Opinion
14-P-1278
12-03-2015
CORINNE ROSSEEL v. FAY SCHOOL.
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
Corinne Rosseel, a former employee of the Fay School (school), appeals from the allowance of the school's motion for summary judgment. On appeal, she claims that the judge erred because there were genuine disputes of material fact concerning her claim that the school retaliated against her for filing a report of bullying at the school pursuant to G. L. c. 119, § 51A, as amended by St. 2002, c. 107. She relies on the public policy goals of § 51A to encourage reports of abuse and to protect children. We affirm.
General Laws c. 119, § 51A(h), provides: "No employer shall discharge, discriminate or retaliate against a mandated reporter who, in good faith, files a report under this section, testifies or is about to testify in any proceeding involving child abuse or neglect. Any employer who discharges, discriminates or retaliates against that mandated reporter shall be liable to the mandated reporter for treble damages, costs and attorney's fees." The applicable regulations define "abuse" as "the non-accidental commission of any act by a caretaker upon a child under age 18 which causes, or creates a substantial risk of physical or emotional injury." 110 Code Mass. Regs. § 2.00 (1996). While § 51A protects mandated reporters from retaliatory discharge for filing a report of abuse or neglect, the statute notably does not apply where there is no evidence of abuse or neglect by a "caretaker."
Rosseel also claims her reporting falls within the conduct of § 51A because the "abuse" inflicted on the children in this case "cause[d] harm or substantial risk of harm to the child's health or welfare." G. L. c. 119, § 51A(a)(i). Because the abuse was not perpetrated by a "caretaker," and therefore falls outside the reporting requirements of § 51A, we do not reach the issue of whether the bullying in this case qualifies as abuse within the scope of § 51A.
110 Code Mass. Regs. § 2.00 defines caretaker as a child's
"(a) parent
"(b) stepparent
"(c) guardian
"(d) any household member entrusted with the responsibility for a child's health or welfare
"(e) any other person entrusted with the responsibility for a child's health or welfare whether in the child's home, a relative's home, a school setting, a day care setting (including babysitting), a foster home, a group care facility, or any other comparable setting. As such 'caretaker' includes (but is not limited to) school teachers, babysitters, school bus drivers, camp counselors, etc. The 'caretaker' definition is meant to be construed broadly and inclusively to encompass any person who is, at the time in question, entrusted with a degree of responsibility for the child. This specifically includes a caretaker who is him/herself a child (i.e. a babysitter under 18 years of age)."
Here, the alleged perpetrators of the incidents of "abuse" reported by Rosseel were noncaretakers -- a student at the school on one occasion and a sibling of a different student on another (the sibling was not a student at the school). Although the regulations broadly define "caretaker," none of the individuals involved in these incidents were "entrusted with the responsibility for [the] child's health or welfare." 110 Code Mass. Regs. § 2.00. Because Rosseel's retaliation claim fails based on the plain language of the governing statute and regulations, we need not examine the applicable legislative history or address her public policy arguments. See Guardia v. Clinical & Support Options, Inc., 25 F. Supp. 3d 152, 163 (D. Mass. 2014) ("[L]egislative intent cannot trump the plain language of the statutes. Simply stated, it is the legislature's province to craft the law in the manner it deems best, and the court must give effect to the language used").
Rosseel has waived any argument that the school's conduct amounted to neglect. Her mere mention in her brief, without citation to supporting authority, that the school assumed the role of caretaker and should be held liable, does not suffice as an appellate argument. See Baird v. Massachusetts Bay Transp. Authy., 32 Mass. App. Ct. 495, 499 (1992) (one-sentence argument unsupported by citation or articulated reasoning does not meet requirements of Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975]). In any event, pursuant to 100 Code Mass. Regs. § 2.00, "Neglect means failure by a caretaker, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability and growth, or other essential care." Thus, even if not waived, the claim lacks merit.
Under the same rationale, we also do not address the school's claim that it provided sufficient evidence supporting its decision not to renew Rosseel's contract and denying any causal connection between her reports of bullying and the nonrenewal.
Judgment affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 3, 2015.