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Brooks v. Martha's Vineyard Transit Authority

United States District Court, D. Massachusetts

January 2, 2020

KEVIN BROOKS, Plaintiff,


          WILLIAM G. YOUNG, D.J.

         The present motions for summary judgment raise, among other matters, important questions as to the applicability of several Massachusetts anti-discrimination statutes to governmental entities. Scant judicial ink has been spilled addressing governmental liability under some of these laws. These lacunae are perhaps understandable for the Massachusetts Equal Rights Act, passed in 1989, but it is more surprising for the Massachusetts Public Accommodation Law, first enacted in 1865 and amended many times since. With old and new statutes alike, the Court strives rightly to interpret and justly to apply the law.

         For the reasons that follow, the Court DENIES the motion of Martha's Vineyard Transit Authority for summary judgment as to the claims under the Massachusetts Public Accommodation Law (Count I) and the Massachusetts Equal Rights Act (Count II), but GRANTS the motion as to the claims under section 1981 (Count III), negligent infliction of emotional distress (Count V), and chapter 93A (Count VI). The Court further DENIES the motion of Transit Connection, Inc. for summary judgment as to Counts I, II, III, and VI but GRANTS the motion as to Count V.

         I. Undisputed Facts and Procedural History

         These motions for summary judgment arise from an incident on Martha's Vineyard, in which the following facts are undisputed. On July 11, 2018, Kevin Brooks ("Brooks") sought to board a bus in Edgartown, Massachusetts. Concise Statement Material Facts Pursuant L.R. 56.1 ("Vineyard Transit Auth. SOF") ¶ 19, ECF No. 54; Statement Material Facts Def. Transit Connection Inc. Supp. Mot. Summ. J. ("Transit Connection's SOF") ¶¶ 2-3, ECF No. 51. When the Route 13 bus passed without picking Brooks up on the way to the ferry terminal, he ordered a ride on Uber, a ride sharing application. Id.; Vineyard Transit Auth. SOF ¶ 28. Brooks caught up with the bus and asked the bus driver, James Taylor ("Taylor"), why the bus passed him. Id. ¶ 40; Transit Connection's SOF ¶ 10. During a brief back-and-forth, Taylor first responded "I don't know," then stated "I was full," which led to a dispute between Brooks and Taylor as to whether the bus was full. Id. ¶¶ 13-14; Vineyard Transit Auth. SOF ¶¶ 41-45. Taylor then said "[w]ell, it's because you're black," and the two continued to debate whether the bus was full. Transit Connection's SOF ¶ 14; Vineyard Transit Auth. SOF ¶ 46. The interaction was captured on video, a portion of which has been provided to the Court. Id., Ex. 5, BUS-WATCH Software Brooks v. Martha's Vineyard Regional Transit Auth. (CD-ROM, 11, Jul. 2018), ECF No. 54-5. Two days after the incident, on July 13, 2018, Taylor was fired by Transit Connection. Transit Connection's SOF ¶ 15.

         Brooks claims that he "felt utter shock and disbelief" and began to cry. Vineyard Transit Auth. SOF ¶¶ 53-55. Brooks states that he has since replayed the incident over and over in his mind. Id. ¶ 56. Brooks believes the incident "exacerbated preexisting emotional distress caused by discrimination he has previously suffered" and asserts he has lost sleep due to the incident. Id. ¶¶ 57-58.

         On May 15, 2019, Brooks filed a complaint in this Court against Martha's Vineyard Transit Authority ("Vineyard Transit Authority"), Transit Connection, Inc. ("Transit Connection"), and Taylor (collectively, "Defendants"). Pl.'s Compl. Demand Jury Trial ("Compl."), ECF No. 1. Specifically, Brooks asserts the following counts: (1) Defendants violated the Massachusetts Public Accommodation Law; (2) Defendants violated the Massachusetts Equal Rights Act; (3) Defendants violated 42 U.S.C. § 1981; (4) Taylor is liable for intentional infliction of emotional distress; (5) Defendants are liable for negligent infliction of emotional distress; and (6) Vineyard Transit Authority and Transit Connection violated the Massachusetts Consumer Protection Act. Compl. ¶¶ 26-55. Brooks is seeking compensatory, consequential, treble and punitive damages, as well as costs and attorneys' fees. Id. 8.

