CARRIE DEANGELO v. TOWN OF TRURO & Others. ( 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
22-P-1164
CARRIE DEANGELO
vs.
TOWN OF TRURO & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a summary judgment dismissing
her complaint for employment discrimination based on gender and
sexual orientation, and seeking a declaratory judgment. We
conclude that genuine issues of material fact preclude summary
judgment on the question of the timeliness of the complaint
against the defendants town of Truro and Kyle Takakjian, as well
as on the question whether the so-called "Souza report" was
properly considered a part of the plaintiff's personnel file,
and we vacate so much of the judgment that dismissed count one
against the town and counts two and three against the town and
Takakjian. We affirm the judgment insofar as it dismissed the
plaintiff's claims against the defendant Craig Bayer.
1 Kyle Takakjian and Craig Bayer.
To bring a claim of discrimination under G. L. c. 151B,
§ 5, in the Superior Court, the claim must first be filed with
the Massachusetts Commission Against Discrimination (MCAD)
within three hundred days of the alleged discriminatory conduct.
Where, as in the present case, the complaint alleges a
continuing violation, see Cuddyer v. Stop & Shop Supermkt. Co.,
434 Mass. 521, 541 (2001), a claim may encompass related acts of
discrimination extending beyond the three hundred-day limitation
period, so long as (1) at least one unlawful act occurred within
the limitation period, (2) the timely act has a substantial
relationship to the earlier acts, and (3) the earlier violations
did not trigger the plaintiff's awareness and duty to assert her
rights in a timely fashion. See Ocean Spray Cranberries, Inc.
v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632,
643 (2004).
The plaintiff filed her complaint with MCAD on May 24,
2017; accordingly, any violations before July 28, 2016, would be
outside the statute of limitations. On appeal, the plaintiff
points to three "anchoring" violations: (1) a vote in September
2016 denying her union representation; (2) termination of her
employment on October 31, 2016, which she claims to have been
the result of a constructive discharge, and (3) the refusal by
the town to provide to her a copy of the Souza report to which,
she claims, she was entitled pursuant to G. L. c. 149, § 52C.
2
"We review a motion for summary judgment de novo. In doing
so, we must determine 'whether, viewing the evidence in the
light most favorable to the nonmoving party, all material facts
have been established and the moving party is entitled to
judgment as a matter of law'" (citations omitted). Psychemedics
Corp. v. Boston, 486 Mass. 724, 731 (2021).
We agree with the motion judge that the record includes no
evidence to support the plaintiff's contention that the union
vote to deny her representation was the product of unlawful
discrimination. Nor can the termination of her employment serve
as an anchoring act of discrimination, even if her claim of
constructive discharge is accepted as valid. The discriminatory
acts she claims to have led to her constructive discharge all
occurred prior to July 28, 2016; it is of no moment that
following those discriminatory acts she delayed departure from
her position until October.2
2 We note that, though the plaintiff asserts in her brief that
discriminatory acts by her subordinates continued beyond July
2016, and "never ceased" prior to her October 2016 constructive
discharge, she provides no record citations to support the
assertion. See Mass. R. A. P. 16 (a) (7) and (9) (A), as
appearing in 481 Mass. 1628 (2019). We note as well, however,
that the town's emphasis on the plaintiff's statement in her
deposition that she couldn't "think of" any complaints or
concerns after March 2016 is misleading; it ignores her
testimony that acts of insubordination were "almost like daily"
and testimony of Sergeant David Perry that the officers
"wouldn't take orders from her; they would talk behind her back;
they would disrespect her out on the field," and that "they used
to have meetings in the back room to discuss things that she
3
The question of the Souza report stands differently.
Viewing the facts in the light most favorable to the plaintiff,
the record reveals that, in April 2016, the town engaged retired
chief of police John Souza to review the facts that gave rise to
certain discipline administered to the plaintiff, and to
"retrain" her for two days. Souza conducted a thorough review
of the facts underlying the discipline, and concluded that the
plaintiff had done nothing wrong.3 Souza also concluded that the
town had mishandled the investigation into the plaintiff's
conduct, that its assessment of the propriety of her actions was
inaccurate, and that the town and Takakjian encouraged
insubordination and disrespect of the plaintiff by her
subordinates. When the plaintiff became aware of the report
(and in a general sense of its content), she requested a copy of
it in June 2016, followed by a public records request on July
12, 2016. On July 28, 2016, counsel for the town refused in
writing to produce the report, on the ground that it was exempt
from production under three exemptions to the definition of
wasn't doing correctly." In proceedings following remand, the
plaintiff is, of course, free to present specific evidence of
discriminatory acts during the period following July 2016.
