Great Barrington — In a filing in United States District Court on Friday, October 25, Springfield attorney David Lawless, who represents Berkshire Hills Regional School District Superintendent Peter Dillon, filed a motion to dismiss a civil rights lawsuit by a former W.E.B. Du Bois Middle School teacher.
The investigation, which made national headlines, took place in December 2023 when the Great Barrington Police Department investigated Arantzazú Zuzene Galdós-Shapiro after receiving an anonymous complaint that she had a copy of the graphic novel “Gender Queer” in her classroom. Galdós-Shapiro was an eighth grade ELA teacher at W.E.B. Du Bois Middle School at the time.
Galdós-Shapiro, who eventually left the school district and moved out of Berkshire County to Philadelphia, previously filed a civil rights lawsuit in the United States District Court against the town, Police Chief Paul Storti, Police Officer Joseph O’Brien, and Superintendent Dillon. Defendants in the case were supposed to file their responses to the District Court on August 30. Galdós-Shapiro’s attorneys instead filed an amended complaint on August 30 with multiple new allegations against the defendants. The amended complaint was filed by Galdós-Shapiro’s attorney, Howard Cooper, a founding partner of Boston’s Todd & Weld LLP.
The amended lawsuit claims that the school district, Chief Storti, and Superintendent Dillon all violated Galdós-Shapiro’s First and Fourth Amendment rights, her rights protected in the Equal Protection Clause of the 14th Amendment, and her rights as listed in state General Law Section 11H and Articles 1 and 14 of the Massachusetts Declaration of Rights. Galdós-Shapiro is requesting compensatory and punitive damages, along with compensation for attorneys’ fees and costs, in a trial by jury.
Back on September 12, Boston attorney Jeffrey Trapani, from Pierce Davis & Perritano LL, filed a motion to dismiss the lawsuit on behalf of the town, Police Chief Storti, and Police Officer O’Brien, separate from Lawless’s filing on behalf of Dillon.
In his October 25 filing, Lawless argues that Galdós-Shapiro’s First Amendment rights were not violated under 42 U.S. Code, § 1983, which she alleges in her lawsuit. “It is black letter law that 42 U.S.C. § 1983 does not, in and of itself, create substantive rights,” Lawless argues. “Rather, it simply provides a vehicle by which claims may be brought for alleged violations of rights secured by the United States Constitution or federal law. To proceed with a claim under 42 U.S.C. § 1983, a plaintiff must first establish that a defendant is acting under color of state law. The plaintiff must next prove that the alleged wrongful conduct resulted in a deprivation of rights secured by the United States Constitution or federal law.”
Lawless further cites the December 2022 First Circuit U.S. Court of Appeals decision Salmon v. Lang:
To prevail on a speech-retaliation claim as a public employee, a plaintiff must prove that (1) she spoke as a citizen on a matter of public concern, (2) her employer lacked an adequate justification for treating her differently from any other member of the general public, and (3) her protected expression was a substantial or motivating factor in the adverse employment decision.
Lawless claims that Galdós-Shapiro “did not speak as a citizen.” “The threshold inquiry with respect to a First Amendment retaliation claim brought by a public employee ‘is whether [plaintiff] spoke as a citizen on a matter of public concern,’” Lawless writes, quoting the 2013 First Circuit decision in O’Connell v. Marrero-Recio.
Lawless goes on to quote the Supreme Court’s 2006 decision in Garcetti v. Ceballos that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
“Speech made pursuant to official responsibilities is not limited to speech that is required by an employer or that occurs during an activity that is expressly provided for in a job description,” Lawless writes.
He then cites the 2010 First Circuit case Mercado-Berrios v. Cancel-Alegria:
Many employees enjoy significant discretion in determining what actions ought to be taken ‘pursuant to’ their job responsibilities. The voluntary or discretionary aspect of their actions does not exempt them from employer control.
Lawless further claims that Dillon did not act with any retaliatory motives in the case. “As alleged, Superintendent Dillon could not have acted with a retaliatory motive because he was unfamiliar with Gender Queer,” Lawless argues.
Galdós-Shapiro claims that Dillon, along with the other defendants, retaliated against her in the midst of the investigation.
