(as filed) Motion to Dismiss Counts I.II.III.pdf

Town of Winthrop · from the Town's request portal · released Dec 13, 2023 · 3 pages · 460 KB
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
____________________________________
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FERRUCCIO ROMEO, |
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Plaintiff, |
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v. |
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TOWN OF WINTHROP, TERENCE M. | DOCKET NO.: 1:22-CV-10573-DJC
DELEHANTY, Chief of Police/Interim |
Town Manager and AUSTIN FAISON, |
Former-Town Manager, |
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Defendants. |
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____________________________________| 
DEFENDANTS’ MOTION TO DISMISS COUNT I, IN PART,
AND COUNTS II AND III OF THE COMPLAINT
(and L.R. 7.1 Certification) 
Pursuant to Fed. R. Civ. P. 12(b)(6) and Local Rule 7.1, Defendants Town of Winthrop
(“Town of Winthrop”), Chief of Police Terence M. Delehanty (“Chief Delehanty”), and Austin
Faison (“Mr. Faison”) (collectively “Defendants”), respectfully move to dismiss Plaintiff
Ferruccio Romeo’s (“Plaintiff”) Complaint, in part, as it fails to state claims upon which relief may
be granted. Specifically, Plaintiff’s Title VII claim (Count I) against Chief Delehanty and Mr.
Faison is barred as a matter of law and should be dismissed because Title VII does not impose the
protection sought which is individual liability. Moreover, Plaintiff’s retaliation claim (Count II)
against Defendants fails as a matter of law because Plaintiff has not sufficiently pled facts, even if
accepted as true, to establish that he is a “disabled person” protected under the statute on which he
bases his claim, 42 U.S.C. § 12203. Further, Plaintiff’s FMLA claim (Count III) against
Defendants fails as a matter of law because Plaintiff has not sufficiently pled facts, even if accepted 
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as true, to establish Defendants unlawfully interfered with Plaintiff’s exercise of his rights under
FMLA. Alternatively, Plaintiff’s FMLA claim (Count III) against Defendants as it relates to 2019
is procedurally barred on statute of limitations grounds.
WHEREFORE, for these reasons, which are set forth in greater detail in the accompanying
Memorandum of Law, Defendants respectfully request that this Court dismiss the Complaint at
Count I, as it relates to Chief Delehanty and Mr. Faison, and dismiss Counts II and III of the
Complaint in their entirety, with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6).
Respectfully submitted,
TOWN OF WINTHROP,
TERENCE M. DELEHANTY, and
AUSTIN FAISON, 
By their attorneys, 
/s/ Janet R. Barringer 
Janet R. Barringer, BBO # 642442
JBarringer@FMGlaw.com
Matthew R. Mattie, BBO # 705624
MRMattie@FMGlaw.com
FREEMAN, MATHIS & GARY, LLP
60 State, Sixth Floor
Boston, Massachusetts 02109
Dated: July 29, 2022 Tel: (617) 963 – 5975 
LOCAL RULE 7.1 CERTIFICATION 
Defendants, through counsel, made a good faith effort to narrow the issues presented in advance
of filing this Motion. Specifically, on July 28, 2022, I conferred with Plaintiff to resolve or narrow
the issues presented herein and obtain Plaintiff’s concurrence to the instant motion. Despite these
efforts by counsel, Plaintiff remains opposed to the issues raised and relief sought by way of this
Motion. 
/s/ Matthew R. Mattie 
__________________________
Matthew R. Mattie 
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CERTIFICATE OF SERVICE 
I hereby certify that this document was filed through the ECF system and will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be served upon non-registered participants. 
/s/ Janet R. Barringer 
________________________
Janet R. Barringer 
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