Tavares v. Trial Court of the Commonwealth

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23-P-216 Appeals Court

TRACEY L. TAVARES & another1 vs. TRIAL COURT OF THE

COMMONWEALTH & others.2

No. 23-P-216.

Suffolk. November 2, 2023. – March 7, 2024.

Present: Sacks, D'Angelo, & Hodgens, JJ.

Trial Court, Court officers. Labor, Public employment. Anti-

Discrimination Law, Employment. Employment,

Discrimination. Immunity from suit. Agency, Liability of

agent. Practice, Civil, Interlocutory appeal, Dismissal of

appeal.

Civil action commenced in the Superior Court Department on

December 20, 2019.

Motions to dismiss were heard by Catherine H. Ham, J.

Stanley W. Wheatley for Dorianna Medeiros & Joann

DeLouchrey.

Christopher C. Trundy for the plaintiffs.

1 Corinne Senna.

2 Jeffrey P. Morrow; Daniel Simmons; John Frank, III;

Dorianna Medeiros; Joann DeLouchrey; Leanne Martel; Edward

Silva; National Association of Government Employees, Local 458;

and Richard Curt.

2

SACKS, J. In this action brought under various provisions

of G. L. c. 151B, § 4, plaintiffs Tracey L. Tavares and Corinne

Senna, who are court officers employed at the New Bedford

District Court, allege that their employer, their union, and

several employees subjected them to discrimination, retaliation,

and other unlawful employment practices because they are women

of color who stood up for their statutory rights. Two of the

defendant employees, Dorianna Medeiros and Joann DeLouchrey,

moved to dismiss the first amended complaint (complaint) against

them, asserting among other things that they were acting at all

times as agents of the union and accordingly were immune under

O'Keeffe v. Dwyer & Duddy, P.C., 100 Mass. App. Ct. 671 (2022).

They alleged that the plaintiffs' "exclusive remedy would be a

claim against the union under a theory of respondeat superior."

A Superior Court judge denied their motion "in part," and

Medeiros and DeLouchrey now appeal, invoking the doctrine of

present execution.

We conclude that the doctrine does not apply here, and

therefore the appeal is not properly before us and must be

dismissed for lack of jurisdiction. We address no other issue

regarding whether the complaint states a claim or whether the

3

protection of O'Keeffe could ever extend to G. L. c. 151B claims

against agents of a union.3

Background. The details of the plaintiffs' sixty-six page,

266-paragraph complaint need not detain us. The factual

allegations in the complaint are taken as true and all

reasonable factual inferences are drawn in the plaintiffs'

favor. See Burbank Apartments Tenant Ass'n v. Kargman, 474

Mass. 107, 116 (2016). For present purposes, it suffices to say

that both Medeiros and DeLouchrey are alleged to be union

representatives who took, or aided and abetted, various unlawful

workplace actions against the plaintiffs. Medeiros's and

DeLouchrey's separate motions to dismiss sought to establish

that the acts alleged against them in particular paragraphs of

the complaint were taken in their capacity as agents of the

union and therefore furnished no basis for holding them

individually liable on any of the claims against them.

Medeiros's and DeLouchrey's motions, however, did not

address all of the paragraphs making allegations against them.

For example, Medeiros's motion did not address an unnumbered

3 "A present execution appeal of one aspect of an order does

not necessarily bring all other aspects of the same or related

orders before the appellate court." Abuzahra v. Cambridge, 101

Mass. App. Ct. 267, 271 n.4 (2022). Thus, Medeiros's argument

that counts XVII and XVIII of the complaint should have been

dismissed on grounds other than immunity would not properly be

before us in any event.

4

paragraph in the complaint's "prologue" alleging that she

"allowed, aided, abetted and encouraged others to belittle and

attack Tavares, and even expanded the collective assault to

include Corinne Senna." Nor did Medeiros's motion address the

allegations against her in paragraph 38. And neither Medeiros

nor DeLouchrey addressed the allegations against them in

paragraphs 64, 72, 83, or 113.

