Opinion
19-P-1308
06-11-2020
ASHLEY Y. (YOO HYANG) KIM v. BROOKLINE TOWN HALL.
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, Ashley Y. (Yoo Hyang) Kim, appeals from a Superior Court judge's order dismissing Kim's first amended complaint, which had asserted various employment discrimination claims against the town of Brookline (town) arising out of the termination of Kim's employment as a substitute teacher. The judge agreed with the town's argument, in its motion to dismiss, that Kim had failed to exhaust her administrative remedies by first filing a timely complaint with the Massachusetts Commission Against Discrimination, and thus she could not pursue her complaint in court. See Everett v. 357 Corp., 453 Mass. 585, 599-600 (2009). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 531 n.11 (2001); Charland v. Muzi Motors, Inc., 417 Mass. 580, 585 (1994). On appeal, Kim points to no legal error in the judge's analysis, and we see none.
Instead, Kim asks us to consider a variety of other constitutional, statutory, and common-law claims related to the termination of her employment. The record reflects that when the motion judge ordered dismissal of Kim's first amended complaint, the judge took note of Kim's mention of such additional claims in her opposition to the town's motion to dismiss. The judge therefore granted Kim leave to file, within sixty days, a second amended complaint asserting such claims. The Superior Court docket sheet indicates that Kim never filed such a second amended complaint, nor did Kim seek additional time in which to do so. Instead, Kim filed a notice of appeal from the order dismissing her first amended complaint; the notice specifically excluded from her appeal any second amended complaint. Because Kim never asserted such claims, and the judge never ruled upon their viability, they are not properly before us and we express no view upon them.
Kim asserts in her brief that she went to the Superior Court clerk's office on July 19, 2019 (which was seventy-one days after the judge's grant of leave), to file a second amended complaint but was told that the deadline had passed. There is nothing on the docket sheet or elsewhere in the record before us to support this claim.
Kim has also asked us to consider a variety of "new exhibits," including sixteen volumes of journals and memos, that she says support her claims but that were not submitted to the judge at the time of the ruling on the town's motion to dismiss. These exhibits were accepted for filing in the clerk's office only, and the propriety of considering them was referred to the panel designated to decide her appeal. It is a long-standing rule that an appellate court "cannot base [its] decision on facts not contained in the record" that was before the trial court judge. Love v. Massachusetts Parole Bd., 413 Mass. 766, 768 (1992). Therefore, we have not considered Kim's new exhibits in reaching our decision.
The Superior Court docket sheet reflects that Kim filed her notice of appeal from the order of dismissal before any final judgment of dismissal had entered. Because ordinarily only a final judgment may be appealed, Kim's appeal is not properly before us. We have nevertheless exercised our discretion to reach the merits of her appeal, because "[d]ismissal of the appeal would serve no purpose and might require the parties to return to reargue issues already briefed and argued." Arch Med. Assocs., Inc. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 405 n.3 (1992).
Order dated May 9, 2019, dismissing first amended complaint affirmed.
By the Court (Sacks, Singh & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.