STATEMENT OF ISSUES PRESENTED FOR REVIEW

I. Whether the trial court erred in holding that the

individual defendants were entitled to qualified

immunity and therefore not liable to Gail Nelson under

42 U.S.C. § 1983 on the grounds that no clearly

established constitutional right was violated by

secretly videotaping her private activities at her

workplace, including changing her clothing before and

viewing her private activities were “discretionary

acts?”

II. Whether the trial court erred in holding that

Salem State College is not liable under the

Massachusetts Tort claims Act on the grounds that the

training and supervision of the individual defendants

concerning the proper use of covert video surveillance

were discretionary functions which were exempted by G.

L. c. 258, § 10(b)?

STATEMENT OF THE CASE

secret videotaping of her in areas in which she had a

reasonable expectation of privacy (App. I, p. 7).

1

She

asserted that this secret videotaping violated the

Fourth Amendment to the United States Constitution and

the Massachusetts Privacy Act, G. L. c. 214, § 1B.

2

After the completion of discovery, the defendants

filed a motion for summary judgment with Ms. Nelson’s

Opposition on July 31, 2002. On September 18, 2003,

“Decision”).

Ms. Nelson filed a timely Notice of Appeal (App.

II, p. 202), and the case was entered on the docket of

1References to the Record Appendix will be denominated

as “App. I” or “App. II” followed by the appropriate

page and corresponding section of the document.

2In an Amended Complaint (App. I, p. 18), Ms. Nelson

added a claim for negligence against the College for

permitting the secret videotaping and for its failure

their intentional acts in invading Ms. Nelson’s

privacy.

the Appeals Court on July 12, 2004.

B. STATEMENT OF FACTS

In June of 1995, officers of the College police

force, with the knowledge and/or cooperation of

College administrators, installed a hidden video

camera and VCR in the College’s Small Business

Development Center (“SBDC” or the “Center”). The

into the SBDC after normal business hours, the camera

was set up to tape-record all activities at the Center

for twenty-four hours a day (App. I, p. 125 ¶¶ 14, 15

and 21; App. II, p. 9 ¶¶ 14, 15, and 42-44). Although

the defendants were conducting an investigation into

possible criminal activity by unknown persons, they

never made any effort to obtain a warrant for their

secret video surveillance (App. II, p. 9 ¶¶ 14, 15,

43, 44 and 54). The secret twenty-four hour a day

videotaping at the Center continued for a period of

between 2 -4 months (App. I, p. 125 ¶¶ 22 and 23; App.

II, p. 9 ¶¶ 22 and 23). The hidden video camera

recorded on tape areas of the Center, located behind

partitions, that could not be seen either from the

street through the Center’s front window or by people

entering the Center’s front door (App. I, p. 125 ¶¶ 6

and 20; App. II, p. 9 ¶¶ 5, 6, 27, 30 and 33).

During the summer of 1995, Ms. Nelson would often

engage in without going home first (Id.). When

changing from one set of clothes to another at the

Center, for brief periods of time, she would only have

on her underwear (Id.). In addition, during the month

of July, 1995, while she was at work at the Center,

Ms. Nelson had to frequently apply prescription

medication to her chest and shoulders to treat a case

of severe sunburn (Id.). In order to apply the sunburn

medication, she had to unbutton her blouse, thereby

revealing her upper torso and a portion of her breasts

(Id.).

Ms. Nelson took great pains to protect her

privacy when changing her clothes at the Center or

applying her skin medication, including making sure no

one else was in the SBDC, locking the front door

whenever possible, moving behind one of the 5-6 foot

tall partitions in the office, turning her back to the

opening in the partition area, and listening carefully

or was making a videotape of her (App. II, p. 9 ¶¶ 26

and 34-37). Moreover, she knew that her supervisor

(defendant Young) knew that she sometimes changed her

clothes at the Center (App. II, p. 9 ¶¶ 40-41).

Ms. Nelson’s precautions were all for naught,

however, as the hidden video camera installed by the

College police taped her every action, including her

private activities in private areas of the office,

before, during and after regular business hours at the

Center, without her knowledge, for several months

(App. I, p. 125 ¶¶ 20-22; App. II, p. 9 ¶¶ 6, 20, 26,

33 and 37). The secret videotaping, which never

revealed any illegal or unauthorized activity, was

never ordered to be halted by any of the defendants,

and the video surveillance equipment was still in

place in mid-October, 1995, when it was discovered

accidentally by one of Ms. Nelson’s co-workers (App.