The judge's decision, dealing with the motions on their own

terms, agreed that many of the paragraphs specifically addressed

by the motions alleged actions taken by Medeiros or DeLouchrey

as union agents, and the judge therefore "allowed" the motions

as to those allegations. The judge did not, however, strike

those allegations from the complaint.4 The judge "denied" the

motions as to the paragraph in the prologue and as to paragraphs

38, 64, 72, 83, and 113, none of which either motion had

addressed.5 The judge also "denied" Medeiros's motion as to

paragraph 45, which alleged that Medeiros had "promulgated

[certain] knowingly false rumors in an effort to humiliate

Tavares, create a more hostile environment and to support

4 Those paragraphs contained allegations that, even if not a

basis for establishing Medeiros's or DeLouchrey's individual

liability, may contribute to establishing the liability of the

union (vicarious or direct) and other defendants.

5 Thus, even if we had jurisdiction, the arguments as to

those paragraphs would have been waived on appeal.

5

Silva," another employee and a defendant here, "in retaliation."6

The judge thus allowed the motions to dismiss "in part" and

denied them "in part." She did not, however, dismiss any of the

claims against Medeiros or DeLouchrey.

Medeiros and DeLouchrey appealed, asserting that they were

entitled to immunity from suit and that the order denying their

motions to dismiss was appealable under the doctrine of present

execution.

Discussion. "Generally, a litigant is entitled to

appellate review only of a final judgment, not of an

interlocutory ruling, such as the denial of a motion [to

dismiss]." Lynch v. Crawford, 483 Mass. 631, 634 (2019).

"However, in narrowly limited circumstances, where an

interlocutory order will interfere with rights in a way that

cannot be remedied on appeal from a final judgment, and where

the order is collateral to the underlying dispute in the case,"

as Medeiros and DeLourchrey claim here, "a party may obtain full

appellate review of an interlocutory order under our doctrine of

present execution" (quotations and citation omitted). Patel v.

6 Medeiros now argues that this paragraph recognizes that

her "alleged actions were undertaken, at least in part, to

support union member Silva," and thus could not be the basis for

individual liability. Medeiros did not make this argument to

the judge, let alone explain why the other purposes alleged for

her actions -- to cause humiliation and create a more hostile

work environment -- could not in any event support her

individual liability.

6

Martin, 481 Mass. 29, 32 (2018). See Lynch, supra. "[T]he

denial of a motion to dismiss on immunity grounds is always

collateral to the rights asserted in the underlying action

because it 'is conceptually distinct from the merits of the

plaintiff's claim that his rights have been violated.'" Kent v.

Commonwealth, 437 Mass. 312, 317 (2002), quoting Mitchell v.

Forsyth, 472 U.S. 511, 527–529 (1985). "Where a party claims

immunity from suit but does not prevail on a motion to dismiss

or for summary judgment, the party cannot completely vindicate

his or her rights on appeal from a final judgment because the

party would already then have defended the case at trial --

exactly what immunity from suit was 'designed to prevent.'"

Lynch, 483 Mass. at 634, quoting Patel, 481 Mass. at 33.

Under the doctrine of present execution, however, although

an order denying immunity from suit is immediately appealable,

an order denying immunity from liability is not. See Lynch, 483

Mass. at 634-635. We therefore consider whether the protection

recognized in O'Keeffe, 100 Mass. App. Ct. at 675-676, is

immunity from suit or merely protection from liability. The

question is a close one, and our ability to resolve it has been

hampered by the fact that the parties did not brief the issue.

We raised it at oral argument, and Medeiros and DeLouchrey

submitted a postargument letter addressing it.

7

The question in O'Keeffe was "whether union counsel, as an

agent of the union, is liable for the union's breach of its duty

of fair representation." O'Keeffe, 100 Mass. App. Ct. at 674.

The court concluded that "agents of a union are not liable for

work undertaken on behalf of the union," and that, in the

circumstances presented, the plaintiff's "exclusive remedy for a

breach of the duty of fair representation by the union or its

agents" lay elsewhere.7 O'Keeffe, supra at 676.

