Lopez v. Commonwealth

Cordy, J.

(dissenting in part). I agree with the court’s conclusion that the Commonwealth’s human resources division (division) is not the employer of the plaintiff police officers in this case, and the plaintiffs do not have a cause of action against it or its personnel administrator under G. L. c. 151B, § 4 (1), (4), or (5), or G. L. c. 93, § 102. The employers of the police officers are the municipalities that hire and promote them. Those municipalities may elect to use the written examinations prepared by the division to assist in the promotional process, or they may conduct their own alternative promotional examinations, including supplementing the division’s examinations with performance assessments. Although the plaintiffs may have a cause of action under these and other statutory provisions against their employ*716ers (which they are pursuing in Federal court), they do not have one against the Commonwealth.1

I disagree with the court’s conclusion that an interference claim under G. L. c. 151B, § 4 (4A) (§ 4 [4A]), can be established against a third-party nonemployer without some showing of discriminatory intent. Such a conclusion is contrary to the statute’s purpose and intent as determined through the application of accepted principles of statutory construction. Consequently, I respectfully dissent.

In the context of employment, it is unlawful for an employer to discriminate against any individual because of race. G. L. c. 151B, § 4 (1). There are two accepted manners by which such employment discrimination can be demonstrated in litigation: either by way of disparate treatment (which requires a showing of discriminatory intent) or by way of disparate impact (which does not require a showing of discriminatory intent). The availability of each is dependent on the statutory language creating the cause of action. Compare Currier v. National Bd. of Med. Examiners, 462 Mass. 1, 16 (2012) (“discrimination claims set forth under the cognate Federal provisions to the equal rights act require intentional discrimination and do not permit a plaintiff to proceed under a ‘disparate impact’ analysis”), with School Comm. of Braintree v. Massachusetts Comm’n Against Discrimination, 377 Mass. 424, 429 n.10 (1979) (noting § 4 is susceptible to both disparate impact and disparate treatment claims).

In addition to barring employment discrimination by employers, § 4 (4A) also makes it unlawful “[f]or any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected” by G. L. c. 151B. The question we must answer in this case is whether a claim under § 4 (4A) can be maintained without an allegation or evidence that the “person” at issue, here the Commonwealth through its division, promulgated the promotional examinations taken by the plaintiffs with the intent and purpose *717of discriminating against them on account of their race. The answer to the question is dependent on the statutory language creating the cause of action.

There is no dispute that the words “coerce,” “intimidate,” and “threaten” that precede the word “interfere” in § 4 (4A) are each imbued with an element of purposefulness or intent. See Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994) (construing language of Massachusetts Civil Rights Act [G. L. c. 12, § 11H]). Specifically, coercion is “the active domination of another’s will”; intimidation involves “putting in fear for the purpose of compelling or deterring conduct”; and threatening “involves the intentional exertion of pressure to make another fearful or apprehensive of injury or harm.” Id. Their presence in § 4 (4A) suggests that a cause of action brought thereunder requires such a showing. Consequently, the plaintiffs understandably seek to exploit the only ambiguity in the provision: the word “interfere.” However, their argument for a broad reading that would shoehorn their claim into a provision which, for all other purposes, requires a showing of discriminatory purpose or intent is unpersuasive in light of our well-established canons of statutory interpretation.

It is fundamental that “statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Sullivan v. Brookline, 435 Mass. 353, 360 (2001). Where, as here, the plain meaning of “interfere” is open to competing interpretations,2 we have relied on the doctrine of ejusdem gen-eris in discerning legislative intent. See Commonwealth v. Zubiel, 456 Mass. 27, 31 (2010); Banushi v. Dorfman, 438 Mass. 242, 244 (2002); Richardson v. Danvers, 176 Mass. 413, 414 (1900). “This principle . . . ‘allow[s] the specific words to identify the *718class and [restricts] the meaning of general words to things within the class.” Commonwealth v. Zubiel, supra, quoting 2A N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47.17, at 379 (7th ed. 2007). Application of ejusdem generis is particularly “appropriate when a series of several terms is listed that concludes with the disputed language.” Banushi v. Dorfman, supra. In such a statutory enumeration, “the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Id., quoting 2A N.J. Singer, Sutherland Statutory Construction § 47.17, at 273-274 (6th ed. rev. 2000)

In light of this applicable principle of statutory construction, I would conclude that an interference claim under § 4 (4A) requires a showing of the same type of purposeful or discriminatory intent as is plainly required by acts that would constitute coercion, threats, or intimidation.3

