Brown v. Office of the Commissioner of Probation

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SJC-11987

HELEN BROWN vs. OFFICE OF THE COMMISSIONER OF PROBATION.

Suffolk. March 7, 2016. - October 11, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.1

Governmental Immunity. Commonwealth, Claim against. Judgment,
Interest. Interest. Damages, Interest, Punitive,
Attorney's fees. Practice, Civil, Interest, Costs,
Attorney's fees.

Civil action commenced in the Superior Court Department on
August 13, 2007.

Following review by the Appeals Court, 84 Mass. App. Ct.
1109 (2013), a motion for postjudgment interest was considered
by Paul E. Troy, J., and judgment was entered by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Jonathan J. Margolis (Beth R. Myers with him) for the
plaintiff.
Sally A. VanderWeele, Assistant Attorney General, for the
Office of the Commissioner of Probation.

1
Justices Spina, Cordy, and Duffly participated in the
deliberation on this case prior to their retirements.
 2

Jamie Goodwin, for Massachusetts Employment Lawyers
Association & others, amici curiae, submitted a brief.

LENK, J. In this case, we consider whether sovereign

immunity bars a plaintiff who is awarded punitive damages,

costs, and attorney's fees as part of a judgment under G. L.

c. 151B, § 9, from recovering postjudgment interest on those

awards from a public employer. The trial judge denied a request

by the plaintiff, Helen Brown, for such interest, concluding

that sovereign immunity has not been waived with respect to such

interest, and judgment was entered accordingly. A divided panel

of the Appeals Court affirmed the judgment, see Brown v. Office

of the Commissioner of Probation, 87 Mass. App. Ct. 729, 735

(2015), and we allowed the plaintiff's application for further

appellate review. Because we conclude that G. L. c. 151B, § 9,

does not waive sovereign immunity from liability for

postjudgment interest, either expressly or by necessary

implication, we affirm.2

Background. We recite only those facts necessary for

understanding in context the question of law at issue here. The

plaintiff and a colleague sued the defendant, the office of the

Commissioner of Probation, for sex discrimination, race

discrimination, and retaliation, pursuant to the procedure set

2
We acknowledge the amicus brief of the Massachusetts
Employment Lawyers Association, the American Civil Liberties
Union of Massachusetts, and the Union of Minority Neighborhoods.
 3

forth in G. L. c. 151B, § 9. On February 9, 2011, a Superior

Court jury found for the plaintiff on her retaliation claim,3 and

awarded $6,000 in compensatory damages and $500,000 in punitive

damages. The award of punitive damages was reduced to $108,000

by an order of remittitur. On January 18, 2012, the office of

the Commissioner of Probation additionally was ordered to pay

$233,463.48 in attorney's fees and $13,294.47 in costs related

to the trial.4 Following a decision by the Appeals Court

affirming the order of remittitur,5 judgment after rescript was

entered on March 12, 2014. That judgment, which provided for

prejudgment interest and was paid in full on July 15, 2014, did

not provide for the requested postjudgment interest.6

3
The plaintiff did not prevail on her other claims.
4
The amount of attorney's fees to award was a matter of
dispute following trial. The final amount awarded was
$233,463.48, after the initial award was amended by the trial
judge.
5
The plaintiff was ordered to choose between accepting the
reduced amount of punitive damages or proceeding to a new trial.
She initially elected to proceed to a new trial, and requested
that the decision granting remittitur be reported to the Appeals
Court pursuant to Mass. R. Civ. P. 64, as amended, 423 Mass.
1410 (1996). After the Appeals Court affirmed the decision, see
Brown v. Office of the Commissioner of Probation, 84 Mass. App.
Ct. 1109 (2013), the plaintiff filed a motion to revoke her
election to proceed to a new trial, and instead accept the
reduced amount. That motion was allowed.
6
The judgment provided for postjudgment interest on the
award of compensatory damages. The defendant did not, however,
contest that component of the judgment, and it has been paid.
 4

Discussion. The plaintiff contends that her request for

postjudgment interest on punitive damages, costs, and attorney's

fees should have been granted, because G. L. c. 151B generally

waives sovereign immunity with respect to such interest.7 As

that argument presents a question of law, we consider it de

novo. See Commonwealth v. Spencer, 465 Mass. 32, 46 (2013).

"The general rule of law with respect to sovereign immunity

is that the Commonwealth or any of its instrumentalities 'cannot

be impleaded in its own courts except with its consent, and,

when that consent is granted, it can be impleaded only in the

manner and to the extent expressed [by] statute.'" DeRoche v.

Massachusetts Comm'n Against Discrimination, 447 Mass. 1, 12

(2006), quoting General Elec. Co. v. Commonwealth, 329 Mass.