The O'Keeffe court relied on Atkinson v. Sinclair Ref. Co.,

370 U.S. 238, 245-249 (1962), overruled in part on other

grounds, Boys Mkts., Inc. v. Retail Clerk's Union, Local 770,

398 U.S. 235 (1970). In Atkinson, the Court held that "a

union's agents may not be held liable for actions taken on the

union's behalf." O'Keeffe, 100 Mass. App. Ct. at 675. Atkinson

turned on a provision of Federal labor law, 29 U.S.C. § 185(b),

aimed at protecting union members from liability for certain

damages judgments. See Atkinson, supra at 240-241, 247-248.

The rule in Atkinson "rests on the 'view that only the union

[should] be made to respond for union wrongs, and that the union

members were not to be subject to levy.'" O'Keeffe, supra,

7 In O'Keeffe, the remedy was "the filing of prohibited

practice charges" with the State Department of Labor Relations

(DLR). O'Keeffe, supra at 676. In the present case,

unsurprisingly, Medeiros and DeLouchrey have not argued that the

plaintiffs should or could pursue their G. L. c. 151B damages

claims at the DLR, nor has the union.

8

quoting Atkinson, supra at 247-248. This important element of

"national labor policy" may not "be evaded or truncated by the

simple device of suing union agents or members, whether in

contract or tort, . . . for violation of a collective bargaining

contract for which damages the union itself is liable."

Atkinson, supra at 249. See O'Keeffe, supra.

The National Labor Relations Act does not apply to State

employees. See Best v. Rome, 858 F. Supp. 271, 275 & n.5 (D.

Mass. 1994), aff'd, 47 F.3d 1156 (1st Cir. 1995) (per curiam).

The Best court concluded, however, that a similar rule would

apply under the Massachusetts public employee labor relations

statute, G. L. c. 150E. See Best, supra. The O'Keeffe court,

citing Best, reached the same conclusion. See O'Keeffe, supra

at 676.

We see nothing in Atkinson, Best, or O'Keeffe that suggests

this rule goes beyond protection from liability to establish

immunity from suit itself. Neither Atkinson nor O'Keeffe

mentioned immunity at all. In Best, the defendants were

described as arguing that they were "immune from suit," yet the

court ruled only that they were "immune from liability." Best,

858 F. Supp. at 274, 276. To be sure, some courts have

occasionally referred to the Atkinson rule as involving

"immun[ity] to suit," but those same courts have simultaneously

described it as creating "damages immunity." Montplaisir v.

9

Leighton, 875 F.2d 1, 4 (1st Cir. 1989). See, e.g., Carino v.

Stefan, 376 F.3d 156, 157 (3d Cir. 2004) (individual defendants

were "immune from liability"); id. at 160 ("immunity from

suit"); Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th

Cir. 1996), citing Atkinson, supra at 249 ("Generally, a union's

agents may not be held individually liable for actions taken on

behalf of the union"); id. at 863 (holding individual defendant

"immune from suit"). The case cited by Medeiros and DeLouchrey

in their postargument letter, Peterson v. Kennedy, 771 F.2d 1244

(9th Cir. 1985), cert. denied, 475 U.S. 1122 (1986), refers to

Atkinson as making union agents "[i]mmune [f]rom [p]ersonal

[l]iability" for acts undertaken as union representatives, id.

at 1256, while also stating that "individual damage claims may

not be maintained" against such agents. Id. The parties have

not cited, and our own research has not disclosed, any case in

which a court has expressly considered whether Atkinson or any

cognate State law rule involves immunity from suit as opposed to

immunity from liability.

In other contexts, in order to distinguish between those

two types of immunity, the Supreme Judicial Court has looked to

the purpose of the statute creating the immunity. See Lynch,

483 Mass. at 635-637. Here, however, nothing in the Federal

statute underlying Atkinson appeared to immunize union members

from suit, as opposed to liability. See Atkinson, 370 U.S. at

10

248 (stating that statute was aimed at preventing money

judgments against union members for their union activities).

