Opinion
CIVIL ACTION NO. 11-30155-MAP
03-05-2012
JANE DOE, Plaintiff v. GERALD FOURNIER, AS SUPERINTENDENT OF PALMER PUBLIC SCHOOLS, ET AL. Defendants
PLAINTIFF, JANE DOE By Her Attorneys: Jeffrey E. Poindexter, BBO #631992 Michael D. Roundy - BBO No. 669357 BULKLEY, RICHARDSON and GELINAS, LLP
LIMITED MOTION FOR
RECONSIDERATION AND
STATEMENT OF REASONS
The plaintiff, Jane Doe ("Ms. Doe" or "Plaintiff"), respectfully moves for reconsideration of only one aspect of the Court's ruling (docket no. 50) on defendant, Patrick Van Amburgh's motion to dismiss (docket no. 29). Specifically, Ms. Doe seeks reconsideration of the Court's determination that Mr. Van Amburgh, sued in his individual capacity, is not subject to liability under Massachusetts General Laws Chapter 214, section 1C, as it contradicts the express language of Chapter 214, Section 1C and is not consistent with the Supreme Judicial Court's decision in Lowery v. Klemm, 446 Mass. 572 (2006). Reconsideration is appropriate given that the Plaintiff did not sufficiently address this issue in its original brief or at the hearing because of Mr. Van Amburgh's apparent concession as to the applicability of that provision to him.
Support for this Motion is set forth in more detail below.
DISCUSSION
On June 30, 2011, Plaintiff filed the Complaint in this action, naming Patrick Van Amburgh, the Town of Palmer, the Town of Palmer School Committee, and various school and school committee officials as defendants. On July 25, 2011, all of the defendants except Mr. Van Amburgh filed a motion to dismiss the claims against them, with accompanying memorandum of law (docket nos. 21 and 22). On August 24, 2011, Mr. Van Amburgh filed a separate motion to dismiss the claims against him, and memorandum of law (docket nos. 29 and 30). Plaintiff opposed both motions, with separate opposition briefs (docket nos. 27 and 32). On January 21, 2012, counsel for all parties attended a hearing on the defendants' motions. On February 22, 2012, the Court issued its Memorandum and Order Regarding Defendants' Motion to Dismiss and Defendant Van Amburgh's Motion to Dismiss (docket no. 50) (hereinafter, "Ruling"), granting the various defendants' motions in part and denying them in part. Of relevance to the instant motion, the Court dismissed Count II as to Mr. Van Amburgh, which alleges a violation of Massachusetts General Laws, chapter 214, section 1C.
The Court concluded in its Ruling dismissing the Plaintiff's Chapter 151C claims against all defendants that "[t]he proper vehicle for bringing claims of violations of section 2(g) [of chapter 151C] by plaintiffs who do not fall under section 3(a) is Mass. Gen. Laws ch. 214, § 1C." Ruling, p. 13. The Court then goes one step further in its Ruling and concludes that Mass. Gen. Laws ch. 151C, § 2(g) claims are the only sexual harassment claims a student may bring under Mass. Gen. Laws ch. 214, § 1C - i.e., under the Court's interpretation, only claims against an "educational institution" not the actual harasser are viable. This needlessly restrictive reading of Chapter 214 is contrary to the plain language of the statute and inconsistent with Massachusetts case law.
Chapter 214, section 1C provides that "[a] person shall have the right to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C." Mass. Gen. Laws ch. 214, § 1C. Chapter 151C defines sexual harassment as:
any sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:-- (i) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual's education by creating an intimidating, hostile, humiliating or sexually offensive educational environment.Mass. Gen. Laws ch. 151C, § 1. The express language of Mass. Gen. Laws ch. 214, § 1C, unlike the Court's interpretation of Mass. Gen. Laws ch. 151C, § 2(g), cannot reasonably be construed as limited to claims thereunder against an "educational institution." Instead, it applies to "any sexual advances" or conduct that is made a condition of academic achievement or that creates a sexually hostile educational environment, without any restriction on the person or entity as the wrongdoer. As such, the Plaintiff's claim against Mr. Van Amburgh should not have been dismissed.
Additionally, the Plaintiff's position is consistent with the Supreme Judicial Court's decision in Lowery v. Klemm, 446 Mass. 572, 578 (2006). The ultimate conclusion in Klemm was that "General Laws c. 214, § 1C, thus extends to employees and students protection that is not otherwise available under G.L. c. 151B and c. 151C; it does not duplicate the relief provided for by those statutes." This conclusion is preceded by the court's discussion noting that Mass. Gen. Laws ch. 214, § 1C fills gaps in Chapter 151B and gives students who are sexually harassed in violation of Mass. Gen. Laws ch. 151C, § 2(g) access to the remedial provisions in Mass. Gen. Laws ch. 151B, § 9. The decision in Klemm does not directly address, as this Court decided to do, whether Chapter 214 also fills gaps left by Chapter 151C - e.g., under this Court's interpretation, the gap left in Chapter 151C by its application only to "educational institutions."It is difficult to conceive of any logical rationale under which the Legislature, in enacting Mass. Gen. Laws ch. 214, § 1C, which expressly applies to both Chapters 151B and 151C, would seek to provide a "gap filler" for one and not the other. Indeed, when coupled with the express language of Mass. Gen. Laws ch. 214, § 1C, which is not limited to educational institutions, one cannot under any rationale interpret that provision as not applying to Mr. Van Amburgh.
The Court's decision to take on this issue is discouraged by the First Circuit's teachings in Noonan v. Staples, Inc., 556 F.3d 20, 30 (1st Cir. 2009), which advises that the Court "tread lightly" on the interpretation of state law when precedent is scarce and that the Court should decide such issues only when necessary. Mr. Van Amburgh, rightfully so, did not dispute the applicability of Chapter 214, Section 1C to him. Therefore, the Court's decision on this unresolved state issue was not necessary.
It also would lead to the bizarre result that while the harasser's employer may be held liable under the remedial provisions of Chapters 151B and 214, the sexual harasser himself would not be liable. Again, it would make no logical sense that the Legislature would intend such a result.
CONCLUSION
WHEREFORE, for the reasons stated herein, the Plaintiff, Jane Doe, respectfully requests that the Court reconsider its dismissal of her chapter 214 claim against the individual defendant, Patrick Van Amburgh, and vacate the dismissal of that claim.
PLAINTIFF,
JANE DOE
By Her Attorneys:
______________________
Jeffrey E. Poindexter, BBO #631992
Michael D. Roundy - BBO No. 669357
BULKLEY, RICHARDSON and
GELINAS, LLP
Certificate of Service
I, Jeffrey E. Poindexter, hereby certify that this document, filed through the ECF System, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF), and paper copies will be sent to those indicated as non-registered participants on March 5, 2012.
______________________
Jeffrey E. Poindexter