I, p. 125 ¶¶ 21-23; App. II, p. 9 ¶¶ 22-23 and 47).

The defendants did not take any steps to consider

or protect the privacy of the people working in the

SBDC, including Ms. Nelson, from the intrusiveness of

secret twenty-four hour a day videotaping. Prior to

installing the hidden camera, the College police

officers did not take any other steps to investigate

whether or not any illegal entries were occurring in

the building (App. II, p. 9 ¶ 16). They did not

consider alternatives such as putting an alarm system

on the Center’s door, having the Salem Police increase

the frequency of their patrols, or interviewing

employees of the Center as to whether they had any

information about illegal entries (Id.). They did not

consider having a court review their right to conduct

secret video surveillance by seeking to obtain a

warrant (App. II, p. 9 ¶ 54). Further, instead of

placing the camera so that it viewed only the front

door to the Center, the camera taped a view of the

the Center twenty four hours a day (App. I, p. 125 ¶

21; App. II, p. 9 ¶¶ 44 and 45).

Despite the fact that defendant Harrington, the

President of the College, believed that it was

inappropriate to conduct any covert video surveillance

without her prior knowledge and approval, and that

various College administrators were aware that the

College police had conducted covert video surveillance

at the College prior to the taping at the SBDC, the

defendants did not develop any policies before the

SBDC videotaping that required any administrator,

other than police chief Brian Pray, to be informed

about, or to give prior approval for, the use of such

secret video surveillance (App. II, p. 9 ¶¶ 48-53).

Moreover, since obtaining the covert video

surveillance equipment in 1993, the College police had

not received any training whatsoever in the

appropriate use of such equipment or on the issue of

Gail Nelson at her workplace twenty-four hours a day

for a period of several months, while she engaged in

legitimate activities (such as changing her clothes

and applying medication to her upper torso), which she

reasonably believed she was keeping private from

others, was extraordinarily intrusive and violative of

her privacy, and was in violation of her

constitutionally protected privacy rights under the

Fourth Amendment to the U. S. Constitution. The trial

court erred in not ruling that the defendants violated

Ms. Nelson’s objectively reasonable expectation of

privacy against being secretly videotaped while she

engaged in those activities at her workplace (pp. 10-

27).

In June, 1995, at the time of the defendants’

actions, Massachusetts case law and statutes, and the

consensus of case law from other jurisdictions, had

clearly established Gail Nelson’s right to be free of

not shielded by common law immunity for their

continuing and intentional acts in secretly

videotaping Ms. Nelson. Their intentional actions

were not discretionary in nature and constituted an

unreasonable and substantial invasion of Ms. Nelson’s

privacy in violation of the Fourth Amendment and the

Massachusetts Privacy Act, G. L. c. 214, § 1B (pp. 37-

45).

The liability of Salem State College for its

negligent failure to properly train and supervise the

individual defendants is not barred by the

threat to individual privacy.

‘[I]t must be plain that electronic surveillance

liberties of the person....’ Lopez v. United

J., dissenting).... [B]ecause the peculiar

threaten the privacy of our most cherished

techniques are peculiarly intrusive upon that

sense of personal security which art. 14 commands

us to protect.

Commonwealth v. Blood, 400 Mass. at 69-70. As one

court has written, video surveillance “provokes an

immediate negative visceral reaction: indiscriminate

video surveillance raises the spectre of the Orwellian

state.” United States v. Cuevas Sanchez, 821 F.2d

248, 251 (5

Cir. 1987)(footnote omitted). Moreover,

the Massachusetts legislature has long recognized as

legitimate and reasonable an expectation of privacy

against secret warrantless electronic surveillance by

uncontrolled development and unrestricted

devices pose grave dangers to the privacy of

all citizens of the commonwealth.

Therefore, the secret use of such devices by

private individuals must be prohibited. The

use of such devices by law enforcement

officials must be conducted under strict

judicial supervision and should be limited

to the investigation of organized crime.

5

videotaped was not “objectively reasonable” because

the videotaping took place in an open office space to

which the public had some access.

The protections of the Fourth Amendment and

Article 14, however, apply to people even when they

are in a business or commercial space. Commonwealth

v. DiMarzio, 52 Mass. App. Ct. 746, 749 (2001) and

cases cited. “[T]he Fourth Amendment protects people,

5 Former S.J.C. Chief Justice Liacos also directly

addressed the threats posed by secret electronic

surveillance to constitutionally protected privacy

rights in his dissent in Commonwealth v. Price, 408

Mass. 668, 678-679 (1990)(Liacos, J. dissenting):

The citizens of this Commonwealth should not have

to live with the fear that at any given moment

they might be the subject of unauthorized covert

electronic surveillance by the police.

