A nonsmoking truck driver/laborer for the Town of Charlton attempted since 1992 to get enforcement of Mass. G.L. c. 270, sec. 21, which prohibits smoking in a “public building,” at the Defendant Town of Charlton’s Highway barn.  After unsuccessfully appealing to his superiors, his union and the board of selectmen, Plaintiff filed a state civil rights action, and a federal civil rights action, alleging a violation of the equal protection clause of the U.S. Constitution.  Plaintiff is seeking injunctive relief “in the form of an order prohibiting smoking in the Defendant’s Town Barn,” as well as damages and attorney’s fees.  See Murray, G., “Worker Sues Charlton over Smoking in ‘Barn,'” Telegram & Gazette (Worcester, MA), February 11, 1997, B4; and “Man Wants No Smoke in Barn,” Southbridge Evening News, February 14, 1997, 3.  The case was remanded to federal court.  The plaintiff’s motion for summary judgment was denied; his section 1983 claim was dismissed.  The case was remanded back to state court.  On May 16, 2000, the state court (Hely, J.) granted the defendant’s motion to dismiss, reasoning that while statements made to the plaintiff by two town employees could be interpreted as amounting to threats, intimidation or coercion under Mass. G.L. c. 12, secs. 11H and 11I, those statements would have to be proven to have been made while the employees were acting in the scope of their employment.  The court concluded that no fair-minded jury could so conclude.  “The remarks appear to be purely personal.  There is no evidence that the remark allegedly made by Lawrence was motivated to serve the employer.  The Town adopted a policy against smoking in public buildings on September 1, 1992.”

Worcester (MA) Superior Ct., No. 97-0303-C (1997).