Butner v. Department of State Police
Butner v. Department of State Police
Opinion of the Court
The plaintiffs, female State police officers (troopers), brought a complaint alleging that their employer, the Department of State Police (department), had discriminated against them on the basis of gender in violation of G. L. c. 151B, § 4; that the defendant Health Resources (HR) and its employee Dr. Thomas H. Winters (collectively, the medical defendants) conspired with the department to discriminate against the plaintiffs based upon their gender in violation of 42 U.S.C. § 1985(3), and the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H, 111 (MCRA); and that Winters’s actions with respect to the plaintiffs constituted intentional or reckless infliction of emotional distress. At all relevant times the defendant HR was acting under contract with the defendant department. The defendant Winters was an employee of HR, a medical doctor, and designated as the “State Police Surgeon.” A Superior Court judge granted summary judgment as to the defendants HR and Winters, and the plaintiffs appealed. We affirm.
1. Background.
Each of the troopers was pregnant during some part of 1997. Four of them had had earlier pregnancies during which they had continued working without the imposition of any restrictions by the department. During their prior pregnancies, Troopers Watts, Butner, and Howe had worked until they delivered.
During 1997, and for several years prior, the department contracted with HR to provide medical examinations for troopers, including reenlistment examinations and determinations of
In 1997, the department adopted a practice of sending a female trooper to HR upon learning of her pregnancy. At the same time, the department was developing a “temporary modified duty” (TMD) policy, and the first three drafts of the policy singled out pregnancy as a basis for a female trooper’s placement on TMD. Troopers on TMD lost use of their cruisers,
At the time the department began requiring pregnant troopers to report to HR, the department also sent HR a document entitled “Essential Function Task List” (task list), which the HR doctors were to use in evaluating pregnant troopers.
Although they had no role in developing the task list, Winters and the other HR doctors used the list to justify recommending TMD status for each of the plaintiffs. When the plaintiffs were required to report for medical examinations, generally no actual examination was performed other than discussion of the pregnancy.
The doctors at HR had no expertise in obstetrics and conducted no examination of pregnant troopers before executing the paperwork that was part of the protocol resulting in the TMD status. Aside from contacting some of the plaintiffs’ personal obstetricians,
By March of 1997, placement on TMD appears to have been virtually automatic for pregnant troopers, including the plaintiffs. As a direct result of HR’s and Winters’s recommendations, all of the plaintiffs were placed on TMD because of their pregnancies.
In October, 1997, the Executive Office of Public Safety forced the department to change its policy regarding pregnancy. Thereafter, pregnant troopers were no longer sent to HR, and the plaintiffs were allowed to return to full duty with only a clearance note from their individual physicians. Troopers Sprague, O’Leary, and Butner, who were still pregnant, returned to full duty.
2. Standard of review. In reviewing the grant of summary judgment, we decide 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 a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). We resolve any inferences in favor of the nonmoving party, and in our review, “[w]e may consider any ground supporting the judgment.” Ibid. We need not necessarily adopt the lower court’s reasoning to affirm.
3. Massachusetts Civil Rights Act. The judge allowed the medical defendants’ motion for summary judgment after determining that the alleged conduct, which involved no physical confrontation, did not rise to the level of “threats, intimidation or coercion” required under the MCRA. See G. L. c. 12, § 11H, as inserted by St. 1979, c. 801, § 1. However, the judge did not decide the threshold question whether the plaintiffs’ MCRA claim as to HR and Winters is barred due to the plaintiffs’ failure to first name the medical defendants in complaints to the Massachusetts Commission Against Discrimination (MCAD).
It is evident that the actions the plaintiffs alleged under the
Section 4(1) of G. L. c. 151B prohibits employers from discriminating on the basis of sex in the absence of a bona fide occupational qualification. Discrimination on the basis of pregnancy amounts to sex discrimination actionable under that section. Massachusetts Elec. Co. v. Massachusetts Commn. Against Discrimination, 375 Mass. 160, 169 (1978). Chapter 151B, § 4 (4A) and (5), as amended by St. 1989, c. 722, § 14, prohibits any person from interfering with another’s exercise of rights granted or protected under c. 15 IB, and proscribes aiding, abetting, inciting, compelling or coercing (or attempting to aid, abet, incite, compel or coerce) “the doing of any of the acts forbidden under this chapter.” As the plaintiffs allege that the medical defendants conspired with the department in discriminating against the officers on the basis of their pregnancies, it is apparent that their allegations give rise to a c. 15 IB claim.
