United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG, D.J.
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.
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.
Undisputed Facts and Procedural History
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.
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.
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.
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.
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)).
Massachusetts Public Accommodation Law (Count I)
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.
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." 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. 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.
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.
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.
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
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.
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).
section 98 refers to another anti-discrimination statute,
chapter 151B, section 5, which in turn refers back to section
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." 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.
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 ...