. . . .

I would hold that, regardless of an individual's

surveillance set by the Legislature by enacting

G. L. c. 272, § 99.

not places. What a person knowingly exposes to the

public, even in his home or office, is not a subject

of Fourth Amendment protection. (citations omitted).

But what he seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected.” Katz v. United States, 389 U.S. 347, 351-

352 (1967)(emphasis added). See also Mancusi v.

their workplace, holding in O’Connor v. Ortega, 480

U.S. 709, 717 (1987), that “[i]ndividuals do not lose

Fourth Amendment rights merely because they work for

the government instead of a private employer.” A

majority of the O’Connor court found that an employee

can still expect some privacy in an office even if

that office is open to other people, as “[i]t is

privacy that is protected by the Fourth Amendment, not

solitude.... [T]he secretary working in an office

frequently entered by...other employees is protected

against unreasonable searches of that office by the

government....” Id. at 730 (Scalia, J., concurring in

judgment). Accord Mancusi v. DeForte, 392 U.S. 364,

368-369 (1968)(holding that an employee who shared a

single large office with several co-workers had a

reasonable expectation of privacy that was violated by

a police search of that office).

In the trial court, the defendants sought to

where Ms. Nelson worked had two 5-6 foot tall

partitions in it which created private areas in the

office that could not be seen by the public (App. II,

p. 9 ¶¶ 5, 20 and 26). In addition, the glare from

the front plate glass window made it difficult, if not

impossible, to see into the office from the street

during daylight hours (App. II, p. 9 ¶¶ 5 and 26).

The hidden video camera at the Center secretly

videotaped private areas behind partitions that could

not normally be seen by the public and videotaped Ms.

Nelson when she was alone in that area outside of

regular business hours and when the office was locked

(App. II, p. 9 ¶¶ 20, 26, 27, 30 and 33). The public

did not have unfettered access to the Center. Ms.

Nelson often worked alone there and she had both the

right and the responsibility of locking the Center’s

door to exclude the public both during her required

lunch break and outside of regular business hours

hidden from the public’s immediate view that were

being videotaped, none of the people being videotaped

were able to exclude the public from the area being

videotaped, and none of them took specific steps to

preserve their privacy in the area that was

videotaped.

States v. Bissell, 954 F.Supp. 841, 866-867 (D.N.J.

1996) (videotaped area was clearly visible through

The physical layout of Ms. Nelson’s workplace and

whether or not the public had some access to it are

not by any means the sole, or even the controlling,

factors to be used in determining whether or not she

had an objectively reasonable expectation of privacy

against being secretly videotaped. See generally,

United States v. McIntyre, 582 F.2d 1221 (9

large windows on three sides, no efforts were made to

restrict access or viewing by the public, and the view

of the camera was “not significantly different than

that of a person standing outside the office and

looking through the windows”); Thompson v. Johnson

County Community College, 930 F. Supp. 501, 507

(D.Kan. 1996)(area being taped was a storage room,

containing lockers, heating and air conditioning

equipment, where other employees had “unfettered

access,” and plaintiffs did not have “exclusive use;”

video surveillance was limited to specific hours when

the activity being investigated might have taken

place); State v. McLellan, 144 N.H. 602, 605

she could be seen by members of the public and by her

fellow employees).

expectation of privacy in a covert electronic

surveillance case and identified a number of factors

which must be considered in making such a

determination. Those factors included the nature of

the area surveilled, the extent to which others had

access to the area, whether or not the employee

exercised dominion or control over the area, the

nd

the interior of a home does impair a legitimate

expectation of privacy....”); Vega Rodriguez v. Puerto

Rico Telephone Co., 110 F.3d 174, 180 n. 5 (1

st

Cir.

1997)(distinguishing “cases involving the covert use

of clandestine cameras”).

The factors enumerated by these cases support the

contention that Gail Nelson had a reasonable

expectation of privacy against being secretly

videotaped at her workplace. The hidden camera was

placed on the back wall of the office, an area that

was not a normal vantage point of either the public or

her coworkers; it recorded activities in the office

twenty-four hours a day, including times outside of

normal business hours, times when the office was

locked and the public was not permitted access, and

times when Ms. Nelson was the only employee physically

working in the Center; and it recorded private areas

of the office that were normally hidden from public

Mass. 37, 44-45 (1995)(expectation of privacy in a

public place is reasonable where affirmative steps

have been taken to limit public access).

