Mark Mancini v. City of Providence

Supreme Court
No. 2014-88
(13-92 S)
Mark Mancini :
v. :
City of Providence et al. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2014-88
(13-92 S)
Mark Mancini :
v. :
City of Providence et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Robinson, for the Court. This case comes before us pursuant to a September
26, 2013 order of the United States District Court for the District of Rhode Island certifying a
question to this Court in accordance with Article I, Rule 6(a) of the Supreme Court Rules of
Appellate Procedure.1 The certified question reads as follows:
1
Article I, Rule 6(a) of the Supreme Court Rules of Appellate Procedure provides in
pertinent part as follows:
“This Court may answer questions of law certified to it by the
Supreme Court of the United States, a Court of Appeals of the
United States, or of the District of Columbia, or a United States
District Court when requested by the certifying court if there are
involved in any proceeding before it questions of law of this state
which may be determinative of the cause then pending in the
certifying court and as to which it appears to the certifying court
there is no controlling precedent in the decisions of this Court.”
The authorization which is accorded by the above-quoted rule is discretionary. See In re
Tetreault, 11 A.3d 635, 639 (R.I. 2011) (citing Jefferson v. Moran, 479 A.2d 734, 738 (R.I.
1984)). On April 16, 2014, we issued an order reflecting our decision to exercise that discretion
in the instant case and to accept the certified question for determination.
-1-
“Does Section 28-5-7(6) of the Rhode Island Fair Employment
Practices Act, R.I. Gen. Laws § 28-5-1 et seq. (‘FEPA’), provide for
the individual liability of an employee of a defendant employer and,
if so, under what circumstances?”
For the reasons set forth in this opinion, we answer the certified question in the
negative—G.L. 1956 § 28-5-7(6) does not provide for the individual liability of an employee of a
defendant employer.
I
Facts and Travel
It is not necessary for us to delve too deeply into the factual background of this case due
to the fact that we are called upon to answer only a narrow question of law. It suffices to say that
there is an action pending in federal court in which plaintiff, Sergeant Mark Mancini, alleges that
he was illegally denied a promotion to the position of Lieutenant in the Providence Police
Department. According to the Certification Order, the eleven-count complaint involves claims
of employment and disability discrimination against the City of Providence and Hugh Clements,
Jr., the Chief of Police of the Providence Police Department. At issue in the instant proceeding
is plaintiff’s count claiming that Chief Clements is liable, in his individual capacity, for the
City’s failure to have promoted plaintiff in alleged violation of FEPA § 28-5-7(6). In the federal
action, Chief Clements moved to dismiss the count alleging that he had violated § 28-5-7(6) on
the basis that, in his view, that statutory section does not provide for individual liability. The
District Court subsequently certified to this Court the question with which we are presently
grappling. Our role in this case is limited to answering the legal question certified to us.
-2-
II
Standard of Review
Our jurisprudence is clear that “certified questions are questions of law and are reviewed
de novo by this Court.” In re Tetreault, 11 A.3d 635, 639 (R.I. 2011); see also Western Reserve
Life Assurance Co. of Ohio v. ADM Associates, LLC, 116 A.3d 794, 798 (R.I. 2015).
Moreover, as we have often stated, this Court adheres to the de novo standard when reviewing
issues of statutory construction. DeMarco v. Travelers Insurance Co., 26 A.3d 585, 616 (R.I.
2011); see also State v. LaRoche, 925 A.2d 885, 887 (R.I. 2007).
III
Analysis
A
Individual Liability
In the instant case, we are called on to determine whether or not § 28-5-7(6) provides for
individual liability. That statutory section provides as follows:
“It shall be an unlawful employment practice * * * [f]or
any person, whether or not an employer, employment agency,
labor organization, or employee, to aid, abet, incite, compel, or
coerce the doing of any act declared by this section to be an
unlawful employment practice, or to obstruct or prevent any person
from complying with the provisions of this chapter or any order
issued pursuant to this chapter, or to attempt directly or indirectly
to commit any act declared by this section to be an unlawful
employment practice[.]”
