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
23-P-483
KHALIL MAFHOUM
vs.
DEPARTMENT OF STATE POLICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case presents a claim under G. L. c. 151B, § 4,
alleging that the defendant Massachusetts Department of State
Police (MSP), discriminated against the plaintiff, a former
Massachusetts State Trooper, based on his race, and engaged in
disparate treatment against him based on his race, in
terminating him from employment with the MSP during his
probationary period.1 Although the plaintiff concedes that he
violated MSP Department Policy Rule TPF-20 regarding the
reporting of what he described as a minor car accident involving
1 The complaint also alleged a violation of G. L. c. 151B's prohibition on age discrimination. At argument in the trial court, counsel conceded that at all relevant times, the plaintiff was thirty-nine years old, and therefore not within the protected class for an age discrimination claim. The plaintiff does not contest that conclusion here and has not appealed the dismissal of the age discrimination claim. his cruiser, he avers that the severity of the punishment --
termination -- was due to his race. The plaintiff emigrated to
the United States from Morocco and avers that he is Muslim-
American. Indeed, he avers that at the time of his termination,
he was the only Muslim-American State police trooper.2
The complaint was dismissed on the ground that the
complaint was filed outside the statute of limitations, and it
is from that dismissal that the plaintiff appeals. "We review
the allowance of a motion to dismiss de novo, accepting as true
all well-pleaded facts alleged in the complaint. We draw all
reasonable inferences in the plaintiff's favor and determine
whether the allegations plausibly suggest that the plaintiff is
entitled to relief on [his] legal claim." (Citations omitted.)
Fairhaven Hous. Auth. v. Commonwealth, 493 Mass. 27, 30 (2023).
The plaintiff was terminated by the MSP on November 13,
2018, according to the complaint. It is undisputed that the
statute of limitations runs "three years after the alleged,
unlawful practice occurred." G. L. c. 151B, § 9. Although
three years from termination was November 13, 2021, because of
the Supreme Judicial Court's orders regarding court operations
during the COVID-19 pandemic, if the statute of limitations
2 We assume without deciding that if his termination were due to these characteristics or his status as a person of color, it would amount to actionable race discrimination under the statute.
2 would otherwise have run on that date, it was extended until
February 28, 2022. The plaintiff, however, filed his complaint
on June 10, 2022.
At argument below, counsel for the plaintiff, who now
appears before us pro se, argued that the discovery rule tolled
the statute of limitations until, on July 1, 2019, the plaintiff
received the results of a Freedom of Information Act (FOIA)
request in which, according to the complaint, the material he
received from MSP revealed that the only alleged, comparable
disciplinary actions undertaken against probationary officers
were for acts of misconduct dramatically more serious than those
upon which his termination was based. Before us, he makes an
argument that he is entitled to equitable tolling and in the
alternative, that his counsel was ineffective in late-filing his
complaint.
Though his brief is not a model of clarity, the plaintiff
appears to raise four different arguments under the rubric of
equitable estoppel. To begin with, at one point he essentially
describes equitable estoppel as encompassing what amounts to the
discovery rule. To the extent, if any, he can be understood,
though, to raise the discovery rule, the claim is without merit.
"A cause of action will accrue when the plaintiff actually
knows of the cause of action or when the plaintiff should have
known of the cause of action." Riley v. Presnell, 409 Mass.
3 239, 244 (1991). We will assume that in a discrimination case,
that occurs when a plaintiff has "ascertained sufficient
information . . . to believe that they . . . had been subjected
to discriminatory treatment." Silvestris v. Tantasqua Regional
Sch. Dist., 446 Mass. 756, 768 (2006).
The plaintiff argued below that he only came to believe
that his termination was discriminatory when he received from
the Commonwealth, in response to his FOIA request, documents
showing that other people terminated had been found to have
engaged in far more serious misconduct than he. That date of
receipt is the only date of discovery that he asserts rendered
his filing timely.
This argument, however, founders on the fact that his
complaint –- which we must take as true for purposes of a motion
to dismiss –- states that
"[s]hortly after his termination, the Plaintiff learned that other probationary members of his recruit training class were also involved in various other forms of misconduct equal to or more egregious than that of the Plaintiff, however, those probationary employees were not terminated from their employment by the MSP. . . . None of these other probationary employees from previous classes who were investigated for, or charged with disciplinary issues, were of the same age or racial identity as the Plaintiff. . . . None of these probationary employees who received discipline short of termination were minorities."