See also

Katz v. United States, 389 U.S. 347, 351-352 (1967)(a

person in a glass telephone booth had a legitimate

7 It is beyond question that Ms. Nelson’s partially

unclothed body would normally be entitled to greater

a violation of her right to privacy as guaranteed by

the Fourteenth Amendment).

expectation that his phone conversation would not be

electronically intercepted, even though he had no

legitimate expectation that his activities within the

booth would not be observed).

Finally, with respect to the justification for

the surveillance, it should be noted that the

defendants continued the secret videotaping even when

her, due to the extraordinary intrusiveness of the

hidden video camera

installed and operated by the defendants.

In determining the reasonableness of Gail

Nelson’s expectation of privacy, the court must

consider “the degree of intrusion inherent in the

continuous nature of video surveillance.” State of

Indiana v. Thomas, 642 N.E.2d at 244. It is for

exactly that reason that courts that have carefully

considered the issue have held that, whatever other

expectations of privacy a public employee might or

might not have at work, it is objectively reasonable

that they would have an expectation of privacy against

being secretly videotaped. The court in United States

v. Taketa, 923 F.2d at 677, in holding that employees

could have a reasonable expectation of privacy from

video surveillance even in another person’s office,

stated

within which they may not reasonably be

place they do not own or normally control, and in

challenge a search at some other time or by some

. . . .

privacy expectation that he would not be

office....We base our holding expressly upon Katz

[v. United States, 389 U. S. 347 (1967)] and upon

our recognition of the exceptional intrusiveness

of video surveillance. (emphasis added).

Accord State of Hawaii v. Bonnell, 75 Haw. at 147, 856

642 N.E.2d at 246 (same). Cf. United States v.

Nerber, 222 F.3d at 604 (“[O]nce the informants left

The defense of qualified immunity is available

only when the defendants’ actions did not violate

“clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When,

as here, the law is clearly established, the qualified

immunity defense must fail, “since a reasonably

Gately, 422 Mass. 398, 402 (1996). The exact fact

pattern at issue need not have been specifically

addressed in case law. Id. at 403. It is only that

“[t]he contours of the right must be

sufficiently clear that a reasonable

official would understand that what he is

doing violates that right. This is not to

say that an official action in question is

protected by qualified immunity unless the

very action has previously been held

unlawful.”

Pasqualone, 422 Mass. at 403-404, quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

The object of the “clearly established” standard

is to give “fair warning” to government actors, before

they are subjected to suit, that their conduct is

unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002).

“There is no requirement that the facts of previous

st

can come from a wide variety of sources, including

general statements of the law, a general

constitutional rule already identified in the

decisional law that may be applicable to the specific

conduct in question, and administrative regulations

and reports. Hope, 536 U.S. at 740-746.

Their Families, 274 F.3d 12, 23 (1

Suboh v. District Attorney's Office of the Suffolk

In order to determine whether or not Ms. Nelson’s

statutory or constitutional rights not to be

continuously secretly videotaped over a period of 2-4

months were “clearly established” for purposes of

applying the qualified immunity defense, the court

must look at the state of the law “in effect at the

time of the alleged violation,” Laubinger v. Dept. of

was both well-established Massachusetts statutory and

case law concerning electronic surveillance and a

“consensus” of factually similar case law in other

jurisdictions that had held similar conduct to be

unconstitutional, all of which served to put the

defendants on notice of the unlawfulness of their

actions. Hope, 536 U.S. at 741 (government actors

“can still be on notice that their conduct violates

established law even in novel factual circumstances”).

Tribble v. Gardner, 860 F.2d 321, 324 (9

Cir. 1988);

Hayes v. Long, 72 F.3d 70, 73-74 (8

Cir. 1995).

By 1995, it was clearly established that the

warrantless secret video surveillance of the private

activities of a public employee in her work place, of

the kind and duration perpetrated by the defendants

herein, violated the Fourth Amendment.

As set out more fully in the preceding section of

this brief, court decisions prior to June 1995, which

th

U.S. 709, 717 (1987); United States v. Taketa, 923

F.2d 665 (9

th

Cir. 1991); State of Hawaii v. Bonnell,

75 Haw. 124, 856 P.2d 1265 (1993); and State of

Indiana v. Thomas, 642 N.E.2d 240 (Ind.App. 1995).

