Rosario v. Caring Bees Healthcare, Inc.
| Decision Date | 05 April 2023 |
| Docket Number | 21-P-728 |
| Parties | ANAIS J. ROSARIO v. CARING BEES HEALTHCARE, INC., & another.[1] |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), 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).
In this case we address whether statements made to private individuals by a person alleging sexual harassment constitute petitioning activity protected by G. L. c. 231, § 59H the "anti-SLAPP" statute. Anais Rosario claimed that she worked briefly for Caring Bees Healthcare (Caring Bees) until being assaulted by her supervisor, Jean Karangwa. Rosario made statements about Karangwa to private individuals. Nine months later, she filed a civil action against Caring Bees and Karangwa, and Karangwa filed counterclaims for defamation and intentional infliction of emotional distress based upon Rosario's statements to the private individuals. Rosario filed a special motion to dismiss the counterclaims under G. L. c. 231, § 59H and asserted that her statements qualified as petitioning activity. A Superior Court judge concluded that her statements did not constitute petitioning activity and denied the special motion to dismiss. We agree and affirm.
Background.
We summarize the facts from "the pleadings and supporting and opposing affidavits." G. L. c. 231, § 59H.
In October of 2017, Caring Bees hired Rosario as a payroll and scheduling clerk. Over the next several weeks, Rosario allegedly suffered recurrent sexual harassment. According to Rosario, Karangwa, who was her supervisor, repeatedly made sexual comments to her, sent her an inappropriate video, and ultimately assaulted her by "grab[bing] her vaginal area." Rosario reported these events to three private individuals. The day after receiving the video, she told a co-worker that Karangwa sent her a "sexually explicit and inappropriate video." On the same day of the alleged sex assault, Rosario texted the co-worker that "Karangwa had just grabbed her vaginal area." Also on that day, Rosario told her mother "what had happened." Later that day, Rosario told a second co-worker that Karangwa was a "pervert" and a "molester."
Rosario also reported these events to the government. On the day of the alleged assault, November 15, 2017, Rosario filed an incident report with the Boston Police Department and reported that Karangwa sent her sexually charged text messages, shared the video, and assaulted her. On January 19, 2018, Rosario filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and reported the assault, the video, and sexual comments made by Karangwa and others. In May 2018, Rosario withdrew the MCAD complaint and indicated that she intended to file a civil action. On July 2, 2018, Rosario filed a complaint (later amended) under G.L. c. 151B in the Superior Court and alleged Karangwa repeatedly made sexual comments to her, sent her an inappropriate video, and ultimately assaulted her. Rosario also alleged that she told a co-worker about the video and told her mother and a co-worker about the assault. On August 20, 2018, Karangwa filed counterclaims. He alleged that the following statements by Rosario to co-workers and her mother constituted defamation and subjected him to emotional distress: (1) Karangwa sent her a "pornographic" video; (2) Karangwa was a "molester" and a "pervert"; and (3) Karangwa "grabbed her vaginal area."
Rosario filed a special motion to dismiss Karangwa's counterclaims under G. L. c. 231, § 59H. That statute protects a party's constitutional right to petition the government by providing a process "to dispose expeditiously of merit less lawsuits that may chill petitioning activity." Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 166 (1998) (Duracraft). Rosario argued that the counterclaims constituted such an effort to chill her petitioning activity. The Superior Court judge "[a]ssum[ed] without deciding" that Rosario's pre-litigation statements constituted petitioning activity, but the judge denied the motion to dismiss because the counterclaims were not primarily brought to chill those activities. Rosario appealed.
In an unpublished memorandum and order, a panel of this court vacated the order and remanded the matter to enable the judge to assess whether the statements constituted petitioning activity. Rosario v. Caring Bees Healthcare, Inc., 97 Mass.App.Ct. 1122 (2020). See Duracraft, 427 Mass. at 167-168, quoting G. L. c. 231, § 59H (). On remand, the judge concluded that none of Rosario's statements to private individuals constituted petitioning activity under the statute and again denied Rosario's special motion to dismiss. Rosario now appeals this second denial.
Discussion.
Rosario bears the burden of demonstrating that her conduct constitutes petitioning activity. Duracraft, 427 Mass. at 167-168. The governing statute, G. L. c. 231, § 59H, sixth par. Defines "a party's exercise of its right of petition" as follows:
"[1] any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; [2] any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; [3] any statement reasonably likely to encourage consideration or review of an issue by legislative, executive, or judicial body or any other governmental proceeding; [4] any statement reasonably likely to enlist public participation in an effort to effect such consideration; or [5] any other statement falling within constitutional protection of the right to petition government.
Rosario contends that her statements to private individuals constitute petitioning activity, or are at least reasonably likely to encourage consideration and to enlist public participation in her claims to the police, MCAD, and the Superior Court. Based upon our "de novo" review of the record in this case, we conclude that Rosario has not met her burden of demonstrating that her statements to private individuals constitute petitioning activity. Haverhill Stem LLC v. Jennings, 99 Mass.App.Ct. 626, 631 (2021). See Reichenbach v. Haydock, 92 Mass.App.Ct. 567, 572 &n.14 (2017) ( rationale for standard of review).
"The right to petition a governmental body for redress of a grievance is the very essence of petitioning activity." North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 863 (2009) (North American). "The typical mischief that the legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Duracraft, 427 Mass. at 161. The objective of SLAPP suits is not to win them, but to intimidate people for "reporting violations of law, writing to government officials, attending public hearings, testifying before government bodies, circulating petitions for signature, lobbying for legislation, campaigning in initiative or referendum elections, filing agency protests or appeals, being parties in law-reform lawsuits, and engaging in peaceful boycotts and demonstrations." Id. at 161-162, quoting Pring, SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace Envtl. L. Rev. 3, 5 (1989). While broadly written, the anti-SLAPP statute "has its limits." Kobrin v. Gastfriend, 443 Mass. 327, 336 (2005). In order to determine if statements constitute petitioning activity under the statute, courts "consider them in the over-all context in which they were made." North American, 452 Mass. at 862.
At the time she made her statements to her co-workers and her mother, Rosario was not engaged in petitioning activity under the statute because her statements lacked the "essence of petitioning activity" -- contact with the government -- or at the very least efforts to "reach governmental bodies" (citation omitted). North American, 452 Mass. at 862, 863. See Kobrin, 443 Mass. at 330 (petitioning involves "seeking from the government any form of redress for a grievance"); Garabedian v. Westland 59 Mass.App.Ct. 427, 433 (2003) (). Rosario's private statements "lacked the characteristics of petition" contemplated by G. L. c. 231, § 59H. Garabedian, supra at 432. Characteristics of petitioning activity typically include a statement, report, complaint, request, or demand to a government entity. See, e.g., Benoit v. Frederickson, 454 Mass. 148, 153 (2009) (); Dever v. Ward, 92 Mass.App.Ct. 175, 179 (2017) (); O'Gara v. St. Germain, 91 Mass.App.Ct. 490, 497 (2017) (). Petitioning may also take the form of filing a lawsuit or taking other court action. See, e.g., 477 Harrison Ave., LLC v. JACE Boston, LLC, 477 Mass. 162, 165-167 (2017) (...
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