THOMAS B. FRANCIS, THIRD v. SUFFOLK COUNTY SHERIFF'S DEPARTMENT & Another.

• Court: Massachusetts Appeals Court
• Decided: March 9, 2026
• Docket: 24-P-1366
• Status: Unpublished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

24-P-1366

THOMAS B. FRANCIS, THIRD

vs.

SUFFOLK COUNTY SHERIFF'S DEPARTMENT & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Thomas B. Francis III, commenced an action

against his employer, the Suffolk County Sheriff's Department

(Department), and his supervisor (collectively "defendants"),

alleging that he was the victim of sexual harassment, age

discrimination, and retaliatory termination (retaliation). A

Superior Court judge (motion judge) allowed the defendants'

motion for summary judgment on the sexual harassment and age

discrimination claims but denied the motion on the retaliation

claims. Following a trial on the remaining retaliation claim

before a different judge (trial judge), a jury rendered a

1Deborah Driscoll, individually and in her official capacity. verdict in favor of the defendants. The plaintiff now appeals

from the order allowing partial summary judgment and from

certain rulings at trial and the denial of his motion for a new

trial.2 We affirm.

Background. "We briefly summarize the basic facts in their

light most favorable to [the plaintiff], the nonmoving party,

reserving additional facts for later discussion."3 Sullivan v.

Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The plaintiff

began his employment with the Department in 1996 as a

corrections officer. In or around 2005, the plaintiff met

Deborah Driscoll, one of his supervisors. According to the

plaintiff, he and Driscoll engaged in a sexual relationship

initiated by Driscoll. The plaintiff further contended that

after he ceased the "physical relationship," Driscoll continued

to sexually harass him "every day" from 2005 until 2011.

In 2011, the plaintiff applied for a promotion. The

Department erroneously graded his promotional exam which

prohibited him from moving forward in the promotional process.

After review, however, his score was corrected and the plaintiff

2 The plaintiff does not appeal any issues related to his age discrimination claim.

3 We recite the facts related to summary judgment as drawn from the record provided at summary judgment. All facts related to issues at trial are drawn from the evidence at trial.

2 moved forward in the process. Ultimately, the plaintiff was not

promoted. Driscoll told the plaintiff that she had a role in

promotional decisions and did not want him to be promoted. The

plaintiff registered complaints with the Department's Chief of

Staff Anne Powers, the Department's Superintendent, and

Driscoll. He also met in person with Powers and a Department

lawyer to explain that he was experiencing sexual harassment,

age discrimination, and retaliation.

On July 18, 2012, the plaintiff served a one-day suspension

for infractions and insubordination while assigned to the

maintenance division. The plaintiff did not return to work

following his suspension and was instead approved for medical

leave from July 19, 2012, through March 11, 2013, under the

Family Medical Leave Act.4 The plaintiff claimed that he needed

medical leave because, inter alia, the defendants failed to

provide a harassment and discrimination-free workplace, which

caused him to be unable to return to work. On July 31, 2013,

after the plaintiff did not return to work, the Department

administratively terminated his employment.5

4 The plaintiff was granted an extension of his medical leave until July 26, 2013.

5 Department policy permits medical leave for one year following which employees are asked to return to work. "If the employee is unable to return to work, either with or without reasonable accommodations, s/he is administratively terminated."

3 On July 18, 2012, the plaintiff submitted a written

complaint to the Massachusetts Commission Against Discrimination

(MCAD) claiming retaliation by his supervisors. On July 24,

2012, the plaintiff attempted to provide additional information

to the MCAD by communicating allegations of sexual harassment

and discrimination. However, he did not submit a formal

complaint. On February 3, 2014, an MCAD investigator sent an e-

mail message to the plaintiff, informing him that the

information that he had submitted on July 24, 2012, regarding

alleged sexual harassment, did not comply with the requirements

to amend his complaint. The MCAD investigator wrote that she

only received correspondence from him asking to amend his

complaint to add five individuals to his claim. Then, on

January 30, 2014, the plaintiff amended his complaint to add

sexual harassment and "Age Retaliation Discrimination" claims.