10

These appellate court decisions echoed the

Supreme Judicial Court’s warnings in the Blood case,

10 See also cases concerning the dangers to

nd

th

Sanchez, 821 F.2d 248(5

v. Koyomejian, 970 F. 2d 536 (9

Cir. 1992).

supra, and the Massachusetts legislature’s concerns

explicitly stated in the 1959 preamble to G. L. c.

272, § 99, that secret electronic surveillance of

citizens by government officials is particularly

intrusive and far exceeds the reasonable expectations

of privacy that people have in all but the most public

locations. However, in making her determination that,

Nelson’s in her workplace.

11

See Decision, App. II,

pp. 193-196.

Pre-1995 case law from other jurisdictions,

combined with earlier Massachusetts case law

concerning electronic surveillance and the strong

11The only pre-1995 employment privacy case cited by

the defendants (but not by the court), Marrs v.

liability for observing an employee at work since he

is then not in seclusion.” Id. at 283-284.

condemnation of such surveillance from our Legislature

contained in G. L. c. 272, § 99, clearly established

and gave fair warning to the individual defendants

that secret warrantless video surveillance of the type

and duration at issue was unconstitutional. This

extensive body of law was more than adequate to alert

any reasonable government official that a search, as

entire office, including areas not always accessible

to others.

The state of the law in 1995 concerning the

constitutional limits on electronic surveillance gave

the defendants "fair warning" that their conduct was

unconstitutional. Hope, 536 U.S. at 740-741. To

overcome a claim of qualified immunity, it is enough

that there was prior case law sufficient to establish

that, if a court were to be presented with a

particular factual situation, the court would find

that the plaintiff's rights had been violated. Caron

v. Silvia, 32 Mass. App. Ct. 271, 273 (1992), citing

Hall v. Ochs, 817 F.2d 920, 925 (1st Cir. 1987). The

contours of Ms. Nelson’s right to be free of such

secret and unreasonable electronic surveillance was,

in June of 1995, “sufficiently clear that a reasonable

official [in the defendants’ position] would

understand that what he is doing violates that right.”

of undress similar to that of Ms. Nelson in this case.

Id. at 129. Finding that such conduct was a violation

of both the Fourth Amendment and the right of privacy

protected by the substantive due process guarantee of

the Fourteenth Amendment, the court concluded that, in

1993, it was clearly established that a police officer

could not view, photograph, videotape or otherwise

record another person’s partially unclothed body

without that person’s consent. Id. at 138-139.

Although the police officer in Poe was not engaged in

a legitimate investigation activity when he videotaped

the plaintiff, the court’s rejection of his claim of

qualified immunity turned on what the police officer

should have known about the plaintiff’s clearly

established and reasonable expectation of privacy.

Id. For the same reasons, this Court should likewise

reject that defense in this case as claimed by

defendants Bishop, Pray, Fuller, O’Connell and Young.

12

12 The trial court did not separately discuss the

plaintiff’s claim that defendants Harrington, Cahill

and Bishop are liable under 42 U.S.C. § 1983 for the

violation of the plaintiffs’ constitutional rights

based on their failure to train and supervise their

employees. As no other basis for the dismissal of

this claim appears on the record, the trial court

against defendants Harrington, Cahill and Bishop would

also be required.

III. The Individual Defendants Do Not Have Common Law

Immunity From The Plaintiff’s Claim For Invasion Of

Prolonged Secret Videotaping Of The Plaintiff’s

The Tapes By The Defendants Were “Discretionary Acts.”

raised by the defendants herein, the court in Spring

v. Geriatric Authy. of Holyoke, 394 Mass. at 286 and

n. 9, held that, by operation of the Massachusetts

Torts Claim Act (“MTCA”) G. L. c. 258, § 10(c), public

employers, but not their employees, are immunized from

suit for intentional torts such as invasion of

privacy: “While public employers, like the Authority,

may not be held liable for intentional torts committed

by their employees, the employees may be personally

liable for any harm they have caused.”

Despite this,

the trial court ruled that the individual defendants

13Accord Howcroft v. City of Peabody, 51 Mass. App.

acts complained of were ‘intentional,’ as opposed to

negligent”).

under Gildea v. Ellershaw, 363 Mass. 800, 820 (1973).

The trial court failed to recognize the extent to

which Gildea’s expansive definition of immunity had

been narrowed by the legislature in the MTCA and by

more recent decisions of the Supreme Judicial Court.