Sergeant Mancini argues before this Court that what he considers to be the plain and
unambiguous language of § 28-5-7(6) provides for individual liability. He points out to the
Court that Connecticut, Massachusetts, and New York have anti-discrimination statutes with
aiding and abetting language and that some courts applying that language have, in his words,
-3-
“consistently held that individual employees of the employer may be held liable for unlawful
employment practices;” he urges the Court to follow the cited judicial interpretations of
Connecticut, Massachusetts, and New York law. See Ping Zhao v. Bay Path College, 982 F.
Supp. 2d 104 (D. Mass. 2013); Maher v. Alliance Mortgage Banking Corp., 650 F. Supp. 2d 249(E.D.N.Y. 2009); Farrar v. Town of Stratford, 537 F. Supp. 2d 332 (D. Conn. 2008); Bogdahn v.
Hamilton Standard Space Systems International Inc., 741 A.2d 1003 (Conn. Super. Ct. 1999);
Lopez v. Commonwealth, 978 N.E.2d 67 (Mass. 2012). He further directs this Court’s attention
to the fact that FEPA calls for a broad and liberal construction in order to effectuate its purpose
of “safeguard[ing]” the rights of employees “to obtain and hold employment without * * *
discrimination.” Section 28-5-3.
Disagreeing with the statutory analysis proposed by Sergeant Mancini, Chief Clements
contends that § 28-5-7(6) is ambiguous when taken in the context of the FEPA statute as a
whole; and he encourages this Court to follow the reasoning of the Supreme Courts of Alaska,
California, and Minnesota and hold that § 28-5-7(6) does not provide for individual liability. See
Mills v. Hankla, 297 P.3d 158 (Alaska 2013); Reno v. Baird, 957 P.2d 1333 (Cal. 1998);
Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790 (Minn. 2013).2
We enter upon this important exercise in legal analysis by recalling the venerable
principle of statutory construction that, in construing a statute, “our ultimate goal is to give effect
to the General Assembly’s intent.” DeMarco, 26 A.3d at 616 (internal quotation marks omitted).
In furtherance of that goal, “when the language of a statute is clear and unambiguous, [this
2
We note and appreciate the additional legal submissions, in the form of amicus curiae
briefs, which this Court has received from the Attorney General of the State of Rhode Island and
the Rhode Island Commission for Human Rights. In addition, we acknowledge and express our
appreciation for the joint amicus curiae brief filed by the Rhode Island Association for Justice
and the American Civil Liberties Union of Rhode Island.
-4-
Court] must interpret the statute literally and must give the words of the statute their plain and
ordinary meanings.” LaRoche, 925 A.2d at 887 (internal quotation marks omitted); see also
DeMarco, 26 A.3d at 616. However, “[t]he plain meaning approach * * * is not the equivalent of
myopic literalism, and it is entirely proper for us to look to the sense and meaning fairly
deducible from the context.” National Refrigeration, Inc. v. Capital Properties, Inc., 88 A.3d
1150, 1156 (R.I. 2014) (internal quotation marks omitted); see Raiche v. Scott, 101 A.3d 1244,
1248 (R.I. 2014); see also Reed Dickerson, The Interpretation and Application of Statutes 111
n.24 (1975) (“[A] word in isolation (i.e., without context) begins with a very wide area of
meaning, for it may occur in many hundreds of situations and may be used as a label for scores
of objects; but by means of the practical and linguistic contexts in which it is used we can whittle
it down to precisely that subarea of meaning which it must have in any specific utterance.”)
(internal quotation marks omitted). When confronted with an ambiguous statute, we must look
to the entire statutory scheme to deduce the legislative intent; our interpretive gaze should not be
restricted to a mere “isolated provision,” In re Harrison, 992 A.2d 990, 994 (R.I. 2010) (internal
quotation marks omitted); and “under no circumstances will [we] construe a statute to reach an
absurd result.” National Refrigeration, Inc., 88 A.3d at 1156 (internal quotation marks omitted).
