ANAIS J. ROSARIO v. CARING BEES HEALTHCARE, INC., & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-728

ANAIS J. ROSARIO

vs.

CARING BEES HEALTHCARE, INC., & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this case we address whether statements made to private

individuals by a person alleging sexual harassment constitute

petitioning activity protected by G. L. c. 231, § 59H, the

"anti-SLAPP" statute. Anais Rosario claimed that she worked

briefly for Caring Bees Healthcare (Caring Bees) until being

assaulted by her supervisor, Jean Karangwa. Rosario made

statements about Karangwa to private individuals. Nine months

later, she filed a civil action against Caring Bees and

Karangwa, and Karangwa filed counterclaims for defamation and

intentional infliction of emotional distress based upon

Rosario's statements to the private individuals. Rosario filed

a special motion to dismiss the counterclaims under G. L.

1 Jean Paul Karangwa.
c. 231, § 59H, and asserted that her statements qualified as

petitioning activity. A Superior Court judge concluded that her

statements did not constitute petitioning activity and denied

the special motion to dismiss. We agree and affirm.

Background. We summarize the facts from "the pleadings and

supporting and opposing affidavits." G. L. c. 231, § 59H.

In October of 2017, Caring Bees hired Rosario as a payroll

and scheduling clerk. Over the next several weeks, Rosario

allegedly suffered recurrent sexual harassment. According to

Rosario, Karangwa, who was her supervisor, repeatedly made

sexual comments to her, sent her an inappropriate video, and

ultimately assaulted her by "grab[bing] her vaginal area."

Rosario reported these events to three private individuals.

The day after receiving the video, she told a co-worker that

Karangwa sent her a "sexually explicit and inappropriate video."

On the same day of the alleged sex assault, Rosario texted the

co-worker that "Karangwa had just grabbed her vaginal area."

Also on that day, Rosario told her mother "what had happened."

Later that day, Rosario told a second co-worker that Karangwa

was a "pervert" and a "molester."

Rosario also reported these events to the government. On

the day of the alleged assault, November 15, 2017, Rosario filed

an incident report with the Boston Police Department and

reported that Karangwa sent her sexually charged text messages,

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shared the video, and assaulted her. On January 19, 2018,

Rosario filed a complaint with the Massachusetts Commission

Against Discrimination (MCAD) and reported the assault, the

video, and sexual comments made by Karangwa and others. In May

2018, Rosario withdrew the MCAD complaint and indicated that she

intended to file a civil action. On July 2, 2018, Rosario filed

a complaint (later amended) under G.L. c. 151B in the Superior

Court and alleged Karangwa repeatedly made sexual comments to

her, sent her an inappropriate video, and ultimately assaulted

her. Rosario also alleged that she told a co-worker about the

video and told her mother and a co-worker about the assault.

On August 20, 2018, Karangwa filed counterclaims. He

alleged that the following statements by Rosario to co-workers

and her mother constituted defamation and subjected him to

emotional distress: (1) Karangwa sent her a "pornographic"

video; (2) Karangwa was a "molester" and a "pervert"; and (3)

Karangwa "grabbed her vaginal area."

Rosario filed a special motion to dismiss Karangwa's

counterclaims under G. L. c. 231, § 59H. That statute protects

a party's constitutional right to petition the government by

providing a process "to dispose expeditiously of merit less

lawsuits that may chill petitioning activity." Duracraft Corp.

v. Holmes Prod. Corp., 427 Mass. 156, 166 (1998) (Duracraft).

Rosario argued that the counterclaims constituted such an effort

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to chill her petitioning activity. The Superior Court judge

"[a]ssum[ed] without deciding" that Rosario's pre-litigation

statements constituted petitioning activity, but the judge

denied the motion to dismiss because the counterclaims were not

primarily brought to chill those activities. Rosario appealed.

In an unpublished memorandum and order, a panel of this

court vacated the order and remanded the matter to enable the

judge to assess whether the statements constituted petitioning

activity. Rosario v. Caring Bees Healthcare, Inc., 97 Mass.

App. Ct. 1122 (2020). See Duracraft, 427 Mass. at 167–168,

quoting G. L. c. 231, § 59H (a party filing a special motion to

dismiss must first "make a threshold showing through the

pleadings and affidavits that the claims against it are 'based

on' the petitioning activities alone"). On remand, the judge

concluded that none of Rosario's statements to private

individuals constituted petitioning activity under the statute

and again denied Rosario's special motion to dismiss. Rosario

now appeals this second denial.