While preserving the technical distinction between

discretionary and ministerial acts for purposes of

discretionary function. The court noted that the

“common law slate” for the immunity of public

employees had been “wiped clean” by the passage of the

MTCA, and its specific provisions for the liability of

public employees for intentional torts, the

indemnification of employees by the Commonwealth for

such acts, and a new, narrower exemption from

liability for public employers for discretionary acts

(under G. L. c. 258, § 10[b]). Breault, 401 Mass. at

35-38.

The limitation of common law immunity for

Constitutional Violation Is Not A Discretionary

Function.

The College is liable for its negligent failure

to properly train and supervise its employees with

respect to the constitutionally permissible use of

covert video surveillance, and such a claim is not

barred by the “discretionary function” exemption of G.

L. c. 258, § 10(b).

Cahill should have reviewed and approved or vetoed any

covert use of such equipment on campus. App. II, p. 9

¶¶ 51 and 52. Dean Bishop, who supervised defendant

Young, actively participated in the decision to place

the hidden video camera at the Center in June, 1995.

App. II, p. 9 ¶¶ 19 and 27.

Despite this knowledge and despite the clearly

of his office or employment, whether or not the

discretion involved is abused.”

established recognition of the threat posed to the

constitutionally protected rights of citizens by the

improper use of such electronic surveillance equipment

(see, e.g., the 1959 preamble to G. L. c. 272, § 99),

none of these defendants had developed any policies

requiring any College administrator, other than police

chief Brian Pray, to give prior approval for or to

Harrington’s self-admitted inexperience, lack of

knowledge and naivete. Id. And despite the knowledge

of the prior use of covert video surveillance on the

campus by the college police force, and the knowledge

that Chief Pray was the only supervisor required to

approve its use, none of those defendants ever

required or provided training for the College police

in the appropriate use of such equipment with regard

to protecting people’s constitutional and statutory

1995, after the secret videotaping of Ms. Nelson. See

App. II p. 9 ¶ 53.

rights to privacy. App. II, p. 9 ¶¶ 55 and 56. Even

if the College’s administrators lacked actual

knowledge of censurable conduct, they may be liable

for the foreseeable consequences of such conduct if

they would have known of it but for “deliberate

indifference or willful blindness....” Maldonado-Denis

v. Castillo-Rodriguez, 23 F.3d 576, 582 (1

st

Cir.

The College had a non-discretionary duty to

safeguard the constitutional and statutory privacy

rights of its students and employees by training and

supervising its employees with regard to the

limitations placed upon them under the Fourth

Amendment, Article 14 and the Privacy Act, G. L. c.

214, § 1B. The College and its supervisory employees

negligently failed to administer any such training or

supervision. See App. I, p. 18 ¶ 56. The supervisory

employees of the College had no discretion as to

whether or not they should have provided such

training, as a reasonably competent public official is

required to know the law governing his conduct. See

Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982);

Wood v. Strickland, 420 U.S. 308, 321-322 (1975).

For individual College employees to know how

their conduct in investigating a possible crime is

prescribed so that they act within the bounds of the

been provided to the employees of the College (which

it was not, see App. II, p. 9 ¶¶ 55 and 56), the

College’s employees would not have engaged in the

invasive and unreasonable actions which violated Ms.

Nelson’s rights. As there was no discretion on the

part of the College as to whether or not to provide

proper and adequate training and supervision on these

constitutional issues, the plaintiff’s negligence

claim against the College for its failure to do so is

not barred by the discretionary function exemption of

G. L. c. 258, § 10(b).

CONCLUSION

Gail Nelson had an objectively reasonable

expectation of privacy against being secretly

videotaped when she engaged in private activities in

private areas at her workplace during time periods

when she was alone or the Center was closed to the

public. The defendants’ secret videotaping of her

on these claims.

As Ms. Nelson’s privacy rights not to be secretly

videotaped at her work for a period of between 2-4

months were clearly established in 1995, none of the

individual defendants are entitled to qualified

immunity under 42 U.S.C. § 1983 for their conduct.

Furthermore, defendants Pray, Young, O’Connell and

Fuller are not entitled to common law immunity for

their intentional acts in violation of Ms. Nelson’s

right to privacy under G. L. c. 214, § 1B. Finally,

the College is not entitled to immunity for its

negligent failure to properly train and supervise the

individual defendants under the discretionary function

exemption of G. L. c. 258, § 10(b).

WHEREFORE, Ms. Nelson respectfully requests this

Court to vacate the trial court’s judgment in favor of

the defendants and to remand this case for trial in

the Superior Court.

Respectfully submitted,

Plaintiff/Appellant