         On October 1, 2019, Vineyard Transit Authority and Transit Connection each moved for summary judgment. Def. Martha's Vineyard Transit Auth.'s Mot. Summ. J., ECF No. 49; Mot. Summ. J. Def. Transit Connection Inc., ECF No. 50. All parties fully briefed the issues. Mem. Law Def. Transit Connection Inc. Supp. TCI Mot. Summ. J. ("Transit Connection's Mem."), ECF No. 52; Def. Martha's Vineyard Transit Auth.'s Mem. Law Supp. Mot. Summ. J. ("Vineyard Transit Authority's Mem."), ECF No. 53; Opp'n. Pl., Kevin Brooks, Def. Martha's Vineyard Transit Auth.'s Mot. Summ. J. ("Pl.'s Opp'n Vineyard"), ECF No. 60; Pl.'s Opp'n Def. Transit Connection Inc.'s Mot. Summ. J ("Pl.'s Opp'n Transit Connection"), ECF No. 62; Def. Martha's Vineyard Transit Auth.'s Reply Mem. Supp. Mot. Summ. J. ("Vineyard Transit Authority's Reply"), ECF No. 67. The Court heard argument on the motions for summary judgment on November 25, 2019 and took the matter under advisement. Electronic Clerk's Notes, ECF No. 70.

         II. Analysis

         Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The party with the burden of proof must provide evidence sufficient for the court to hold that no reasonable fact-finder could find other than in its favor." South Middlesex Opportunity Council, Inc. v. Town of Framingham, 752 F.Supp.2d 85, 95 (D. Mass. 2010) (Woodlock, J.) (quoting Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir. 2009)).

         A. Massachusetts Public Accommodation Law (Count I)

         In Count I, Brooks alleges that Defendants denied him access to the bus because of his race, violating the Massachusetts Public Accommodation Law, codified in chapter 272, sections 92A and 98 of the Massachusetts General Laws. Compl. ¶¶ 26-31. The Court DENIES Transit Connection's motion for summary judgment as to Count I, as it hinges on the genuinely disputed assertion that the bus was full when it passed Brooks.

         Transit Connection operates Vineyard Transit Authority's bus, which falls within the scope of "public accommodation" as it is "open to and accepts . . . the patronage of the general public" and is "a carrier, conveyance or elevator for the transportation of persons."[1] M.G.L. c. 272, § 92A; Vineyard Transit Auth. SOF ¶¶ 14, 15. Transit Connection maintains that it did not "make[] any distinction, discrimination or restriction on account of race" in violation of section 98 when Brooks was not permitted to ride the bus.[2] Transit Connection's Mem. 5. According to Defendants, the video recording of the bus interior confirms it was at capacity, which explains why Taylor did not allow another passenger to board earlier on the route. Id.; Vineyard Transit Authority's Mem. 19.

         In support of his discrimination claim, Brooks points to Taylor's statement (recorded on video) to Brooks that Taylor did not stop "because you're Black." Compl. ¶ 14 (emphasis deleted). Brooks further asserts that because Transit Connection and Vineyard Transit Authority are Taylor's joint employers, both are liable. Id. ¶ 20. Vineyard Transit Authority disputes Taylor's joint employment. See Pl.'s Opp'n Transit Connection 9; Pl.'s Opp'n Vineyard 11; Vineyard Transit Authority's Mem. 4, 8, 11. As Transit Connection's motion for summary judgment depends on the disputed issue of the bus's capacity, Transit Connection's Mem. 2, 5-6, the Court denies its motion for summary judgment as to Count I.

         Vineyard Transit Authority takes another tack, arguing that section 98's operative term "[w]hoever" does not encompass governmental entities. Vineyard Transit Authority's Mem. 16 (citing Woods Hole, Martha's Vineyard & Nantucket S.S. Authority v. Town of Falmouth, 74 Mass.App.Ct. 444, 447, 907 N.E.2d 1124 (2009)). Chapter 4, section 7, of the Massachusetts General Laws provides that "[i]n construing statutes the following words shall have the meanings herein given, unless a contrary intention clearly appears: . . .'Person' or 'whoever' shall include corporations, societies, associations and partnerships." M.G.L. c. 4, § 7. "As has been many times observed, this definition does not encompass 'governmental agencies, municipalities, or municipal corporations.'" Woods Hole, 74 Mass.App.Ct. at 446 (quoting Commonwealth v. Voight, 28 Mass.App.Ct. 769, 771, 556 N.E.2d 115 (1990)). Vineyard Transit Authority is a governmental entity ("municipal entity") via its enabling legislation. M.G.L. c. 161B, § 3; Vineyard Transit Authority's Mem. 16. Therefore, it contends that it is not bound by the anti-discrimination protections of section 98. Id.

