Full Opinion

Marie-Armel Theodat used to work for the Boston Water and Sewer Commission (the “Commission”) as its Chief Human Resources Officer. Theodat, who is a Black, Haitian-American woman, alleges that she was mistreated by her employer and colleagues because of her race, national origin, and sex, and that the Commission retaliated against her when she complained. Michael F. Flaherty, Jr., served as Deputy General Counsel and then General Counsel for the Commission during part of the time that Theodat worked there. Sean Canty was the Commission’s Director of Facilities and Safety. The Boston Herald published 20 articles and an editorial about Theodat starting in late 2024; Theodat says they were instigated by Flaherty and Canty as part of a campaign of harassment. Many of the articles discussed or mentioned civil lawsuits against Theodat, including a lawsuit filed by Attorney Ricardo Arroyo on behalf Theodat’s granduncle, who claimed that Theodat had participated in a fraudulent scheme to obtain ownership of her relative’s home. BWSC fired Canty in 2024, placed Theodat on paid administrative leave in December 2024, fired Flaherty in January 2025, and fired Theodat in April 2025. Theodat alleges that Vitale signed the letter terminating her employment days after Mayor Michelle Wu and her advisor Louis Mandarini told him to do so. -------------------------------------------- [1] Michael J. Woodall; Christopher Cook; Armindo Goncalves; Henry F. Vitale; Peter K. Hunt; Robert M. Lamarca; Janet M. Mahoney; Michael F. Flaherty, Jr.; Sean P. Canty; Michelle Wu; Louis Mandarini III; Ricardo N. Arroyo; MediaNews Group, Inc; MNG-BH Acquisition LLC d/b/a The Boston Herald; Joseph N. Dwinell; Gayla Cawley; and Traveler’s Casualty and Surety Company of America. -1- Theodat filed a 78-page, 277-paragraph amended complaint that incorporates 23 exhibits. In her amended complaint, Theodat asserts that: o the Commission, its Board members Michael Woodall, Christopher Cook, and Armindo Goncalves, its Executive Director Henry Vitale, its Chief Operating Officer Peter Hunt, and its Deputy General Counsels Robert LaMarca and Janet Mahoney (the “BWSC Defendants”), as well as Flaherty and Canty, discriminated against Theodat on the basis of her race, national origin, and sex, and retaliated against her for complaining about that misconduct; o the owner of the Boston Herald newspaper (MNG-BH Acquisition LLC), its parent company (MediaNews Group, Inc.), its Executive Editor (Joseph Dwinell), and one of its reporters (Gayla Cawley) (which Theodat calls the “Herald Defendants”), as well as the BWSC Defendants, Flaherty, and Canty are all liable for defamation; o Mayor Wu, Mandarini, the Herald Defendants, Flaherty, and Canty are liable for intentionally interfering with Theodat’s employment at the Commission; o the Commission (but not the other BWSC Defendants), Flaherty, Canty, Arroyo, and the Herald Defendants are liable for invasion of privacy; o all of the defendants mentioned above are liable for intentional infliction of emotional distress; o Flaherty, Canty, Arroyo, and the Herald Defendants engaged in a civil conspiracy; o the Commission violated the public records statute; and o the Commission’s employment practices liability insurer, Travelers Casualty and Surety Company of America, violated G.L. c. 93A and G.L. c. 176D with respect to Theodat’s claims against the Commission. All of the defendants other than Canty and Travelers have moved to dismiss the claims asserted against them.[2] With one exception, the various defendants -------------------------------------------- [2] Canty filed an answer, as well as counterclaims for tortious interference and defamation, in late April 2026. Theodat stipulated that she is not pressing her <continued…> -2- have moved to dismiss the claims against them under Mass. R. Civ. P. 12(b)(6), arguing that the facts alleged by Theodat in her amended complaint fail to state viable claims against them. Attorney Arroyo has moved to dismiss the claims against him under the so-called anti-SLAPP statute, G.L. c. 231, § 59H. He has not moved for dismissal under Rule 12(b)(6). The BWSC Defendants have also moved to strike certain parts of the complaint and to impound exhibits submitted with their motion to strike. Several days ago the BWSC Defendants filed an additional motion challenging the authenticity of a particular document that Theodat submitted in response to their motion to dismiss. For the reasons discussed below, the Court will: o deny the BWSC Defendants’ motion to strike certain paragraphs from the amended complaint, motion to impound certain exhibits that they submitted in support of the motion to strike, and motion for expedited discovery and an evidentiary hearing regarding the authenticity of a document submitted by Theodat; o allow in part