CASS v. PARSEGHIAN (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Stephen F. Cass, served as athletic director of the town of Wayland (town) from July 2013 to June 2015. His tenure in that position became the subject of significant public controversy, especially as it related to the high school football program run by defendant Scott Parseghian. In May of 2015, Cass was informed that his contract would not be renewed. He alleges that his employment was terminated in retaliation for his efforts to address various improprieties in the football and other scholastic athletic programs.³ Based on these allegations, Cass brought a series of actions in State and Federal courts.⁴ In 2021, Cass brought the action before us against eleven defendants: Parseghian, three other coaches, and seven other individuals (who appear to be either former student athletes or parents of former and current student athletes) who had become embroiled in the controversy. Representing himself, Cass alleged defamation and related tort and civil rights claims.⁵ In separate but closely parallel rulings, two Superior Court judges dismissed Cass's claims as barred by the applicable three-year statutes of limitations. See G. L. c. 260, §§ 2A, 4, 5B; Pagliuca v. Boston, 35 Mass. App. Ct. 820, 822 (1994). On Cass's appeal, we affirm.

It is uncontested that the alleged statements and actions on which Cass's claims rely all took place by the end of 2016. It is also uncontested that Cass did not file the current action until 2021. It thus follows that this action was untimely unless it can be saved through application of an exception to the statute of limitations. Flynn v. Associated Press, 401 Mass. 776, 780-782 (1988). Cass seeks to invoke the “so called discovery rule” to save his claims. Id. at 781, quoting White v. Peabody Constr. Co., 386 Mass. 121, 129 (1982). He bears the burden of demonstrating that application of the discovery rule renders his action timely. See Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321, 324 (2020).

Cass argues that under the discovery rule, the statute of limitations did not begin to run until February 28, 2018. It was on that date that he received a batch of documents through discovery in the Federal court action that he had brought against the town of Wayland and various other defendants. See note 3, supra. Only then, according to Cass, was he on notice of the particular statements and actions on which his current claims are based.⁶ Because he filed the current action less than three years thereafter, he argues it still was timely.

We are unpersuaded. The controversy over Cass's termination became extremely public during the summer of 2015. For example, both the local press and the Boston Globe provided extensive news coverage. In addition, through letters to the editor, op-ed columns, and a petition circulating on the Internet, numerous people -- including some of the individual defendants here -- wrote to express their support for Parseghian and their opposition to Cass. It is readily apparent that during 2015, Cass had become aware not only of the swirling controversy surrounding his tenure, but also of the fact that there appeared to be an organized campaign against him.⁷ For example, the complaint alleges that during the summer of 2015, defendant Clayton Jones approached him at a restaurant and said, “we're not done with you yet.” It is therefore uncontested that more than three years prior to Cass's filing of his action, he had actual knowledge that individual defendants had made statements about him that he now alleges were defamatory or otherwise actionable.⁸

To be sure, we accept as true Cass's claim that until at least February 28, 2018, he was not aware of the full extent of the defendants’ actions and statements, including the extent to which these efforts may have been organized by Parseghian or others. In addition, we accept as true that Cass may not have known prior to 2018 that some of the individual defendants had played a role in the controversy. But actual knowledge is not required to commence the running of the statute of limitations on his claims. Rather, even under the discovery rule, a cause of action begins to accrue once a party “learns, or reasonably should have learned, that he has been harmed by the defendant's conduct.” Flynn, 401 Mass. at 781. Stated differently, the discovery rule “applies only to ‘inherently unknowable’ causes of action.” Id., quoting White v. Peabody Constr. Co., 386 Mass. at 130 (discovery rule inapplicable to broadly disseminated publications). Accord Wolsfelt, 98 Mass. App. Ct. at 328 (discovery rule inapplicable to article and update published on newspaper website available through “search engine query”). Contrast Tryon v. Massachusetts Bay Transp. Auth., 98 Mass. App. Ct. 673, 680-682 (2020) (where key facts were deliberately hidden from plaintiff, question for jury as to whether discovery rule applied).⁹

Cass has not demonstrated that his claims against the various defendants were inherently unknowable, even with respect to those defendants whose involvement he learned of only during or after February of 2018. This can be illustrated by example. Cass's first amended complaint relies in great part on statements that defendants made in e-mails that they sent to school officials. Cass describes these communications as “confidential” e-mails that he learned of only on or after February 28, 2018. Although the e-mails may have been unknown to him until then, they hardly were “confidential.” Rather, the e-mails plainly constituted public records subject to disclosure under the public records act. As Cass acknowledged at oral argument, he did not file a public records request until after February 28, 2018.¹⁰

With considerable force, the defendants have raised numerous alternative grounds on which they assert we could affirm the judgment. These include, for example, arguments that, as a matter of law, the statements at issue are not defamatory. Given how we rule, we need not reach such issues.

Judgment affirmed.

FOOTNOTES

3.   Cass alleged ethical violations, corruption, improper fundraising, misappropriation of funds, and gender-based discrimination in the town's athletic programs.

4.   In 2017, Cass brought one such action in Federal Court against the town of Wayland and various other defendants. See Cass vs. Town of Wayland, U.S. Dist. Ct., No. 17-cv-11441-PBS. That action resulted in a jury verdict in Cass's favor on claims he had brought pursuant to the Whistleblower Act and Title IX of the Education Amendments of 1972. Following the filing of postverdict motions, the parties to that action entered into a settlement.

5.   Cass's first amended complaint is organized into seven counts: defamation, invasion of privacy, interference with advantageous relations, civil conspiracy, intentional infliction of emotional distress, negligent infliction of emotional distress, and a civil rights claim brought under Federal and State law.

6.   We note that when Cass received the batch of documents on February 28, 2018, this still was well within the applicable limitations period, yet he waited almost three additional years later to file the current action.

7.   We rely on the allegations of Cass's first amended complaint, which, in this context, we are bound to accept as true. Kilnapp Enters., Inc. v. Massachusetts State Auto. Dealers Ass'n, 89 Mass. App. Ct. 212, 213 (2016), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).

8.   As a further example, Cass alleges that defendant Chris Jenny wrote a defamatory letter to the editor published on July 30, 2015, and an attachment to the first amended complaint indicates that Cass contacted Jenny about the letter that very day. At oral argument, Cass acknowledged that he had contemporaneous knowledge of the relevant letters to the editor and of the petition circulating on the Internet.

9.   One defendant, Ben Downs, is somewhat differently situated from the others in that he wrote his comments about Cass under a pseudonym. See Harrington v. Costello, 467 Mass. 720, 727 (2014) (“cause of action accrues when the plaintiff discovers or with reasonable diligence should have discovered that,” among other factors, “the defendant is the person who caused th[e] harm”). However, Downs's identity as the author of those comments was unmasked by an enterprising local reporter in November 2015.

10.   Cass alleges that after he filed his public records request, the town acted in a dilatory and otherwise unreasonable manner. Specifically, he alleges that town officials initially sought to charge him $83,501.45 to obtain the responsive documents, and that they did not provide him the documents at a cost he was willing and able to pay until over two years after he had made his request. Even under that time frame, however, Cass could have obtained the public records long before the limitations period had run.