         This Court disagrees with the notion that section 98 does not apply to governmental entities. While it may be the "general rule" that the statutory term "whoever" does not include a governmental agency or municipality, Town of Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 605, 940 N.E.2d 404 (2010), several reasons persuade the Court that section 98 is an exception.

         First, the Supreme Judicial Court has instructed that section 98, "because the statute is an antidiscrimination statute," be given "'a broad, inclusive interpretation' to achieve its remedial goal of eliminating and preventing discrimination." Currier v. National Bd. of Med. Exam'rs, 462 Mass. 1, 18, 965 N.E.2d 829 (2012) (quoting Local Fin. Co. v. Massachusetts Comm'n Against Discrimination, 355 Mass. 10, 14, 242 N.E.2d 536 (1968)). Letting governmental agencies off the hook for their agents' discriminatory actions is inconsistent with a liberal construction of the statute designed to "eliminat[e]" discrimination.

         Second, the Massachusetts Commission Against Discrimination (the "Commission"), which is charged with enforcing the statute, M.G.L. c. 151B, § 5, has routinely applied section 98 to governmental entities. See, e.g., Glasman v. Massachusetts DOT, No. 07-BPA-03389, 2018 WL 1201338 (MCAD Feb. 12, 2018); Ramesh v. City of Springfield, No. 07-SPA-00587, 2016 WL 850911, 38 M.D.L.R. 20 (MCAD Feb. 18, 2016); Bachner v. Massachusetts Bay Transp. Auth., No. 91-BPA-0050, 2000 WL 33665366, 22 M.D.L.R. 183 (MCAD July 10, 2000). The Supreme Judicial Court has explained that the Commission's construction warrants "substantial deference" because the Massachusetts "Legislature essentially delegated to the commission the authority in the first instance to interpret [section 98] and determine its scope." Currier, 4 62 Mass. at 18; see also City of Bangor v. Citizens Commc'ns Co., 532 F.3d 70, 94 (1st Cir. 2008) ("Federal courts generally defer to a state agency's interpretation of those statutes it is charged with enforcing . . . ."). Moreover, at least one decision of the Massachusetts Appeals Court, though unpublished and without analysis, held that section 98 applied to the Massachusetts Bay Transportation Authority on alleged facts reminiscent of those now before this Court. See Warren v. Massachusetts Bay Trans. Auth., 93 Mass.App.Ct. 1110, 103 N.E.3d 1238 (2018) ("The driver's statement ("black crackhead bitch') . . . sufficiently supports the plaintiff's discrimination complaint [under section 98]."); see also Quarterman v. City of Springfield, 716 F.Supp.2d 67, 78 (D. Mass. 2009) (Ponsor, J.) (rejecting argument that a city was immune from section 98 claim).

         Third, section 98 refers to another anti-discrimination statute, chapter 151B, section 5, which in turn refers back to section 98.[3] This intertextual link amounts to, in the words of the Supreme Judicial Court, "the integration of [sections 92A and 98] into [chapter] 151B." Currier, 462 Mass. at 18. If section 98 is effectively integrated into chapter 151B, then the operative definition of "person" is found in section 1(1) of that chapter, which expressly includes "the commonwealth and all political subdivisions."[4] Because the Vineyard Transit Authority is a "political subdivision of the commonwealth," Massachusetts General Laws chapter 161B, section 3, it is within the reach of section 98.

         Fourth, and finally, the Court observes that section 98, as amended by St. 1950, chapter 479, section 3, concludes with an important sentence: "This right is recognized and declared to be a civil right." M.G.L. c. 272, § 98. It is preposterous to construe this "civil right" as enforceable against everyone but the government itself. Civil rights are, in large part, a bulwark against government power. True, section 98 undoubtedly applies to agents of the government; the question here is whether the government itself is vicariously liable. Nonetheless, if the Commonwealth is serious in declaring equal access to public accommodations "a civil right" - and the Court must take the ...

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