Discussion. Rosario bears the burden of demonstrating that

her conduct constitutes petitioning activity. Duracraft, 427

Mass. at 167-168. The governing statute, G. L. c. 231, § 59H,

sixth par. Defines "a party's exercise of its right of petition"

as follows:

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"[1] any written or oral statement made before or submitted
to a legislative, executive, or judicial body, or any other
governmental proceeding; [2] 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; [3] any statement
reasonably likely to encourage consideration or review of
an issue by 5egislateve, executive, or judicial body or any
other governmental proceeding; [4] any statement reasonably
likely to enlist public participation in an effort to
effect such consideration; or [5] any other statement
falling within constitutional protection of the right to
petition government."

Rosario contends that her statements to private individuals

constitute petitioning activity, or are at least reasonably

likely to encourage consideration and to enlist public

participation in her claims to the police, MCAD, and the

Superior Court. Based upon our "de novo" review of the record

in this case, we conclude that Rosario has not met her burden of

demonstrating that her statements to private individuals

constitute petitioning activity. Haverhill Stem LLC v.

Jennings, 99 Mass. App. Ct. 626, 631 (2021). See Reichenbach v.

Haydock, 92 Mass. App. Ct. 567, 572 & n.14 (2017) (explaining

rationale for standard of review).

"The right to petition a governmental body for redress of a

grievance is the very essence of petitioning activity." North

Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852,

863 (2009) (North American). "The typical mischief that the

legislation intended to remedy was lawsuits directed at

individual citizens of modest means for speaking publicly

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against development projects." Duracraft, 427 Mass. at 161.

The objective of SLAPP suits is not to win them, but to

intimidate people for "reporting violations of law, writing to

government officials, attending public hearings, testifying

before government bodies, circulating petitions for signature,

lobbying for legislation, campaigning in initiative or

referendum elections, filing agency protests or appeals, being

parties in law-reform lawsuits, and engaging in peaceful

boycotts and demonstrations." Id. at 161-162, quoting Pring,

SLAPPs: Strategic Lawsuits Against Public Participation, 7 Pace

Envtl. L. Rev. 3, 5 (1989). While broadly written, the anti-

SLAPP statute "has its limits." Kobrin v. Gastfriend, 443 Mass.

327, 336 (2005). In order to determine if statements constitute

petitioning activity under the statute, courts "consider them in

the over-all context in which they were made." North American,

452 Mass. at 862.

At the time she made her statements to her co-workers and

her mother, Rosario was not engaged in petitioning activity

under the statute because her statements lacked the "essence of

petitioning activity" –- contact with the government -- or at

the very least efforts to "reach governmental bodies" (citation

omitted). North American, 452 Mass. at 862, 863. See Kobrin,

443 Mass. at 330 (petitioning involves "seeking from the

government any form of redress for a grievance"); Garabedian v.

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Westland, 59 Mass. App. Ct. 427, 433 (2003) (petitioning

involves "supplication to higher authority"). Rosario's private

statements "lacked the characteristics of petition" contemplated

by G. L. c. 231, § 59H. Garabedian, supra at 432.

Characteristics of petitioning activity typically include a

statement, report, complaint, request, or demand to a government

entity. See, e.g., Benoit v. Frederickson, 454 Mass. 148, 153

(2009) ("reporting of a rape to police"); Dever v. Ward, 92

Mass. App. Ct. 175, 179 (2017) ("appeals to the police and to

the courts"); O'Gara v. St. Germain, 91 Mass. App. Ct. 490, 497

(2017) (reporting "suspected criminal activity to the police").

Petitioning may also take the form of filing a lawsuit or taking

other court action. See, e.g., 477 Harrison Ave., LLC v. JACE

Boston, LLC, 477 Mass. 162, 165-167 (2017) (filing complaint

seeking declaratory judgment, petition for injunctive relief,

application for criminal complaint); Van Liew v. Stansfield, 474

Mass. 31, 36 (2016) ("application for a harassment prevention

order"). Petitioning activity may also include statements to

the government "made outside any formal governmental

proceedings," North American, 452 Mass. at 862, see, e.g.,

Office One, Inc. v. Lopez, 437 Mass. 113, 122 (2002) (statements

to Federal Deposit Insurance Corporation regarding proposed sale

of property); Baker v. Parsons, 434 Mass. 543, 545–551 (2001)

(letter and statements to Federal and State environmental

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agencies), or "statements made by one participant in a pending

governmental proceeding to another in an effort to settle the

controversy." Plante v. Wylie, 63 Mass. App. Ct. 151, 159

(2005). Rosario has not cited, and we have not found, any

appellate decision where statements lacking a "supplication to

higher authority," Garabedian, 59 Mass. App. Ct. at 433, or

efforts to at least "reach governmental bodies," North American,

452 Mass. at 862, qualify as petitioning activity under G. L.

c. 231, § 59H.

