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DaPrato v. Massachusetts Water Resources Authority

Superior Court of Massachusetts, Suffolk

March 22, 2018

Richard DaPrato
Massachusetts Water Resources Authority

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilkins, Douglas H., J.


          Douglas H. Wilkins Associate Justice, Superior Court

         The plaintiff, Richard DaPrato (" Plaintiff" or " DaPrato" ) obtained a jury verdict in his favor and against the Massachusetts Water Resources Authority (" MWRA" ) under the ADA, c. 151B and the Federal Family and Medical Leave Act (FMLA), 29 U.S.C. § § 2601 et seq. (" FMLA" ). The Court later awarded front pay and liquidated damages under the FMLA and attorneys fees under all statutes upon which DaPrato prevailed. G.L.c. 151B, § 9; 29 U.S.C. § 2617(a)(3); 42 U.S.C. § 12205. DaPrato has filed plaintiff Richard A. Daprato’s Motion To Include Prejudgment And Postjudgment Interest In The Judgment (" Motion" ). The MWRA does not contest entitlement to prejudgment interest, but has opposed the request for postjudgment interest. Neither side has requested a hearing. The undersigned presided at trial and at many pretrial stages of this case and now resolves the Motion on the papers.

         " [P]ublic employers are not liable for postjudgment interest [under G.L.c. 151B] unless some other statute clearly waives sovereign immunity with respect to such interest." Brown v. Office of the Commissioner of Probation, 475 Mass. 675, 677 (2016) (c. 151B case). MWRA claims to be a public employer for purposes of awarding postjudgment interest by reason of section 7(g) of its Enabling Act. MWRA argues that it falls within this principle and even speaks of a " limited waiver of immunity" in terms that suggest a claim of sovereign immunity in the absence of an express waiver. The court. disagrees, because MWRA is not a " public employer" for these purposes.

         MWRA is an independent public authority, created by St. 1984, c. 372 (" Enabling Act" ). Though established as a " political subdivision of the Commonwealth," it is " not subject to the supervision or control of the executive office of environmental affairs or any other executive" branch entity, " except to the extent and the manner provided by the act." St. 1984, c. 372, § 3(a). It is " financially independent from the Commonwealth." See Clifton v. Mass. Bay Transp. Auth., 62 Mass.App.Ct. 164, 178 (2004), rev’d in part, aff’d in part, 445 Mass. 611, 624 n.11 (2005) (" We agree with" the Appeals Court’s conclusions " that prejudgment and postjudgment interest should be awarded on the compensatory damages awarded the plaintiff" ). The MWRA has power " to receive and apply its revenues to the purpose of this act without appropriation or allotment by the commonwealth or any political subdivision." Enabling Act, § 6(h). It may enter into contracts and may " borrow money and issue bonds" independently of the Commonwealth. Id., ¶J(l), (o). It is to charge fees sufficient to pay its own debts. Enabling Act, § 10(1)(vi) and sets its rates without " supervision or regulation by any office ... or agency of the commonwealth or any of its political subdivisions." Id., § 10(a). The Commonwealth’s treasury therefore does not bear the burden of the judgment in this case. As an entity supported by non-tax revenue, and a " independent body politic and corporate" excluded from the definition of " public employer" in G.L.c. 258, § 1, the MWRA is not entitled to sovereign immunity under common-law principles or the Tort Claims Act. See Karlin v. Massachusetts Turnpike Authority, 399 Mass. 765, 766-67 (1987). To the extent that the MWRA’s reference to a " limited waiver of immunity" (Opp. at 2) presupposes that the MWRA has general sovereign immunity under the common law or c. 258, the court rejects that supposition.

         MWRA, in fact, appears not to rely upon c. 258 or common-law sovereign immunity, it that the applicable statutes confer sovereign immunity upon it. Section 6(f) of the Enabling Act confers upon the MWRA the power:

(f) to sue and be sued, to prosecute and defend actions relating to its properties and affairs, and to be liable in tort in the same manner as a private person except that the Authority and its members, employees and agents shall be immune from tort liability for acts and omissions constituting (i) the exercise of a legislative or judicial function, (ii) the exercise of an administrative function involving the determination of fundamental governmental policy, or (iii) the exercise of a discretionary function or duty; provided, however, that property of the Authority, other than, in actions to enforce payment of bonds, the revenues and funds pledged to the payment of bonds, shall not be subject to attachment nor levied upon by execution, and, provided further, that the Authority is not authorized to become a debtor under the United States Bankruptcy Code ...

         The MWRA (Mem. at 2) reads this provision as stating " that MWRA shall only be liable as though it were a private person in actions in tort, and only then if the tortious conduct does not fall within three stated exceptions." This is a misreading of the statutory language.

         As the conjunctive " and" makes clear, the reference to tort liability is an addition to the general power " to sue and to be sued." Indeed, the statute specifically refers to " actions to enforce payment of bonds," which are likely to sound in contract, not tort. Thus, the " tort liability" provisions do not finally answer the question, even if the MWRA is correct that claims under c. 151B are not tort claims. MWRA Mem. at 2, citing Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367, 91 (2005).[1]

         MWRA cites another case for the proposition that employment discrimination claims are akin to a claim for breach of implied contract. Gasior v. Massachusetts General Hospital, 446 Mass. 645 (2006). Contract actions against the Commonwealth are not barred by sovereign immunity. See G.L.c. 258, § 12; Addison Gilbert Hosp. v. Rate Setting Comm’n, 397 Mass. 56, 59-60 (1986); Minton Constr. Corp. v. Commonwealth, 397 Mass. 879, 880 (1986); C.&R. Constr. Co. v. Commonwealth, 334 Mass. 232, 233 (1956).

         The Enabling Act specifically addresses liability under G.L.c. 151B, though not under federal statutes. MWRA refers to § 7(g) of the Enabling Act, which reads in relevant part:

The Authority shall be subject to section four of chapter one hundred and fifty-one B of the General Laws, shall be deemed to be an agency of the commonwealth for purposes of section two of said chapter, and shall be subject to the enforcement jurisdiction of the commission against discrimination under said chapter. [emphasis added].

         The court agrees with the plaintiff that the differing language of this provision with respect to section four and section two is significant. With precision, the Legislature has made the MWRA " an agency of the commonwealth for purposes of section two." It has adopted different language, with different plain meaning, as to G.L.c. 151B, § 4 and the MCAD’s jurisdiction, making MWRA " subject to" those provisions, without expressed limitation.

         The MWRA states (Opp. at 2 n.3) that the Enabling Act " intended for the MWRA to be considered an agency of the Commonwealth," but that intention expressly applies only to section 2. Section 2 of c. 151B subjects Commonwealth agencies to the recommendations of the MCAD in implanting policies and procedures. That is not at issue here. Section 4 prohibits a number of employment practices, including those upon which the plaintiff’s successful claims rest. See G.L.c. 151B, § § 4(4A) & 4(16). The MWRA is indeed " subject to" those provisions, but that obligation is not limited in the ...

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