ANAIS J. ROSARIO v. CARING BEES HEALTHCARE, INC., & Another. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-728
ANAIS J. ROSARIO
vs.
CARING BEES HEALTHCARE, INC., & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this case we address whether statements made to private
individuals by a person alleging sexual harassment constitute
petitioning activity protected by G. L. c. 231, § 59H, the
"anti-SLAPP" statute. Anais Rosario claimed that she worked
briefly for Caring Bees Healthcare (Caring Bees) until being
assaulted by her supervisor, Jean Karangwa. Rosario made
statements about Karangwa to private individuals. Nine months
later, she filed a civil action against Caring Bees and
Karangwa, and Karangwa filed counterclaims for defamation and
intentional infliction of emotional distress based upon
Rosario's statements to the private individuals. Rosario filed
a special motion to dismiss the counterclaims under G. L.
1 Jean Paul Karangwa.
c. 231, § 59H, and asserted that her statements qualified as
petitioning activity. A Superior Court judge concluded that her
statements did not constitute petitioning activity and denied
the special motion to dismiss. We agree and affirm.
Background. We summarize the facts from "the pleadings and
supporting and opposing affidavits." G. L. c. 231, § 59H.
In October of 2017, Caring Bees hired Rosario as a payroll
and scheduling clerk. Over the next several weeks, Rosario
allegedly suffered recurrent sexual harassment. According to
Rosario, Karangwa, who was her supervisor, repeatedly made
sexual comments to her, sent her an inappropriate video, and
ultimately assaulted her by "grab[bing] her vaginal area."
Rosario reported these events to three private individuals.
The day after receiving the video, she told a co-worker that
Karangwa sent her a "sexually explicit and inappropriate video."
On the same day of the alleged sex assault, Rosario texted the
co-worker that "Karangwa had just grabbed her vaginal area."
Also on that day, Rosario told her mother "what had happened."
Later that day, Rosario told a second co-worker that Karangwa
was a "pervert" and a "molester."
Rosario also reported these events to the government. On
the day of the alleged assault, November 15, 2017, Rosario filed
an incident report with the Boston Police Department and
reported that Karangwa sent her sexually charged text messages,
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shared the video, and assaulted her. On January 19, 2018,
Rosario filed a complaint with the Massachusetts Commission
Against Discrimination (MCAD) and reported the assault, the
video, and sexual comments made by Karangwa and others. In May
2018, Rosario withdrew the MCAD complaint and indicated that she
intended to file a civil action. On July 2, 2018, Rosario filed
a complaint (later amended) under G.L. c. 151B in the Superior
Court and alleged Karangwa repeatedly made sexual comments to
her, sent her an inappropriate video, and ultimately assaulted
her. Rosario also alleged that she told a co-worker about the
video and told her mother and a co-worker about the assault.
On August 20, 2018, Karangwa filed counterclaims. He
alleged that the following statements by Rosario to co-workers
and her mother constituted defamation and subjected him to
emotional distress: (1) Karangwa sent her a "pornographic"
video; (2) Karangwa was a "molester" and a "pervert"; and (3)
Karangwa "grabbed her vaginal area."
Rosario filed a special motion to dismiss Karangwa's
counterclaims under G. L. c. 231, § 59H. That statute protects
a party's constitutional right to petition the government by
providing a process "to dispose expeditiously of merit less
lawsuits that may chill petitioning activity." Duracraft Corp.
v. Holmes Prod. Corp., 427 Mass. 156, 166 (1998) (Duracraft).
Rosario argued that the counterclaims constituted such an effort
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to chill her petitioning activity. The Superior Court judge
"[a]ssum[ed] without deciding" that Rosario's pre-litigation
statements constituted petitioning activity, but the judge
denied the motion to dismiss because the counterclaims were not
primarily brought to chill those activities. Rosario appealed.
In an unpublished memorandum and order, a panel of this
court vacated the order and remanded the matter to enable the
judge to assess whether the statements constituted petitioning
activity. Rosario v. Caring Bees Healthcare, Inc., 97 Mass.
App. Ct. 1122 (2020). See Duracraft, 427 Mass. at 167–168,
quoting G. L. c. 231, § 59H (a party filing a special motion to
dismiss must first "make a threshold showing through the
pleadings and affidavits that the claims against it are 'based
on' the petitioning activities alone"). On remand, the judge
concluded that none of Rosario's statements to private
individuals constituted petitioning activity under the statute
and again denied Rosario's special motion to dismiss. Rosario
now appeals this second denial.