Under G. L. c. 15IB, § 9, the exclusive first remedy for a c. 151B violation is a complaint to the MCAD, i.e., a complainant may not bring a civil action against defendants such as HR and Winters without first complaining to the MCAD.
Further, even if the plaintiffs timely filed MCAD complaints against the department (a subject about which we express no opinion), they cannot maintain a civil action against any defendant not named in the MCAD complaint. See note 11, supra-, Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 667 (1997). This is particularly true where, as here, the plaintiffs were aware of the medical defendants’ involvement in the alleged discrimination at the time the MCAD complaint was filed. Ibid.
4. Federal civil conspiracy claim. Under 42 U.S.C. § 1985(3), the plaintiffs must show that the defendants (1) conspired (2) for the purpose of depriving, either directly or indirectly, any
“it does not suffice for application of § 1985(3) that a protected right be incidentally affected. A conspiracy is not ‘for the purpose’ of denying equal protection simply because it has an effect upon a protected right. The right must be ‘aimed at’ ... \ its impairment must be a conscious objective of the enterprise. Just as the ‘invidiously discriminatory animus’ requirement . . . requires that the defendant [has] taken his action ‘at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group,’ ... so also the ‘intent to deprive of a right’ requirement demands that the defendant do more than merely be aware of a deprivation of right that he causes, and more than merely accept it; he must act at least in part for the very purpose of producing it.” (Citations omitted.)
506 U.S. at 275-276. The judge found that the plaintiffs did not set forth facts to support a finding that HR or Winters shared a purpose to further a discriminatory policy. We agree.
We assume, arguendo, that the department was motivated by discriminatory animus in enforcing the TMD policy against pregnant troopers. Even so, at most the plaintiffs have established facts from which a jury could infer that Winters and HR knew and understood that the department held such animus,
The plaintiffs contend that summary judgment is inappropriate on the question of discriminatory purpose, but Federal courts have granted and upheld summary judgment on this very issue where plaintiffs have failed to set forth evidence, either direct or circumstantial, of animus. See Burns v. State Police Assn. of Mass., 230 F.3d 8, 12-14 (1st Cir. 2000); Powell v. Pittsfield, 143 F. Supp. 2d 94, 130 (D. Mass. 2001). Compare Rosado v. Sabat, 204 F. Supp. 2d 252, 266 (D.P.R. 2002). Today, we follow their lead and do the same.
5. Intentional infliction of emotional distress. To make out a claim for intentional infliction of emotional distress, the plaintiffs must show that (1) the defendants intended to inflict emotional distress or knew it to be the likely result of their actions, (2) the conduct was “extreme and outrageous, . . . beyond all possible bounds of decency and . . . utterly intolerable,” (3) the defendants’ conduct caused the emotional distress, and (4) the distress was “severe[, such] that no reasonable [person] could be expected to endure it” (citations omitted). Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Without considering the other elements, the judge granted summary judgment for the medical defendants, finding that their conduct was not extreme and outrageous. We reluctantly affirm
In reviewing the plaintiffs’ claim, we examine the record for any evidence or reasonable inference of extreme and outrageous conduct by the defendants. A reasonable fact finder could determine that Winters and other HR physicians, knowing of the department’s arguably discriminatory purpose, interviewed the plaintiffs about their pregnancies and refused to conduct physical examinations on them. Winters and the other physicians insisted on “recommending” TMD status, despite the officers’ insistence that they were capable of full duty and despite the officers’ personal obstetricians’ endorsing their ability to fully perform their present job responsibilities. In Trooper Butner’s case, her physician even opined that she could complete all the tasks on the list.
