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
Valladares alleged gender discrimination in violation of G. L. c. 151B by both defendants and "intentional interference with contractual/advantageous business relations" by Linnehan.
In their motion for summary judgment, the defendants challenged the jurisdictional basis of Valladares's G. L. c. 151B claim. Applying the common-law, multi-factor balancing test, the judge concluded that Valladares was an independent contractor, warranting the dismissal of his c. 151B claim. See Comey v. Hill, 387 Mass. 11, 15-16 (1982) (independent contractors not covered by State anti-discrimination statute); Commonwealth v. Savage, 31 Mass. App. Ct. 714, 717-718 (1991) (real estate broker was independent contractor as matter of law). The judge further bolstered his decision by ruling that even if Valladares was an employee, his c. 151B claim failed at both the first and third stages of the McDonnell Douglas burden-shifting paradigm. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39-40 (2005).
The judge did not definitively resolve the question whether Valladares, a resident of New Hampshire since 1999, was barred from claiming employee status by St. 1978, c. 478, § 328 (prohibiting nonresidents from serving as employees of judicial branch). On the view we take of the case, there is no need to reach the issue.
On appeal, Valladares has not challenged the ruling that he was an independent contractor, effectively conceding the point. See Somers v. Converged Access, Inc., 454 Mass. 582, 584 n.3 (2009). As an independent contractor, he was ineligible to bring a c. 151B claim. The summary judgment on that claim must stand.
Even if Valladares's claim passed jurisdictional muster, we conclude, substantially for the same reasons as did the judge, and for principles discussed in Madsen v. Erwin, 395 Mass. 715, 721 (1985), and Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129-130 (1997), that the facts adduced by Valladares were inadequate to raise a triable issue of pretext. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 54-55 (in order to survive summary judgment, plaintiff must demonstrate at third stage of burden-shifting paradigm that employer's proffered reason for adverse action was pretextual, masking true intent of discrimination). Given our conclusion, any error in the judge's analysis of Valladares's stage-one burden of establishing a prima facie case was harmless.
Because Valladares had no remedy available under c. 151B, he was entitled to bring a claim under G. L. c. 93, § 102, the Massachusetts Equal Rights Act (MERA), in the Superior Court. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 455 (2008); Martins v. University of Mass. Med. Sch., 75 Mass. App. Ct. 623, 630-633 (2009). At no point, prejudgment or postjudgment, did he file an amended complaint to add a MERA claim, seek leave to do so, or move for reconsideration of the adverse judgment. His argument that the judge owed him a duty to amend the pleadings, sua sponte, at the summary judgment stage (or thereafter) was mistaken. The judge did not err by failing to apply the MERA totality of the circumstances test to a claim that was never pleaded. As a result of the inaction, there is no MERA ruling, order, or pleading for this court to review. See McNamara v. Honeyman, 406 Mass. 43, 53 (1989).
Due to our inability to see how, on the record presented, the totality of the circumstances test, even if more plaintiff-friendly than the burden-shifting paradigm, would lead to a different result, we decline Valladares's request to permit his discrimination claim to proceed under MERA.
Valladares's tort claim against Timothy Linnehan, the acting director of the trial court support services department, failed as matter of law for want of proof of improper motive or means, a necessary element of his claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 715 (2011). In the employment context, a plaintiff is required to show that the individual official acted with actual malice. See Weber v. Community Teamwork, Inc., 434 Mass. 761, 781-782 (2001). Actual malice in these circumstances is defined as a "spiteful, malignant purpose unrelated to the legitimate corporate interest." Blackstone v. Cashman, 448 Mass. 255, 263 (2007), quoting from Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992). None of the facts identified by Valladares in his brief was adequate to permit an inference of actual malice. First, a "pattern of discrimination" was not supported by the facts of record and thus cannot serve as the predicate to prove actual malice. Second, in light of the complete absence of any evidence of personal hostility or ill will, Linnehan's effective withdrawal of the trial court's proposed settlement offer -- left on the table for almost one year by Valladares -- was insufficient to show actual malice. Finally, Valladares cannot show that Linnehan's recommendation that Valladares's name be removed from the list of approved per diem interpreters was unrelated to the trial court's legitimate interests.
While providing services during a criminal trial on September 11, 2006, in the Lawrence Division of the District Court Department, Valladares, frustrated at his inability to hear the testimony of the female victim, leaned back in his chair, stretched, sighed, and made eye contact with two jurors. At the end of the court day, Valladares followed the female assistant district attorney into an elevator and reprimanded her in a "disgusted" and "direct" tone for making disparaging comments about him. That trial judge subsequently reported him for the inappropriate body language that, according to the judge, suggested disbelief of the victim's testimony. Following her investigation of Valladares's conduct, the trial court's gender issues coordinator, Dr. Heather Karjane, reported to Linnehan that Valladares had exhibited "a long-standing pattern of unprofessional, gender-discriminatory behavior directed toward female professionals, clients, and employees of the Trial Court which violates multiple . . . professional conduct policies." In light of these conclusions, Linnehan's settlement offer negotiated with Valladares's attorney was fair: return to work upon the completion of sexual harassment training and six hours of continuing education training (if offered within a certain time frame by the office of court interpreter services). Valladares had already agreed to the sexual harassment training as a condition of his return to work following an earlier substantiated incident of sexual harassment.
The panelists are listed in order of seniority. --------
Clerk Entered: January 29, 2016.