ROBERT MAHONEY v. TOWN OF FRANKLIN & Others.

• Court: Massachusetts Appeals Court
• Decided: March 3, 2023
• Docket: 22-P-0164
• Status: Unpublished

Opinion

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

22-P-164

ROBERT MAHONEY

vs.

TOWN OF FRANKLIN & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Robert Mahoney, a firefighter for the town

of Franklin, timely appeals from a judgment of the Superior

Court dismissing his nine-count complaint raising six tort

claims, two harassment and discrimination claims, and one breach

of contract claim. For the reasons stated below, we affirm.

We review de novo the allowance of a motion to dismiss.

FBT Everett Realty, LLC v. Massachusetts Gaming Comm'n, 489

Mass. 702, 718 (2022). The relevant inquiry is whether the

factual allegations of the complaint, accepted as true, "are

'sufficient, as a matter of law, to . . . plausibly suggest an

entitlement to relief.'" Id., quoting Dunn v. Genzyme Corp.,

1 Franklin Fire Department, Retired Chief Gary McCarraher, International Association of Firefighters, Local 2637 Union, Robert Vallee, Charles Allen, Thomas Carlucci, Robert Dellorco, Andrew Bissanti, Jeffrey Nutting, and Stephanie Lutz. 486 Mass. 713, 717 (2021). We address each category of

Mahoney's claims in turn.

1. Tort claims. Mahoney's tort claims are subject to a

three-year statute of limitations. See G. L. c. 258, § 4; G. L.

c. 260, § 2A; Flynn v. Associated Press, 401 Mass. 776, 782

(1988). The statute of limitations begins to run when "the

plaintiff knows, or should have known, that [he] has been harmed

by the defendant[s'] conduct." Silvestris v. Tantasqua Regional

Sch. Dist., 446 Mass. 756, 766 (2006). Most of Mahoney's tort

claims arose from the defendants' alleged wrongful acts,

statements, and practices that started in the fall of 2015 and

ended in Mahoney's demotion from acting captain to town

firefighter/paramedic in May 2016. In his complaint, Mahoney

alleged that "he was made aware of his demotion" by the fire

chief "on or about May 12, 2016." Mahoney thus knew or should

have known that he was harmed by the defendants' conduct at that

time. Therefore, Mahoney's tort-based claims in his complaint

filed on February 23, 2021, were time-barred. Accordingly, it

was proper to dismiss Mahoney's tort claims.2

2 In his brief Mahoney argues it was not until 2020 that he became aware of certain negotiations "held on his behalf" between the town and the union. Mahoney does not explain, however, how any such negotiations, even if they caused him any injury, enlarged the time for him to file suit. "The plaintiff need not know the full extent of the injury before the statute [of limitations] starts to run." Bowen v. Eli Lilly & Co., 408 Mass. 204, 207 (1990).

2 2. Age discrimination and sexual harassment claims. Under

G. L. c. 151B, § 9, Mahoney was required to file a civil action

in court for age and sexual harassment "not later than three

years after the alleged unlawful practice occurred." According

to his complaint, the first unlawful practice occurred when he

was demoted on or about May 12, 2016, and the second unlawful

practice of unwelcome and offensive notes and continuing

harassment occurred on or about July 8, 2016. Thus, the three-

year statute of limitations ran on both claims before Mahoney

filed his complaint in the Superior Court. See Babco Indus.,

Inc. v. New England Merchants Nat'l Bank, 6 Mass. App. Ct. 929,

929 (1978) ("A motion to dismiss under Mass. R. Civ. P.

12 (b) (6), 365 Mass. 755 (1974), lies against a complaint which

shows on its face that the statute of limitations has run prior

to the date the action was commenced").

Mahoney claims, without reference to any particular case,

that the statute of limitations was tolled because he filed an

action with the Massachusetts Commission Against Discrimination

(MCAD) and he did not receive a decision by MCAD until 2020.

While it is true that a plaintiff must file an administrative

claim with the MCAD prior to filing a civil suit under G. L.

c. 151B, a plaintiff is not required to wait until a

determination is made by MCAD prior to filing a suit. See

Everett v. 357 Corp., 453 Mass. 585, 599-601 (2009). The filing

3 of a complaint with the MCAD is insufficient to toll the statute

of limitations. Accordingly, it was proper to dismiss Mahoney's

age discrimination and sexual harassment claims.

3. Breach of employment contract claim. The statute of

limitations for breach of an employment contract is longer than

those we have already discussed, barring suits filed after six

years from the date the claim accrued. See McCarthy v. Slade

Assoc., Inc., 463 Mass. 181, 189 n.17 (2012). Therefore, this

claim is not time-barred. However, we conclude, as did the

Superior Court judge, that the allegations of the complaint are

inadequate to state a claim for breach of an employment

contract. Mahoney's complaint alleges that on October 21, 2014,

a short list of eligible individuals for promotion was

established. Mahoney and two others were included on this list.

David Baker, the individual who was ultimately promoted to

acting captain instead of Mahoney in accordance with the

collective bargaining agreement (CBA), was not on the list.

Mahoney alleged that Baker's appointment violated personnel

administration rules and, as a result, the defendants breached

an unidentified "employment contract" with him. Assuming

arguendo that the CBA is the employment contract that the

defendants are alleged to have breached, the complaint does not

allege any specific provision of the CBA that the defendants

violated. Mahoney's brief, which asserts without any record

4 support (he relies instead on unspecified "information" provided

by the union) that the "short list" rule was based on the CBA,

does not clarify the matter any further. Absent adequate

allegations or argument regarding the "employment contract" and

breach, Mahoney has failed to state a claim for relief. See

Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 690 (2016).

Judgment affirmed.

By the Court (Massing, Sacks & Walsh, JJ.3)

Clerk

Entered: March 3, 2023.

3 The panelists are listed in order of seniority.