Discrimination and religious-freedom law update: Director of music ministries is a minister

July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.

As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”

You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.

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Photo by Josh Sorenson on Pexels.com

MCAD must disclose documents

November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued.  The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.

Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents.  My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”

In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.

Today’s decision makes this a good day for open government and the rule of law.

P.S.  November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.

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Peter Vickery, Esq.

Tenant’s right to jury trial

March 31, 2017:- Today the Appeals Court issued its decision in CMJ Management Co. v. Wilkerson,  a landlord-tenant case from the Boston Housing Court.  After the tenant failed to comply with the pre-trial orders, the judge struck the demand for trial by jury.

The Appeals Court held that the judge should not have struck the demand without first considering “lesser sanctions.” But it also made clear that Housing Court judges do have the discretion to impose the sanction of striking a jury-trial demand, so long as the judge takes into account the tenant’s culpability, any prejudice to the landlord, and the deterrent effect. The right to jury trial is fundamental but it is not absolute.

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Peter Vickery, Esq.

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

Petition by press release? Protected.

February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.”  Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.

The case is Blanchard v. Steward Carney Hospital, Inc., and others.  The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.  

What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,

Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.

This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”

The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.

Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.

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Peter Vickery, Esq.

Appeals Court vacates triple-rent award

February 23, 2016:-  A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that

only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.

In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment).  The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.

In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.

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Peter Vickery, Esq.

Churchill victorious in 1945 after all

In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”

But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .

The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.

The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.

The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.

This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.

Peter Vickery July 2012
Peter Vickery, Esq.

Exploding house case: To dig safely, define accurately

In November 2010, while digging up a street to repair water and sewer pipes in Boston’s Hyde Park neighborhood, DeFelice Corporation damaged a gas line. The resulting explosion destroyed a single family home on Danny Road. Today the Appeals Court upheld the decision of the Department of Public Utilities (DPU) to fine the company for violating the Dig Safe law, chapter 82, sections 4040E.

DeFelice had appealed the DPU decision on the basis that it told the Dig Safe call center that it would be digging at “all intersections” around Danny Road. But under the terms of the statute that was not accurate enough, the Appeals Court held. Originally the law required only that an excavator  describe the location “reasonably accurately.” But when the Legislature amended the law in 1998, it deleted the word “reasonably.”  That deletion, reasoned the court, meant that “excavators became legally required to identify excavation locations with precision.”

Students of legislative drafting take note: Sometimes what matters is not the words that the legislature uses, but the words it loses.

Peter Vickery, Esq.
Peter Vickery, Esq.

We Owe How Much??? New Wage Act Decision from Appeals Court

August 5, 2015:– How much could an employer end up paying for violating the anti-retaliation provisions of the Wage Act, M.G.L. c. 149, §§148A and 150? Much more than you might expect.

Today’s decision from the Appeals Court says that “an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination… [which] may include earnings from the date of termination up to trial.” That means the employer is liable not only for what it should have paid prior to termination but also for everything the employee would have earned during the years between termination and trial, minus whatever the employee actually earned elsewhere in the meantime. That could be a sizable sum.

And then, of course, the court can treble that amount, which is what happened in Wessel v. Mink Brook Associates. At the time of firing, the employer owed the employee $3,750.00 for lost wages and unused vacation time. The final damage award, factoring in the termination-trial period: $187,111.38.

In a nutshell, if an employee rightfully complains about owed wages, and the employer responds by firing her, the employer better hope that the fired employee finds another (highly paid) job, and fast. Even better, at the risk of stating the obvious, employers should refrain from retaliating against employees to whom they owe wages.

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Peter Vickery, Esq.

DTA discrimination case must go to jury

The Massachusetts agency that (according to the State Auditor) gave benefits to 1,164 people who were already dead, could not account for whereabouts of 30,000 electronic benefits transfer (EBT) cards, and (according to CBS Boston, the Boston Herald, and 22 News) allows benefits recipients to use their EBT cards in places such as Hawaii, Florida, California, Puerto Rico, and the Virgin Islands, received some good news recently. The Department of Transitional Assistance (DTA) must have relished the summary judgment it obtained in an age-discrimination case. But not for long. Yesterday the Appeals Court cut short any DTA celebrations when it ruled that the case must go to the jury.

The plaintiff, Diane M. Younker, alleged that DTA discriminated against her on the basis of her age (70) when it demoted her and gave her position (director of the Revere office) to a younger employee, Paul Sutliff (53). Ms. Younker also alleged that she lacked the necessary connections, with promotions going to employees who were more political wired.

