ROSARIO v. CARING BEES HEALTHCARE INC (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Anais J. Rosario, brought the underlying action against her employer, Caring Bees Healthcare, Inc. (Caring Bees), and her supervisor, Jean Paul Karangwa, alleging sexual harassment under G. L. c. 151B and G. L. c. 214, § 1C. Karangwa counterclaimed that Rosario's false claims to third parties regarding the alleged sexual harassment constituted defamation and intentional infliction of emotional distress. Rosario filed a special motion to dismiss Karangwa's counterclaims pursuant to the Massachusetts anti-SLAPP statute, G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1, or in the alternative, Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Rosario argued that her statements regarding Karangwa's sexual harassment were protected petitioning activity and that Karangwa's counterclaims were brought primarily to chill her legitimate right to petition the government. The judge denied Rosario's special motion to dismiss, reasoning that Karangwa's counterclaims “[were] not ‘SLAPP’ claims since his primary motivation in bringing such claims was to seek relief from [Rosario's] allegedly tortious harm, and not to interfere with her petitioning rights.”

In this interlocutory appeal, Rosario seeks reversal of the order denying her special motion to dismiss and her motion to dismiss for failure to state a claim. Rosario contends, among other things, that the judge failed to apply the so-called Duracraft framework ³ sequentially as required by the Supreme Judicial Court in 477 Harrison Ave., LLC v. JACE Boston, LLC, 483 Mass 514, 518 (2019) (Harrison II), and therefore failed to give due consideration to the context in which Rosario's complaints were raised. We agree.

Background. We summarize the allegations in the amended complaint and the counterclaims. In October and November of 2017, Rosario worked for Caring Bees as a payroll and scheduling clerk.⁴ She alleged that Karangwa, her supervisor and a part owner of Caring Bees, made sexually suggestive comments to her and sent her a sexually explicit video. The complaint further alleged that after asking Rosario to translate a telephone call with a Spanish speaker, Karangwa, while sitting beside Rosario, “reached down and grabbed her vaginal area.”⁵ Rosario left the office and texted a coworker, “Karen,” to tell her what happened and that she was going to the police station. Rosario also called her mother and told her what had happened. Later that day Rosario reported the incident to the Boston Police Department.⁶

Karangwa filed an answer denying the allegations. He also asserted counterclaims alleging that Rosario's statements to her mother and coworkers that Karangwa had “grabbed her vaginal area” were false and defamatory and caused him emotional distress. Karangwa also alleged that statements Rosario made to a coworker that he was a “molester” and a “pervert” were false and defamatory. Finally, Karangwa asserted that Rosario falsely represented to a coworker that Karangwa had sent her a “pornographic video of couples having sexual intercourse with each other.”⁷ The counterclaims included affidavits from five Caring Bees employees who stated that they did not observe Karangwa participate in sexually inappropriate comments or touching.

Discussion. We first address the extent to which this interlocutory appeal is properly before us. “[T]he denial of a motion to dismiss is ordinarily not an appealable order.” Fabre v. Walton, 436 Mass. 517, 521 (2002). The doctrine of present execution provides an exception to that general rule in the case of a denial of a special motion to dismiss under the anti-SLAPP statute. See id. at 521-522. Rosario's interlocutory appeal of the order denying her special motion to dismiss pursuant to the anti-SLAPP statute is, therefore, an appealable order. No such exception applies to motions to dismiss pursuant to rule 12 (b) (6). The judge's order denying Rosario's motion to dismiss for failure to state a claim pursuant to rule 12 (b) (6) is not a final judgment and is therefore not appealable. See Bean v. Boylston St., Inc., 335 Mass. 595, 596 (1957). Accordingly, we do not address Rosario's arguments related to the order denying her rule 12 (b) (6) motion.⁸

We turn to the order denying Rosario's anti-SLAPP special motion to dismiss, which we review for error of law or abuse of discretion. See O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 496 (2017). Claims based on a party's exercise of her constitutional right to petition the government are subject to dismissal by a special motion to dismiss under the anti-SLAPP statute, G. L. c. 231, § 59H. See Reichenbach v. Haydock, 92 Mass. App. Ct. 567, 571 (2017). Special motions to dismiss are meant to provide an accelerated path to end SLAPP suits, but they are not intended to be used “as a cudgel to forestall and chill the legitimate claims -- also petitioning activity -- of those who may truly be aggrieved by the sometimes collateral damage wrought by another's valid petitioning activity.” Blanchard v. Steward Carney Hosp. Inc., 477 Mass. 141, 157 (2017) (Blanchard I).

We evaluate such motions under the burden-shifting framework set forth in Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167-168 (1998), and augmented by Blanchard I, 477 Mass. at 159-161.

“At the threshold stage, the moving party [here, Rosario], must demonstrate, through pleadings and affidavits, that each claim [she] challenges is based solely on [her] own protected petitioning activity, and that the claim has no other substantial basis. ․ If the moving party meets [her] burden, the burden shifts at the second stage to the nonmoving party [here, Karangwa], to demonstrate that the anti-SLAPP statute nonetheless does not require dismissal.”

Harrison II, 483 Mass. at 518. Karangwa can meet his burden either by establishing that Rosario's petitioning activity was a “sham” and that Karangwa was injured as a result, or that Karangwa's counterclaims are not really SLAPP suits at all. As to this second path, Karangwa can defeat the special motion to dismiss if he can show that his counterclaims are “colorable” and nonretaliatory. Blanchard v. Steward Carney, Hosp., Inc., 483 Mass. 200, 204 (2019) (Blanchard II). Karangwa's showing must allow the judge to conclude with “fair assurance” that his counterclaims are not a meritless SLAPP suit “primarily brought to chill [Rosario's] legitimate petitioning activities.” Blanchard I, 477 Mass. at 160.