Rosario contends that her statements to co-workers and her

mother constitute petitioning activity because they "were

inextricably connected to the [subsequent] filing of her police

report, her MCAD charge and, ultimately, this litigation." She

argues that her statement to a co-worker reporting the assault

was part of the sexual harassment complaint process under G. L.

c. 151B; that her statements to another co-worker about the

video and the touching were calculated to enlist public

participation and to encourage government review of her claim;

and that her statement to her mother resulted in her mother

advising her to file a police report. We conclude that

Rosario's statements to her co-workers and her mother were

independent from her subsequent complaints to the government and

fell outside the scope of petitioning activity under G. L.

c. 231, § 59H.

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Rosario suggests that her petitioning activity began before

her formal report to the MCAD because she attempted to report

sexual harassment to the co-worker she believed was responsible

for such complaints pursuant to G. L. c. 151B, § 3A (b) (1) (v)

(requiring employers to adopt process for filing sexual

harassment complaint). Private actions taken in anticipation of

contacting the government do not automatically constitute

petitioning activity. See, e.g., Giuffrida v. High Country

Investor, Inc., 73 Mass. App. Ct. 225, 243 (2008) ("letter

notifying the defendant of intent to take legal action");

Maxwell v. AIG Dom. Claims, Inc., 72 Mass. App. Ct. 685, 694

(2008) (insurance company investigation); Kalter v. Wood, 67

Mass. App. Ct. 584, 587 (2006) (complaint letter to health

insurance company). Even if we assume that an internal

complaint of harassment could in some circumstances be

petitioning, the record does not support Rosario's suggestion

that she was making a report in connection with c. 151B. To the

contrary, the undisputed record shows that the co-worker, an

office assistant, simply reached out to Rosario after she quit.

There is nothing in the record indicating that the office

assistant had any responsibility with respect to sexual

harassment. Thus, viewing the statements in context, we agree

with the judge that Rosario did not meet her burden of showing

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that she was engaged in petitioning activity when speaking with

the office assistant.

The private conversation between Rosario and her co-worker

about the video and the alleged sex assault cannot reasonably be

construed as an effort to "enlist public participation" or to

"encourage consideration or review of an issue" in Rosario's

subsequent petitioning activities. G. L. c. 231, § 59H. The

same is true for the private conversation between Rosario and

her mother about the alleged assault. Conduct aimed at

enlisting public participation or encouraging government action

requires, at a minimum, a broad appeal or a call to action.

See, e.g., Blanchard v. Steward Carney Hosp., Inc., 477 Mass.

141, 150-151 (2017) (statements to newspaper while hospital

under investigation by Department of Mental Health); Cardno

ChemRisk, LLC v. Foytlin, 476 Mass. 479, 485 (2017) (blog post

part of "ongoing efforts to influence governmental bodies by

increasing the amount and tenor of coverage around the

environmental consequences of the [oil] spill"); Office One,

Inc., 437 Mass. at 117, 122 (leaflets distributed to condominium

unit owners urging calls to government officials); Wynne v.

Creigle, 63 Mass. App. Ct. 246, 253 (2005) (statements to fire

department and newspaper); MacDonald v. Paton, 57 Mass. App. Ct.

290, 295 (2003) (interactive website designed to generate

interest on issues of concern in town). Rosario's discreet

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statements to her mother and co-workers lacked both a broad

appeal and a call to action. Rosario contends that the nature

of her statements (sexual harassment and assault) is sufficient,

by itself, to satisfy the requirements for enlisting public

participation and encouraging government review. "That a

statement concerns a topic that has attracted governmental

attention, in itself, does not give that statement the character

contemplated by the statute." Global NAPS, Inc. v. Verizon New

England, Inc., 63 Mass. App. Ct. 600, 605 (2005).

