he had lost his job."). Here, plaintiff's discrimination and retaliation claims date to the second half of 2000 and the first eleven months of 2001, and she was aware that she had been terminated by no later than March 1, 2002. Her original complaint, however, was not filed until November 22, 2005, more than three and a half years after the latest date her action could have accrued. (Docket # 1.) Plaintiff's complaint asserts that it is not time-barred because she was incapacitated by her mental illness. (Amended Complaint ¶ 8.) Massachusetts law tolls the limitations period if the plaintiff is "incapacitated by reason of mental illness when a right to bring an action first accrues." Mass. Gen. L. ch. 260 § 7; but cf. Street v. Vose, 936 F.2d 38, 40 (1st Cir. 1991) (finding an inmate with history of schizophrenia, a sociopathic personality, and a severe character disorder as well as erratic behavior and a suicide attempt did not demonstrate an incapacitating mental condition adequate to toll statute of limitations under Massachusetts law).
See letter describing March 1, 2002 meeting to discuss the union grievance filed on behalf of plaintiff contesting her termination. (Docket # 2, Ex. 12.)
In her reply brief, plaintiff also invokes the Massachusetts "discovery rule" to toll the limitations period on the counts pled under state law and relies on the holding in Jones v. R.R. Donnelley Sons Co., 541 U.S. 369 (2004) to argue that a four-year limitations period applies to the counts alleging violations of federal statutes.
At this stage in the litigation, plaintiff need only allege facts that would toll the limitations period in order to survive a motion to dismiss, and she does this by claiming incapacity. See McGuinness v. Cotter, 591 N.E.2d 659, 664 (Mass. 1992) (the determination of whether the tolling provisions of Mass. Gen. L. ch. 260 § 7 apply is an issue of fact). Whether an examination of the evidence concerning her mental condition between the date on which she should have been aware of the injury through November 22, 2002, will show continuous incapacity adequate to meet the high threshold established by case law remains to be seen.
In order to succeed on her claim of incapacity, plaintiff would need to show that she "lacked the capacity to pursue legal action to protect [her] legal rights" continuously during the period in which she filed both her collective bargaining grievance and her MCAD complaint. Vose, 936 F.2d at 40. Therefore, plaintiff's admission that the rebuttal she filed with MCAD was "self authored" almost certainly dooms her claim of incapacity. (Docket # 29, ¶ 5.)
A. Count One — Gender Discrimination and Retaliation Under Title VII
1. Gender Discrimination Under Title VII
Plaintiff has adequately pled a general claim of gender discrimination under Title VII of the 1964 Civil Rights Acts, 42 U.S.C. § 2000e, et seq. ("Title VII") against Salem College. She alleges that it purposely failed to investigate her allegations of financial misconduct against a male employee, subsequently retaliated against her reporting of this misconduct, and ultimately fired her because of her gender. (Amended Complaint ¶¶ 74-76.) While the complaint may not survive summary judgment, it is adequate to plead a violation of Title VII's prohibition against action by "an employer to . . . discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a)(1).
2. Claim of Retaliation Under Title VII
Plaintiff claims not only gender discrimination under Count One, but also retaliation, invoking additional protections of Title VII. In support of her claim of retaliation, she describes the opprobrious treatment and ultimate termination she asserts was a result of "reporting the [financial] misconduct of male employee Manning under the ('Conflict of Interest and Financial Disclosure Law')." (Amended Complaint ¶ 77.) Title VII, however, only prohibits retaliation against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter . . ." 42 U.S.C. § 2000e-3(a) (emphasis added). Plaintiff has made no allegation that she notified any defendant that she believed she was being discriminated against prior to filing a collective bargaining grievance after her termination. Therefore, there can be no basis to claim that her termination, or any events occurring prior to it, were in retaliation for invoking the rights provided by this statute. Accordingly, Count One is allowed only as to the claim of gender discrimination under Title VII, not for a claim of retaliation under that statute.
3. No Individual Liability Under Title VII
Defendants Harrington and DelVecchio may not be held individually liable pursuant to Title VII for plaintiff's injuries. While the First Circuit has declined to decide the issue, see Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 444 (1st Cir. 1997), each of the other eleven circuits have held that an individual, even acting as an agent for her employer, is not liable under Title VII. See Healy v. Henderson, 275 F. Supp. 2d 40, 45 n. 39 (D. Mass. 2003) (collecting cases); Horney v. Westfield Gage Co., 95 F. Supp. 2d 29 (D. Mass. 2000). I adopt the reasoning of these courts and similarly hold that an individual is not liable under Title VII. Therefore, the motion to dismiss Count One by the individual defendants is allowed.