On August 1, 2014, the plaintiff withdrew his MCAD

complaint and on August 12, 2014, the MCAD dismissed the

plaintiff's complaint. On October 21, 2014, the plaintiff filed

his initial complaint in the Superior Court. On February 14,

2018, the plaintiff filed an amended complaint in the Superior

Court. The defendants moved for summary judgment arguing, of

most relevance here, that the plaintiff could not prove

retaliation and that his sexual harassment and age

4 discrimination charges were time barred because he did not file

his complaint within 300 days "after the alleged act of

discrimination" as required by G. L. c. 151B, § 5. The judge

allowed the defendants' motion for summary judgment in part,

reasoning that the plaintiff had failed to timely file his

complaints of sexual harassment and age discrimination and that

the doctrine of equitable tolling did not apply. The judge

denied the defendants' motion for summary judgment as to the

plaintiff's retaliation claim.

At trial on the remaining retaliation claims, the plaintiff

attempted to introduce evidence of the Department's termination

of another employee, Joseph Ciccia, under the same

administrative policy. In essence, the plaintiff claimed that

Ciccia alleged that he suffered sexual harassment while working

at the Department; complained about it; and was "retaliated

against once he made the complaints." The plaintiff claimed at

trial that this evidence of Ciccia's termination would

demonstrate that the Department used administrative termination

as a pretext for retaliation against employees who made

complaints against the Department. The Department objected to

the introduction of this evidence and the judge determined that

the Ciccia evidence, even if of "marginal relevance," was

"substantially outweighed by the risk of prejudice, confusion of

5 the jury," and the addition of an "enormous" amount of new

testimony, and thus excluded that proposed evidence.

On February 22, 2024, the plaintiff filed a motion for new

trial, which was denied. This appeal ensued.

Discussion. 1. Summary judgment. In evaluating the

plaintiff's appeal from a summary judgment order, we review the

summary judgment record de novo in the light most favorable to

the plaintiff, drawing all reasonable inferences in his favor.

See Sullivan, 444 Mass. at 38.

a. Late filing. For the first time on appeal the

plaintiff argues that a memorandum dated September 3, 2012, was

filed with the MCAD within the statutory period and thus his

filing was timely.6 This argument is unavailing.

At the time, Superior Court rule 9A(b)(5)(ii) required that

the party opposing summary judgment "set forth a response to

each [statement of fact] directly below the appropriate numbered

paragraph, including, if the response relies on opposing

evidence, page or paragraph references to supporting pleadings,

depositions, answers to interrogatories, responses to requests

for admission, affidavits, or other evidentiary documents."

6 The statute of limitations for violations of G. L. c. 151B begins to run as soon as a discriminatory act occurs. The plaintiff's deadline to file his sexual harassment claim with the MCAD was August 6, 2012.

6 Rule 9A(b)(5)(ii) of the Rules of Superior Court (2017). The

opposing party is required to make "specific contradiction[s],

. . . with the support of record reference, in order to preserve

a dispute of material fact. The omission of a specific denial

or contradiction particularly grounded in the summary judgment

record results in an effective admission." Poon v.

Massachusetts Inst. of Tech., 74 Mass. App. Ct. 185, 193 n.7

(2009).

Here, the judge did not err in finding that there was no

dispute as to whether the plaintiff's complaint was timely

filed.7 In response to the defendants' statement of fact that

the plaintiff amended his MCAD complaint to include sexual

harassment on January 14, 2014, the plaintiff's response

included only the word "denied" without citation to the

memorandum the plaintiff now relies on to claim that the judge

erred. Indeed, in the entire Statement of Undisputed Facts

there is not a single reference to the memorandum the plaintiff

now cites to show that he properly filed a complaint for sexual

7 Our review is hampered by the confusing and incomplete summary judgment record filed on appeal. This includes a lack of clarity as to whether versions of certain documents were or were not presented to the judge at summary judgment. We note that neither party sought to correct or modify the record on appeal pursuant to Mass. R. A. P. 8 (e), as appearing in 481 Mass. 1611 (2019).

7 harassment within the 300 days required by G. L. c. 151B, § 5.

