Opinion
19-P-994
06-05-2020
JENNIFER A. BRODBECK v. DEPARTMENT OF CORRECTION & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Jennifer A. Brodbeck, appeals from a judgment dismissing her complaint alleging claims of discrimination and retaliation against the defendants, Department of Correction and its then Commissioner, Thomas A. Turco, III, (collectively, DOC), pursuant to Mass. R. Civ. P. 12 (b) (1) and (6), 365 Mass. 754 (1974). We affirm.
The complaint was comprised of five claims: counts I through III alleged handicap discrimination by the Department of Correction in violation of G. L. c. 151B, for failure to accommodate, disparate treatment, and retaliation. Counts IV and V alleged disability discrimination by both defendants in violation of the Amended Americans with Disabilities Act, for disability discrimination and retaliation.
Background. The plaintiff, a Massachusetts National Guard veteran, was employed by the DOC as a correction officer beginning in 2004. She suffered from flashbacks, anxiety, and panic attacks, and was diagnosed with posttraumatic stress disorder. As a result, Brodbeck requested a reasonable accommodation from the DOC, which she contends was granted "in form, but not in substance." Thereafter, the DOC suspended Brodbeck three times pending satisfactory completion of "fitness-for-duty" evaluations. She was declared fit to return to duty on the first two occasions, but the DOC refused to return Brodbeck to duty on the third occasion. Instead, the DOC petitioned the State Board of Retirement (retirement board) to involuntary retire Brodbeck, pursuant to G. L. c. 32, § 16 (1). The petition was approved in August 2014.
The record does not contain Brodbeck's documents related to the requested accommodation, the initial complaint filed with the Massachusetts Commission Against Discrimination, or the DOC's response.
Procedural background. On April 5, 2012, Brodbeck filed claims of handicap and disability discrimination against the DOC with the Massachusetts Commission Against Discrimination (MCAD) and the United States Equal Employment Opportunity Commission (EEOC). The MCAD entered an initial finding of probable cause on December 8, 2014. See G. L. c. 151B, § 5. Settlement negotiations were unsuccessful and, ultimately, Brodbeck elected to proceed with the MCAD proceeding and forwent removing her case to the Superior Court for judicial determination. See id.
The MCAD issued a postdetermination discovery order in January 2015, and assigned a hearing officer to the case. The parties conducted discovery and a prehearing order issued in April 2017. The hearing officer withdrew from the case and a second hearing officer was assigned on June 4, 2017. A public hearing was then scheduled for October 2, 2017.
Approximately one week prior to the public hearing, on September 27, 2017, Monserrate Quinones, director of diversity and equal opportunity at the DOC, was appointed by Governor Baker as a Commissioner of the MCAD. Quinones was a fact witness in these proceedings. As a result of this conflict, the public hearing was postponed. On November 14, 2017, after consultation with the State Ethics Commission, the MCAD notified Brodbeck that it intended to transfer her case to be heard and decided in the Division of Administrative Law Appeals (DALA). On January 26, 2018, the MCAD sent a letter notifying Brodbeck that the case had been transferred to the DALA. Thereafter, on February 2, 2018, Brodbeck sent a letter to the MCAD opposing the transfer.
Quinones was a fact witness in Brodbeck's MCAD proceedings. She was deposed and identified as a witness for the public hearing.
On April 3, 2018, at Brodbeck's request, the MCAD granted Brodbeck permission to withdraw her case and file an action in Superior Court. On April 25, 2018, the EEOC also issued a "private right to sue" authorization to Brodbeck, requiring suit to be filed within ninety days. On June 15, 2018, Brodbeck filed a verified complaint in the Superior Court. The DOC filed a motion to dismiss the complaint, arguing a lack of subject matter jurisdiction and that the statute of limitations on Brodbeck's State and Federal claims had expired. The motion was allowed, judgment entered, and this appeal followed.
We note that neither of the right to sue authorizations operated to bypass the applicable statutes of limitations or confer subject-matter jurisdiction on the Superior Court.
