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Chadwick v. Duxbury Public Schools

Supreme Judicial Court of Massachusetts, Plymouth

October 4, 2016

NANCY CHADWICK
v.
DUXBURY PUBLIC SCHOOLS & others.[1]

          Heard: May 3, 2016.

         Civil action commenced in the Superior Court Department on December 8, 2014. A motion to compel discovery was heard by Raffi Yessayan, J.

         A question of law presented in a petition for leave to prosecute an interlocutory appeal in the Appeals Court was reported by Andrew R. Grainger, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Jonathan J. Margolis (Beth R. Myers with him) for the plaintiff.

          John J. Cloherty, III, for the defendants.

         The following submitted briefs for amici curiae:

          Ava R. Barbour, of Michigan, Matthew D. Jones, Ira C. Fader, James A.W. Shaw, Jasper Groner, Haidee Morris, Matthew E. Dwyer, Eric P. Klein, & Katherine D. Shea for Massachusetts Teachers Association & others.

          Paul T. Hynes & Michael R. Keefe for Professional Fire Fighters of Massachusetts.

          Stephen J. Finnegan & Christopher J. Petrini for Massachusetts Association of School Committees, Inc., & another.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]

          HINES, J.

         In this appeal, we consider an issue of first impression: whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. The issue arises on interlocutory review of a discovery dispute in a Superior Court action brought by the plaintiff, Nancy Chadwick, alleging claims of discrimination and retaliation against the defendants.[3] The plaintiff objected to certain of the defendants' discovery requests, asserting a "union member-union" privilege. A Superior Court judge rejected the plaintiff's claim and entered an order compelling production of the requested discovery. The plaintiff filed an application for relief under G. L. c. 231, § 118, and a single justice of the Appeals Court reported the issue to a panel of the Appeals Court.[4] We transferred the case to this court on our own motion.

         In her challenge to the defendant's discovery requests, the plaintiff concedes that a union member-union privilege has never been recognized in Massachusetts. She argues, however, that G. L. c. 150E, the statute establishing the collective bargaining rights of public employees, should be interpreted to recognize a union member-union privilege and that such a privilege bars the employer's access to the requested discovery. We affirm the judge's ruling declining to recognize such a privilege, as we discern no legislative intent to incorporate within G. L. c. 150E a union member-union privilege extending beyond the labor dispute setting, and we decline to recognize the privilege under common law.

         Background.

         The following summary of the facts is drawn from the allegations in the plaintiff's complaint, the motion judge's memorandum of decision and order on the defendants' motion to compel, and other relevant documents in the record.

         1. The alleged discrimination and retaliation.

         Beginning in 2006, and continuing to her retirement in 2015, the plaintiff was employed as an English teacher at Duxbury High School. During her employment by the Duxbury public schools, the plaintiff was represented by the Duxbury Teachers Association, the local affiliate of the Massachusetts Teachers Association. She served as president of the Duxbury Teachers Association for six years, from 2010 to 2015.

         In 1998, the plaintiff was diagnosed with posttraumatic stress disorder (PTSD), but she successfully managed the symptoms until 2009. After 2009, she experienced panic attacks, anxiety, hypervigilance, and disturbed sleep patterns, which she asserts were caused by work conditions, including bullying and harassment from her direct supervisor. In 2012, the plaintiff's attorney notified the school superintendent of her PTSD diagnosis and requested accommodation in the form of a replacement supervisor. In response, the school superintendent assigned the assistant principal to conduct the plaintiff's performance evaluation but declined to alter the subject-matter supervisor for the English courses that the plaintiff taught.

         In December, 2013, and between March and May, 2014, the plaintiff and the defendants engaged in a series of interactions that, according to the plaintiff, involved discrimination and retaliation against her.[5] On June 9, 2014, the plaintiff was placed on a "directed growth plan, "[6] a disciplinary action that permitted Duxbury public schools to dismiss her at the end of the 2014-2015 school year. The plaintiff commenced this lawsuit seeking monetary damages in December, 2014.[7]

         2. The discovery requests.

         On January 5, 2015, the defendants served document requests and interrogatories pursuant to Mass. R. Civ. P. 26, as amended, 423 Mass. 1401 (1996), and Mass. R. Civ. P. 33, as amended, 385 Mass. 1212 (1982), respectively. On June 19, 2015, the plaintiff objected to certain of the discovery requests, [8], [9] claiming a union member- union privilege. At the request of the defendants, the plaintiff supplied a privilege log for ninety-two electronic mail (e-mail) messages withheld from disclosure. The defendants filed a motion to compel production of the requested discovery, and the plaintiff responded with an opposition and cross-motion for protective order.[10] The Superior Court judge declined the plaintiff's request to recognize a union member-union privilege and ordered the plaintiff to disclose all requested discovery withheld on the basis of an asserted union member-union privilege. The judge acknowledged that some ...


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