While we agree with Rosario that conferring with loved ones

(like her mother) can be of critical importance to sexual

assault victims, we disagree that such conversations necessarily

constitute petitioning activity. In support of the argument

that the conversation with her mother is petitioning activity,

Rosario cites Benoit, 454 Mass. at 153. In that case, a minor

child reported a rape allegation to her parents, and the parents

assisted her in reporting the allegation to the police. Id. at

149-150, 153. Criminal charges followed and were ultimately

dismissed. Id. at 150. The alleged assailant then sued the

child and her parents. Id. The Supreme Judicial Court

concluded that the child's report to the police as well as the

parents' "involvement in their minor daughter's reporting of

crime to the police plainly comes within the scope of

petitioning." Id. at 153. Thus, the petitioning activity in

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Benoit was the report to the police, not the conversation

between the child and her parents.

Unlike the situation in Benoit, Karangwa's counterclaims

did not infringe on any petitioning activity. Karangwa's

counterclaims expressly limited allegations to Rosario's

conversations with private individuals and lacked any nexus to

her appeal to the government. Compare Haverhill Stem, LLC, 99

Mass. App. Ct. at 628-629, 634 (petitioning activity in Land

Court and zoning proceedings not implicated by complaint based

on extortion); Citizens Ins. Co. of Am. V. 290 Auto Body, Inc.,

95 Mass. App. Ct. 515, 518 (2019) (petitioning activity in civil

action regarding insurance claim not implicated by counterclaim

"involving alleged unruly assaultive behavior"); Reichenbach, 92

Mass. App. Ct. at 570, 574 (petitioning activity in opposing

construction of oceanfront home not implicated by claim of

"threats, intimidation, [and] coercion"); Garabedian, 59 Mass.

App. Ct. at 432 (petitioning activity in opposing airport

expansion not implicated by claim of "harassing" contractor and

engaging in "intrusive surveillance"); Ayasli v. Armstrong, 56

Mass. App. Ct. 740, 748 (2002)(petitioning activity in opposing

addition to home not implicated by claim based on "intentionally

interfering" with right to use property). Because the

counterclaims here are based on "private interaction" rather

than an effort to "influence, inform, or even reach a government

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body," the judge properly denied the special motion to dismiss.

Citizens Ins. Co. of Am., 95 Mass. App. Ct. at 518.

Rosario's private statements to individuals do not

transform into petitioning activity merely because she

republished some of those statements in a report to the police,

a complaint to MCAD, and a civil action. "Individuals who

petition the government are not necessarily free to engage in

gratuitous publication of the petition elsewhere without

consequence." Kalter, 67 Mass. App. Ct. at 588. See, e.g.,

Blanchard, 477 Mass. at 153 (email to hospital staff not

petitioning activity though related government investigation

underway); Cadle Co. v. Schlichtmann, 448 Mass. 242, 254 (2007)

(statements about an adversary not petitioning activity though

published during litigation); Burley v. Comets Community Youth

Ctr., Inc., 75 Mass. App. Ct. 818, 822-824 (2009) (statement to

private individuals not petitioning activity though similar no-

trespass letter sent to police and court); Ehrlich v. Stern, 74

Mass. App. Ct. 531, 540-542 (2009) (posting on website not

petitioning activity though related to class action lawsuit);

Global NAPS, Inc., 63 Mass. App. Ct. at 601, 607 (statement to

reporter not petitioning activity though communicated during

pending arbitration appeal). In Kalter, a patient sent

identical letters to an insurance company, the police, and the

Division of Professional Licensure (DPL). Kalter, 67 Mass. App.

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Ct. 585. The chiropractor, who was the subject of the letters,

filed a claim against the patient, and the patient claimed the

letters were protected petitioning activity. Id. We agreed

that the letters sent to the police and DPL constituted

petitioning activity, but the identical letter sent to the

insurance company did not. Id. at 587. The same reasoning

holds true here. Rosario may have made similar statements to

private individuals and the government. As in Kalter,

statements to the government constitute petitioning activity,

but statements to private individuals, in the "over-all context"

here, do not. North American, 452 Mass. at 862.

Conclusion. The anti-SLAPP statute "provides its own

express" definition of petitioning activity Commonwealth v.

Exxon Mobil Corp., 489 Mass. 724, 727 n.3 (2022). We are bound

to review Rosario's statements with reference to the plain

language of the statute, and the "over-all context" in which the

statements were made. North American, 452 Mass. at 862. Based

upon that governing standard and the record here, Rosario has

not met her burden of proving that her statements to private

individuals constituted petitioning activity under G. L. c. 231,

§ 59H. The order denying the special motion to dismiss is

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affirmed. The parties' requests for appellate attorney fees and

costs are denied.

Order denying special motion
to dismiss affirmed.

By the Court (Neyman, Shin &
Hodgens, JJ.2),

Clerk

Entered: April 5, 2023.

2 The panelists are listed in order of seniority.

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