Thus, because the plaintiff failed in this instance to cite any

"specific evidence . . . in the Joint Appendix that demonstrates

the dispute" the entry of partial summary judgment was

appropriate (citation omitted).8 Meehan v. Lazer Spot, Inc., 104

Mass. App. Ct. 690, 691 n.3 (2024). See Sullivan, 444 Mass. at

46 n.18.

b. Equitable tolling. In the alternative, the plaintiff

argues that equitable tolling should apply because he was misled

by the MCAD. This argument too is unavailing.

Equitable tolling "is applicable only where the prospective

plaintiff did not have, and could not have had with due

diligence, the information essential to bringing suit."

Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 635 (1997).

We first address the plaintiff's argument made at summary

8 In neither the undisputed statement of facts nor in the plaintiff's motion or memorandum of law in support of his motion for summary judgment did the plaintiff cite to the alleged amended complaint he now relies on to contend that he satisfied the 300-day filing requirement. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). The plaintiff never put the judge on notice that he opposed summary judgment on the theory that the document dated September 3, 2012, constituted an amended complaint. Cf. Douillard v. LMR, Inc., 433 Mass. 162, 168 n.3 (2001) (no waiver because not separate "theory" of recovery). Thus, this new argument is waived. See Century Fire & Marine Ins. Corp., supra.

8 judgment. There, he contended that his difficulties at work

"led [him] to give up his initial pursuit" of a sexual

harassment claim. This argument alone does not support

equitable tolling as it does not suggest the plaintiff did not

have "information essential to bringing suit." Id. To the

contrary, he describes his failure to amend the complaint as a

"lapse of judgment," not as a lack of information. Thus,

equitable tolling does not apply here.

We next address the plaintiff's contention that the MCAD

misled him by failing to inform him until January 31, 2024, that

his sexual harassment charge was not included. "An issue not

raised or argued below may not be argued for the first time on

appeal" (citation omitted). Carey v. New England Organ Bank,

446 Mass. 270, 285 (2006). Here, the plaintiff is making the

argument that he was misled by the MCAD for the first time on

appeal, thus this argument is not properly before us. Moreover,

as discussed supra, the mere fact that this e-mail message was

an exhibit at summary judgment does not satisfy Rule 9A of the

Rules of the Superior Court. See Poon, 74 Mass. App. Ct. at 193

n.7.

2. Exclusion of evidence at trial. The plaintiff next

argues that the judge's exclusion of the Ciccia evidence

constituted error. We disagree.

9 A judge's decision to admit or exclude evidence is reviewed

for an abuse of discretion. See Zucco v. Kane, 439 Mass. 503,

507 (2003). Relevant evidence may be excluded "if its probative

value is substantially outweighed by a danger of . . . unfair

prejudice." Mass. G. Evid. § 403 (2023). "[A] judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made a clear error of judgment in weighing

the factors relevant to the decision, such that the decision

falls outside the range of reasonable alternatives" (quotation

and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). "We will not reverse such decisions unless there

is palpable error." Carrel v. National Cord & Braid Corp., 447

Mass. 431, 446 (2006).

In this case, the judge considered the relevance of

Ciccia's purported accusations and determined that the evidence

was, at most, of marginal relevance. Moreover, the judge noted

that discussing Ciccia's complaint would "take a right turn down

a long road . . . for something that has minimal relevance."

Indeed, discussion of Ciccia's termination would require a trial

within a trial to determine if his firing was retaliatory when

Driscoll was not involved with Ciccia at all. It is clear from

the record that the judge considered the relevance of the

evidence and determined that its probative value was minimal

10 compared to its likelihood of delaying the trial and confusing

the jury.9 Thus, we discern no abuse of discretion.

Judgment and order denying motion for new trial affirmed.

By the Court (Neyman, D'Angelo & Allen, JJ.10),

Clerk

Entered: March 9, 2026.

9 In his brief, the plaintiff discusses the specific allegations made by Ciccia in his civil complaint, which were not raised to the judge at trial. Because these arguments are raised for the first time on appeal, we do not address them. See Century Fire & Marine Ins. Corp., 405 Mass. at 421 n.2.

10 The panelists are listed in order of seniority.