3 Though Souza found that the plaintiff's failure to issue a
citation at the scene of a traffic stop involved in one of the
incidents was a procedural error, the plaintiff was not required
by law to issue a citation at the scene and the charges against
the defendants in that case would have survived any legal
challenge.
4
"public records": for materials that may "constitute an
unwarranted invasion of personal privacy"; for inter or intra-
agency materials relating to public policy decisions before the
agency; and for investigatory materials "the disclosure of
which . . . would probably so prejudice the possibility of
effective law enforcement that such disclosure would not be in
the public interest." G. L. c. 4, § 7, twenty-sixth (c), (d),
(f). On the plaintiff's appeal of the town's denial of her
public records request, the supervisor of records in the public
records division of the Office of the Secretary of the
Commonwealth concluded that the town was not required, under the
public records law, to release the Souza report, by virtue of
exemption (f), applicable to investigatory materials. However,
the supervisor of records also observed that the plaintiff was
entitled to inspect her own personnel records pursuant to G. L.
c. 149, § 52C. After the plaintiff made further efforts to
obtain and review the Souza report, the town on March 27, 2017,
again refused her request, despite having been ordered by the
Office of the Attorney General to produce it, on the ground that
the report was not a personnel record because, by virtue of her
separation from employment, it could not be used for any of the
actions contemplated by the statute.
The motion judge in the present case did not address the
plaintiff's request for a declaration that the Souza report was
5
a part of her personnel record, and that she was accordingly
entitled to review it on request. The town asserts that the
Souza report was not a part of the plaintiff's personnel record.
That assertion is, described most charitably, not free from
doubt; both the supervisor of records in the Office of the
Secretary of the Commonwealth and the Office of the Attorney
General essentially expressed in writing their view that it is.
In any event, the material fact is at a minimum subject to
genuine dispute, warranting further proceedings in the Superior
Court, and a determination of the question by a judge of that
court as requested in the plaintiff's complaint. Viewed in
context, and in the light most favorable to the plaintiff, the
Souza report was integrally related to the pattern of
discrimination alleged by the plaintiff during the period prior
to July 2016, and in particular to her discipline by the town
and Takakjian in a manner that was not applied to her male
colleagues and subordinates. The town's refusal to provide it
to her accordingly also could serve as an anchoring act of
discrimination within the limitation period.4
4 The town separately argues that the plaintiff waived her
discrimination claims in a memorandum of agreement she signed on
February 21, 2016. The motion judge did not address the town's
waiver argument in his memorandum of decision. Though we may
affirm the judgment on any ground supported by the record, we
decline the town's request that we affirm the judgment of
dismissal on that basis. As the town acknowledges, the waiver
of a claim must be knowing and voluntary. The plaintiff asserts
6
So much of the judgment that dismissed count one against
the town and counts two and three against the town and Takakjian
is vacated, and the matter is remanded to the Superior Court for
further proceedings consistent with this memorandum and order.
The judgment is affirmed insofar as it dismissed the plaintiff's
claims against Bayer.
So ordered.
By the Court (Green, C.J.,
Blake & Henry, JJ.5),
Clerk
Entered: December 7, 2023.
that she was coerced into signing the release under threat of
disciplinary actions against her. In any event, whether a
waiver of claims is knowing and voluntary must be evaluated on
the basis of the totality of the circumstances, and the burden
is on the releasee to establish that the waiver was knowing and
voluntary. Melanson v. Browning-Ferris Indus., Inc., 281 F.3d
272, 274 (1st Cir. 2002). Even if the question is susceptible
of determination on the present record, without confronting
disputed questions of fact, we believe it better to be
considered by the Superior Court in the first instance. We also
note that, though the plaintiff, the town, and the plaintiff's
union were parties to the agreement, Takakjian was not a party,
and the release provision does not identify the releasees.
Moreover, the agreement was signed on February 21, 2016, prior
to the town's refusal to provide the Souza report to the
plaintiff and, though not raised by the plaintiff in her brief
on appeal, we also note that there may be questions concerning
the scope of any waiver, if it is effective. Again, the
plaintiff remains free to raise any such questions on remand.
5 The panelists are listed in order of seniority.
7