In our opinion, it is evident upon reading § 28-5-7(6) that that statutory section is
ambiguous with respect to whether or not it imposes individual liability. The fact that courts
within Rhode Island have come to opposite conclusions with respect to whether or not to impose
individual liability under § 28-5-7(6)3 and the fact that courts around the country have come to
3
Although the question of whether G.L. 1956 § 28-5-7(6) provides for individual liability
is a question of first impression for this Court, we are aware that it has been addressed by both
the Rhode Island Superior Court and the United States District Court for the District of Rhode
Island. In Evans v. Rhode Island Department of Business Regulation, No. 01-1122, 2004 WL
2075132 at *3 (R.I. Super. Ct. Aug. 21, 2004), a justice of the Superior Court held that an
-5-
opposing conclusions when interpreting state statutes with identical or similar language to that of
§ 28-5-7(6)4 bolsters our confidence in our conclusion that the statutory language at issue is
indeed ambiguous.
As such, while the statute before us does make reference to liability of “any person,
whether or not an * * * employee,” that language should not be viewed in isolation. See In re
Harrison, 992 A.2d at 994. The rest of the statutory section imposes liability for aiding and
abetting employment discrimination, preventing compliance with FEPA, and/or attempting to
commit an unlawful employment practice. In the instant case, the alleged unlawful employment
practice involved a decision of Chief Clements which negatively affected Sergeant Mancini’s
ultimate chances for promotion. It was solely the act of Chief Clements which was the alleged
unfair employment practice at issue in the instant case. Accordingly, for § 28-5-7(6) to
constitute a rational basis for the imposition of individual liability on the Chief, the finder of fact
individual could be personally liable for “conduct amounting to FEPA violations.” Conversely,
seven years later, in Bringhurst v. Cardi’s Department Store, Inc., No. 10-1025, 2011 WL
9379273 at *3 (R.I. Super. Ct. Dec. 30, 2011), another justice of the Superior Court chose not to
vary from a previous ruling by another justice in the still-pending case which had dismissed
charges brought under FEPA against an individual defendant.
In 1996 and 1998, the United States District Court for the District of Rhode Island held
that FEPA did impose individual liability. Wyss v. General Dynamics Corp., 24 F. Supp. 2d
202, 210 (D.R.I. 1998); Iacampo v. Hasbro, Inc., 929 F. Supp. 562, 573 (D.R.I. 1996). However,
in 2009, the court held that, due to a shift in the federal law, it would not interpret FEPA to allow
for individual liability. Johnston v. Urban League of Rhode Island, Inc., No. 09-167S, 2009 WL
3834129 at * 2 (D.R.I. Nov. 13, 2009) (mem.).
4
See Ping Zhao v. Bay Path College, 982 F. Supp. 2d 104 (D. Mass. 2013); Maher v.
Alliance Mortgage Banking Corp., 650 F. Supp. 2d 249 (E.D.N.Y. 2009); Farrar v. Town of
Stratford, 537 F. Supp. 2d 332 (D. Conn. 2008); Bogdahn v. Hamilton Standard Space Systems
International Inc., 741 A.2d 1003 (Conn. Super. Ct. 1999); Lopez v. Commonwealth, 978 N.E.2d
67 (Mass. 2012); but see Mills v. Hankla, 297 P.3d 158 (Alaska 2013); Reno v. Baird, 957 P.2d
1333 (Cal. 1998); Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790 (Minn. 2013).
Sergeant Mancini contends that this Court should follow the Ping Zhao, Maher, and
Bogdahn line of cases imposing individual liability. However, after exhaustive review of the
cases and much reflection, we do not find their reasoning persuasive.
