Parker v. Town of North Brookfield

• Decision Date: 15 February 2007
• Docket Number: No. 06-P-167.,06-P-167.
• Citation: 861 N.E.2d 770,68 Mass. App. Ct. 235
• Parties: Sheryl PARKER v. TOWN OF NORTH BROOKFIELD.
• Court: Appeals Court of Massachusetts

861 N.E.2d 770 68 Mass. App. Ct. 235 Sheryl PARKER
v.
TOWN OF NORTH BROOKFIELD. No. 06-P-167. Appeals Court of Massachusetts, Worcester. Argued October 5, 2006. Decided February 15, 2007.

[861 N.E.2d 771]

Gary H. Goldberg, Worcester, for the plaintiff.

Nancy Frankel Pelletier, Springfield, for the defendant.

Present: GREENBERG, SMITH, & GELINAS, JJ.

GELINAS, J.

Sheryl Parker, employed by the town of North Brookfield (town) as "dog officer/animal control officer,"¹ was discharged effective July 1, 2004, when her position was eliminated and moved to the police department. As a town employee, Parker was eligible to obtain health insurance benefits

68 Mass. App. Ct. 236

from the town pursuant to G.L. c. 32B. However, when she requested enrollment in the town's insurance plan upon commencement of the new fiscal year, the town terminated Parker and eliminated her position. The town made this decision purely on the basis of avoiding the cost of providing her with insurance. Parker filed a three-count complaint: violation of G.L. c. 32B (count I); wrongful termination in violation of public policy (count II); and gender discrimination in violation of G.L. c. 151B (count III). After brief discovery, the parties agreed to a joint stipulation of facts, and filed cross motions for summary judgment on counts I and II of the complaint. A Superior Court judge allowed the town's motion and denied that of Parker. The parties then jointly stipulated to dismissal of count III, the complaint for violation of G.L. c. 151B. The court entered final judgment, dismissing count III and granting summary judgment to the town on counts I and II. Parker's appeal is now before us.

We take the facts from the parties' joint stipulation, presented to the court in support of the cross motions for summary

861 N.E.2d 772

judgment, and adopted by the judge as the basis for his decision.² In sum, Parker qualified for benefits under G.L. c. 32B, which the town had adopted. For many years she chose not to apply for the benefits, as she had insurance coverage by virtue of simultaneous employment by another municipality. In early 2004 she notified the town selectmen that she wished to enroll in the town's G.L. c. 32B plan as of July 1, 2004. In meetings following the request, the selectmen discussed the high cost of insurance and determined to end Parker's employment at the close of the fiscal year, transferring the functions of her position to the police department. Parker's employment ended and she commenced

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this action. In his decision, the judge first concluded, contrary to the town's contention at the hearing on summary judgment,³ that Parker enjoyed a private right of action, although G.L. c. 32B does not expressly confer such a right. He then concluded that Parker's termination was neither a violation of c. 32B nor against public policy. We agree.

1. Private right of action. Inquiry into whether a statute provides for a private right of action usually begins with consideration of whether the plaintiff "is one of the class for whose benefit the statute was enacted, or to put it otherwise, whether the statute creates a right in favor of the plaintiff distinct from the public at large." All Brands Container Recovery, Inc. v. Merrimack Valley Distrib. Co., 54 Mass.App.Ct. 297, 300, 764 N.E.2d 931 (2002). There is generally a reluctance "to infer a private cause of action from a statute in the absence of some indication from the Legislature supporting such an inference," Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 544, 689 N.E.2d 799 (1998), especially where the statute expressly provides particular remedies for its violation, id. at 547, 689 N.E.2d 799. However where, as here, a statutory right is given to a certain class of individuals, and not to the public at large, and the statute provides no remedy for enforcement of that right, "the right may be asserted by any appropriate common law remedy that is available," so that the statutory right will not prove illusory. Gabriel v. Borowy, 324 Mass. 231, 234, 85 N.E.2d 435 (1949). See Ludlow Educ. Assn. v. Ludlow, 31 Mass.App.Ct. 110, 120, 644 N.E.2d 227 (1991).

2. Violation of G.L. c. 32B. We also agree with the judge, however, that the statute does not give rise to Parker's claimed right to employment. The statute, while providing insurance benefits for those employed by the town, does not work to protect their employment status, and thus does not provide an avenue for Parker to raise a claim of wrongful termination.

The town argues, and the judge ruled, that Parker was an at-will employee, and that her application for benefits under G.L. c. 32B did not convert her status to

861 N.E.2d 773

an employee with guaranteed permanent employment. Parker argues that once adopted by the municipality, the statute prohibits the town from terminating her

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employment solely to avoid paying the expense of her health insurance.

While G.L. c. 32B provides a private right of action with respect to its subject matter, mere eligibility for the insurance does not in any way protect the employment status of a town employee. Elimination of Parker's position, resulting in her employment being terminated, does not implicate the provisions of the statute; the position, and her continued employment, bear no relationship to the purpose of c. 32B, which deals solely with insurance benefits for certain public employees.⁴ The statutory language contains no direct or indirect reference to an entitlement to employment. The legislative history makes no reference to such a right resulting from passage of the statute, nor does Parker point to any such right contemplated in the proceedings during which the town adopted the statute pursuant to G.L. c. 32B, § 10, or in the establishment of the conditions of her employment. To rule that the statute imports the right to convert an at-will position to one of guaranteed employment would encourage every at-will employee to opt for the insurance in order to guarantee continuing employment, thus substantially hampering the town's ability to maintain at-will positions in its work force, a result clearly not contemplated in the statute.

This result would be especially contradictory with respect to certain at-will employees, such as town dog officers, who are subject to annual appointment. See G.L. c. 140, § 151.⁵ Although the parties' stipulation does not identify the origin of

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or the terms under which Parker was retained as dog officer,⁶ under Parker's reading of G.L. c. 32B, any employee appointed by the town as dog officer for the term of one year could immediately thwart the town's right and obligation to make an annual appointment merely by opting into the insurance provisions of c. 32B. Such an outcome would fail to attribute to the Legislature "certain commonsense general purposes," Dedham v. Labor Relations Commn., 365 Mass. 392, 402, 312 N.E.2d 548 (1974), that permit a reading of the statutes in a manner "so as to constitute a harmonious whole." Ibid., quoting from Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614, 141 N.E.2d 522 (1957). Moreover, such an interpretation would not "comport[ ] with the canons that interpretation should tend to preserve the substance of a statute rather than diminish it, ... [and] should not override common sense, ... or produce absurd or unreasonable results." Sisca v.

861 N.E.2d 774

Fall River, 65 Mass.App.Ct. 266, 272-273, 838 N.E.2d 609 (2005), quoting from Dillon v. Massachusetts Bay Transp. Authy., 49 Mass.App.Ct. 309, 315-316, 729 N.E.2d 329 (2000).

The cases cited by Parker in support of her position are inapposite. See Larson v. School Comm. of Plymouth, 430 Mass. 719, 723 N.E.2d 497 (2000) (no requirement to continue employee benefits under G.L. c. 32B after termination for cause); Ramponi v. Board of Selectmen of Weymouth, 26 Mass.App.Ct. 826, 533 N.E.2d 226 (1989) (interpreting the definition of "employee" in G.L. c. 32B); McDonald v. Town Manager of Southbridge, 39 Mass.App.Ct. 479, 657 N.E.2d 1285 (1995), S.C., 423 Mass. 1018, 672 N.E.2d 10 (1996) (eligibility of employee for coverage under c. 32B as a retiree). To adopt Parker's argument would be tantamount to a declaration that once...