the BWSC Defendants’ motion to dismiss with respect to (a) the hostile work environment claim as against Woodall, Cook, Goncalves, Vitale, and Hunt; (b) the claim under G.L. c. 151B based on being placed on involuntary leave claim as against LaMarca and Mahoney; (c) the c. 151B claim based on the termination of Theodat’s employment as against Woodall, Cook, Goncalves, Hunt, LaMarca, and Mahoney; (d) the invasion of privacy claim against the Commission; and (e) the defamation and intentional infliction of emotional distress claims against each of the BWSC Defendants; o deny in part the BWSC Defendants’ motion to dismiss with respect to (a) the hostile work environment claim against the Commission itself, LaMarca, and Mahoney; (b) the c. 151B claim based on being placed on involuntary leave as against the Commission, Woodall, Cook, Goncalves, Vitale, and Hunt; (c) the c. 151B claim based on the termination of Theodat’s employment as against the Commission and Vitale; and (d) the Public Records Act claim against the Commission. -------------------------------------------- claim for intentional infliction of emotional distress against the Travelers and that her chapter 93A claim shall be severed and stayed until the claims against the BWSC Defendants are resolved. -3- o allow in part Flaherty’s motion to dismiss with respect to the c. 151B claim based on the termination of Theodat’s employment at the Commission and the claims for defamation, invasion of privacy, and intentional infliction of emotional distress; o deny in part Flaherty’s motion with respect to the hostile work environment claim, the c. 151B claim based on being placed on involuntary leave claim, and the claims for intentional interference with advantageous relations and conspiracy; o deny Arroyo’s anti-SLAPP motion to dismiss; o allow the motion to dismiss the intentional interference and intentional infliction of emotional distress claims against Mayor Wu and Mandarini; and o allow the motions to dismiss the claims against MediaNews Group, Inc., MNG-BH Acquisition LLC d/b/a The Boston Herald, Dwinell, and Cawley. The Court will also set a July 1, 2026, deadline for the remaining parties to submit a proposed case schedule and ask its session clerk to set a time for a scheduling conference soon thereafter. 1. Boston Water & Sewer Commission Defendants. The Court will begin by addressing separately each of the three motions filed by the BWSC Defendants. 1.1. Motion to Strike. The BWSC Defendants have moved to strike several paragraphs from Theodat’s amended complaint, arguing that four paragraphs improperly reveal “confidential mediation information” and that other paragraphs “improperly expand the scope of the plaintiff’s employment claims beyond the previous [Massachusetts Commission Against Discrimination, or MCAD] proceeding.” The Court will deny this motion because neither of these arguments has merit. 1.1.1. References to Mediation. First, the paragraphs identified in the motion do not violate the statute that protects a mediator’s work product as well as confidential communications “made in the presence of such mediator.” See G.L. c. 231, § 23C. This statute does not protect communications made outside the presence of the mediator. See ZVI Const. Co., LLC v. Levy, 90 Mass. App. Ct. 412, 420 (2016). None of the paragraphs that the BWSC Defendants seek to strike reveal any confidential communications made in the mediator’s presence. -4- The paragraphs identified in the motion also do not violate the provision in the mediation agreement reflecting the principal that settlement offers or communications may not be offered “either to prove or disprove the validity or amount of a disputed claim.” See Mass. Guide to Evid. § 408. Paragraph 153 merely notes that Theodat and many of the BWSC Defendants agreed to try to resolve their dispute with the help of a mediator. Paragraph 165 asserts that the mediation took place, that Theodat provided information about her claimed injuries, and that the mediation did not lead to any resolution. Paragraph 166 describes a post-mediation communication from counsel for the BWSC Defendants to Theodat’s counsel. Paragraph 167 alleges that the BWSC Defendants’ counsel refused to provide a document that was the subject of a public records request. None of these allegations is improper, as evidence to establish these assertions would not be barred at trial for either of the reasons asserted by the BWSC Defendants. These allegations do not disclose the mediator’s work product, do not reveal communications made in the presence of the mediator, and are not offered to prove the validity or amount of Theodat’s claims. The mere fact that these four paragraphs refer to the prior mediation does not make them improper. 