-6-
would necessarily have to determine that he aided and abetted himself. In our judgment, such an
interpretation would contort the statutory language to an extent that would not be linguistically or
jurisprudentially acceptable. We recognize that at least one trial court has interpreted a similarly
worded statute5 as allowing for a finding of liability on the basis of the employee at issue having
aided and abetted himself. See Maher, 650 F. Supp. 2d at 261. However, we are simply unable
to conclude, after carefully scrutinizing the statutory language at issue, that such an interpretation
is reasonable or reflective of what we perceive to have been the legislative intent. To apply the
language of § 28-5-7(6) against an employee who was the sole perpetrator with respect to the
alleged unlawful employment practice “would create a strange and confusing circularity where
the person who has directly perpetrated the harassment only becomes liable through the
employer whose liability in turn hinges on the conduct of the direct perpetrator.” Rasmussen,
832 N.W.2d at 801 (internal quotation marks omitted). We decline to construe a statute to reach
a result that we consider to be incompatible with logic and conventional English usage. See
Ryan v. City of Providence, 11 A.3d 68, 76 (R.I. 2011) (“Such an illogical interpretation is not
permitted by our rules of statutory construction.”); see also National Refrigeration, Inc., 88 A.3d
at 1156.6
5
Under N.Y. Exec. Law § 296(6) (McKinney 2016), it is an “unlawful discriminatory
practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this article, or to attempt to do so.”
6
We note, additionally, that several trial courts have interpreted language similar to that of
§ 28-5-7(6) to allow for individual liability but only as a derivative claim—the defendant must
have “committed a wholly individual and distinct wrong * * * separate and distinct from the
claim in main * * *.” Ping Zhao, 982 F. Supp. 2d at 115 (internal quotation marks omitted); see
Bolick v. Alea Group Holdings, Ltd., 278 F. Supp. 2d 278, 282 (D. Conn. 2003); see also Fisher
v. Town of Orange, 885 F. Supp. 2d 468, 476-77 (D. Mass. 2012). It is our decided opinion that
such an interpretation is untenable. If the General Assembly had intended such a result, it is our
view that it would not have used such ambiguous language to achieve that end.
-7-
We recognize that the General Assembly has expressed its desire that FEPA be
“construed liberally.” Section 28-5-38(a). But such a call for a liberal construction should not
be understood as an authorization for the courts to “fl[y] in the face of the structure of the
statute;” we decline to construe a statute to reach an incongruous end as a result of a misguided
view that a liberal construction mandate calls for the wholesale abandonment of other venerable
principles of statutory construction. U.S. Equal Employment Opportunity Commission v. AIC
Security Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir. 1995); see State v. Santos, 870 A.2d
1029, 1032 (R.I. 2005) (“[T]his Court will not broaden statutory provisions by judicial
interpretation unless such interpretation is necessary and appropriate in carrying out the clear
intent or defining the terms of the statute.”) (internal quotation marks omitted); Simeone v.
Charron, 762 A.2d 442, 448 (R.I. 2000); see also Bandoni v. State, 715 A.2d 580, 596 (R.I.
1998) (“[T]he function of adjusting remedies to rights is a legislative responsibility rather than a
judicial task * * *.”).
It is our view that, if the General Assembly intended to authorize the imposition of
individual liability, it would have done so by using language far clearer than that employed in
§ 28-5-7(6). See Rasmussen, 832 N.W.2d at 801 (“If the Legislature had intended to create
liability for any individual employee who engaged in an unfair employment practice in the
employment setting, it could have done so without resorting to a theory of aiding and abetting
liability.”); see generally Franconia Associates v. United States, 536 U.S. 129, 141 (2002) (“A
waiver of the sovereign immunity of the United States cannot be implied but must be
unequivocally expressed.”) (emphasis added) (internal quotation marks omitted); Atascadero
State Hospital v. Scanlon, 473 U.S. 234, 243 (1985) (stating that “Congress must express its
intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself”)
-8-
(emphasis added).7 We fully concur with the eloquently expressed reasoning of the Supreme
Court of Alaska in reaching a conclusion about the import of statutory language very similar to
that of § 28-5-7(6):8
“We do not believe the legislature intended to use the aiding and
abetting provision to hold employees directly liable for their
discrimination. Given the otherwise clear terms of the statute, we
will not assume that on the critically important issue of individual
liability the legislature decided not to use similarly clear language.