4. Requirement for Exhaustion of Administrative Remedies
Defendants argue that Fantini may not sue for gender discrimination under Title VII, even against Salem College, because she failed to exhaust her administrative remedies. See Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 3 (1st Cir. 2001). Plaintiff, through counsel, did file a timely Massachusetts MCAD complaint after her termination, but that complaint alleged only disability discrimination, not gender discrimination. (See Docket # 23, Ex. A.) Indeed, it cites only to Massachusetts law prohibiting disability discrimination for its basis. (Id.; see also supra n. 1.) Plaintiff does make one passing mention of "gender discrimination" in addition to disability discrimination in the last paragraph of a five-page attachment to the complaint setting forth the claim and the factual basis for the complaint. It follows a single description of disparate treatment involving a male employee. First, this incident is equally suitable to support a claim of discrimination on the basis of disability as on gender. Second, the focus of the allegations is on plaintiff's illness and her employer's actions in response to her resulting disability. It is telling also that the twenty-four-page response by defendants to the MCAD complaint solely addresses issues of disability law.
MCAD forwards the complaint to EEOC, meeting the requirement for timely notification under Title VII.
Plaintiff's contention that the one paragraph in defendants' response addressing the factual basis of the alleged disparate treatment suffices to meet the exhaustion requirement is not availing. The only legal issues addressed in this response refer to Chapter 151B of Massachusetts law and the Americans with Disabilities Act, 42 U.S.C. § 1981a, as cited by plaintiff. (See Docket # 23, Ex. C.)
Such a barely articulated claim, which was not addressed by either party nor by the administrative agency, does not satisfy the exhaustion requirement. It defeats the whole purpose of the exhaustion requirement if plaintiff can raise an entirely new discrimination theory in court after testing, and losing on, a different theory in the administrative hearing. Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996) (noting that the purpose of the requirement is to provide notice to the employer and to provide an early opportunity to correct the illegal practice). The motion to dismiss Count One against Salem College is therefore allowed.
B. Count Two — Deprivation of Rights; 42 U.S.C. § 1983
Count Two challenges the conduct of defendants Harrington and DelVecchio, acting in their individual capacities, under 42 U.S.C. § 1983. "A person may recover damages [under § 1983] from a state or local official who, while acting under color of state law, commits a constitutional tort." Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002). However, in her complaint, plaintiff alleges only that defendants violated state statutes, the Massachusetts Conflict of Interest Law. (Amended Complaint ¶ 79.) Plaintiff identifies no legal basis for claiming that a violation by defendants of these state statutes violates her rights under the "Fourteenth Amendment to the United States Constitution." (Id.) Accordingly, defendants' motion to dismiss is allowed as to Count Two.
Plaintiff cites generally to Mass. Gen. L. ch. 268 in support of this claim. (See Amended Complaint ¶ 79.) It appears that plaintiff actually intended to cite ch. "268A. Conduct of Public Officials and Employees." That chapter, however, consists of 25 sections defining acceptable conduct for state officials. It is unclear which specific sections or subsections plaintiff relies on for her section 1983 claim. However, it does not appear that a violation of any of these sections by defendants would implicate plaintiff's federal rights.
C. Count Three — Violation of 42 U.S.C. § 1981(a)
Although plaintiff claims a violation of 42 U.S.C. § 1981(b), that subsection merely defines a phrase used in the substantive right provided by subsection (a). Therefore, I analyze this Count as a claim for relief under the provisions of 42 U.S.C. § 1981(a).
"Title 42 U. S. C. § 1981 guarantees the right to be free from racial discrimination in specific activities, such as making contracts and bringing suit." Burnett v. Grattan, 468 U.S. 42, 45 n. 2 (1984). It is well established that gender discrimination in employment is not cognizable under section 1981. See e.g.,DeGraffenreid v. General Motors Assembly Division, St. Louis, 558 F.2d 480, 486 n. 2 (8th Cir. 1977) (citing cases); Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 815 (5th Cir. 1982);Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1279 (7th Cir. 1980); Melanson v. Rantoul, 421 F. Supp. 492, 499 (D.R.I. 1976), aff'd, 561 F.2d 409 (1st Cir. 1977). "[T]he absence of racial discrimination is fatal to any section 1981 claim." Landrigan v. City of Warwick, 628 F.2d 736, 739 n. 1 (1st Cir. 1980).
In Count Three, plaintiff alleges she was subjected to discrimination based on gender resulting in her being deprived of "equal employment opportunities and of the same right to make and enforce contracts as is enjoyed by other female white citizens." (Amended Complaint ¶¶ 88, 90.) This language does not convert a claim of gender discrimination into a race claim cognizable under 42 U.S.C. § 1981(a). Plaintiff alleges no facts nor makes any claim that she was discriminated against on the basis of her race. Indeed, the only basis on which she asserts a right to relief in Count Three is "a continuing pattern of gender discrimination" notwithstanding "written promises not to discriminate against any employee on the basis of 'gender.'" (Amended Complaint ¶ 88.) Accordingly, Count Three is dismissed as to all defendants for failure to state a claim upon which relief can be granted.