Discussion. Rosario bears the burden of demonstrating that
her conduct constitutes petitioning activity. Duracraft, 427
Mass. at 167-168. The governing statute, G. L. c. 231, § 59H,
sixth par. Defines "a party's exercise of its right of petition"
as follows:
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"[1] any written or oral statement made before or submitted
to a legislative, executive, or judicial body, or any other
governmental proceeding; [2] 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; [3] any statement
reasonably likely to encourage consideration or review of
an issue by legislative, executive, or judicial body or any
other governmental proceeding; [4] any statement reasonably
likely to enlist public participation in an effort to
effect such consideration; or [5] any other statement
falling within constitutional protection of the right to
petition government."
Rosario contends that her statements to private individuals
constitute petitioning activity, or are at least reasonably
likely to encourage consideration and to enlist public
participation in her claims to the police, MCAD, and the
Superior Court. Based upon our "de novo" review of the record
in this case, we conclude that Rosario has not met her burden of
demonstrating that her statements to private individuals
constitute petitioning activity. Haverhill Stem LLC v.
Jennings, 99 Mass. App. Ct. 626, 631 (2021). See Reichenbach v.
Haydock, 92 Mass. App. Ct. 567, 572 & n.14 (2017) (explaining
rationale for standard of review).
"The right to petition a governmental body for redress of a
grievance is the very essence of petitioning activity." North
Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852,
863 (2009) (North American). "The typical mischief that the
legislation intended to remedy was lawsuits directed at
individual citizens of modest means for speaking publicly
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against development projects." Duracraft, 427 Mass. at 161.
The objective of SLAPP suits is not to win them, but to
intimidate people for "reporting violations of law, writing to
government officials, attending public hearings, testifying
before government bodies, circulating petitions for signature,
lobbying for legislation, campaigning in initiative or
referendum elections, filing agency protests or appeals, being
parties in law-reform lawsuits, and engaging in peaceful
boycotts and demonstrations." Id. at 161-162, quoting Pring,
SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace
Envtl. L. Rev. 3, 5 (1989). While broadly written, the anti-
SLAPP statute "has its limits." Kobrin v. Gastfriend, 443 Mass.
327, 336 (2005). In order to determine if statements constitute
petitioning activity under the statute, courts "consider them in
the over-all context in which they were made." North American,
452 Mass. at 862.
At the time she made her statements to her co-workers and
her mother, Rosario was not engaged in petitioning activity
under the statute because her statements lacked the "essence of
petitioning activity" –- contact with the government -- or at
the very least efforts to "reach governmental bodies" (citation
omitted). North American, 452 Mass. at 862, 863. See Kobrin,
443 Mass. at 330 (petitioning involves "seeking from the
government any form of redress for a grievance"); Garabedian v.
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Westland, 59 Mass. App. Ct. 427, 433 (2003) (petitioning
involves "supplication to higher authority"). Rosario's private
statements "lacked the characteristics of petition" contemplated
by G. L. c. 231, § 59H. Garabedian, supra at 432.
Characteristics of petitioning activity typically include a
statement, report, complaint, request, or demand to a government
entity. See, e.g., Benoit v. Frederickson, 454 Mass. 148, 153
(2009) ("reporting of a rape to police"); Dever v. Ward, 92
Mass. App. Ct. 175, 179 (2017) ("appeals to the police and to
the courts"); O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 497
(2017) (reporting "suspected criminal activity to the police").
Petitioning may also take the form of filing a lawsuit or taking
other court action. See, e.g., 477 Harrison Ave., LLC v. JACE
Boston, LLC, 477 Mass. 162, 165-167 (2017) (filing complaint
seeking declaratory judgment, petition for injunctive relief,
application for criminal complaint); Van Liew v. Stansfield, 474
Mass. 31, 36 (2016) ("application for a harassment prevention
order"). Petitioning activity may also include statements to
the government "made outside any formal governmental
proceedings," North American, 452 Mass. at 862, see, e.g.,
Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002) (statements
to Federal Deposit Insurance Corporation regarding proposed sale
of property); Baker v. Parsons, 434 Mass. 543, 545–551 (2001)
(letter and statements to Federal and State environmental
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agencies), or "statements made by one participant in a pending
governmental proceeding to another in an effort to settle the
controversy." Plante v. Wylie, 63 Mass. App. Ct. 151, 159
(2005). Rosario has not cited, and we have not found, any
appellate decision where statements lacking a "supplication to
higher authority," Garabedian, 59 Mass. App. Ct. at 433, or
efforts to at least "reach governmental bodies," North American,
452 Mass. at 862, qualify as petitioning activity under G. L.
c. 231, § 59H.