DTA said that it demoted Ms. Younker because Mr. Sutliff would be better at dealing with what it claimed to be a pressing problem confronting the Revere DTA: overcrowding in the waiting room. The congestion was simply dreadful, it would appear. Now, admittedly, the demotion occurred in 2009 — a few years prior to the revelations about the DTA’s habit of giving cash to corpses — so at that point the most important skill for a director may well have been familiarity with feng shui as opposed to the ability to distinguish the living from the dead.

What bothered the Appeals Court was Ms. Younker’s testimony that nobody from HQ ever instructed her to implement any particular changes to address the waiting-room congestion, which contradicted the deposition testimony of Assistant DTA Commissioner John Augeri. “I was never given a specific set of implementations I was supposed to institute,” Ms. Younker averred. Ms. Younker’s affidavit refuting Mr. Augeri’s testimony “raised a genuine issue of material fact,” the Appeals Court held. Because direct evidence of discriminatory animus is rare, and the “circumstantial evidence… may be viewed as supporting a conclusion that the defendant’s proffered reason is false,” it should go to the jury.

The take-away for litigants? Buttressing a motion for summary judgment in a case that hinges on discriminatory animus requires detailed, credible evidence, both documentary and testimonial.

P.S. Reports from the ongoing political-patronage trial of John O’Brien contradict claims that DTA has long been turning a blind eye to waste, fraud, and abuse. As far back as 2007 the agency even had a unit dedicated to investigating benefit fraud, but it lost one committed member to the Probation Department (where the pension was higher). Patricia Mosca told the court about the prowess she brought to her job at DTA: “I could do it in my sleep,” she testified.

P.P.S. No word yet on whether the seating arrangements at DTA’s Revere office have improved since 2009.

Found and lost

What does the verb “find” mean? For one litigant, it will forever be synonymous with “lost,” more precisely “$1.1 million lost.”

In a case that has important implications for employers and employees alike, the Appeals Court upheld a Superior Court judge’s decision to override the jury and allow a company to keep the $1.1 million it would otherwise have had to fork over to an ex-employee. After finding that Deborah Kiely’s former employer, Teradyne, Inc., had retaliated against her, the jury awarded Ms. Kiely $1.1 million in punitive damages. Although she prevailed on the retaliation claim, Ms. Kiely lost on the underlying claim of gender discrimination and the jury declined to award her compensatory damages. So the judge not only vacated the $1.1 million damages award but also ruled that Teradyne would not have to pay Ms. Kiely’s attorney’s fees.

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Why was this even a possibility in a place where parties traditionally bear their own costs and expenses? That, after all, is the “American rule.” But there are exceptions. Under this state’s anti-discrimination law, a successful plaintiff can obtain attorney’s fees, which creates an important incentive for attorneys to accept discrimination cases on a contingent-fee basis. Instead of agreeing to a share of the judgment amount, e.g. one-third, the lawyer can opt for legal fees, which might well be higher. The right to attorney’s fees depends on the court finding for the petitioner. Here is what the statute (M.G.L. c. 151B, S. 9) says:

If the court finds for the petitioner [plaintiff], it may award the petitioner actual and punitive damages. If the court finds for the petitioner it shall, in addition to any other relief and irrespective of the amount in controversy, award the petitioner reasonable attorney’s fees and costs unless special circumstances would render such an award unjust.

Without devoting much ink to the meaning of “finds,” and none to the words “irrespective of the amount in controversy,” the Appeals Court chose to ask a different question: Can a plaintiff in a discrimination case obtain attorney’s fees when the jury has made a finding of retaliation but declined to award compensatory damages? No, said the court in Kiely v. Teradyne, Inc., a decision it announced on June 6. A plaintiff has to obtain some kind of recovery — injunction or damages — in order to qualify for attorney’s fees. The fact that the Legislature could have chosen to include this condition, but did not, means that in terms of statutory construction the decision has, in popular parlance, some issues.

Putting to one side the question of whether the court arrived at the right destination, it is worth considering the route it took. Section 9 does not say that attorney’s fees are available “if the court finds for the petitioner and awards relief.” In fact, two simple words in the text of the statute demonstrate that the Legislature contemplated the possibility of a finding without an award.

