BROSNAHAN v. CITY OF SOMERVILLE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following her nonrenewal as an instructor at Somerville High School, the plaintiff, Kathleen A. Brosnahan, sued on numerous grounds in the Superior Court. On appeal, she contends that the judge improperly granted summary judgment to the city of Somerville and the three individual defendants (collectively, the defendants). For the reasons below we vacate and remand in part, and affirm in part.

Background. Viewing the facts in the light most favorable to the nonmoving party, here Brosnahan, the record reveals the following.

In July 2012, the city of Somerville (city) hired Brosnahan as a dental assisting instructor at Somerville High School (school). She was not a certified teacher at that time, but, in August 2012, the city requested a written waiver from the Department of Elementary and Secondary Education (department) that allowed Brosnahan to teach and work toward her certification. Each September for the next two years the department granted requests for waivers for Brosnahan. She obtained a preliminary license from the department in October 2014.

Throughout her time at the school, Brosnahan complained to her supervisors, Leo DeSimone and John Oteri, about the safety of the program's environment. Her primary concerns were that the classrooms had poor air quality, and the building contained mold. In 2013 Brosnahan suffered a viral infection, which she blamed on the mold.

Brosnahan's working relationship with her supervisors deteriorated over the years until she feared going to work because the environment there was so “toxic.” By the third year she became ill due to the stress. In 2015, after an offsite meeting in which Brosnahan voiced concerns about the preparedness of graduates from the school's dental assisting program, DeSimone yelled at her in front of another staff member, insisting that her behavior had “ruined everything.” In February 2015, DeSimone told students that Brosnahan would be fired by the end of that school year. The school later removed from her classroom the laptop that Brosnahan used to conduct her classes. At another time, DeSimone asked her in front of his secretary if she was bipolar and what medications she had been taking.

On May 7, 2015, Brosnahan received a letter of nonrenewal pursuant to G. L. c. 71, § 41. Brosnahan was distraught and called in sick for several days thereafter. The school then released her.

Brosnahan did not file a claim with the Equal Employment Opportunity Commission (EEOC) or the Massachusetts Commission Against Discrimination (MCAD) regarding her situation. She did, on February 10, 2016, submit a complaint to the office of the Attorney General alleging that she had not been paid for her final days at the school. The Fair Labor Division of the Attorney General's office responded in a letter dated March 9, 2016, authorizing her to pursue a private civil lawsuit for unpaid wages.

On March 23, 2016, Brosnahan filed a six-count complaint in the Superior Court. On July 10, 2017, the city moved for summary judgment on count one (wrongful termination), count two (retaliation), count five (defamation), and count six (intentional infliction of emotional distress), and the individual defendants moved for summary judgment on all counts. The city explicitly declined to address count three (alleging a whistleblower claim) and count four (alleging unpaid wages) in its motion. Brosnahan filed an opposition nine days thereafter. On July 27, 2017, the judge allowed the defendants' motion.³ On April 6, 2018, the judge entered summary judgment on all counts for all defendants. This appeal followed.

Discussion. We review the grant of summary judgment de novo “to determine ‘whether, viewing the evidence in the light most favorable to [Brosnahan], all material facts have been established and the [defendants are] entitled to judgment as a matter of law.’ ” DeWolfe v. Hingham Ctr., Ltd., 464 Mass. 795, 799 (2013), quoting Juliano v. Simpson, 461 Mass. 527, 529-530 (2012). Because the defendants do not bear the burden of proof at trial, they need only demonstrate “that [Brosnahan] has no reasonable expectation of proving an essential element of [her] case” at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Although we “liberally construe[ ]” Brosnahan's pro se submissions, Lamoureux v. Superintendent, Mass. Correctional Inst., Walpole, 390 Mass. 409, 410 n.4 (1983), we also “must apply the law without regard to a litigant's status as a self-represented party.” I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 560 (2013).⁴

1. Wrongful termination. Brosnahan asserts that the defendants violated her Federal due process rights when terminating her employment. We disagree.

“In order to maintain a constitutional due process claim arising out of the termination of [her] employment, a public employee must first demonstrate that [she] has a reasonable expectation, arising out of a statute, policy, rule, or contract, that [she] will continue to be employed.” Wojcik v. Massachusetts Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002).

Here, as a matter of law, Brosnahan did not have a reasonable expectation of further employment at the school. Because she had not worked for three consecutive years as a certified teacher, she was an at-will employee when she received her nonrenewal letter. See G. L. c. 71, §§ 41-42. See also Luz v. School Comm. of Lowell, 366 Mass. 845, 845 (1974) (instructing that a “waiver” in place of certification does not qualify one for tenure under § 42). As such, summary judgment properly entered for all defendants on count one.

2. Retaliation. Brosnahan cannot recover on her retaliation claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006 & Supp. V 2011), because she failed to exhaust her administrative remedies. “Before filing a Title VII claim, an employee must first exhaust administrative remedies, a process that begins with the filing of an administrative charge before the EEOC” or the MCAD. Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 119 (1st Cir. 2009). Here, it is undisputed that Brosnahan never filed a complaint with either agency before suing in the Superior Court. The “private right of action” letter she received from the Attorney General's office pertained only to her unpaid wages claim. Therefore, summary judgment properly entered in favor of all defendants on count two.