1.1.2. Scope of MCAD Charge. Second, the other paragraphs in the amended complaint that are challenged by the BWSC Defendants do not impermissibly expand the scope of Theodat’s c. 151B claims beyond what she alleged before the MCAD. Of course, it would not be appropriate to strike any part of the amended complaint even if Theodat were making discrimination claims that are barred because she did not timely present them to the MCAD. That may be grounds for moving to dismiss certain claims, but is not a ground to strike allegations from the pleading. But the premise of this part of the BWSC Defendants’ motion to strike is without merit. Theodat “was not required to return to the MCAD to file a second complaint” before asserting a claim of unlawful retaliation in violation of G.L. c. 151B based on conduct that occurred after she filed her original MCAD charge. See Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367 , 389 n.19 (2005); accord Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 , 529 n.8 (2001). -5- Nor was Theodat required to present to the MCAD every jot and tittle of evidence that she may offer in court to support her discrimination claims. See Everett v. 357 Corp., 453 Mass. 585 , 602–603 (2009). To the contrary, “a claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover.” Pelletier v. Town of Somerset, 458 Mass. 504, 514 (2010), quoting Everett, supra, at 603 . The BWSC Defendants have not shown that the additional allegations that they seek to strike were outside the scope of the what the MCAD investigation could have been expected to discover. Furthermore, nothing in the amended complaint purports to add a new claim for disability discrimination, as Theodat properly notes in her opposition memorandum. Theodat is bound by her agreement that the mistaken reference to G.L. c. 151B, § 4(16), was a typographical error. Finally, the allegations in the complaint do not show that Theodat’s tort claims against the BWSC Defendants are essentially duplicative of her statutory discrimination claims. 1.2. Motion to Impound. The BWSC Defendants have also asked the Court to impound two emails regarding the prior mediation that they opted to submit in support of their failed motion to strike. The Court will deny this motion because the BWSC Defendants have not shown that there is good cause to keep these materials out of the public case file. Pleadings, exhibits, and other materials filed in connection with a civil or criminal action in Massachusetts courts may be viewed and copied by the public unless the party seeking to keep them secret establishes that there is “good cause” for impounding them and thus barring public access to them. See Commonwealth v. George W. Prescott Publishing Co., 463 Mass. 258, 269 (2012); New England Internet Café, LLC v. Clerk of the Superior Court for Criminal Business, 462 Mass. 76, 83 (2012). “Massachusetts has long recognized a common-law right of access to judicial records.” New England Internet Café, 462 Mass. at 82 , quoting The Republican Co. v. Appeals Court, 442 Mass. 218, 222 (2004). “As a result, most judicial records— including transcripts, evidence, memoranda, court orders and … material relating to the issuance of search warrants (after the warrant is returned)—are presumptively public documents.” Id. at 83. This “presumption of public access ‘enhances public confidence in the judicial system.’ ” DosSantos v. Beth Israel -6- Deaconess Hospital-Milton, Inc., 497 Mass. 34 , 41 (2026), quoting Commonwealth v. Chism, 476 Mass. 171, 178 (2017). Judges may restrict “[t]he public’s right of access to judicial records, … but only on a showing of ‘good cause.’ ” The Republican, supra, at 223 . “[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be ‘strictly construed in favor of the general principle of publicity.’ ” The Republican, supra, quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949), cert. denied, 339 U.S. 984 (1950). “Closing a court record is analogous to closing a courtroom during a trial—both deny the public a right of access to see what is happening in a judicial case and both restrictions are of constitutional dimension.” Globe Newspaper Co. v. Clerk of Suffolk Cnty. Superior Ct., Suffolk Super. Ct. No. 01-5588-F, 2002 WL 202464 , at *4 (Mass. Super. Feb. 4, 2002) (Gants, J.) (terminating impoundment orders in civil cases alleging sexual abuse by clergy). “[T]he party urging impoundment … bears the burden of ‘demonstrating the existence of good cause’ ” to bar public access to parts of the case file. New England Internet Café, 462 Mass. at 83 , quoting The Republican, 442 Mass. at 225 . The BWSC Defendants have not met that burden here. For the same reasons discussed above, their assertion that G.L. c. 233, § 23C, requires that these emails be kept confidential is incorrect. 