Opinion
15-P-479
02-17-2016
TIMOTHY SHEA v. CITY OF BOSTON & others.
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
The plaintiff, Timothy Shea, a former senior computer operator for the defendant city of Boston (city), appeals from the dismissal, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), of his nine-count complaint. A judge of the Superior Court concluded that all of Shea's claims were time-barred. After conducting a de novo review under the appropriate standard, "accepting as true all factual allegations in the complaint and favorable inferences drawn therefrom," we conclude that there was no error. Lipsitt v. Plaud, 466 Mass. 240, 241 (2013). Accordingly, we affirm the judgment of dismissal.
The complaint was noticeably vague on key dates. In evaluating the legal sufficiency of the complaint, we have taken into account, as did the motion judge, the February 11, 2011, decision of the Civil Service Commission attached as an exhibit to Shea's opposition to the defendants' motion to dismiss. See Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 824 (2015).
All of Shea's surviving claims in this action were subject to three-year statutes of limitations. See G. L. c. 149, §§ 148A, 150, G. L. c. 151B, § 9, and G. L. c. 260, §§ 4, 5B; Pelletier v. Somerset, 458 Mass. 504, 520 n.30 (2010); Crocker v. Townsend Oil Co., 464 Mass. 1, 6 & n.8 (2012); Harrington v. Costello, 467 Mass. 720, 724-725 (2014); Pagliuca v. Boston, 35 Mass. App. Ct. 820, 822-823 (1994).
At the oral argument on the motion to dismiss in the Superior Court, Shea waived count I (alleging violations of the Wage Act and the overtime provisions of G. L. c. 151, § 1A).
The last retaliatory and wrongful acts, as alleged in the complaint, occurred no later than November, 2008, triggering the commencement of the limitations period for Shea's c. 149, c. 151B, and State civil rights claims (counts II-VII). Shea's causes of action for defamation (counts VIII and IX) accrued on the dates defendants Stephen Crosby and Thomas Broderick published the defamatory statements about Shea to the human resources and communications departments. See Harrington v. Costello, 467 Mass. at 725. Although these dates were not identified in the complaint, publication necessarily occurred before Shea was removed from his computer operator position in November, 2008. Even were we to accept the additional publication allegations contained in Shea's opposition memorandum, but see Fraelick v. PerkettPR, Inc., 83 Mass. App. Ct. 698, 700 (2013), Shea's causes of action for defamation accrued no later than the hearings before the Civil Service Commission (commission) in May and June, 2009.
Commenced on February 20, 2014, this entire action was thus untimely unless Shea met his burden of establishing facts taking his case outside of the three-year limitations periods. See Harrington v. Costello, 467 Mass. at 725. Shea, we conclude, has not met his burden.
First, Shea was not required to exhaust his administrative remedies at the commission before filing this action in the Superior Court. No claims or allegations requiring the exercise of the commission's special expertise in civil service law were asserted in the complaint. Contrast Staveley v. Lowell, 71 Mass. App. Ct. 400, 403-404 & n.7 (2008) (holding that G. L. c. 31, § 74, and due process claims should have been dismissed under the doctrine of primary jurisdiction). In fact, the commission had no jurisdiction over at least part of the case (Shea's c. 151B claims and his challenge to his reassignment). See note 4, supra; G. L. c. 151B, § 9; Everett v. 357 Corp., 453 Mass. 585, 611 n.34 (2009). No possible interference with the commission's "development and administration of policies under the civil service law" was implicated. Fernandes v. Attleboro Hous. Authy., 470 Mass. 117, 127 (2014).
A tenured civil service employee, Shea timely appealed his suspension without pay, and his reassignment, to the commission for a de novo hearing. See G. L. c. 31, §§ 41, 43; Worcester v. Civil Serv. Commn., 87 Mass. App. Ct. 120, 123 (2015). Although the commission found the charges of sexual harassment unsubstantiated, it concluded the city had just cause for the discipline imposed on Shea for using city assets to run a for-profit business. The commission reduced Shea's suspension from ten days to three. However, as particularly relevant herein, the commission concluded it did not have jurisdiction over Shea's reassignment which, the commission concluded, was "solely governed by the terms and conditions of the applicable collective bargaining agreement, if any." The commission's decision prompted Shea, a former union steward, to file a grievance, which was unsuccessful because of "management prerogative," though he was subsequently transferred to a property management position.
We also note that Shea admitted that he failed to first file an administrative complaint with the Massachusetts Commission Against Discrimination. That omission constitutes an independent basis for affirming the dismissal of his c. 151B claims. See Everett v. 357 Corp., 453 Mass. at 587, 600.
Represented by counsel, Shea, as was his right, chose to pursue remedies under the civil service law. Where no aspect of Shea's complaint fell within the exclusive jurisdiction of the commission, Shea could have timely brought this civil action in 2008 or within the three-year limitations period. See Dedham v. Labor Relations Commn., 365 Mass. 392, 400-404 (1974) (claims of suspended firefighter could proceed concurrently through the Civil Service Commission and the Labor Relations Commission); Salem v. Massachusetts Commn. Against Discrimination, 404 Mass. 170, 172-174 (1989) (unlawful bypass claim pursued concurrently before Civil Service Commission and the Massachusetts Commission Against Discrimination); Fernandes v. Attleboro Hous. Authy., 470 Mass. at 120-127 (rejecting employer's contention that the commission had exclusive jurisdiction over all challenged adverse employment actions; tenured employee was entitled to bring wage and retaliation claims in the first instance in the Superior Court). In short, the exhaustion doctrine was not a basis for extending the limitations period.
Second, we are not persuaded that pursuant to the discovery rule, the commencement of the limitations period began on March 11, 2011. Shea sustained appreciable harm -- his removal from his position and reassignment to the information desk -- in November, 2008. Where, as here, Shea was aware of all the operative facts necessary to support his statutory claims no later than November, 2008, the discovery rule could not be applied to toll the limitations period. See Crocker v. Townsend Oil Co., 464 Mass. at 7-8; Pagliuca v. Boston, 35 Mass. App. Ct. at 823. The facts Shea learned on March 11, 2011, and well after -- i.e., that the city would not return him to his former position despite his partial exoneration -- went only to the severity of his injury and thus were not grounds to extend the limitation period. See Pagliuca v. Boston, 35 Mass. App. Ct. at 824-825, quoting from Gore v. Daniel O'Connell's Sons, Inc., 17 Mass. App. Ct. 645, 649 (1984) ("When an injury . . . becomes manifest, the statute of limitations does not stay in suspense until the full extent, gravity, or permanence of that same injury . . . is known").
On that date, the commission's decision became final and the city, notwithstanding Shea's success on the sexual harassment charges before the commission, failed to return him to his original position.
Moreover, because Shea knew about the defendants' defamatory statements at the time they were made and the harm thereby caused, the discovery rule was inapplicable to his tort claims as well. See Harrington v. Costello, 467 Mass. at 725-726.
Finally, Shea failed to plead any facts that would provide a basis for equitable tolling, a doctrine that is used sparingly in limited cases. See Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996) ("Constructive knowledge of all procedural requirements [including the duty to file a timely complaint] is imputed to a plaintiff who retains an attorney"); Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 727-729 (1997) (concluding that the filing of an arbitration claim did not fit within any of recognized exceptions allowing tolling).
Judgment affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 17, 2016.