We decline to hold that the legislature ‘intended to accomplish a
result so significant by a method so abstruse.’” Mills, 297 P.3d at
172 (emphasis added) (quoting Reno, 957 P.2d at 1342).
At the end of the day, after closely analyzing the language of § 28-5-7(6), it is our unequivocal
conclusion that said statute does not authorize the imposition of individual liability.
Our conclusion is buttressed by the fact that § 28-5-6(8)(i), as amended by P.L. 2013, ch.
413, § 1, defines “[e]mployer” to include “any person in this state employing four (4) or more
individuals[;]” in our view, it would not be logical to conclude, without far more textual
evidence, that the General Assembly intended to exempt employers with less than four
employees from potential liability but simultaneously intended to authorize the imposition of
liability on individuals under the ambiguous language of § 28-5-7(6).
We base our response to the certified question squarely on traditional principles of
statutory construction. However, we note that allowing for the possibility of individual liability
would have a predictably chilling effect on the discretionary management decisions of
7
We are aware that the United States Supreme Court’s decision in Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 243 (1985), was superseded by statute, as recognized in Lane
v. Pena, 518 U.S. 187, 198 (1996). However, it goes without saying that that fact does not alter
the viability of the hermeneutic approach to statutory interpretation employed by the Supreme
Court in Atascadero State Hospital, which we emulate in this opinion.
8
Alaska Stat. Ann. § 18.80.260 (West 2016) reads as follows: “It is unlawful for a person
to aid, abet, incite, compel, or coerce the doing of an act forbidden under this chapter or to
attempt to do so.”
-9-
supervisory employees—since such a regime would, in all likelihood, result in supervisors
frequently tending to make employment decisions based on their apprehensiveness as to the
possibility of suit rather than on what they deem to be in the best interest of the employer. It is
our view that, as a matter of public policy, a supervisor should not have to be concerned about
keeping his or her house or car, or having enough wherewithal to pay for the education of his or
her children when deciding, for example, between two employees who are candidates for a
promotion. That is especially true because, if the supervisor makes such a decision for unlawful
reasons, the individual aggrieved has recourse against the employer under FEPA and therefore
has a means to remedy the harm done. We further note that imposing individual liability would
create a substantial question, in the case of a collective decision, as to which individual might be
liable. Also, the remedies provided by FEPA include the issuance of a cease-and-desist order,
hiring, reinstatement, upgrading of employees with or without back pay, and admission or
restoration to union membership. Section 28-5-24. It is clear to us that those statutory remedies
more clearly relate to the employer as such rather than to an individual. See Rhode Island Board
of Governors for Higher Education v. Newman, 688 A.2d 1300, 1302 (R.I. 1997) (stating that, in
conducting statutory analysis, a court should “first examine the statute in its entirety and then the
individual provisions in the context of the whole, not as if each provision were independent of
the whole”).