Rosario contends that her statements to co-workers and her
mother constitute petitioning activity because they "were
inextricably connected to the [subsequent] filing of her police
report, her MCAD charge and, ultimately, this litigation." She
argues that her statement to a co-worker reporting the assault
was part of the sexual harassment complaint process under G. L.
c. 151B; that her statements to another co-worker about the
video and the touching were calculated to enlist public
participation and to encourage government review of her claim;
and that her statement to her mother resulted in her mother
advising her to file a police report. We conclude that
Rosario's statements to her co-workers and her mother were
independent from her subsequent complaints to the government and
fell outside the scope of petitioning activity under G. L.
c. 231, § 59H.
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Rosario suggests that her petitioning activity began before
her formal report to the MCAD because she attempted to report
sexual harassment to the co-worker she believed was responsible
for such complaints pursuant to G. L. c. 151B, § 3A (b) (1) (v)
(requiring employers to adopt process for filing sexual
harassment complaint). Private actions taken in anticipation of
contacting the government do not automatically constitute
petitioning activity. See, e.g., Giuffrida v. High Country
Investor, Inc., 73 Mass. App. Ct. 225, 243 (2008) ("letter
notifying the defendant of intent to take legal action");
Maxwell v. AIG Dom. Claims, Inc., 72 Mass. App. Ct. 685, 694
(2008) (insurance company investigation); Kalter v. Wood, 67
Mass. App. Ct. 584, 587 (2006) (complaint letter to health
insurance company). Even if we assume that an internal
complaint of harassment could in some circumstances be
petitioning, the record does not support Rosario's suggestion
that she was making a report in connection with c. 151B. To the
contrary, the undisputed record shows that the co-worker, an
office assistant, simply reached out to Rosario after she quit.
There is nothing in the record indicating that the office
assistant had any responsibility with respect to sexual
harassment. Thus, viewing the statements in context, we agree
with the judge that Rosario did not meet her burden of showing
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that she was engaged in petitioning activity when speaking with
the office assistant.
The private conversation between Rosario and her co-worker
about the video and the alleged sex assault cannot reasonably be
construed as an effort to "enlist public participation" or to
"encourage consideration or review of an issue" in Rosario's
subsequent petitioning activities. G. L. c. 231, § 59H. The
same is true for the private conversation between Rosario and
her mother about the alleged assault. Conduct aimed at
enlisting public participation or encouraging government action
requires, at a minimum, a broad appeal or a call to action.
See, e.g., Blanchard v. Steward Carney Hosp., Inc., 477 Mass.
141, 150-151 (2017) (statements to newspaper while hospital
under investigation by Department of Mental Health); Cardno
ChemRisk, LLC v. Foytlin, 476 Mass. 479, 485 (2017) (blog post
part of "ongoing efforts to influence governmental bodies by
increasing the amount and tenor of coverage around the
environmental consequences of the [oil] spill"); Office One,
Inc., 437 Mass. at 117, 122 (leaflets distributed to condominium
unit owners urging calls to government officials); Wynne v.
Creigle, 63 Mass. App. Ct. 246, 253 (2005) (statements to fire
department and newspaper); MacDonald v. Paton, 57 Mass. App. Ct.
290, 295 (2003) (interactive website designed to generate
interest on issues of concern in town). Rosario's discreet
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statements to her mother and co-workers lacked both a broad
appeal and a call to action. Rosario contends that the nature
of her statements (sexual harassment and assault) is sufficient,
by itself, to satisfy the requirements for enlisting public
participation and encouraging government review. "That a
statement concerns a topic that has attracted governmental
attention, in itself, does not give that statement the character
contemplated by the statute." Global NAPS, Inc. v. Verizon New
England, Inc., 63 Mass. App. Ct. 600, 605 (2005).
While we agree with Rosario that conferring with loved ones
(like her mother) can be of critical importance to sexual
assault victims, we disagree that such conversations necessarily
constitute petitioning activity. In support of the argument
that the conversation with her mother is petitioning activity,
Rosario cites Benoit, 454 Mass. at 153. In that case, a minor
child reported a rape allegation to her parents, and the parents
assisted her in reporting the allegation to the police. Id. at
149-150, 153. Criminal charges followed and were ultimately
dismissed. Id. at 150. The alleged assailant then sued the
child and her parents. Id. The Supreme Judicial Court
concluded that the child's report to the police as well as the
parents' "involvement in their minor daughter's reporting of
crime to the police plainly comes within the scope of
petitioning." Id. at 153. Thus, the petitioning activity in
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Benoit was the report to the police, not the conversation
between the child and her parents.
