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Liu v. Royale Care, Inc.

Superior Court of Massachusetts, Worcester

March 30, 2018

Tut Liu
Royale Care, Inc. et al.[1]

          File Date: April 2, 2018

          Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Freniere, Diane C., J.


          Diane C. Freniere Justice of the Superior Court

         This action arises from an employment relationship gone bad. Before the court is the defendants’-in-counterclaim (Tut Liu and Alicia Mills) special motion to dismiss the plaintiffs’-in-counterclaim (Royale Care, Inc. and Rose Ndille) counterclaims, pursuant to the so-called anti-SLAPP Statute. For the reasons that will be explained, the motion is ALLOWED .


         On September 2, 2016, Tut Liu (" Liu" ) filed a complaint with the Massachusetts Commission Against Discrimination (" MCAD" ) alleging that his former employer, Royale Care, Inc. (" Royale Care" ), discriminated against him on the basis of his race and national origin in violation of G.L.c. 151B. Liu withdrew his MCAD complaint and filed the present complaint in Worcester Superior Court on June 16, 2017, which alleges, in substance, that as an Asian American male he was singled out and treated less favorably than similarly situated peer-employees who were " of recent African origin." Liu worked for Royale Care as a Care Manager from May 1, 2015 through his termination on November 10, 2015. Following his termination, Liu applied to the Department of Unemployment Assistance (" DUA" ) to collect unemployment benefits and was initially denied benefits. Liu appealed the DUA’s denial of benefits, and Alicia Mills (" Mills" ), Human Resources Consultant, who worked for Royale Care in 2015, provided a thirty-two-paragraph affidavit (" the Mills affidavit" ) in connection with Liu’s appeal, which was successful. The Mills affidavit, dated March 6, 2016, comprehensively supported Liu’s appeal of the denial of benefits. This affidavit asserted that Liu was terminated after he refused to back date or falsify documents Royale Care was required to submit following an audit, and that Liu was subjected to discrimination and a hostile work environment based on his race, national origin, and ethnicity.

         The present complaint largely repeats the allegations made in Liu’s appeal of his denial of unemployment benefits; namely, it alleges that Liu was treated differently than other peer-employees at Royale Care in terms of the number of clients he was expected to service relative to his compensation, his workspace, phone and computer privileges, and his access to company records that were necessary to perform his work, among other allegedly disparate treatment. The complaint further alleges that this disparate treatment, as well as other discriminatory treatment based on his race and national origin created a hostile work environment. In addition, the complaint alleges that Liu was asked to back-date and/or falsify documentation submitted to the Commonwealth of Massachusetts by Royale Care for services allegedly performed to clients by care managers and that his refusal to do so resulted in his wrongful termination.

         On July 31, 2017, Royale Care and Ndille responded with counterclaims for abuse of process and tortious interference with advantageous relationship against both Liu and Mills. Count A, entitled " Abuse of Process," alleges that the Liu " filed count 1 of his present complaint first with the Massachusetts Commission Against Discrimination before he moved his complaint to this court" and that said complaint is " based on untruth, fabrications impossibilities, imagination misrepresentation and exaggeration." As for Mills, the abuse of process charge alleges that she colluded with Liu and " actively sought and created opportunities they could use to portray original defendants as racist and impermissibly discriminatory persons who engaged in illegitimate and even criminal business practices" ; with " the purpose of creating a basis for a lawsuit against original defendants in the event that original defendants dismisses Mr. Liu as a result of performance and behavior problems" ; and that " upon being dismissed by original defendants, Mr. Liu filed his complaint against original defendants based on allegations the veracity of which he does not believe in."

         Count B of the counterclaim, entitled " Tortious Interference with Advantageous Relationship," alleges that Liu and Mills used their respective positions, and " systematically designed and executed a plan that included fabricating stories about defendants’ counterclaimants [Royale Care, Inc. and Rose Ndille], influencing other employees and workers of defendant counterclaimants to fabricate stories about defendant counterclaimants and desperately looking for information and stories that would portray defendant counterclaimants as racist and lawbreakers who also impermissibly discriminated against their employees" ; " with no intention other than injuring defendant counterclaimants" and that Mills succeeded in hurting Royale Care " including [by] causing original claimant Tut Liu to being legal actions against defendant counterclaimants based on allegations that have no factual bases."

         Liu and Mills now move to dismiss count A and B of the counterclaims, on the ground that they are based solely on petitioning activity protected under the anti-SLAPP statute. The court agrees.


         I. Standard of Review

         The Massachusetts statute commonly known as the anti-SLAPP Act provides protection against civil claims, counterclaims, and cross claims based on the exercise of the right to petition. The statute is directed at " ‘meritless suits’ that use litigation to ‘intimidate opponents’ exercise of rights of petitioning and speech." Vittands v. Sudduth, 49 Mass.App.Ct. 401, 413 (2000), quoting Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 161-64 (1998). The statute was designed to protect the rights of those providing information to the government by employing a number of mechanisms, among them, a special motion to dismiss with expedited hearing and a stay of discovery proceedings pending the disposition of such motion. The anti-SLAPP statute defines petitioning activity to include:

any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive, or judicial body or any governmental proceedings; any statement reasonably likely to enlist public participation in an ...

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