Opinion
19-P-1679
12-09-2020
GORDON T. DAVIS v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, Gordon T. Davis, appeals from a judgment dismissing his 2019 complaint against his former employer, the Massachusetts Commission Against Discrimination (MCAD); MCAD's chairwoman, Sunila Thomas-George; and its chief of operations and finance, Michael Memmolo (defendants). We affirm.
A ruling on a motion to dismiss is reviewed de novo. See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018). We accept all allegations of the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 625 n.7 (2008). A plaintiff may overcome a motion to dismiss if the factual allegations of his or her complaint "plausibly suggest that the plaintiff is entitled to relief." A.L. Prime Energy Consultant, Inc., supra. "[O]n appeal, we may consider any ground apparent on the record that supports the result reached in the lower court." Gabbidon v. King, 414 Mass. 685, 686 (1993).
Davis was terminated from his position at MCAD in April of 2010. On January 4, 2011, he filed a complaint in Superior Court against MCAD and three of its employees (his supervisor, the director of human resources, and the former chairman), claiming that his termination was discriminatory and retaliatory (2011 litigation). Davis sought monetary damages and "[r]estoration of all rights and items making [him] whole, including . . . [his] personnel file." In 2013, during the discovery phase of that case, the Attorney General's Office, as counsel for MCAD, provided Davis with a copy of his MCAD personnel record. In October 2017, Davis and MCAD entered into a written settlement agreement, under which Davis agreed to a broadly-worded release of "all claims" against MCAD and its employees "arising out of or relating in any way to" the 2011 litigation.
In March 2018, Davis requested from MCAD another copy of his personnel record. By letter dated May 1, 2018, Memmolo informed Davis: "Your request is denied as you were provided with a copy of your personnel file during [the 2011] litigation." On February 4, 2019, Davis then filed at MCAD a charge against both MCAD and Memmolo, alleging discrimination based on "Handicap, Age, [and] Retaliation," in violation of G. L. c. 151B, § 4 (1C), (4), (4A), and (16). Because MCAD's adjudication of that charge would have posed a conflict of interest, Thomas-George referred the charge to the Equal Employment Opportunity Commission (EEOC). After an investigation, the EEOC determined that it was "unable to conclude that the information obtained establishes violations of the statutes," and closed its file on the charge on March 5, 2019.
Davis acknowledges that it would have given rise to a conflict of interest if MCAD had adjudicated claims against itself. Thus, Thomas-George properly referred the complaint to the EEOC.
On March 18, 2019, Davis filed in Superior Court the complaint at issue here, alleging that the defendants unlawfully denied his 2018 written request for another copy of his personnel record in retaliation for his having filed the discrimination suit in 2011, and in doing so violated G. L. c. 151B, § 4, and G. L. c. 149, § 52C (§ 52C). He contended that he needed another copy of his personnel record because it contained "errors" and "false information." The motion judge dismissed the complaint, ruling that Davis's claims were barred by his October 2017 release, "especially because his current action arises out of his request for a personnel file (that had been given to him in discovery on the prior matter) and is related to his previous employment discrimination case."
We conclude, as did the motion judge, that Davis's retaliation and personnel record claims are barred by the terms of the broadly-worded release that he signed in October 2017 resolving the 2011 litigation. See Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 21 (1983) (granting summary judgment where plaintiff "executed a valid and binding general release which recited a consideration and was under seal, and which waived all past, present or future claims"). Under the terms of that release, in consideration of $95,000, Davis waived "all claims, demands, causes of action, fees, liabilities and expenses of any kind whatsoever . . . against . . . MCAD, and any of its current, former and future employees . . . by reason of any actual or alleged act . . . arising out of or relating in any way to Davis'[s] allegations" in the 2011 litigation.
The claims in Davis's 2019 complaint at issue here arise from and relate directly to the 2011 litigation. Specifically, in the 2019 complaint Davis sought another copy of his personnel file. Previously, during the 2011 litigation, Davis had sought, among other things, "[r]estoration of . . . [his] personnel file," which MCAD produced to him through discovery. Further, the protected activity Davis points to as the basis for his retaliation claim is the 2011 litigation. Because his present claims "aris[e] out of or relat[e] in [some] way" to his claims in the 2011 litigation, he waived them in the October 2017 settlement agreement and they are barred. Accordingly, we discern no error in the Superior Court judge's dismissal of Davis's complaint.
To the extent that in the 2019 complaint Davis alleged that he was entitled to another copy of his personnel record in order to expunge false information, his complaint neither identified the purportedly erroneous information, nor alleged that any MCAD employee knowingly or negligently placed false information in the file. His conclusory allegations were inadequate to state a claim for the limited remedy provided for this purpose by § 52C. See Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief").
Davis does not dispute that he received a copy of his personnel record through discovery in the 2011 litigation.
Because we affirm the allowance of the motion to dismiss based on the straightforward language of the release, we need not address the other arguments advanced by Davis in his brief.
Judgment affirmed.
By the Court (Massing, Singh & Grant, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 9, 2020.