Slive & Hanna, Inc. v. Mass. Comm'n Against Discrimination
| Citation | 178 N.E.3d 407 |
| Decision Date | 19 October 2021 |
| Docket Number | No. 20-P-290,20-P-290 |
| Parties | SLIVE & HANNA, INC. v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION & another. |
| Court | Appeals Court of Massachusetts |
Douglas W. Salvesen, Boston, for the plaintiff.
Lana Sullivan, for Harold B. Murphy.
Caitlin A. Sheehan, for Massachusetts Commission Against Discrimination.
Present: Rubin, Sacks, & Ditkoff, JJ.
After obtaining a judgment against its former employee Richard Shanahan, Slive & Hanna, Inc. (employer), seized Shanahan's minivan, used by his ex-wife. Rather than sell the minivan to satisfy the judgment, the employer demanded that the ex-wife convince Shanahan to drop his disability discrimination claim pending before the Massachusetts Commission Against Discrimination (MCAD). When this failed, the employer returned the minivan (after the ex-wife's parents paid the storage fees). The employer appeals from the judgment entered following the decision of a Superior Court judge denying its motion for judgment on the pleadings in part and affirming the conclusion of MCAD that these actions constituted unlawful retaliation against Shanahan for filing a discrimination claim. We conclude that, even if there is a constitutional right to levy on a writ of execution -- a question we do not decide -- it does not extend to abuse of the levying process to extort a person to drop a discrimination claim. Further concluding that the statements of the principal of the employer were not protected as settlement discussions, we affirm the judgment.
1. Background. Alex Slive and Douglas Hanna are the principals of the employer. Shanahan began working as a carpenter for the employer and eventually became a job supervisor. The employer had loaned several of its employees money in the past. On occasion, the employer would send monthly statements to the employees who had borrowed money, reminding them of their loans. The employer loaned Shanahan approximately $8,000, some of which assisted him in making his home mortgage payments. He received monthly notices regarding this loan. Shanahan admitted that he did not make any payments on the loan.
In early November 2006, after Shanahan was absent from his job for three consecutive days without proper notification to the employer, the employer terminated him. When Shanahan was terminated, Slive reminded him that he owed the employer $8,000 that had been previously loaned to him.
On September 14, 2007, Shanahan filed a complaint with the MCAD alleging discrimination by the employer.3 On October 30, 2007, the employer filed a complaint in the District Court against Shanahan seeking $8,050 in unpaid loans, overdrawn vacation time, and healthcare premiums.4 Shanahan did not file an answer or appear in the District Court action, and a default judgment entered against him.
On March 17, 2008, the employer obtained a writ of execution against Shanahan. In November 2018, a week before Thanksgiving, using the writ of execution, the employer directed deputy sheriffs to seize a minivan owned by Shanahan.5 Although Shanahan owned the minivan, his ex-wife used it to transport their three daughters. When the ex-wife saw that the minivan was towed, she called Shanahan "in a panic," and they determined that its seizure was likely the result of the unpaid loans.
The ex-wife called Slive the next day, "hysterical" (in her words), to tell him she needed the minivan to transport her children. According to the ex-wife, Slive explained to her that Shanahan owed the employer money and that it was Slive's right to seize the minivan. Slive told the ex-wife that, "if she wanted the car back, Shanahan should drop his MCAD claim." "He ultimately presented her with an ultimatum that he would release the vehicle only if she convinced [Shanahan] to drop his MCAD law suit." Because of this, Shanahan "was under pressure from his ex-wife to drop his MCAD claim and he suffered the wrath of his family and his in-laws, who all put pressure on him to resolve the matter."
Despite Slive's pressure, Shanahan did not drop his MCAD claim. Nonetheless, the employer did not sell the minivan and apply the proceeds to satisfy the judgment it had obtained. Instead, after "almost a month and several negotiations with attorneys and calls to the MCAD investigator," the employer returned the minivan to the ex-wife after her parents paid "a significant sum of money," mostly for storage fees.6 The MCAD hearing officer later found that Slive's actions in this regard "were undertaken with retaliatory motive to punish Shanahan for filing an MCAD complaint, to compel him to give up that claim, and to deliberately chill his rights to proceed with the claim."