3. Whistleblower action. Because the public employee whistleblower statute, G. L. c. 149, § 185, “permits only an ‘employer’ to be sued, not individual supervisors,” Brosnahan cannot recover against the individual defendants under § 185. See Welch v. Ciampa, 542 F.3d 927, 943 n.6 (1st Cir. 2008), quoting Bennett v. Holyoke, 230 F. Supp. 2d 207, 221 (D. Mass. 2002). See also Trychon v. Massachusetts Bay Transp. Auth., 90 Mass. App. Ct. 250, 255 (2016) (Federal decisions interpreting § 185 are persuasive authority).

The city did not move for summary judgment on this count. The “judge had the power, sua sponte, to enter full summary judgment [on the motion for partial summary judgment], provided that the parties had sufficient notice of [her] intention to do so, opportunity to submit affidavits, and a right to be heard on the matter.” Gamache v. Mayor of N. Adams, 17 Mass. App. Ct. 291, 295 (1983). Here, there is no indication that the judge notified the parties of her intent to enter summary judgment on counts on which the city had not moved, and neither side's submissions addressed the city's liability under § 185. Moreover, the city does not defend the judge's ruling on this issue on appeal. Therefore, we reverse the grant of summary judgment to the city on count three and remand for further proceedings.

4. Unpaid wages. Similarly, Brosnahan cannot recover against the individual defendants pursuant to the Wage Act, G. L. c. 149, §§ 148 et seq. In addition, the judge improperly entered summary judgment in favor of the city on this count.

The Wage Act imposes liability on “employers,” which it defines in the context of public employment as those individuals “whose duty it is to pay money, approve, audit or verify pay rolls, or perform any other official act relative to payment of any public employees.” G. L. c. 149, § 148, 6th par. Here, the individual defendants deny that they perform any official acts relative to the payment of the school's employees, and nothing in the record indicates otherwise.

However, “it is well settled that municipalities are subject to the Wage Act.” Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 181 (2014). The city, in fact, did not seek summary judgment on this count. Before she entered summary judgment in favor of the city on count four, the judge did not notify the parties of her intent to do so, nor did the parties address the city's liability under the Wage Act. Cf. Gamache, 17 Mass. App. Ct. at 295. The city also does not defend the judge's ruling on this issue on appeal. Therefore, we reverse the grant of summary judgment to the city, and remand for further proceedings concerning Brosnahan's claim against the city for unpaid wages.

5. Defamation. Brosnahan contends that DeSimone's question “do you have bipolar disorder?” was defamatory.⁵ We disagree.

As applicable here, to prevail on her defamation claim, Brosnahan must show that DeSimone's statement “could reasonably be understood as an assertion of actual fact about” her. Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 26 (2003). Even in the light most favorable to Brosnahan, a reasonable listener would not have understood this statement as an assertion of fact about her as opposed to “rhetorical hyperbole.” See id. at 25 (employee's statements that his supervisor was “sick,” “mentally ill,” and “lived with two hundred cats” could not be reasonably understood as factual assertions as opposed to rhetorical hyperbole). See also Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1338-1339 (D.C. Cir. 2015) (collecting cases showing that posing a question is generally never defamatory as it is not a factual assertion). Furthermore, because the city is a public employer under the Massachusetts Torts Claims Act, it is immune from claims of defamation. See G. L. c. 258, §§ 1 and 10 (c). Therefore, summary judgment properly entered in favor of all defendants on count five.

6. Intentional infliction of emotional distress. Brosnahan does not address her claim for intentional infliction of emotional distress in her brief, waiving any argument pertaining to it. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Even if we were to address this claim, she would fare no better. Because the individual defendants' complained-of conduct was in the course of their employment and supervision of Brosnahan, her claim for intentional infliction of emotional distress is barred by the Workers' Compensation Act. See G. L. c. 152. See also Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 125 (1988) (claims of emotional distress from supervisor's behavior that arose solely in the course of parties' employment exclusively covered by G. L. c. 152). Because the city is a public employer, it is immune from claims of intentional infliction of emotional distress. See G. L. c. 258, §§ 1 and 10 (c). Therefore, summary judgment properly entered in favor of all defendants on count six.

Conclusion. So much of the judgment dated April 6, 2018, pertaining to counts three and four as against the city is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the judgment is affirmed.

So ordered.

vacated in part and remanded; affirmed in part

FOOTNOTES

3.   Brosnahan filed a motion for reconsideration on August 21, 2017, and it was denied on August 29, 2017.

4.   To the extent that Brosnahan asserts that the grant of summary judgment violated her right to a jury trial, we have long held the opposite. See Heddendorf v. Commonwealth, 13 Mass. App. Ct. 584, 585 (1982) (“The plaintiff was no more deprived of the right to trial by jury than is a tort claimant whose action is ended by summary judgment”).

5.   In the Superior Court Brosnahan alleged that several other statements were defamatory. Because she does not address those statements in her brief, she has waived any arguments pertaining to them. Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).