The Supreme Court of California took into account many of the just-referenced concerns
in holding that the California Fair Employment and Housing Act did not provide for individual
liability. Reno, 957 P.2d at 1347. After carefully parsing that court’s reasoning, we find its
opinion especially convincing. The court in Reno noted that “[m]any of the federal cases which
found no personal liability against individual supervisory employees based their decisions in part
- 10 -
on the incongruity that would exist if small employers were exempt from liability while
individual nonemployer supervisors were at risk of personal liability.” Id. at 1339 (quoting
Janken v. GM Hughes Electronics, 53 Cal. Rptr. 2d 741, 751 (Cal. Ct. App. 1996)). The
Supreme Court of California likewise found it “incongruous” to think that the legislature in
California would protect employers with fewer than five employees from the burden of litigating
discrimination claims but simultaneously intended to impose the possibility of liability on
individual persons who are not employers at all. Id. at 1340. In discussing further factors
weighing in favor of its conclusion that the California statute in question did not impose
individual liability, the Reno court made the following observations that strike us as being
especially perceptive and telling:
“[T]o submit all officials, the innocent as well as the guilty, to the
burden of trial and to the inevitable danger of its outcome, would
dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties * * *.
“ * * * [I]t is manifest that if every personnel manager
risked losing his or her home, retirement savings, hope of
children’s college education, etc., whenever he or she made a
personnel management decision, management of industrial
enterprises and other economic organizations would be seriously
affected.
“ * * * [S]upervisory employee[s] [would be coerced into]
not [making] the optimum lawful decision for the employer.
Instead, the supervisory employee would be pressed to make
whatever decision was least likely to lead to a claim of
discrimination against the supervisory employee personally, or
likely to lead only to that discrimination claim which could most
easily be defended. The employee would thus be placed in the
position of choosing between loyalty to the employer’s lawful
interests at severe risk to his or her own interests and family,
versus abandoning the employer’s lawful interest and protecting
his or her own personal interests.” Id. at 1340, 1341 (internal
quotation marks omitted).
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Finally, in addressing aiding and abetting language similar to that contained in § 28-5-
7(6),9 the California Supreme Court found it linguistically questionable whether an employee
who exercises personnel management authority is aiding and abetting his or her employer:
“[T]he stilted and unusual nature of such a usage alone casts doubt on [a construction imposing
individual liability].” Reno, 957 P.2d at 1343. The California Supreme Court held that, if the
legislature intended to provide for individual liability, it “would have done so by language more
direct and less susceptible to doubt.” Id. We are fully in accord with, and find applicable to our
situation, the jurisprudentially sound conclusion reached by the California Supreme Court: if the
General Assembly intended to impose individual liability under FEPA, it could and would
readily have done so without resorting to the markedly unclear and ambiguous language
contained in § 28-5-7(6). We do not believe that the General Assembly would mandate so far-
reaching a result by speaking in so veiled and cryptic a manner.
Accordingly, after extensive review of the relevant statute and considerable reflection, we
answer the certified question in the negative—§ 28-5-7(6) does not provide for the individual
liability of an employee of a defendant employer.10
9
California Gov’t Code § 12940(i) (West 2016) states that it is an unlawful employment
practice, “[f]or any person to aid, abet, incite, compel, or coerce the doing of any of the acts
forbidden under this part, or to attempt to do so.”
10
While we have based our response to the certified question on our own jurisprudence and
principles of statutory construction, we note with great interest that the United States Court of
Appeals for the First Circuit has reached a decision that is quite comparable to the instant
decision in its construction of Title VII (42 U.S.C. § 2000e et seq.). See Fantini v. Salem State
College, 557 F.3d 22, 28 (1st Cir. 2009). In construing our own employment discrimination
statute, we have often looked for guidance to federal jurisprudence. See, e.g., Weeks v. 735
Putnam Pike Operations, LLC, 85 A.3d 1147, 1156 n.11 (R.I. 2014). And we are pleased to note
that our reasoning with respect to the instant case contains similarities to the reasoning of the
First Circuit with respect to the federal statute.
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B
Deference to Agency Interpretation
The Rhode Island Commission for Human Rights (RICHR) points out, in its amicus
curiae brief, that it is the administrative agency to which has been confided a significant role
with respect to the administration and enforcement of FEPA and that it has “a long history of
holding individual non-employer respondents liable for aiding and abetting discrimination.” The
agency urges us to give deference to its reading of FEPA. However, deferential consideration of
the approach of RICHR with respect to the issue of individual liability does not alter our ultimate
legal conclusion under the particular circumstances of the instant case.