1.3. BWSC Defendants’ Motion to Dismiss. Turning to their more substantive motion, the BWSC Defendants have moved to dismiss all of the claims against them pursuant to Mass. R. Civ. P. 12(b)(6). The Court will dismiss some of the claims against some of the BWSC Defendants, but concludes that others are legally sufficient. To survive a Rule 12(b)(6) motion to dismiss, a complaint must make factual allegations that, if true, would “plausibly suggest … an entitlement to relief.” Lopez v. Commonwealth, 463 Mass. 696, 701 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). In deciding the Rule 12(b)(6) motions to dismiss that were filed in this case, the Court must assume that all of the factual allegations in Theodat’s amended complaint are true and must “draw every reasonable inference in favor of” Theodat from those allegations. See, e.g., Miele v. Foundation Medicine, Inc., 496 Mass. 171 , 175 (2025). 1.3.1. Unlawful Discrimination Claims under Chapter 151B. The first three counts of Theodat’s amended complaint allege that each of the BWSC -7- Defendants engaged in unlawfully discriminatory and retaliatory conduct or actions against Theodat that violated G.L. c. 151B. 1.3.1.1. Limitations Period. The BWSC Defendants ask the Court to dismiss Theodat’s discrimination and retaliation claims to the extent that they are based on events that occurred more than 300 days before she filed a charge with the MCAD, arguing that any such claims are time-barred. A person may not sue their employer or former employer in Superior Court under c. 151B unless they first file a charge of discrimination at the MCAD within 300 days of the alleged act or acts of discrimination. See G.L. c. 151B, § 5; Cuddyer, 434 Mass. at 531 & n.11 (referring to prior six month filing deadline). Theodat filed her MCAD charge on March 16, 2025. The BWSC Defendants argue that she therefore “may only bring Chapter 151B claims for conduct that arose on or after May 21, 2024.” The Court is not persuaded. The facts alleged in Theodat’s amended complaint plausibly suggest that she was the victim of a “continuing violation” of c. 151B by some of the BWSC Defendants, and thus that she may press her claims even though they are based in part on events that happened more than 300 days before Theodat filed her MCAD charge. “Although the limitations clock” under c. 151B “generally starts with the commission of a discriminatory act, a true ‘continuing violation’ rewinds the clock for each discriminatory episode along the way.” Cuddyer, 434 Mass. at 531 , quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989). The continuing violation doctrine allows an individual to seek damages for adverse employment actions that occurred outside the usual statute of limitations period “if the alleged events are part of an ongoing pattern of” of unlawful conduct “and there is a discrete violation within the ... limitations period to anchor the earlier claims.” Cuddyer, supra, at 532 . “This exception recognizes that some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory nature and impact.” Id. at 531 . This doctrine applies to claims challenging a course of conduct that, as a whole, amounts to unlawful discrimination but that does not involve discrete acts each of which is unlawful standing alone. See Crocker v. Townsend Oil Co., 464 Mass. 1, 11 (2012); Silvestris v. Tantasqua Reg. School Dist., 446 Mass. 756 , 768–769 (2006). The facts alleged in the amended complaint plausibly suggest that Theodat was subject to a pattern of harassment that constituted an unlawfully discriminatory hostile work environment, some of the allegedly discriminatory -8- acts occurred less than 300 days before Theodat filed her MCAD charge, those acts had a substantial relationship to earlier discriminatory acts that occurred more than 300 days before that charge, and the earlier acts did not trigger a duty to assert a claim. If Theodat can prove those things, then she may press her claims based in part on the earlier conduct under the continuing violation doctrine. See Padmanabhan v. Cambridge, 99 Mass. App. Ct. 332 , 337 (2021). The Supreme Judicial Court has construed G.L. c. 151B to impose a limitation on continuing violations claims that is relevant here. Under c. 151B, an employee who has been subjected to a pattern of “harassment that creates a hostile work environment and that includes conduct within the” statutory limitations period “may claim the benefit of the continuing violation doctrine and seek damages for conduct that occurred outside the limitations period, unless the plaintiff knew or reasonably should have known that her work situation was pervasively hostile and unlikely to improve…” (emphasis added). Cuddyer, 434 Mass. at 539 . But none of these issues may be resolved on a motion to dismiss. Whether Theodat can show that she was subject to a pattern of harassment, whether earlier conduct had a substantial relationship to