Discussion. a. State discrimination claims. We review the allowance of a motion to dismiss for failure to state a claim de novo, accepting as true all well-pleaded facts in the complaint. Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). For judicial determination in the Superior Court, Brodbeck's discrimination claims are subject to a three-year statute of limitations from the date of the unlawful act. See G. L. c. 151B, § 9. Accepting Brodbeck's claims, as we must, her cause of action accrued no later than August 2014 when the retirement board approved the DOC's application to involuntarily retire her. Therefore, Brodbeck had until no later than August 2017 to file a complaint; she filed this complaint on June 15, 2018, approximately ten months late. We are unpersuaded by Brodbeck's contention that the defense of statute of limitations is a fact question that is left to the jury. Here, it is undisputed from the face of the complaint that the complaint was filed beyond the statute of limitations. There is no factual dispute about the timeline of the last purportedly unlawful act, and therefore this is not a jury question. See Clough v. Brown, 59 Mass. App. Ct. 405, 407 (2003), citing Riley v. Presnell, 409 Mass. 239, 247 (1991). Dismissal of the complaint was appropriate. See Commonwealth v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 70 (2017).
Brodbeck next argues that the doctrine of equitable tolling precludes dismissal of her complaint. We disagree. "Equitable tolling is to be 'used sparingly,' and the circumstances where tolling is available are exceedingly limited." Halstrom v. Dube, 481 Mass. 480, 485 (2019), quoting Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 725-726 (1997). With regard to MCAD proceedings, "the doctrine of equitable tolling 'is applicable only where the prospective plaintiff did not have, and could not have had with due diligence, the information essential to bringing suit.'" Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 673 (2000), quoting Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 631 (1997). Equitable tolling is available with respect to the filing of an initial MCAD complaint. See Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815 (1988). However, none of those circumstances are present here, and we are not persuaded by Brodbeck's argument that equitable tolling may apply to her § 9 complaint once she elected MCAD proceedings. See Wynn & Wynn, P.C., supra. See also Everett v. 357 Corp., 453 Mass. 585, 600 & n.21 (2009).
In that context, equitable tolling may apply if DOC or MCAD: (1) affirmatively misled Brodbeck into not asserting a timely claim, see Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 724 (2001); (2) encouraged or cajoled her into inaction, see Cherella v. Phoenix Techs. Ltd., 32 Mass. App. Ct. 919, 920 (1992); (3) Brodbeck was excusably ignorant of procedural requirements, see Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1021 (1996); or (4) there was "[m]isleading action by" the DOC or the MCAD, Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 446 (1996).
Brodbeck next argues that equitable tolling applies to her Superior Court complaint because she objected to "MCAD transferring her case to DALA." However, the MCAD acted within its statutory and regulatory authority when it substituted DALA as the hearing officer in response to the unprecedented conflict that arose by Quinones's appointment. A challenge to that transfer as well as any adverse decision by the DALA would be properly brought by way of a G. L. c. 30A, § 14, appeal.
The Legislature has delegated authority to the MCAD to promulgate regulations necessary to enforce G. L. c. 151B. See G. L. c. 151B, § 3(5). Moreover, the MCAD has the "powers, duties and obligations conferred upon it by statute and those reasonably necessary for its proper functioning." Massachusetts Comm'n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 189 (1976). Accordingly, we afford "substantial deference," Gateley's Case, 415 Mass. 397, 399 (1993), to the MCAD's determination that it had authority to appoint a qualified hearing officer from the DALA in the event of an extraordinary conflict of interest within its agency. See G. L. c. 151B, § 3(5); 804 Code of Mass. Regs. § 1.21(1) (1999).
Brodbeck also argues that the DALA did not have the expertise that an MCAD hearing officer had to properly handle her case. Brodbeck's concern that the DALA would not apply MCAD rules and procedures is not borne out by the record because she filed a complaint in the Superior Court before the DALA could act. If she was dissatisfied with the procedure and result, Brodbeck could have appealed to the Superior Court, pursuant to G. L. c. 30A, § 14, challenging, among other things, the DALA's determinations and the expertise or lack thereof of the hearing officer. It is also possible that Brodbeck would have been satisfied with the result.
