CARRIE DEANGELO v. TOWN OF TRURO & Others.

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

22-P-1164

CARRIE DEANGELO

vs.

TOWN OF TRURO & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a summary judgment dismissing

her complaint for employment discrimination based on gender and

sexual orientation, and seeking a declaratory judgment. We

conclude that genuine issues of material fact preclude summary

judgment on the question of the timeliness of the complaint

against the defendants town of Truro and Kyle Takakjian, as well

as on the question whether the so-called "Souza report" was

properly considered a part of the plaintiff's personnel file,

and we vacate so much of the judgment that dismissed count one

against the town and counts two and three against the town and

Takakjian. We affirm the judgment insofar as it dismissed the

plaintiff's claims against the defendant Craig Bayer.

1 Kyle Takakjian and Craig Bayer.
To bring a claim of discrimination under G. L. c. 151B,

§ 5, in the Superior Court, the claim must first be filed with

the Massachusetts Commission Against Discrimination (MCAD)

within three hundred days of the alleged discriminatory conduct.

Where, as in the present case, the complaint alleges a

continuing violation, see Cuddyer v. Stop & Shop Supermkt. Co.,

434 Mass. 521, 541 (2001), a claim may encompass related acts of

discrimination extending beyond the three hundred-day limitation

period, so long as (1) at least one unlawful act occurred within

the limitation period, (2) the timely act has a substantial

relationship to the earlier acts, and (3) the earlier violations

did not trigger the plaintiff's awareness and duty to assert her

rights in a timely fashion. See Ocean Spray Cranberries, Inc.

v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632,

643 (2004).

The plaintiff filed her complaint with MCAD on May 24,

2017; accordingly, any violations before July 28, 2016, would be

outside the statute of limitations. On appeal, the plaintiff

points to three "anchoring" violations: (1) a vote in September

2016 denying her union representation; (2) termination of her

employment on October 31, 2016, which she claims to have been

the result of a constructive discharge, and (3) the refusal by

the town to provide to her a copy of the Souza report to which,

she claims, she was entitled pursuant to G. L. c. 149, § 52C.

2
"We review a motion for summary judgment de novo. In doing

so, we must determine 'whether, viewing the evidence in the

light most favorable to the nonmoving party, all material facts

have been established and the moving party is entitled to

judgment as a matter of law'" (citations omitted). Psychemedics

Corp. v. Boston, 486 Mass. 724, 731 (2021).

We agree with the motion judge that the record includes no

evidence to support the plaintiff's contention that the union

vote to deny her representation was the product of unlawful

discrimination. Nor can the termination of her employment serve

as an anchoring act of discrimination, even if her claim of

constructive discharge is accepted as valid. The discriminatory

acts she claims to have led to her constructive discharge all

occurred prior to July 28, 2016; it is of no moment that

following those discriminatory acts she delayed departure from

her position until October.2

2 We note that, though the plaintiff asserts in her brief that
discriminatory acts by her subordinates continued beyond July
2016, and "never ceased" prior to her October 2016 constructive
discharge, she provides no record citations to support the
assertion. See Mass. R. A. P. 16 (a) (7) and (9) (A), as
appearing in 481 Mass. 1628 (2019). We note as well, however,
that the town's emphasis on the plaintiff's statement in her
deposition that she couldn't "think of" any complaints or
concerns after March 2016 is misleading; it ignores her
testimony that acts of insubordination were "almost like daily"
and testimony of Sergeant David Perry that the officers
"wouldn't take orders from her; they would talk behind her back;
they would disrespect her out on the field," and that "they used
to have meetings in the back room to discuss things that she

3
The question of the Souza report stands differently.

Viewing the facts in the light most favorable to the plaintiff,

the record reveals that, in April 2016, the town engaged retired

chief of police John Souza to review the facts that gave rise to

certain discipline administered to the plaintiff, and to

"retrain" her for two days. Souza conducted a thorough review

of the facts underlying the discipline, and concluded that the

plaintiff had done nothing wrong.3 Souza also concluded that the

town had mishandled the investigation into the plaintiff's

conduct, that its assessment of the propriety of her actions was

inaccurate, and that the town and Takakjian encouraged

insubordination and disrespect of the plaintiff by her

subordinates. When the plaintiff became aware of the report

(and in a general sense of its content), she requested a copy of

it in June 2016, followed by a public records request on July

12, 2016. On July 28, 2016, counsel for the town refused in

writing to produce the report, on the ground that it was exempt

from production under three exemptions to the definition of

wasn't doing correctly." In proceedings following remand, the
plaintiff is, of course, free to present specific evidence of
discriminatory acts during the period following July 2016.
3 Though Souza found that the plaintiff's failure to issue a

citation at the scene of a traffic stop involved in one of the
incidents was a procedural error, the plaintiff was not required
by law to issue a citation at the scene and the charges against
the defendants in that case would have survived any legal
challenge.