661, 664 (1953). While G. L. c. 235, § 8, provides for

postjudgment interest against private entities for "[e]very

judgment for the payment of money," that statute does not apply

to claims against the Commonwealth or its subdivisions. See

Onofrio v. Department of Mental Health, 411 Mass. 657, 660 n.5

(1992), citing C & M Constr. Co. v. Commonwealth, 396 Mass. 390,

393 (1985). Thus, public employers are not liable for

postjudgment interest unless some other statute clearly waives

sovereign immunity with respect to such interest. See Sheriff

7
The parties do not dispute that the defendant is a public
entity that generally is entitled to sovereign immunity when
that immunity has not been waived.
 5

of Suffolk County v. Jail Officers & Employees of Suffolk

County, 465 Mass. 584, 597 (2013). The plaintiff argues that

G. L. c. 151B contains such a waiver.

General Laws c. 151B, the antidiscrimination statute,

establishes the remedies available in judicial and agency

proceedings against defendants who have engaged in unlawful

discrimination and retaliation. The statute waives sovereign

immunity in several respects by including the Commonwealth "and

all political subdivisions . . . thereof" in its definition of

the persons and employers subject to it. See DeRoche, supra at

12, citing G. L. c. 151, § 1 (1) and (5). For example,

sovereign immunity has been waived with respect to the recovery

of punitive damages under G. L. c. 151B, § 9, which establishes

the remedies available for a plaintiff who raises a claim of

discrimination or retaliation in a judicial proceeding. See

Bain v. Springfield, 424 Mass. 758, 763 (1997). Sovereign

immunity also has been waived with respect to the recovery of

prejudgment interest on an award of back pay under G. L.

c. 151B, § 5, which establishes the remedies available to a

plaintiff who raises such claims in an agency proceeding before

the Massachusetts Commission Against Discrimination

(commission). See DeRoche, supra at 14.8 We have yet to

8
The defendant does not contest that public employers
similarly are liable for prejudgment interest on compensatory
 6

consider, however, whether sovereign immunity has been waived

with respect to the recovery of postjudgment interest under

G. L. c. 151B, § 9.9

In the plaintiff's view, DeRoche, supra at 13-14,

interpreted G. L. c. 151B as expressing a general waiver of

sovereign immunity, thereby making public employers liable for

all remedies for which private employers are liable. The

plaintiff reasons that, because postjudgment interest is

available under G. L. c. 151B on a judgment against a private

employer, see Nardone v. Patrick Motor Sales, Inc., 46 Mass.

App. Ct. 452, 454 (1999), such interest also must be available

against public employers. We do not agree.

In DeRoche, supra, we considered whether G. L. c. 151B,

§ 5, which empowers the commission to "take such affirmative

action, including, but not limited to, hiring, reinstatement or

damages awarded in judicial proceedings pursuant to G. L.
c. 151B, § 9. The Appeals Court in Salvi v. Suffolk County
Sheriff's Dep't, 67 Mass. App. Ct. 596, 608 (2006), so decided.
See id. ("It is now settled law that sovereign immunity is no
bar to the liability of a public sector employer for prejudgment
interest on damages in a G. L. c. 151B discrimination case").
Accord Todino v. Wellfleet, 448 Mass. 234, 240 (2007).
9
The court in DeRoche v. Massachusetts Comm'n Against
Discrimination, 447 Mass. 1, 14 (2006), additionally affirmed an
order requiring the payment of postjudgment interest on the
compensatory damages at issue in that case. That determination
was made only "for purposes of [that] opinion," however, because
the public employer had "presented no independent argument"
regarding its liability for postjudgment interest as opposed to
prejudgment interest. See id. at 19 n.19.
 7

upgrading of employees, with or without back pay . . . as, in

the judgment of the commission, will effectuate the purposes of

this chapter," allows for an award of prejudgment interest

against a public employer. At the time DeRoche was decided, we

already had held, in the private employment context, that the

language of G. L. c. 151B, § 5, by its own terms, permits the

commission to impose prejudgment interest as a remedy. See,

e.g., New York & Mass. Motor Serv., Inc. v. Massachusetts Comm'n

Against Discrimination, 401 Mass. 566, 583 (1988). In keeping

with that precedent, we concluded in DeRoche, supra at 14, that

G. L. c. 151B, § 5, waives sovereign immunity from liability for

prejudgment interest, "[b]ecause G. L. c. 151B, § 5, authorizes

the remedy of prejudgment interest, and public employers are, by

virtue of § 1 (1) and (5), subject to the mandates of the

statute." We did not, however, conclude that G. L. c. 151B

includes a waiver of sovereign immunity in all respects.

Sovereign immunity advances important public policies, see

Randall v. Haddad, 468 Mass. 347, 358 (2014), and cases cited,

and the "rules of construction governing statutory waivers of

sovereign immunity accordingly are stringent" (citation

omitted). See Todino v. Wellfleet, 448 Mass. 234, 238 (2007).

Waiver must be "expressed by the terms of a statute, or appear[]

by necessary implication from them." Bain, 424 Mass. at 763,
 8

quoting C & M Constr. Co., 396 Mass. at 392. General Laws

c. 151B, § 9, provides, in relevant part:

"This chapter shall be construed liberally for the
accomplishment of its purposes, and any law inconsistent
with any provision of this chapter shall not apply, but
nothing contained in this chapter shall be deemed to repeal
any provision of any other law of this commonwealth
relating to discrimination . . . .