The guiding principle for analyzing the present case was articulated in Sahli v. Bull HN Info. Sys., Inc., 437 Mass. 696, 700 (2002), where an employer brought a declaratory judgment action against a former employee who, after signing a release of liability, had brought an age discrimination claim against the employer. The employee responded by filing a second discrimination claim, alleging that the filing of the declaratory judgment action was retaliation under § 4 (4) and threats, intimidation, coercion, and interference under § 4 (4A). In rejecting both claims, which we clarified constituted “separate and independent causes of action,” id., we held that an “employer does not violate the provisions of either § 4 (4) or § 4 (4A), absent evidence that the employer’s purpose is other than to stop conduct it reasonably believes violates the terms of the contract” (emphasis added). Sahli v. Bull HN Info. Sys, Inc., supra at 705, *719707. The only logical inference to be drawn from the Sahli decision is that a cause of action under § 4 (4A) requires some type of unlawful purpose on the part of a defendant. In this light, the court’s newfound recognition of disparate impact liability under § 4 (4A) significantly undercuts our own precedent.

Today’s decision is also inconsistent with other interpretations of the statute. For instance, in Woodason v. Norton Sch. Comm., 25 Mass. Discrimination L. Rep. 62 (2003),4 the Massachusetts Commission Against Discrimination (commission) rejected a discrimination claim under § 4 (4A) because the evidence failed to “establish the requisite 'intent to discriminate’’ ” (emphasis in original). Id. at 64. There, and in sharp contrast to the commission’s present position as amicus, the commission criticized a commissioner in a previous case involving § 4 (4A) for asserting that “ ‘interfere’ stands on its own” and must be construed liberally in light of G. L. c. 152B, § 9. Id., quoting Bendell v. Lemax Inc., 22 Mass. Discrimination L. Rep. 259, 262 (2000). To the contrary, the commission held, “In construing the word ‘interfere’ to give no import to the strong language surrounding it would be misguided,” and therefore to be held liable, a person must have, “at the very least, ‘interfered’ with another’s rights in a manner that was in deliberate disregard of those rights.” Woodason v. Norton Sch. Comm., supra.

Similarly, in Canfield v. Con-Way Freight, Inc., 578 F. Supp. 2d 235, 242 (D. Mass. 2008), the court, applying Massachusetts law, adopted the Woodason interpretation of “interference.” In denying a § 4 (4A) claim, the District Court judge noted that, because there was no evidence of “deliberate disregard,” which “requires an ‘intent to discriminate,’ ” the defendants could not be held liable for interference discrimination. Canfield v. Con-Way Freight, Inc., supra at 242, 243.

While language creating a cause of action may often be broad *720enough to pave the way either for a disparate impact or disparate treatment path to discrimination liability, that is not the case here. If the Legislature had sought to create a broader spectrum of liability, especially against persons who are not employers, it could have employed in § 4 (4A) the type of broad language it employed in § 4 (1). It did not, and absent a clear expression of such a purpose, I would not judicially graft a theory of liability onto the statute, particularly when doing so would be abrasive to our precedent and long-standing principles of statutory interpretation on which the Legislature should properly be able to rely. See Commonwealth v. Zubiel, supra at 31; Sahli v. Bull HN Info. Sys., Inc., supra at 707.

Therefore, I respectfully dissent.

As the court correctly notes, ante at 701-702, the Commonwealth is considered a “person” under G. L. c. 151B, § 4 (4A), and has thus waived sovereign immunity for purposes of claims under that subsection. See G. L. c. 151B, §§ 1, 4 (4A).

The American Heritage Dictionary defines “interfere” as “[t]o be or create a hindrance or obstacle” and “[t]o intervene or intrude in the affairs of others; meddle.” “Interfere” is listed as synonymous with “tamper,” which means “to tinker with rashly or foolishly” and “to engage in improper or secret dealings, as an effort to influence.” American Heritage Dictionary of the English Language 913, 1766 (4th ed. 2006). Although on one hand, the words “tamper,” “meddle,” and “secret dealings” suggest an element of intent, on the other, the words “[t]o be or create a hindrance or obstacle” do not of necessity suggest the same. See id.

Other statutes using this series of words have also been interpreted to carry an element of intent. For example, the Fair Housing Act makes it “unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of . . . any right granted or protected by [§] 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617 (2006). Consequently, to state a cause of action under this section, a plaintiff must allege (and show) that “the defendants’ conduct was at least partially motivated by intentional discrimination.” South Middlesex Opportunity Council, Inc. v. Framingham, 752 F. Supp. 2d 85, 95 (D. Mass. 2010).

In Woodason v. Norton Sch. Comm., 25 Mass. Discrimination L. Rep. 62 (2003), the complainant was a public school cafeteria assistant who had been terminated from her position, which she claimed constituted disability discrimination under G. L. c. 151B, § 4 (16), and interference under § 4 (4A). After a hearing officer of the Massachusetts Commission Against Discrimination found for the complainant on the disability claim and the employer on the interference claim, both parties appealed to the full commission.