Title 42 U.S.C. 1981(a) provides in pertinent part: "All persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens."
D. Count Four — Violation of Civil Rights Act of 1991
The Civil Rights Act of 1991 ("1991 Act"), Pub.L. No. 102-166, 105 Stat. 107, amends the Civil Rights Act of 1964. The 1991 Act modifies 42 U.S.C. § 1981, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 12112 (The Americans With Disabilities Act), 29 U.S.C. § 626 (The Age Discrimination in Employment Act of 1967), and several other federal statutes. It creates no new independent federal rights beyond those previously claimed in Counts One through Three. In addition, the provisions of the 1991 Act are already reflected in the current text of the relevant statutes. In Count Four, plaintiff alleges "gender discrimination" and "discriminatory treatment and retaliation" in response to "whistle-blowing the misconduct of Edward Manning for manipulating general ledger entries." (Amended Complaint ¶¶ 94-96.) These allegations repeat the factual basis for relief under Count One (which cites to 42 U.S.C. § 2000e as modified by the 1991 Act), but cite no new independent statutory authority. Therefore, Count Four is dismissed as to all defendants.
E. Count Five — Violation of Due Process; 42 U.S.C. § 1983
Plaintiff alleges defendants failed to provide a constitutionally mandated hearing prior to her termination, thus violating her procedural and substantive due process rights under the Fourteenth Amendment. (Amended Complaint ¶ 98.) She invokes 42 U.S.C. § 1983 as a basis for relief. Plaintiff may not sue defendants in their official capacities, as "neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action." Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991). Therefore, while she has adequately pled her section 1983 claims against Harrington and DelVecchio in their individual capacities, Count Five is dismissed as to Salem College and the individual defendants in their official capacities.
However, in order to succeed in a claim against Harrington and DelVecchio in their individual capacities, plaintiff must not only show that a violation of her constitutional rights actually occurred, but also that defendants were not shielded by qualified immunity. Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st Cir. 1994). Qualified immunity protects a government official from civil liability if "a reasonable official could have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct." McBride v. Taylor, 924 F.2d 386, 389 (1st Cir. 1991). While plaintiff claims she was entitled by due process to a hearing before her termination, the collective bargaining agreement between the Board of Higher Education and the Association of Professional Administrators, Massachusetts Teachers Association/National Education Association ("the Agreement") governing her conditions of employment specifically allows for an administrator employed less than five years to be "terminated at any time and for any reason. . . ." (Docket # 2, Ex. 2, 65 (Article VII, § B(1)).) The Agreement does provide for a post-termination hearing, a procedure for which plaintiff took advantage. Plaintiff fails to explain why these procedures, derived through collective bargaining, fail to meet constitutional requirements. Instead, she asserts that numerous procedural notices and hearings were necessary to meet the requirements of due process. (Amended Complaint ¶ 98.)
The April 3, 2000 letter offering plaintiff the position as Director of General Accounting specifically noted that the position was governed by this collective bargaining agreement. (See Docket # 2, Ex. 3.)
Plaintiffs reliance on Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985), to support her claim to a pre-termination hearing is unavailing. (Amended Complaint ¶ 98.) Loudermill was a "classified civil servant," and under Ohio law could only be terminated for cause, whereas plaintiff was an employee-at-will and could be terminated without cause under the terms of the Agreement.
Even if, as plaintiff's claim necessarily implies, the collective bargaining agreement is unconstitutional, Harrington and DelVecchio followed its strictures exactly. (See Docket # 2, Ex. 11 (termination letter from Harrington citing Article VIII, § B(1) of the Agreement and notifying plaintiff that Salem College will pay one month's salary in lieu of notice as provided for by that section).) A reasonable official could believe that her actions were lawful when they adhered to a written procedure for which was collectively bargained. Even if plaintiff's termination violated due process, Harrington and DelVecchio are protected by qualified immunity against liability. Because it is clear that "no relief [can] be granted under any set of facts that could be proved consistent with the allegations," Count Five is dismissed as to the defendants acting in their individual capacities.Educadores Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 62 (1st Cir. 2004).
The Amended Complaint asserts without explanation that defendants acted "contrary to the state laws governing Salem College in firing plaintiff and depriving her of pre-termination hearing." (Amended Complaint ¶ 99.)
F. Count Six — Violation of Mass. Gen. L. ch. 151B
Massachusetts General Laws Chapter 151B provides state protections against gender discrimination which are similar to the protections of Title VII claimed in Count One. While plaintiff has adequately pled a Chapter 151B claim, this claim is subject to the same issues of exhaustion of administrative remedies as apply to Count One and of tolling of the limitations period as apply to Counts One and Five. See Mass. Gen. L. ch. 151B, § 5. Therefore, Count Six is dismissed for failure to exhaust administrative remedies.
