Whether a Massachusetts Employer Sued For Discrimination Can Seek Contribution from the Employee Committing the Discriminatory Acts

Jennifer Thomas sued her employer EDI Specialists, Inc. under Mass. Gen. L. c. 151B for gender discrimination.  In her complaint she identified a fellow employee, Steven Mills, as the primary offender.  EDI filed a third-party complaint against Mills, seeking contribution in the event it were found liable.  Mills moved to dismiss the complaint, claiming that c. 151B does not contain a right of contribution against an employee.  EDI argued that Mass. Gen. L. c. 231B, providing for contribution among joint tortfeasors, gave it a right to seek contribution from Mills because discrimination claims under c. 151B were in essence tort claims.  

NELF filed an amicus brief in support of EDI, arguing that c. 231B is designed to remedy the unfairness of allowing a disproportionate share of a plaintiff’s recovery to be borne by one of several joint tortfeasors.  The SJC ruled that there is no right of contribution under c. 151B.  Even if c. 151B can be considered “tort-like” for some purposes, the Court said, allowing an action for contribution would undermine its statutory scheme, including the legislature’s preference for resolving disputes at the MCAD.  The Court also noted the conflict between the six month statute of limitations under c. 151B and the one year limitation of c. 231.  Finally, the Court noted that c. 151B evinces an intent to reduce discrimination in the workplace by holding employers responsible for the discriminatory actions of their employees, regardless of whether these actions were authorized or supported by the employer or its policies.  “Although our conclusion may burden the employer who bears sole liability for the unauthorized conduct of an employee,” the Court said, “that appears to be precisely what the Legislature intended.” 

The Statute Of Limitations for State Employment Discrimination Claims in Vermont

Plaintiff Egri had been an employee of US Airways from 1972 to 1993, when she was injured while working as a customer service agent. Egri left work on disability and then requested reinstatement with accommodations the following year. US Airways denied her request for reinstatement because the requested accommodations were inconsistent with her job description. More than five years after the denial of reinstatement, Egri sued, alleging handicapped-based discrimination in violation of the Vermont Fair Employment Practices Act (“VFEPA”) and seeking damages for emotional distress and lost income and benefits. The Vermont statute of limitations for claims of “injuries to the person” or injury to property is three years.  Vermont also has a six year catch-all statute of limitations for all civil actions not otherwise covered.  There is no specific statute of limitations in VFEPA.  

NELF’s amicus brief, filed on behalf of Associated Industries of Vermont and the Vermont Retail Association, supported the employer’s argument that the three year statute of limitations applies.  NELF argued that employment discrimination claims have more in common with common law tort (three year) than contract (six year) claims. Employment discrimination cases often involve disputed factual issues arising from a number of different statements or incidents over a period of time.  Fresh memories are essential in these circumstances, where shades of meaning in statements or interpersonal interactions are key to interpreting intent.  The Vermont Supreme Court held that the plaintiff’s emotional distress claims were “injuries to the person” within the three year statute (and thus were time barred), while the claims for economic loss fell within the general six year statute. 

The Validity of Eminent Domain Process Taking of Unpaved Roads as “Highways” to Allow Public Beach Access and Land Conservation

In 2000 the Nantucket County Commissioners voted to take sixteen platted, unimproved private roads as public highways without any intention to pave or improve the roadways. Their stated purpose was to provide public beach access and to preserve open space.  Some of the roads are nonexistent “paper” ways; some parallel the coastline; and others run perpendicular to the coastline, across the beach, and into the ocean.  The highway takings process provides considerable procedural advantages over the process for taking land for park and conservation purposes. It is quicker, has fewer preliminary administrative requirements, and requires a lower vote in town meeting.  The affected property owners sued the County, asserting that the meaning of “highway” does not extend to roads, paper or otherwise, that a county does not intend to improve for vehicular access.  The County argued that the highway statute granted it broad discretionary power to decide the necessity and extent of a highway taking.  

Supporting the property owners, NELF argued that a county could not “end run” the open space eminent domain statutes, which provide greater protection for property owners, by using a highway eminent domain statute designed for a different purpose and containing different safeguards. Agreeing with NELF’s position, the SJC ruled in favor of the property owners, holding that the highway statute authorizes takings solely to facilitate safe and convenient travel through the construction of roadways or the improvement or repair of existing roadways.  Since the Commissioners’ objective was plainly not to construct or improve any roadway, the Court concluded that their action was invalid and vacated the takings.