In response to this claim, Lawless argues:
… Superintendent Dillon could not have acted with a retaliatory motive because he was unfamiliar with Gender Queer. There is no allegation that he even knew that plaintiff kept it in her classroom before he received a telephone call from co-defendant [Chief Storti].
As alleged, Superintendent Dillon allowed a police investigation to proceed without demanding a warrant or attempting to impose BHRSD’s policies on that investigation. There are no facts alleged that support an inference that he acted with the motive to retaliate against plaintiff for keeping Gender Queer on a bookshelf in her classroom.
Lawless further claims:
As of December 8, 2023, it was not clearly established that a middle school teacher who keeps a book in her classroom in the circumstances as alleged was speaking as a citizen rather than pursuant to her official duties. It was also not clearly established that cooperating with a police investigation would support the element of causation in the circumstances as alleged. A reasonable official could conclude that plaintiff’s expressive conduct was not made as a citizen and that a retaliatory motive was absent here.
In response to Galdós-Shapiro’s claim that her Fourth Amendment rights were violated, along with claims that she was unlawfully detained and that she and her classroom were unlawfully searched, Lawless writes that the claim against Dillon should be dismissed because “he was not present when these alleged events occurred and did not participate in them.” “Superintendent Dillon cannot be held vicariously liable for co-defendant [Officer O’Brien’s] conduct,” Lawless wrote.
He explains:
The Amended Complaint attempts to impose vicarious liability on Superintendent Dillon through the use of conclusory allegations that attribute conduct to him that its factual allegations actually describe as having been undertaken by others. Because Superintendent Dillon, as alleged, did not take part in the alleged detention and search [the allegation] fails to state a claim against him upon which relief can be granted. Further, to the extent that the Amended Complaint explicitly or implicitly rests on the proposition that Superintendent Dillon should have insisted that [Great Barrington Police Department] obtain a warrant before conducting an investigation on school grounds, he is entitled to qualified immunity. Plaintiff cannot meet her burden of showing that it was clearly established that Superintendent Dillon could or should have insisted on a warrant before allowing the GBPD to conduct an investigation on school property. It was not clearly established that public entities like [Berkshire Hills Regional School District] have Fourth Amendment rights vis-à-vis local municipalities or standing to assert constitutional rights of their employees.
As for Galdós-Shapiro’s claim that her 14th Amendment rights were violated, Lawless argues the claim should be dismissed “because it rests on the same underlying alleged conduct as plaintiff’s First Amendment claim.” He argues the accusation “… does not plausibly allege that Superintendent Dillon treated plaintiff differently than other similarly situated teachers.” He explains:
Here, [Galdós-Shapiro] asserts that she was treated differently than two groups of co-workers. It alleges that the ‘Complainant’ complained to the GBPD ‘about other teachers being involved in the alleged criminal acts.’ [The Amended Complaint] alleges that Superintendent Dillon did not make any effort to ‘question or investigate those individuals.’ This claim fails because, unlike Officer O’Brien, Superintendent Dillon did not question or investigate the plaintiff and so did not treat her differently from allegedly similarly situated individuals. Additionally, the Amended Complaint fails to identify these individuals or describe the conduct alleged by the Complainant such that it can be inferred that they were similarly situated to plaintiff. The second group of co-workers the Amended Complaint identifies is other teachers who had Gender Queer in their classrooms. Again, plaintiff relies on the alleged conduct of Officer O’Brien, which cannot support a claim against Superintendent Dillon. Further, the Amended Complaint clearly alleges that Superintendent Dillon was unfamiliar with Gender Queer and does not allege that he was aware of its presence in any classroom. It cannot be inferred that he treated the plaintiff differently than any similarly situated colleague.
Lawless further alleges that Galdós-Shapiro failed to give sufficient evidence to support her remaining claims.
In addition, Lawless states multiple times throughout the filing that Dillon should be protected from the allegations under the doctrine of qualified immunity, a special protection which protects public officials from individual liability unless the official violated an established constitutional right.
According to the court’s calendar, Galdós-Shapiro’s response to the defendant’s filings is due Monday, November 25.
Lawless is an attorney with the Springfield firm Robinson Donovan, P.C.
Click here to see Lawless’ court filing on behalf of Superintendent Dillon.