See also Complete Auto Transit, Inc. v. Reis, 451 U.S. 401, 415

(1981) ("Congress meant to exclude individual strikers from

damages liability, whether or not they were authorized by their

union to strike"). And our State statute, G.L. c. 150E, while

embodying policy goals consistent with Atkinson, includes no

language comparable to that relied on in Atkinson. See

O'Keeffe, 100 Mass. App. Ct. at 676.

We recognize that, absent the Atkinson-O'Keeffe rule,

"union agents' decisions might well be affected by a fear of

incurring personal liability, and this fear would, in turn,

restrict the union's ability to act on behalf of its members."

Best, 858 F. Supp. at 275. The Atkinson-O'Keeffe rule protects

against this result. See id. It also protects against "the use

of private lawsuits against workers as a 'union-busting'

device." Montplaisir, 875 F.2d at 4. These two purposes might

be better served by treating Atkinson-O'Keeffe immunity as

immunity from suit (rather than merely from liability), and thus

by allowing immediate appeals from orders denying such immunity.8

8 This is not to say that immunity from suit can always be

established at an early stage of a case. See, e.g., Lynch, 483

Mass. at 636 n.6 (immunity from suit may turn on issues of fact

that require trial); id. at 644 (affirming denial of defendant's

motion for summary judgment asserting immunity from suit; issues

of fact remained).

11

The same could be said, however, of many situations in

which the law immunizes a defendant from liability in order to

preserve that defendant's latitude to pursue some goal deemed

socially desirable. Because a lawsuit is burdensome to a

defendant even where it does not result in liability, immunizing

that defendant from suit itself would in almost any context do

more to protect the defendant's freedom of action than would

immunity from liability. Yet the courts continue to recognize

that not every immunity from liability equates to immunity from

suit. See Lynch, 483 Mass. at 637-638, discussing Marcus v.

Newton, 462 Mass. 148, 152-153 (2012). This factor is thus of

little assistance in determining whether Atkinson-O'Keeffe

immunity is immunity from suit. Some stronger indication of

legislative intent to create an immunity from suit is required.

"In determining whether to allow an appeal under the

doctrine [of present execution, an appellate court] must balance

'the harm to cost-effective litigation arising from piecemeal

interlocutory appeals against the harm that a litigant may

suffer from a trial court order that is irremediable on

postjudgment appeal.'" CP 200 State, LLC v. CIEE, Inc., 488

Mass. 847, 849 (2022), quoting Patel, 481 Mass. at 37. "The

doctrine is intended to be invoked narrowly," because such

piecemeal appeals may "delay the resolution of the trial court

case, increase the over-all cost of the litigation, and burden

12

our appellate courts." Patel, 481 Mass. at 32. See Lynch, 483

Mass. at 634.

On balance, because the doctrine is to be narrowly

interpreted, and because the limited argument offered by

Medeiros and DeLouchrey has not persuaded us that Atkinson or

O'Keeffe recognized an immunity from suit, we conclude that the

appeal is not properly before us. See Commonwealth v. Delnegro,

91 Mass. App. Ct. 337, 340 (2017) (ordering interlocutory appeal

dismissed where neither doctrine of present execution nor any

court rule authorized appeal).9

Appeal dismissed.

9 The plaintiffs' request for an award of appellate

attorney's fees and costs under G. L. c. 151B, § 9, is denied

without prejudice as premature. Such costs and fees are

available only "[i]f the court finds for the petitioner[s],"

id., whereas here we have merely dismissed an appeal from an

order that, although favorable to the plaintiffs, did not award

them any relief. The merits of their claims remain to be

determined. Cf. Brown v. F.L. Roberts & Co., 452 Mass. 674,

688-689 (2008) (c. 151B plaintiff not yet entitled to fees where

he successfully appealed from summary judgment for employer but

on remand faced further proceedings on merits of his claims).