Unlike the situation in Benoit, Karangwa's counterclaims
did not infringe on any petitioning activity. Karangwa's
counterclaims expressly limited allegations to Rosario's
conversations with private individuals and lacked any nexus to
her appeal to the government. Compare Haverhill Stem, LLC, 99
Mass. App. Ct. at 628-629, 634 (petitioning activity in Land
Court and zoning proceedings not implicated by complaint based
on extortion); Citizens Ins. Co. of Am. v. 290 Auto Body, Inc.,
95 Mass. App. Ct. 515, 518 (2019) (petitioning activity in civil
action regarding insurance claim not implicated by counterclaim
"involving alleged unruly assaultive behavior"); Reichenbach, 92
Mass. App. Ct. at 570, 574 (petitioning activity in opposing
construction of oceanfront home not implicated by claim of
"threats, intimidation, [and] coercion"); Garabedian, 59 Mass.
App. Ct. at 432 (petitioning activity in opposing airport
expansion not implicated by claim of "harassing" contractor and
engaging in "intrusive surveillance"); Ayasli v. Armstrong, 56
Mass. App. Ct. 740, 748 (2002)(petitioning activity in opposing
addition to home not implicated by claim based on "intentionally
interfering" with right to use property). Because the
counterclaims here are based on "private interaction" rather
than an effort to "influence, inform, or even reach a government
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body," the judge properly denied the special motion to dismiss.
Citizens Ins. Co. of Am., 95 Mass. App. Ct. at 518.
Rosario's private statements to individuals do not
transform into petitioning activity merely because she
republished some of those statements in a report to the police,
a complaint to MCAD, and a civil action. "Individuals who
petition the government are not necessarily free to engage in
gratuitous publication of the petition elsewhere without
consequence." Kalter, 67 Mass. App. Ct. at 588. See, e.g.,
Blanchard, 477 Mass. at 153 (email to hospital staff not
petitioning activity though related government investigation
underway); Cadle Co. v. Schlichtmann, 448 Mass. 242, 254 (2007)
(statements about an adversary not petitioning activity though
published during litigation); Burley v. Comets Community Youth
Ctr., Inc., 75 Mass. App. Ct. 818, 822-824 (2009) (statement to
private individuals not petitioning activity though similar no-
trespass letter sent to police and court); Ehrlich v. Stern, 74
Mass. App. Ct. 531, 540-542 (2009) (posting on website not
petitioning activity though related to class action lawsuit);
Global NAPS, Inc., 63 Mass. App. Ct. at 601, 607 (statement to
reporter not petitioning activity though communicated during
pending arbitration appeal). In Kalter, a patient sent
identical letters to an insurance company, the police, and the
Division of Professional Licensure (DPL). Kalter, 67 Mass. App.
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Ct. 585. The chiropractor, who was the subject of the letters,
filed a claim against the patient, and the patient claimed the
letters were protected petitioning activity. Id. We agreed
that the letters sent to the police and DPL constituted
petitioning activity, but the identical letter sent to the
insurance company did not. Id. at 587. The same reasoning
holds true here. Rosario may have made similar statements to
private individuals and the government. As in Kalter,
statements to the government constitute petitioning activity,
but statements to private individuals, in the "over-all context"
here, do not. North American, 452 Mass. at 862.
Conclusion. The anti-SLAPP statute "provides its own
express" definition of petitioning activity Commonwealth v.
Exxon Mobil Corp., 489 Mass. 724, 727 n.3 (2022). We are bound
to review Rosario's statements with reference to the plain
language of the statute, and the "over-all context" in which the
statements were made. North American, 452 Mass. at 862. Based
upon that governing standard and the record here, Rosario has
not met her burden of proving that her statements to private
individuals constituted petitioning activity under G. L. c. 231,
§ 59H. The order denying the special motion to dismiss is
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affirmed. The parties' requests for appellate attorney fees and
costs are denied.
Order denying special motion
to dismiss affirmed.
By the Court (Neyman, Shin &
Hodgens, JJ.2),
Clerk
Entered: April 5, 2023.
2 The panelists are listed in order of seniority.
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