". . .

"If the court finds for the petitioner, it may award
the petitioner actual and punitive damages. If the court
finds for the petitioner it shall, in addition to any other
relief and irrespective of the amount in controversy, award
the petitioner reasonable attorney's fees and costs unless
special circumstances would render such an award unjust."

That language does not expressly waive sovereign immunity from

liability for postjudgment interest. Contrast G. L. c. 79, § 37

(expressly waiving sovereign immunity from liability for

postjudgment interest on eminent domain awards). Accordingly,

we consider whether G. L. c. 151B, § 9, waives sovereign

immunity with respect to such interest by necessary implication.

Sovereign immunity from liability for postjudgment interest

by necessary implication requires "uncommonly forceful language"

indicating a legislative intent that the Commonwealth should

compensate plaintiffs without any loss whatsoever, including

loss of the time value of the money awarded. See Todino, 448

Mass. at 235. See also Maimaron v. Commonwealth, 449 Mass. 167,

181 (2007). In Todino, supra at 236-237 & n.7, for example, we

determined that G. L. c. 41, § 111F, which allows police
 9

officers to recover wages they are deprived of during periods of

incapacity, waives sovereign immunity from liability for

postjudgment interest by necessary implication, because it

directs that plaintiffs be compensated "without loss of pay for

the period of such incapacity," and that "[a]ll amounts payable

under [that] section shall be paid at the same times and in the

same manner as, and for all purposes shall be deemed to

be, . . . regular compensation." See G. L. c. 41, § 111F. In

that context, postjudgment interest was deemed "essential to

vindicate fully an employee's express right to continued, timely

compensation." Todino, supra at 238. In Maimaron, supra at

181, we determined that waiver of sovereign immunity from

liability for postjudgment interest likewise was implied

necessarily by the language of G. L. c. 258, § 9A, which

indemnifies police officers "from all personal financial loss

and expenses, including but not limited to legal fees and costs"

incurred as a result of intentional torts or civil rights

violations that take place in the scope of their employment

(emphasis added). In making that determination, we stressed

that G. L. c. 258, § 9A, "places no limitation on the nature, or

extent, of the financial loss." Maimaron, supra.

In Onofrio, 411 Mass. at 658-659, by contrast, we concluded

that G. L. c. 258, § 2, which makes the Commonwealth and its

subdivisions liable for compensatory damages up to $100,000 "for
 10

injury or loss of property or personal injury or death caused by

the negligent or wrongful act or omission of any public employee

while acting within the scope of his [or her] office or

employment," does not waive sovereign immunity from liability

for postjudgment interest. Construing the possibility of a

statutory waiver of sovereign immunity stringently, we noted

that the language of G. L. c. 258, § 2, does not clearly

indicate a legislative intent "to compensate the plaintiff for

loss of the use of money when damages are not paid on time."

Onofrio, supra at 659-660. Accordingly, we determined that

postjudgment interest was not implied necessarily as an

additional remedy. See id. at 660.

Given this, we cannot say that G. L. c. 151B, § 9,

necessarily implies a waiver of sovereign immunity from

liability for postjudgment interest on punitive damages, costs,

or attorney's fees. By providing for a broad range of remedies,

including compensatory and punitive damages, costs, and

attorney's fees, G. L. c. 151B, § 9, indicates a strong

legislative interest in both vindicating individual rights and

eradicating systemic discrimination. Notwithstanding the

section's instruction that it should "be construed liberally,"

however, statutory waivers of sovereign immunity must be

understood stringently. See Todino, 448 Mass. at 238; Onofrio,
 11

supra at 659.10 Unlike the worker's compensation and

indemnification statutes at issue in Todino, supra, and

Maimaron, 449 Mass. at 181, G. L. c. 151B, § 9, does not

describe an "express right to continued, timely compensation."

See Todino, supra. Without language in G. L. c. 151B, § 9,

indicating such a clear legislative intent to compensate

specifically for the time value of money owed, we are

constrained to conclude that sovereign immunity bars the

plaintiff in this case from recovering postjudgment interest on

the awards at issue.

The Legislature remains free to revise G. L. c. 151B, § 9,

to waive sovereign immunity with respect to payment of

postjudgment interest, on compensatory and punitive damages. As

currently enacted, however, the section does not contain

"uncommonly forceful language" that necessarily implies that the

Commonwealth should be liable for such postjudgment interest.

See Todino, supra at 235. The trial judge therefore correctly

denied the plaintiff's request for postjudgment interest on the

award of punitive damages, costs, and attorney's fees.

Judgment affirmed.

10
The provision enacting G. L. c. 258, § 2, the statute at
issue in Onofrio v. Department of Mental Health, 411 Mass. 657,
659-660 (1992), similarly instructs that that statute should "be
construed liberally for the accomplishment of [its] purposes."
See St. 1978, c. 512, § 18.