First, the phrase “[i]f the court finds for the petitioner, it may award the petitioner actual and punitive damages” establishes that a court is free to find in the plaintiff’s favor and, if it chooses, decline to award damages of any kind.

Secondly, the provision says “[i]f the court finds for the petitioner it shall, in addition to any other relief.” Any implies the possibility of none. What the Legislature could have said — but did not — was “if the court finds for the petitioner, in addition to all other relief.”

The word “all,” unlike “any,” would have created two triggers, (1) a finding and (2) an award. Unless the court pulled both triggers, there would be no attorney’s fees.  Had the Legislature intended to create this kind of two-trigger mechanism, it would have done so.  Nevertheless, the Appeals Court went ahead and created just such a mechanism anyway, despite the plain and unambiguous language of Section 9.

It need not have done so. The last nine words of the provision (“unless special circumstances would render such an award unjust”) give judges the discretion to refuse attorney’s fees, without reading into the statute words that are not there. Rather than relying on that exception, however, the court added a requirement that the Legislature did not enact.

On a more positive note, what the decision lacks in coherence it somehow makes up for in clarity. The Appeals Court’s conclusion is, at least, unambiguous: “[W]e conclude that a finding of retaliation alone, without any form of relief or recovery, cannot support an award of attorney’s fees under G.L. c. 151B, S.9.” This is not what the statute actually says, of course, and if the disappointed Ms. Kiely takes her matter to the Supreme Judicial Court, we may end up with an interpretation of Section 9 that hews more closely to legislative intent.

Another welcome feature of the Appeals Court’s decision is its reiteration of the Supreme Judicial Court’s declaration that punitive damages warrant review on the grounds of due process in that a “grossly excessive” award constitutes an “arbitrary deprivation of property.” Not that this proposition was in any doubt, but in a decision that involves the judicial exercise of legislative powers, contra Article 30 of the Declaration of Rights, any reference to bedrock constitutional principles brings some comfort.

It is not clear whether the SJC will have an opportunity to consider this case and rule on the meaning of the word “finds” in Section 9. For the time being then, readers who celebrate due process, legal certainty, and the separation of powers may find themselves greeting Kiely v. Teradyne, Inc., with one cheer or perhaps two cheers, but probably not three.

No workers comp for criticism or questions

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Criticism not compensable

If the boss criticizes you, can you claim workers’ comp? Some readers may consider the question unworthy of judicial resources but it was at the heart of Joseph Upton’s Case, which the Appeals Court had to ponder recently.

Imagine this situation. An employer suspects that an employee may not have been completely candid about a work-related matter relating to money. The employer questions the employee about the discrepancy. After being questioned the employee experiences an emotional reaction with physical symptoms (e.g. chest pains, shortness of breath) serious enough to prevent a return to work. May the employee collect workers compensation for the “emotional disability”?

Last week the Appeals Court said no. If an emotional disability arises out of “supervisory criticism or questioning” it constitutes a bona fide personnel action, and under Section 1(7A) of the Workers’ Compensation Act disabilities that arise principally out of such actions are not compensable. In reaching this conclusion, the court overturned the decision of the reviewing board in the Department of Industrial Accidents, which had itself overturned the decision of the administrative judge who heard the case.

The current version of Section 1(7A) is the product of several attempts by the Legislature to limit the circumstances in which employees can collect for emotional injuries. Given this progressive tightening of the statute by barring recovery for emotional distress resulting from transfer, demotion, and termination, the Appeals Court found it “improbable that the Legislature would… then allow compensation for the preliminary and tentative events of investigation and fact finding.” This reading of the plain language of the statute in the context of the problem the Legislature was trying to solve produced a common-sense result in line with that of the administrative judge. In contrast, if the court had let board’s decision stand employers would find themselves in an impossible situation, unable to even question an employee for fear of triggering an emotional-disability workers’ comp claim.

After explaining how its analysis of the Workers’ Compensation Act differed from the board’s, the Appeals Court addressed the issue of judicial deference. Where an administrative agency has the task of administering a statute, traditionally the courts defer to the agency’s interpretation. But after noting that “the policy of judicial deference is not a practice of judicial abdication,” the court observed that the board had never before taken the position that emotional injuries resulting from questioning or criticism merited compensation. So, the court concluded, “the usual factors supporting deference for an agency interpretation are absent.”

What should employers take away from this decision? The statute does not entitle employees to compensation for emotional disabilities arising out of bona fide personnel actions, which can include “supervisory criticism or questioning.”

Click here for an account of the underlying case.