Finally, Brodbeck asserts that the DOC is equitably estopped from relying on the statute of limitations. To be successful on such a claim, Brodbeck must allege that "statements of the defendant lulled [her] into the false belief that it was not necessary . . . to commence action within the statutory period of limitations . . . , that [she] was induced by these statements to refrain from bringing suit, as otherwise [she] would have done, and was thereby harmed, and that the defendant 'knew or had reasonable cause to know that such consequence might follow.'" Pagliarini v. Iannaco, 440 Mass. 1032, 1032 (2003), quoting Ford v. Rogovin, 289 Mass. 549, 552 (1935). Moreover, Brodbeck has the burden to show that she reasonably relied on such statements. See Pagliarini, supra. Brodbeck is unable to meet her burden here. The appointment of Quinones was made by the Governor -- not the DOC -- after the three-year statute of limitations had already expired. And, there is no support for the suggestion that there was a nefarious reason for Quinones's appointment given her involvement in Brodbeck's case. Finally, in her own complaint, Brodbeck acknowledges that after the MCAD made a finding of probable cause, she made the decision to forgo removing her case to the Superior Court. She cannot now avoid this choice after the running of the statute of limitations under the guise of equitable estoppel. See Brunson v. Wall, 405 Mass. 446, 452-453 (1989).
Even if Brodbeck met the requirements of equitable estoppel, which she did not, the doctrine would be inapplicable to the DOC as contrary to the public interest. See Cameron Painting, Inc. v. University of Mass., 83 Mass. App. Ct. 345, 350 (2013) (applying estoppel to statute of limitations would negate "requirements of law intended to protect the public interest" [citation omitted]).
b. Federal discrimination claims. We review the allowance of a motion to dismiss for lack of subject-matter jurisdiction de novo. Gammella v. P.F. Chang's China Bistro, Inc., 482 Mass. 1, 16 (2019).
Sovereign immunity bars private actions for money damages against a State in its own court "absent consent by the Legislature or abrogation of sovereignty by Congress acting under its Fourteenth Amendment powers." Lopes v. Commonwealth, 442 Mass. 170, 175 (2004). See generally Eleventh Amendment to the United States Constitution; Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 368-369 (2001) (Garrett). "Consent to suit must be expressed by the terms of a statute, or appear by necessary implication from them." Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42 (1981).
The DOC argues that it has sovereign immunity against Brodbeck's claims for money damages under the Amended Americans with Disabilities Act (ADA). Brodbeck argues that the Commonwealth has waived statutory immunity for State handicap discrimination claims, and that such consent should also apply to comparable ADA claims brought in State court. See Lopez v. Commonwealth, 463 Mass. 696, 701-702 (2012), citing G. L. c. 151B, §§ 1, 5.
Here, Congress has not validly abrogated the States' sovereign immunity from employment discrimination claims for money damages under Title I of the ADA. See Garrett, 531 U.S. at 368-369; Shedlock v. Department of Correction, 442 Mass. 844, 863-864 (2004). The States also continue to have sovereign immunity from retaliation claims for money damages under Title V of the ADA that arise out of conduct within the scope of Title I. See generally the Eleventh Amendment to the United States Constitution. Furthermore, the Commonwealth has not waived sovereign immunity for damages for claims under the ADA and has not consented to suit. Without explicit waiver, we do not infer consent to be subject to damages under the ADA simply because G. L. c. 151B is a similar statutory scheme. See Lopez, 463 Mass. at 701, quoting Woodbridge, 384 Mass. at 42 ("Waiver of sovereign immunity will not be lightly inferred; '[c]onsent to suit must be expressed by the terms of a statute, or appear by necessary implication from them'"). See generally Commonwealth v. Elm Med. Lab., Inc., 33 Mass. App. Ct. 71, 77-80 (1992). Accordingly, Brodbeck's claims for money damages under the ADA are barred.
Notably, the relevant provisions in G. L. c. 151B, § 9, preceded the ADA, and the Legislature could not by implication have consented to suit under a Federal statute that was not in existence.
We note that the Superior Court judge granted Brodbeck leave to amend her complaint to state a claim for injunctive relief under the ADA, but she did not do so.
Judgment affirmed.
By the Court (Green, C.J., Maldonado & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 5, 2020.