G. Count Seven — Negligence
Plaintiff alleges not only that defendants owed her a duty of care, but that they breached that duty by subjecting her to "severe emotional distress, including humiliation and embarrassment and worry about her future ability to provide for herself." (Amended Complaint ¶ 106.) As a result of defendants' negligence, she incurred significant medical expenses as well as suffering severe emotional and physical harm. Massachusetts recognizes a cause of action for negligent conduct causing emotional distress resulting in bodily injury. See Dziokonski v. Babineau, 380 N.E.2d 1295, 1299 (Mass. 1978). Thus, plaintiff has adequately pled a general claim for negligence under Massachusetts law. However, because the defendants are a state employer and its employees, she must also satisfy the requirements of the Massachusetts Tort Claims Act.
Defendants respond that plaintiff's allegations fall short of showing causation in tort for her heart attack suffered nine months after she was terminated. This is a question of fact not suitable for determination on a motion to dismiss. See Dziokonski v. Babineau, 380 N.E.2d 1295, 1299 (Mass. 1978) ("Whether a plaintiff's injuries were a reasonably foreseeable consequence of the defendant's negligence and whether the defendant caused those injuries are best left to determination in the normal manner before the trier of fact.").
1. Employee Immunity
The Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258, § 2, immunizes public employees against liability for "injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment." Mass. Gen. L. ch. 258, § 2. The Act makes the public employer solely liable for the negligence of its employees. Id. The negligence alleged in Count Seven occurred within the scope of the individuals' employment as plaintiff's supervisor and as the president of the college. Therefore, Count Seven may be maintained against Salem College only, and not against the individual defendants. See Schenker v. Binns, 466 N.E.2d 131, 132 (Mass.App.Ct. 1984) (noting "the explicit provision in [Mass. Gen. L. ch. 258,] § 2 making its remedies exclusive."); McNamara v. Honeyman, 546 N.E.2d 139, 142 (Mass. 1989) (holding that the immunity from personal liability conferred by the Massachusetts Tort Claims Act also extends to gross negligence); Canney v. City of Chelsea, 925 F. Supp. 58, 69 (D. Mass. 1996) (dismissing negligence and wrongful termination claims against state employees acting in their official capacities on the basis of immunity provided by Mass. Gen. L. ch. 258, § 2). Accordingly, Harrington's and DelVecchio's motion to dismiss is allowed as to Count Seven.
2. Compliance with Massachusetts Presentment Statute
In order to bring a claim for negligence against a state employer under the Massachusetts Tort Claims Act, a plaintiff must comply with the presentment requirements of Mass. Gen. L. ch. 258, § 4. See Gilmore v. Commonwealth, 632 N.E.2d 838, 840 (Mass. 1994) (noting "strict compliance with the statute" is required). This statute requires a claimant to "first present his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose." Mass. Gen. L. ch. 258, § 4. Salem College asserts that plaintiff has failed to meet this presentment requirement. A failure to make a valid presentment prior to bringing an action subjects "plaintiff's complaint to dismissal . . . for failure to state a claim upon which relief can be granted." G B Associates, Inc. v. City of Springfield, 653 N.E.2d 203, 206 (Mass.App.Ct. 1995).
In addition, the Massachusetts Tort Claims Act requires a negligence suit against the Commonwealth to be filed within "three years after the date upon which such cause of action accrued." Mass. Gen. L. ch. 258, § 4. Therefore, even if properly presented, this claim is subject to the same limitations issues as Counts One, Five and Six.
Neither the original nor the Amended Complaint alleges presentment as an element of plaintiff's negligence claim. Therefore, dismissal of Count Seven against Salem College is allowed.
IV. Conclusion
Accordingly, defendant Salem College's motion to dismiss (Docket # 15) is ALLOWED. Defendant DelVecchio's motion to dismiss (Docket # 19) is ALLOWED. Defendant Harrington's motion to dismiss (Docket # 21) is ALLOWED. Plaintiff's motion for summary judgment (Docket # 28) is DENIED.
The motions to dismiss by defendants Janyce J. Napora, the Massachusetts Board of Higher Education's Office of Human Resources, Stephen P. Tocco, and Peter Alcock, Jr. (Docket ## 9, 11, 13, 17), are DENIED as moot.
Judgment may be entered dismissing the complaint, voluntarily against defendants Janyce J. Napora, the Massachusetts Board of Higher Education's Office of Human Resources, Stephen P. Tocco, and Peter Alcock, Jr.; and pursuant to this ruling against defendants Salem College, Nancy D. Harrington, and Matilda DelVecchio.