4
"public records": for materials that may "constitute an

unwarranted invasion of personal privacy"; for inter or intra-

agency materials relating to public policy decisions before the

agency; and for investigatory materials "the disclosure of

which . . . would probably so prejudice the possibility of

effective law enforcement that such disclosure would not be in

the public interest." G. L. c. 4, § 7, twenty-sixth (c), (d),

(f). On the plaintiff's appeal of the town's denial of her

public records request, the supervisor of records in the public

records division of the Office of the Secretary of the

Commonwealth concluded that the town was not required, under the

public records law, to release the Souza report, by virtue of

exemption (f), applicable to investigatory materials. However,

the supervisor of records also observed that the plaintiff was

entitled to inspect her own personnel records pursuant to G. L.

c. 149, § 52C. After the plaintiff made further efforts to

obtain and review the Souza report, the town on March 27, 2017,

again refused her request, despite having been ordered by the

Office of the Attorney General to produce it, on the ground that

the report was not a personnel record because, by virtue of her

separation from employment, it could not be used for any of the

actions contemplated by the statute.

The motion judge in the present case did not address the

plaintiff's request for a declaration that the Souza report was

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a part of her personnel record, and that she was accordingly

entitled to review it on request. The town asserts that the

Souza report was not a part of the plaintiff's personnel record.

That assertion is, described most charitably, not free from

doubt; both the supervisor of records in the Office of the

Secretary of the Commonwealth and the Office of the Attorney

General essentially expressed in writing their view that it is.

In any event, the material fact is at a minimum subject to

genuine dispute, warranting further proceedings in the Superior

Court, and a determination of the question by a judge of that

court as requested in the plaintiff's complaint. Viewed in

context, and in the light most favorable to the plaintiff, the

Souza report was integrally related to the pattern of

discrimination alleged by the plaintiff during the period prior

to July 2016, and in particular to her discipline by the town

and Takakjian in a manner that was not applied to her male

colleagues and subordinates. The town's refusal to provide it

to her accordingly also could serve as an anchoring act of

discrimination within the limitation period.4

4 The town separately argues that the plaintiff waived her
discrimination claims in a memorandum of agreement she signed on
February 21, 2016. The motion judge did not address the town's
waiver argument in his memorandum of decision. Though we may
affirm the judgment on any ground supported by the record, we
decline the town's request that we affirm the judgment of
dismissal on that basis. As the town acknowledges, the waiver
of a claim must be knowing and voluntary. The plaintiff asserts

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So much of the judgment that dismissed count one against

the town and counts two and three against the town and Takakjian

is vacated, and the matter is remanded to the Superior Court for

further proceedings consistent with this memorandum and order.

The judgment is affirmed insofar as it dismissed the plaintiff's

claims against Bayer.

So ordered.

By the Court (Green, C.J.,
Blake & Henry, JJ.5),

Clerk

Entered: December 7, 2023.

that she was coerced into signing the release under threat of
disciplinary actions against her. In any event, whether a
waiver of claims is knowing and voluntary must be evaluated on
the basis of the totality of the circumstances, and the burden
is on the releasee to establish that the waiver was knowing and
voluntary. Melanson v. Browning-Ferris Indus., Inc., 281 F.3d
272, 274 (1st Cir. 2002). Even if the question is susceptible
of determination on the present record, without confronting
disputed questions of fact, we believe it better to be
considered by the Superior Court in the first instance. We also
note that, though the plaintiff, the town, and the plaintiff's
union were parties to the agreement, Takakjian was not a party,
and the release provision does not identify the releasees.
Moreover, the agreement was signed on February 21, 2016, prior
to the town's refusal to provide the Souza report to the
plaintiff and, though not raised by the plaintiff in her brief
on appeal, we also note that there may be questions concerning
the scope of any waiver, if it is effective. Again, the
plaintiff remains free to raise any such questions on remand.
5 The panelists are listed in order of seniority.

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