While we are deeply troubled by the unprofessional charade of HR and Winters purporting to give medical opinions as to the officers’ ability to work, we agree with the judge’s conclusion that the medical defendants’ behavior did not so exceed the bounds of decency as to be deemed extreme and outrageous. The medical defendants’ actions here are distinguishable from the examples of extreme and outrageous conduct recognized in prior cases. See, e.g., Simon v. Solomon, 385 Mass. 91, 97 (1982) (finding that landlord’s “pattern of indifference” leading to repeated flooding with sewage of tenant’s apartment could be deemed extreme and outrageous); Bowman v. Heller, 420 Mass. 517, 522 n.6, cert, denied, 516 U.S. 1032 (1995) (upholding finding that superimposing plaintiff’s face on pornographic images and distributing them throughout office was extreme and outrageous). There can only be an issue for the jury “if reasonable people could differ on whether the conduct is ‘extreme and outrageous.’ ” Boyle v. Wenk, 378 Mass. 592, 597 (1979),
Judgment affirmed.
We take these facts from the summary judgment record, resolving differences and drawing inferences in favor of the plaintiffs.
A11 Massachusetts troopers are assigned cruisers, which they use for travel to and from their homes and duty assignments, as well as in the course of their duties.
A11 of these consequences were apparent to Winters and other HR doctors from the face of the medical report forms they executed for each trooper.
The record contains at least three versions of the task list: one dated May, 1995, with 131 items; one dated June, 1995, with 194 items; and one dated September, 1995, with 129 items.
O’Leary reported for her biennial reenlistment examination without informing the doctor that she was seven months pregnant. Upon discovering during the examination that she was pregnant, the doctor ended the physical examination.
One HR doctor signed a form indicating that Trooper Sprague could remain on full duty and perform her regular duties, only to have the decision overridden by Winters at the direction of the department. That doctor later stated that she was “yelled at” when she tried to retain a pregnant trooper on full duty. Another HR doctor implied to Trooper Howe that she could remain on full duty, but thereafter left the room, rewrote the evaluation form, and put the trooper on TMD.
When Winters contacted Butner’s physician, however, he did not use her opinion in making his TMD recommendation, and he even mischaracterized her opinion as if it had contributed to his own.
Trooper Butner was fourteen weeks pregnant when so placed; Trooper Sprague, four months; Trooper Howe, seven and one-half months; Trooper O’Leary, seven months; and Trooper Watts, seven months.
Notwithstanding the absence of most of the MCAD complaint forms from the appellate record, the forms that are in the summary judgment record show
Section 9 of G. L. c. 151B, as amended by St. 1991, c. 323, § 2, states in relevant part:
“The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any*468 provision hereof shall not apply . . . ; but, as to acts declared unlawful by section four, the procedure provided in this chapter shall, while pending, be exclusive; and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.
“Any person claiming to be aggrieved by a practice made unlawful under this chapter . . . may, at the expiration of ninety days after the filing of a complaint with the commission, or sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both in the superior or probate court” (emphasis added).
Because the plaintiffs’ MCRA claims against the medical defendants are barred, we do not reach the substantive question whether the defendants’ conduct amounted to “threats, intimidation or coercion.”
The purpose of the requirement is to provide the party with notice of a potential lawsuit and an opportunity to conciliate. Although the plaintiffs have offered neither argument nor evidence on this issue, there may be an exception where a plaintiff filed an MCAD complaint against another party and the unnamed party had notice and opportunity to participate in the proceedings. See King v. First, 46 Mass. App. Ct. 372, 374-375 (1999), citing Federal cases. It is nevertheless incumbent upon the plaintiff in a case that would give rise to a G. L. c. 151B claim to allege and prove its compliance with the exclusive remedy provision, or in the alternative, to claim and set forth facts to justify an exception to the rule. Even if Massachusetts law were to follow the Federal precedents, see ibid., we are unable to consider any such exception for these plaintiffs, who have alleged no such facts.
The record is not clear as to which edition of the list her physician considered.
For the same reason, the claim in the alternative for reckless infliction of emotional distress also fails.
Reference
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