We are well aware that this Court has stated that, “[i]f a statute’s requirements are unclear
or subject to more than one reasonable interpretation, the construction given by the agency
charged with its enforcement is entitled to weight and deference as long as that construction is
not clearly erroneous or unauthorized.” Duffy v. Powell, 18 A.3d 487, 490 (R.I. 2011) (quoting
State v. Swindell, 895 A.2d 100, 105 (R.I. 2006)); see also Labor Ready Northeast, Inc. v.
McConaghy, 849 A.2d 340, 345 (R.I. 2004); Pawtucket Power Associates Limited Partnership v.
City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993); Berkshire Cablevision of Rhode Island,
Inc. v. Burke, 488 A.2d 676, 679 (R.I. 1985).
However, it should not be forgotten that we have also expressly stated that an agency’s
interpretation is “not controlling” and, further, that “regardless of * * * deference due, this Court
always has the final say in construing a statute.” In re Proposed Town of New Shoreham
Project, 25 A.3d 482, 506 (R.I. 2011); see also Berkshire Cablevision of Rhode Island, Inc., 488
A.2d at 679. We certainly have never suggested that we owe any administrative agency’s
interpretation blind obeisance; rather, the “true measure of a court’s willingness to defer to an
- 13 -
agency’s interpretation of a statute ‘depends, in the last analysis, on the persuasiveness of the
interpretation, given all the attendant circumstances.’” Unistrut Corp. v. State of Rhode Island
Department of Labor and Training, 922 A.2d 93, 101 (R.I. 2007) (quoting United States v. 29
Cartons of * * * an Article of Food, 987 F.2d 33, 38 (1st Cir. 1993)). In the instant case, we are
confronted with widely divergent opinions from other jurisdictions as well as from courts within
this state.11 In addition, rather than being confronted with a fact-intensive issue or an issue of a
technical nature, we are in this case considering a pure question of law, which does not require
special expertise beyond what the members of this Court possess. See Arnold v. Rhode Island
Department of Labor and Training Board of Review, 822 A.2d 164, 167 (R.I. 2003) (stating, in
the context of an appeal from a decision of an administrative agency, that this Court is
“free * * * to conduct a de novo review of determinations of law made by an agency”); see also
Rossi v. Employees’ Retirement System, 895 A.2d 106, 110 (R.I. 2006). Accordingly, under the
circumstances of this case, any deference due to RICHR’s interpretation of § 28-5-7(6) simply
does not overcome our conviction that, if the General Assembly intended § 28-5-7(6) to provide
for individual liability, it would not have used language so abstruse to accomplish its aim.
IV
Conclusion
For the reasons set forth in this opinion, we answer the question certified to us in the
negative—§ 28-5-7(6) does not provide for the individual liability of an employee of a defendant
employer. The papers in this case may be remanded to the United States District Court for the
District of Rhode Island for further proceedings.
11
See footnotes 3 and 4, supra.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
SUPREME COURT – CLERK’S OFFICE
OPINION COVER SHEET
Title of Case Mark Mancini v. City of Providence et al.
No. 2014-88
Case Number
(13-92 S)
Date Opinion Filed March 8, 2017
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia, JJ.
Written By Associate Justice William P. Robinson
Certified Question by the United States District Court
for the District of Rhode Island in accordance with
Source of Appeal Article I, Rule 6 of the Supreme Court Rules of
Appellate Procedure.
Chief Judge William E. Smith of the United States
Judicial Officer From Lower Court
District Court for the District of Rhode Island
For Plaintiff:
Mark P. Gagliardi, Esq.
Alicia Mary Connor, Esq.
Attorney(s) on Appeal
For Defendant:
Kevin F. McHugh, Esq.
Kathryn M. Sabatini, Esq.
SU-CMS-02A (revised June 2016)