In Harrison II, a case decided after the judge rendered her decision in this case, the Supreme Judicial Court emphasized the need for judges in the trial court to apply the Duracraft framework sequentially.

“Sequential application of the framework is especially significant for purposes of the newly augmented second stage of the framework. By proceeding systematically, by the time the motion judge reaches the last step, he or she will be in a more informed position to make an assessment of the ‘totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim,’ as the augmented framework requires․ If the threshold stage is skipped, for example, there may not be focused consideration of the nature of the nonmoving party's claims, i.e., whether the challenged claims were ‘based on’ the moving party's ․ petitioning activities, and the context in which they were raised. Those considerations are relevant at the framework's second stage.”

Harrison II, 483 Mass. at 519, quoting Blanchard I, 477 Mass. at 160. Here, the motion judge did not determine if Rosario had met her burden at the threshold stage. Rather, the motion judge assumed, without deciding, that each of Rosario's statements to her coworkers and her statement to her mother about Karangwa's conduct constituted protected petitioning activity. This assumption, without an analysis of each of Rosario's statements to determine if they constituted petitioning activity, hampered the judge's ability to later determine with “fair assurance” that the counterclaims, if colorable, were not “brought primarily to chill [Rosario's] legitimate exercise of [her] right to petition.” Blanchard I, supra

At the time of her order denying Rosario's special motion to dismiss, the judge also did not have the benefit of the Supreme Judicial Court's decision in Blanchard II. There, the court explained the “fair assurance” standard that a trial judge must apply before denying a special motion to dismiss a SLAPP suit. “Fair assurance” is achieved if the judge “is ․ confident, i.e. sure, that the challenged claim is not a ‘SLAPP’ suit.” Blanchard II, 483 Mass. at 205, citing Commonwealth v. Lodge, 431 Mass. 461, 468 (2000). In considering if, with fair assurance, colorable counterclaims are not retaliatory SLAPP claims, the judge may consider (1) whether the counterclaims are “typical” SLAPP claims, (2) whether the counterclaims were filed close in time to the claimed petitioning activity, (3) whether the anti-SLAPP motion to dismiss was filed promptly, (4) the centrality of the counterclaims in the context of the litigation as a whole and the strength of those claims, (5) evidence that the petitioning activity was chilled, and (6) whether the damages including attorney's fees burdened Rosario's right to petition. Blanchard II, supra at 206-207.

We do not fault the judge for failing to apply the sequential analysis now required by Harrison II. Nor do we fault the judge for failing to apply Blanchard II's criteria to reach her fair assurance determination. In light of those decisions, however, we cannot conclude that the judge gave “focused consideration [to] the nature of [Karangwa's counterclaims]” and the context in which they were raised before concluding that the counterclaims were not “based on” Rosario's petitioning activity. Harrison II, 483 Mass. at 519. Accordingly, we vacate the order denying Rosario's special motion to dismiss and remand to the Superior Court for further findings. The judge should first determine whether Karangwa's counterclaims were based on Rosario's petitioning activity alone.⁹ If so, in the second stage of the augmented Duracraft framework, the judge should apply the criteria of Blanchard II in determining with “fair assurance” whether Karangwa's counterclaims, if colorable, were not brought primarily to chill Rosario's legitimate petitioning activity.¹⁰

Therefore, the order denying the special motion to dismiss is vacated, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.

So ordered.

Vacated and remanded

FOOTNOTES

3.   See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (1988).

4.   Caring Bees is a for-profit corporation located in Dorchester that connects individuals with health care services. It has approximately eight employees.

5.   Rosario initially filed a complaint with the Massachusetts Commission Against Discrimination (MCAD). She removed the case from the MCAD prior to filing her complaint in the Superior Court.

6.   On March 15, 2018, a show cause hearing was held before a magistrate judge in the Boston Municipal Court to determine if a criminal complaint should issue. The magistrate judge found no probable cause for a criminal complaint. The fact that a criminal complaint did not issue against Karangwa, however, is not dispositive of the application of the anti-SLAPP statute to his counterclaims. See Wenger v. Aceto, 451 Mass. 1, 7 (2008).

7.   Karangwa does not dispute that he sent a video of two naked adults to Rosario. He denies that the video depicts intercourse and alleges that he sent the video at Rosario's request.

8.   We interpret Rosario's arguments that her statements regarding the alleged sexual harassment were privileged, and that Karangwa's counterclaims were barred by Title VII of the Civil Rights Act of 1964 and G. L. c. 151B, as arguments related to her motion to dismiss for failure to state a claim pursuant to rule 12 (b) (6).

9.   We note that “[t]he legislative history in Massachusetts demonstrates that ․ the Legislature intended to enact very broad protection for petitioning activities,” Duracraft, 427 Mass.at 162, and that “[s]tatements made outside any formal governmental proceedings have often been considered petitioning activity.” North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 862 (2009). Likewise, G. L. c. 151B is “construed liberally for the accomplishment of its purposes.” G. L. c. 151B, § 9. Lopez v. Commonwealth, 463 Mass. 696, 707 (2012). The statute explicitly protects not only those “person[s]” who exercise their rights under the chapter, but “any other person” who aids or encourages a person in the “exercise or enjoyment of any such right granted or protected by this chapter.” G. L. c. 151B, § 4 (4A). Cf. Messing, Rudavsky & Weliky, P.C. v President & Fellows of Harvard College, 436 Mass. 347, 357 (2002).

10.   Rosario's request for attorney's fees and costs is premature and is therefore denied without prejudice to renew.