The complaint then goes on to list seven other probationary
officers who were not minorities who were disciplined short of
termination, and at least two of whose infractions were arguably
4 more serious than the plaintiff's infractions. But the
plaintiff does not contend that his knowledge of these incidents
arose from the documents he received in response to his FOIA
request, which relate to two officers (whose racial backgrounds
are unidentified) other than the seven officers listed in the
complaint. There is also no suggestion from the plaintiff that
if the statute of limitations were triggered not on his
termination date but "shortly after his termination" when he
"learned" of these seven other disciplined probationary
officers, his complaint would as a result have been timely.
The knowledge described certainly objectively gave the
plaintiff reason to believe he had been subjected to
discriminatory treatment. Consequently the statute of
limitations began to run no later than the date on which he
acquired or reasonably could have acquired that knowledge. The
judge correctly determined that that date was not when the
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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
23-P-483
KHALIL MAFHOUM
vs.
DEPARTMENT OF STATE POLICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case presents a claim under G. L. c. 151B, § 4,
alleging that the defendant Massachusetts Department of State
Police (MSP), discriminated against the plaintiff, a former
Massachusetts State Trooper, based on his race, and engaged in
disparate treatment against him based on his race, in
terminating him from employment with the MSP during his
probationary period.1 Although the plaintiff concedes that he
violated MSP Department Policy Rule TPF-20 regarding the
reporting of what he described as a minor car accident involving
1 The complaint also alleged a violation of G. L. c. 151B's prohibition on age discrimination. At argument in the trial court, counsel conceded that at all relevant times, the plaintiff was thirty-nine years old, and therefore not within the protected class for an age discrimination claim. The plaintiff does not contest that conclusion here and has not appealed the dismissal of the age discrimination claim. his cruiser, he avers that the severity of the punishment --
termination -- was due to his race. The plaintiff emigrated to
the United States from Morocco and avers that he is Muslim-
American. Indeed, he avers that at the time of his termination,
he was the only Muslim-American State police trooper.2
The complaint was dismissed on the ground that the
complaint was filed outside the statute of limitations, and it
is from that dismissal that the plaintiff appeals. "We review
the allowance of a motion to dismiss de novo, accepting as true
all well-pleaded facts alleged in the complaint. We draw all
reasonable inferences in the plaintiff's favor and determine
whether the allegations plausibly suggest that the plaintiff is
entitled to relief on [his] legal claim." (Citations omitted.)
Fairhaven Hous. Auth. v. Commonwealth, 493 Mass. 27, 30 (2023).
The plaintiff was terminated by the MSP on November 13,
2018, according to the complaint. It is undisputed that the
statute of limitations runs "three years after the alleged,
unlawful practice occurred." G. L. c. 151B, § 9. Although
three years from termination was November 13, 2021, because of
the Supreme Judicial Court's orders regarding court operations
during the COVID-19 pandemic, if the statute of limitations
2 We assume without deciding that if his termination were due to these characteristics or his status as a person of color, it would amount to actionable race discrimination under the statute.
2 would otherwise have run on that date, it was extended until
February 28, 2022. The plaintiff, however, filed his complaint
on June 10, 2022.
At argument below, counsel for the plaintiff, who now
appears before us pro se, argued that the discovery rule tolled
the statute of limitations until, on July 1, 2019, the plaintiff
received the results of a Freedom of Information Act (FOIA)
request in which, according to the complaint, the material he
received from MSP revealed that the only alleged, comparable
disciplinary actions undertaken against probationary officers
were for acts of misconduct dramatically more serious than those
upon which his termination was based. Before us, he makes an
argument that he is entitled to equitable tolling and in the
alternative, that his counsel was ineffective in late-filing his
complaint.
Though his brief is not a model of clarity, the plaintiff
appears to raise four different arguments under the rubric of
equitable estoppel. To begin with, at one point he essentially
describes equitable estoppel as encompassing what amounts to the
discovery rule. To the extent, if any, he can be understood,
though, to raise the discovery rule, the claim is without merit.
"A cause of action will accrue when the plaintiff actually
knows of the cause of action or when the plaintiff should have
known of the cause of action." Riley v. Presnell, 409 Mass.
