(with first initial, no space for Sullivan, Dorsey, and
Walsh): Wilkins, Douglas H., J.
ORDER ON PLAINTIFF RICHARD A. DAPRATOâS MOTION TO
INCLUDE PREJUDGMENT AND POSTJUDGMENT INTEREST IN THE
Douglas H. Wilkins Associate Justice, Superior Court
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. Â§ Â§ 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, Â§ 9;
29 U.S.C. Â§ 2617(a)(3); 42 U.S.C. Â§ 12205. DaPrato has filed
plaintiff Richard A. Dapratoâs 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.
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, Â§ 3(a). It is
" financially independent from the Commonwealth."
See Clifton v. Mass. Bay Transp. Auth., 62
Mass.App.Ct. 164, 178 (2004), revâd in part, affâd in part,
445 Mass. 611, 624 n.11 (2005) (" We agree with"
the Appeals Courtâs 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, Â§ 6(h). It may enter into contracts and may "
borrow money and issue bonds" independently of the
Commonwealth. Id., Â¶J(l), (o). It is to charge fees
sufficient to pay its own debts. Enabling Act, Â§ 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., Â§ 10(a). The
Commonwealthâs 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, Â§ 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 MWRAâs 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.
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 ...
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.
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
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, Â§ 12; Addison Gilbert Hosp. v. Rate Setting
Commân, 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,
Enabling Act specifically addresses liability under G.L.c.
151B, though not under federal statutes. MWRA refers to Â§
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].
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, Â§ 4 and the
MCADâs jurisdiction, making MWRA " subject to"
those provisions, without expressed limitation.
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 plaintiffâs successful claims rest. See G.L.c.
151B, Â§ Â§ 4(4A) & 4(16). The MWRA is indeed " subject
to" those provisions, but that obligation is not limited
in the ...