alleged discrimination that occurred within the 300-day limitations period, “and whether the plaintiff knew or reasonably should have known before that period that the work situation was pervasively hostile and unlikely to improve” are questions of fact that generally must be resolved by a jury at trial, not questions of law for the Court to decide. See Pelletier v. Town of Somerset, 458 Mass. 504 , 520–521 (2010); accord Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611 , 621–622 (2005); Cuddyer, 434 Mass. at 541–542. That Theodat alleged in April 2023 that she was being subjected to a hostile work environment does not automatically establish that she knew or should have known that the situation was unlikely to improve; that is question of fact that will have to be decided at trial. See Pelletier. 1.3.1.2. G.L. c. 151B—Hostile Work Environment. Count I of the amended complaint alleges that each of the BWSC Defendants (as well as Flaherty and Canty) subjected Theodat to a hostile work environment in violation of G.L. c. 151B. The Court will deny the motion to dismiss this claim as against the Commission itself, LaMarca, and Mahoney. But it will allow the request to dismiss this claim against the other individual BWSC Defendants. “A hostile work environment is one that is ‘pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the -9- workplace.’ ” Cuddyer, 434 Mass. at 532 , quoting College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrim., 400 Mass. 156, 162 (1987). “An employer may be found directly liable for discrimination under G.L. c. 151B, § 4, if it is notified of [unlawfully discriminatory] harassment in its workplace” by a non-supervisory employee “and fails to take adequate remedial action.” Trinh v. Gentle Communications, LLC, 71 Mass. App. Ct. 368, 376 (2008). Thus, c. 151B “imposes a duty ‘to take prompt action reasonably calculated to end the harassment and reasonably likely to prevent the conduct from recurring.’ ” Modern Continental/Obayashi v. Massachusetts Comm’n Against Discrim., 445 Mass. 96 , 108–109 (2005), quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 813 (7th Cir. 2001). Theodat has alleged facts plausibly suggesting that LaMarca and Mahoney— along with Flaherty and Canty—took a series of actions that constituted unlawful harassment of Theodat because of her race, national origin, and sex, and that the Commission was aware of failed to remedy the situation. Though Theodat alleges that she was harassed for other reasons as well, including the various civil lawsuits against Theodat, that does not negate her allegations suggesting that the conduct that created the alleged hostile work environment was motivated at least in part by her race, national origin, and sex. Theodat’s factual allegations plausibly suggest that LaMarca and Mahoney (and Flaherty and Canty) had mixed motives for harassing her and creating a hostile work environment, and at least one of those reasons was unlawful under G.L. c. 151B. That suffices to state a hostile work environment claim under a mixed-motive theory. If an employer or colleague takes adverse action against an employee based in part on factors that make the conduct illegal under c. 151B, and in part on other factors that do not implicate c. 151B, the employee may press a discrimination claim based on a “mixed motive” theory. See generally Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 , 112–114 (2009). The BWSC Defendants have not identified any Massachusetts appellate decision holding that a mixed-motive analysis can never apply to hostile work environment claims. However, nothing in the amended complaint plausibly suggests that Woodall, Cook, Goncalves, Vitale, or Hunt participated in creating a hostile work environment for Theodat. Theodat cannot use undifferentiated group pleading to assert a hostile work environment claim against all of the BWSC Defendants. The conclusory assertion that “Defendants subjected Theodat to a hostile work environment” -10- does not suffice in the absence of particularized allegations as to each individual’s alleged role in doing so. See Lee v. Volumetric Holdings GP LLC, 2024 WL 4134321 , at *3 (Sept. 9, 2024) (Casper, J.) (dismissing c. 151B claims based on undifferentiated allegations against group of seven defendants). “In order to satisfy the minimal requirements of notice pleading, a plaintiff cannot ‘lump’ multiple defendants together and must ‘state clearly which defendant or defendants committed each of the alleged wrongful acts.’ ” Canales v. Gatzunis, 979 F. Supp. 2d 164, 170 (D. Mass. 2013) (Tauro, J.), quoting Bagheri v. Galligan, 160 Fed.Appx. 4, 5 (1st Cir.2005) (affirming dismissal); accord Schlumberger Technology Corp. v. ARE-MA Region No. 103, LLC, Suffolk Super. Ct. civ. a. 2384CV02767-BLS1, slip op. at 4–5, 2024 WL 2091831 , at *2, 2024 Mass. Super. LEXIS 40 , at *5 (Mass. Super. April 8, 2024) (Krupp, J.) (dismissing complaint because “ ‘lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct’ failed to give adequate notice of claims”) (quoting Atuahene v. City of Hartford, 10 Fed. Appx. 33, 34 (2d Cir. 2001) (affirming dismissal)). Theodat has not identified any allegations in her lengthy complaint that plausibly suggest any of these other BWSC officials or employees may be personally liable on a hostile work environment theory. 1.3.1.3. G.L. c. 151B—Being Placed on Leave. Count II claims that each of the BWSC Defendants (as well as Flaherty and Canty) violated G.L. c. 151B by causing her to be placed on involuntary administrative leave. The amended complaint alleges that Theodat was first placed on administrative leave in March 2023 at Vitale’s direction. It also alleges that she was placed on administrative leave a second time in December 2024, and that Woodall, Goncalves, Cook, Vitale, and Hunt all participated in deciding to impose that involuntary leave. The facts alleged in the amended complaint state a viable claim against these individuals, and therefore against the Commission, that the decisions to place her on administrative leave was based on her race, national origin, and sex, and were also undertaken in retaliation for her complaints about being subjected to a hostile work environment. The Court will therefore deny the motion to dismiss count II as against these BWSC Defendants. Here, too, Theodat may proceed on a mixed-motive theory, so her allegation that a jury rendered a verdict against her shortly before she was placed on administrative leave the second time does not fatally undermine this claim. -11- The BWSC Defendants’ assertion that Counts II and III must be dismissed because Theodat failed to identify any similarly situated individual who was treated more favorably than Theodat is incorrect. A plaintiff asserting a claim of unlawful discrimination under c. 151B is not required to make allegations, or later on present evidence, that a “similarly situated comparator” was treated more favorably; where such evidence exists it is often highly probative, but “it is not absolutely necessary.” See Trustees of Health and Hospitals of City of Boston, Inc. v. Mass. Comm’n Ag. Discrim., 449 Mass. 675 , 682–683 (2007). However, Theodat points to no factual allegations in her complaint that plausibly suggest LaMarca or Mahoney had anything to do with the decisions to place Theodat on leave. The Court will therefore allow the motion to dismiss count II as against LaMarca and Mahoney. 1.3.1.4. G.L. c. 151B—Termination of Employment. Count III claims that the termination of Theodat’s employment with the Commission in April 2025 violated c. 151B because it was based on her race, national origin, and sex, and was done in retaliation for having filed an MCAD complaint. The amended complaint states that the termination letter was signed by Vitale. It does not allege that any of the other BWSC Defendants had any involvement in the decision to fire Theodat. The Court will deny the motion to dismiss count III as against Vitale and the Commission, because the facts alleged in the complaint plausibly suggest that they terminated Theodat’s employment for reasons that violate c. 151B. But it will allow the motion to dismiss this claim as against the other BWSC Defendants. Once again, Theodat may not engage in group pleading that lumps all of the BWSC Defendants together without indicating how each of them participated in the decision to terminate her employment. 1.3.2. Tort Claims. Theodat asserts three different tort claims against some or all of the BWSC Defendants. Count VI alleges that the BWSC Defendants are liable for defamation. Count XII alleges that they are liable for intentional infliction of emotional distress. And count X alleges that the Commission itself, but not any of the individual BWSC Defendants, is liable for invasion of privacy 1.3.2.1. Tort Claims against the Commission. The claims that the Commission committed these three intentional torts are barred by the Massachusetts Tort Claims Act. The Court will allow BWSC’s motion to dismiss these claims. -12- This Tort Claims Act provides all covered “public employers with immunity against ‘any claim arising out of an intentional tort.’ ” Theisz v. Mass. Bay Transp. Auth., 495 Mass. 507 , 520 (2025), quoting G.L. c. 258, § 10(c). This provision also “precludes a public employer from being held vicariously liable for the intentional tort of a public employee.” The Commission is subject to the Tort Claims Act because the statute was amended in 1992 to include all local water and sewer commissions in the definition of public employer, even if they “may qualify as independent bodies politic and corporate for other purposes.” Alex v. Boston Water & Sewer Comm’n, 45 Mass App. Ct. 914, 914 (1998) (rescript). As a result, Theodat’s intentional tort claims against the Commission for defamation, invasion of privacy, and intentional infliction of emotional distress are all barred by the Tort Claims Act. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623 , 626–630 (2012) (defamation claims against public employers are barred); Tivnan v. Registrar of Motor Vehicles, 50 Mass. App. Ct. 96, 102 (2000) (invasion of privacy claims); Tilton v. Town of Franklin, 24 Mass. App. Ct. 110 , 112–113 (1987) (intentional or reckless infliction of emotional distress claims). 1.3.2.2. Defamation Claims against Individual BWSC Defendants. The Court will also allow the motion to dismiss the defamation claims against the individual BWSC officials and employees. To state a viable claim for defamation, Theodat must allege facts plausibly suggesting that (1) each defendant “published a defamatory statement” about Theodat, (2) “the statement was a false statement of fact (as opposed to opinion)”, (3) the defendant was “at fault for making the statement and any privilege that may have attached was abused,” and (4) either Theodat suffered damages as a result, “or the statement was of the type that is actionable without proof of economic loss.” Sullivan v. Superintendent, Massachusetts Correctional Institution-Shirley, 101 Mass. App. Ct. 766, 775 (2022), quoting Downey v. Chutehall Const. Co., Ltd., 86 Mass. App. Ct. 660, 663 (2014). “A statement that is claimed to be defamatory must reasonably be understood either as a statement of actual fact, or one that implies defamatory facts.” Id., quoting Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49 , 53 (2020). “To properly allege defamation, a plaintiff must specifically identify the allegedly false statement.” Kelleher, supra, at 53 n.2 (affirming dismissal). Allegations that a defendant made statements that “cast the plaintiff in a -13- negative light,” but that do not identify any specific statements that were allegedly false and defamatory, are “not sufficient.” Id. In her written opposition at page 12, Theodat lists specific paragraphs in her amended complaint that allegedly provide the factual basis for her defamation claims against the individual BWSC Defendants. The Court has carefully reviewed those allegations. Most of them say nothing about any statement that was allegedly published by any of these defendants, and the few exceptions do not identify any specific statements that were allegedly both false and defamatory. Even considered together, they do not set out a viable defamation claim against any of the individual BWSC defendants. The conclusory assertions at paragraphs 215 to 220 that these defendants made unspecified defamatory statements are insufficient to state a viable claim. In deciding a Rule 12(b)(6) motion to dismiss, the Court must “look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676 (2011). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Doe v. American Guar. & Liab. Co., 91 Mass. App. Ct. 99 , 105 (2017), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “While ‘detailed factual allegations’ are not required at the pleading stage, mere ‘labels and conclusions’ will not survive a motion to dismiss.” Burbank Apartments Tenant Ass’n v. Kargman, 474 Mass. 107, 116 (2016), quoting Iannacchino, 451 Mass. at 636 . 1.3.2.3. Emotional Distress Claims against Individual BWSC Defendants. The facts alleged by Theodat do not plausibly suggest that any of the individual BWSC Defendants could be liable for intentionally causing her to suffer emotional distress. The Court will therefore allow the motion to dismiss count XII as against these defendants. To make out her claim for intentional infliction of emotional distress, Theodat must allege facts plausibly suggesting that each of the individual BWSC Defendants either “intended to inflict emotional distress” or recklessly caused such distress by doing or failing to do something when it “knew or should have known that emotional distress was a likely consequence of [their conduct].” Nancy P. v. D’Amato, 401 Mass. 516, 520 (1988). -14- In addition, Theodat must allege facts plausibly suggesting that each of these defendants engaged in misconduct that was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012), quoting Foley v. Polaroid, 400 Mass. 82, 99 (1987), and Restatement (Second) of Torts § 46, commend d (1965). “What is required is ‘a high order of reckless ruthlessness or deliberate malevolence” resulting in “profoundly shocking conduct.’ ” Okoli v. Okoli, 81 Mass. App. Ct. 381, 389 , review denied, 463 Mass. 1111 (2012) (affirming dismissal), quoting Conway v. Smerling, 37 Mass. App. Ct. 1, 8 (1994). Other upsetting behavior—including “insults, indignities, threats, annoyances, [or] oppressions”—cannot give rise to liability for intentional infliction of emotional distress, even if the behavior was undertaken on purpose, with “malice,” and intended to be upsetting. Roman, supra; Foley, supra. Theodat has not stated a viable claim for intentional infliction of emotional distress because the allegations that the BWSC Defendants mistreated Theodat, subjected her to investigations based on false pretenses, placed her on administrative leave, and terminated her employment do not rise to the level of extreme, outrageous, and profoundly shocking conduct. See Padmanabhan v. City of Cambridge, 99 Mass. App. Ct. 332 , 342–343 (2021) (claim that hospital falsely alleged to Board of Registration in Medicine and National Practitioners Data Bank that neurologist engaged in wrongdoing); Okoli, 81 Mass. App. Ct. at 389–390 (allegations that spouse threatened to remove support for plaintiff’s visa application and threatened him with deportation); Kurker v. Hill, 44 Mass. App. Ct. 184 , 193–194 (1998) (allegations that defendant forced plaintiff out of family business and terminated his employment). The Court will dismiss this claim against the individual BWSC Defendants because Theodat’s factual “allegations cannot support a finding that” each defendant’s “conduct was extreme and outrageous as a matter of law.” See Okoli, 81 Mass. App. Ct. at 389–390 (affirming dismissal). 1.3.3. Public Records Claim. In Count XIV, Theodat claims that the Commission has violated the Public Records Act, G.L. c. 66, § 10(c), by not providing her with copies of certain categories of public records that her attorney requested on Theodat’s behalf. The Commission’s arguments that Theodat lacks standing because she was not expressly identified in the records request as the “requestor,” and that Theodat may not assert this claim without alleging that she has paid the amount assessed by the Commission, are without -15- merit. The Court will therefore deny the Commission’s request to dismiss this claim.[3] 1.3.3.1. Standing. Theodat has standing to enforce the request because she the factual allegations in the amended complaint plausibly suggest that Theodat, acting through her agent, was the actual “requestor” within the meaning of the statute. The Commission points out that when Theodat’s attorney made a public records request on her behalf, the attorney did not identify Theodat as the requestor. That may be true, but it is beside the point. Theodat has standing to press this claim nonetheless. “The primary purpose” of the Public Records Act “is to give the public broad access to governmental records.” Attorney Gen. v. Dist. Atty. for Plymouth Dist., 484 Mass. 260 , 262 (2020), quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378 , 382–383 (2002). Courts must construe this statute “broadly and liberally … in order to effectuate the legislative purpose of openness.” General Elec. Co. v. Dept. of Envtl. Prot., 429 Mass. 798 , 806 n.9 (1999). When an attorney seeks public records on behalf of an undisclosed client, the client may bring suit to enforce the statute if the public entity does not provide the requested records. ”Allowing an undisclosed principal to enforce a records request made through an agent furthers this purpose” of providing broad access to public records, “without creating any prejudice to the public entity holding the records. Public bodies have a statutory duty to respond diligently to all records requests, regardless of who makes the request.” San Juan Agr. Water Users Ass’n v. KNME-TV, 257 P.3d 884, 892 (N.M. 2011); accord Censabella v. Hillsborough County Attorney, 197 A.3d 74 , 76–78 (N.H. 2018); Kleven v. City of Des Moines, 44 P.3d 887 , 888–891 (Wash. App. 2002). The facts alleged in the complaint plausibly suggest that counsel was acting as Theodat’s agent when they requested public records from the Commission. -------------------------------------------- [3] In her opposition, Theodat represents that she resubmitted the prior public records request in her own name and paid the $350 fee requested by the BWSC, and states that she seeks leave to further amend her complaint to allege these new facts. But Theodat did not serve and file any motion to amend her complaint, separate from her memorandum, as required under Mass. R. Civ. P. 7(b) and Superior Court Rule 9A(a)(1). If Theodat still wishes to seek leave to submit such a further amendment, she should confer with the remaining parties as required by Superior Court Rule 9C and serve (and then file) an actual motion with her proposed amendment and a short supporting memorandum in accord with Rule 9A. -16- “At common law, an agency relationship exists where ‘there is mutual consent, express or implied, that the agent is to act on behalf and for the benefit of the principal, and subject to the principal's control.’ ” Segal v. G