After the minivan was returned, Shanahan added a claim to his pending MCAD case, alleging that the employer engaged in retaliation against him for filing the discrimination complaint by filing the District Court collection action and by seizing the minivan used by his ex-wife.7 Although the hearing officer found that Shanahan failed to show that the employer was motivated by a discriminatory intent in terminating his employment, she found that the retaliation claim had merit.8 The hearing officer awarded Shanahan, since replaced by the bankruptcy trustee, $25,000 in damages for emotional distress and assessed a $5,000 civil penalty against the employer. The emotional distress award appears to be based entirely on the effects of the pressure placed on Shanahan to drop his MCAD complaint following the seizure of the minivan.
Both parties appealed to the full commission. The commission deferred to the hearing officer's factual findings and affirmed her award. The commission also awarded attorney's fees. The commission stated that, "[e]ven if the lawsuit itself was not retaliatory, the additional step of taking possession of a vehicle operated by [Shanahan's] former wife in execution of the default judgment against [Shanahan] appears to have been a spiteful action designed to pressure [Shanahan] to drop his discrimination suit."
The Superior Court judge, ruling on the parties’ cross motions for judgment on the pleadings, found "both that the Lawsuit had a good faith basis in law and fact and [the employer's] purpose was to seek redress for its legal rights, i.e., get its money back," and as such, that "the filing of the Lawsuit could not be retaliatory." Conversely, the judge found that, "although [the employer] could have lawfully executed the judgment [it] obtained, as [it] did in placing a lien on Shanahan's home, [there was] no error in the MCAD's conclusion that [the employer's] conduct in taking possession of the van and then trying to trade its right to execute for the dismissal of Shanahan's MCAD complaint was retaliatory conduct prohibited by [G. L. c.] 151B." Ultimately, the judge affirmed the MCAD award in its entirety.9 This appeal followed.
2. Standard of review. "The standards of judicial review set forth in the Administrative Procedure Act, G. L. c. 30A, § 14, ... regulate judicial review of a final order of the MCAD." Sy v. Massachusetts Comm'n Against Discrimination, 79 Mass. App. Ct. 760, 763, 950 N.E.2d 75 (2011). See G. L. c. 151B, § 6. General Laws c. 30A, § 14 (7), "requires us to determine whether a party's substantial rights were prejudiced because the decision was in violation of constitutional provisions, based on an error of law or unlawful procedure, or unsupported by substantial evidence." 15 LaGrange St. Corp. v. Massachusetts Comm'n Against Discrimination, 99 Mass. App. Ct. 563, 567-568, 171 N.E.3d 178 (2021). "Like judicial review of final decisions of other agencies, review of decisions of the MCAD requires ‘due weight [be given] to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.’ " Sy, supra at 763-764, 950 N.E.2d 75, quoting G. L. c. 30A, § 14 (7). "In reviewing an agency decision, we exercise de novo review on questions of law, giving ‘substantial deference to a reasonable interpretation of a statute by the administrative agency charged with its ... enforcement.’ " Craft Beer Guild, LLC v. Alcoholic Beverages Control Comm'n, 481 Mass. 506, 512, 117 N.E.3d 676 (2019), quoting Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481, 852 N.E.2d 1061 (2006). "We review the judge's decision de novo." 15 LaGrange St. Corp., supra at 568, 171 N.E.3d 178.
3. Constitutional right to petition. General Laws c. 151B, § 4 (4), "makes it unlawful for ‘any person ... to discharge, expel or otherwise discriminate against any person because he has ... filed a complaint, testified or assisted in any proceeding under [ G. L. c. 151B, § 5 ],’ [and] § 4 (4A) makes it unlawful for ‘any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.’ " Psy-Ed Corp. v. Klein, 459 Mass. 697, 706, 947 N.E.2d 520 (2011).10 This prohibition, however, is limited by an employer's right to petition the courts under the First Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights. See Sahli v. Bull HN Info. Sys., Inc., 437 Mass. 696, 700-702, 774 N.E.2d 1085 (2002).
"The United States Supreme Court has recognized the right to petition the government, including the courts, as one of ‘the most precious of the liberties safeguarded by the Bill of Rights.’ " Sahli, 437 Mass. at 702, 774 N.E.2d 1085, quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). "[I]n the labor context, the [United States Supreme] Court has held that the First Amendment protects ‘[t]he filing and prosecution of a well-founded lawsuit [from being]...
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