3 239, 244 (1991). We will assume that in a discrimination case,
that occurs when a plaintiff has "ascertained sufficient
information . . . to believe that they . . . had been subjected
to discriminatory treatment." Silvestris v. Tantasqua Regional
Sch. Dist., 446 Mass. 756, 768 (2006).
The plaintiff argued below that he only came to believe
that his termination was discriminatory when he received from
the Commonwealth, in response to his FOIA request, documents
showing that other people terminated had been found to have
engaged in far more serious misconduct than he. That date of
receipt is the only date of discovery that he asserts rendered
his filing timely.
This argument, however, founders on the fact that his
complaint –- which we must take as true for purposes of a motion
to dismiss –- states that
"[s]hortly after his termination, the Plaintiff learned that other probationary members of his recruit training class were also involved in various other forms of misconduct equal to or more egregious than that of the Plaintiff, however, those probationary employees were not terminated from their employment by the MSP. . . . None of these other probationary employees from previous classes who were investigated for, or charged with disciplinary issues, were of the same age or racial identity as the Plaintiff. . . . None of these probationary employees who received discipline short of termination were minorities."
The complaint then goes on to list seven other probationary
officers who were not minorities who were disciplined short of
termination, and at least two of whose infractions were arguably
4 more serious than the plaintiff's infractions. But the
plaintiff does not contend that his knowledge of these incidents
arose from the documents he received in response to his FOIA
request, which relate to two officers (whose racial backgrounds
are unidentified) other than the seven officers listed in the
complaint. There is also no suggestion from the plaintiff that
if the statute of limitations were triggered not on his
termination date but "shortly after his termination" when he
"learned" of these seven other disciplined probationary
officers, his complaint would as a result have been timely.
The knowledge described certainly objectively gave the
plaintiff reason to believe he had been subjected to
discriminatory treatment. Consequently the statute of
limitations began to run no later than the date on which he
acquired or reasonably could have acquired that knowledge. The
judge correctly determined that that date was not when the
plaintiff received the FOIA response, and the plaintiff
identifies no other date that would put his claims within the
limitations period. Consequently, we agree with the motion
judge that the statute of limitations had run by the time the
complaint was filed.
Plaintiff next argues that discrimination
"continues to occur whenever Mafhoum's attempts or seek [sic] any employment opportunity in a law enforcement agency, in addition to the psychological effects and
5 flashbacks he had suffered wherever the appellee passes a place he was called for service, responded to an accident and conducted his duties, till present day is reminded of the pain and suffering caused by Department of the State Police."
This was not a basis raised below for the tolling of the statute
of limitations, nor were any of the facts he alleges included in
the complaint. Consequently this argument is thus waived, and,
on this record, without merit.
The pro se plaintiff next argues that he is entitled to
equitable estoppel because he was affirmatively misled by the
defendant into not asserting a timely claim, see Andrews v.
Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996), or the
defendant encouraged or cajoled him into inaction. See Cherella
v. Phoenix Techs. Ltd., 32 Mass. App. Ct. 919, 920 (1992). But
the complaint contains no allegations of any such conduct by the
defendant. Finally, he argues that he was misled by his
attorney into inaction. But even if that were true, the actions
of one's own counsel, as opposed to the defendant, provide no
basis for equitable tolling. See Andrews, supra at 1022.
In addition to equitable estoppel, the plaintiff brings a
claim for ineffective assistance of counsel. This, however, is
a civil action, and generally one cannot obtain a new trial in a
civil case by way of a claim for ineffective assistance of
counsel.
6 "A claim of ineffective assistance of counsel is a well- established ground for a collateral attack on a decision in a criminal case. Such a claim is not a basis for a collateral attack on a civil judgment, where a litigant's sole recourse for his attorney's negligence is an action for malpractice. As a general rule, there is no right to the effective assistance of counsel in civil cases." (Citations omitted.)
Commonwealth v. Patton, 458 Mass. 119, 124 (2010). As this case
does not fall into any exception to that general rule, the
plaintiff's claim about ineffective assistance of counsel is
without merit.
Judgment affirmed.
By the Court (Rubin, Blake & Shin, JJ.3),
Assistant Clerk Entered: April 2, 2024.
3 The panelists are listed in order of seniority.