Khalil Mafhoum v. Department of State Police.

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

23-P-483

KHALIL MAFHOUM

vs.

DEPARTMENT OF STATE POLICE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case presents a claim under G. L. c. 151B, § 4,

alleging that the defendant Massachusetts Department of State

Police (MSP), discriminated against the plaintiff, a former

Massachusetts State Trooper, based on his race, and engaged in

disparate treatment against him based on his race, in

terminating him from employment with the MSP during his

probationary period.1 Although the plaintiff concedes that he

violated MSP Department Policy Rule TPF-20 regarding the

reporting of what he described as a minor car accident involving

1 The complaint also alleged a violation of G. L. c. 151B's
prohibition on age discrimination. At argument in the trial
court, counsel conceded that at all relevant times, the
plaintiff was thirty-nine years old, and therefore not within
the protected class for an age discrimination claim. The
plaintiff does not contest that conclusion here and has not
appealed the dismissal of the age discrimination claim.
his cruiser, he avers that the severity of the punishment --

termination -- was due to his race. The plaintiff emigrated to

the United States from Morocco and avers that he is Muslim-

American. Indeed, he avers that at the time of his termination,

he was the only Muslim-American State police trooper.2

The complaint was dismissed on the ground that the

complaint was filed outside the statute of limitations, and it

is from that dismissal that the plaintiff appeals. "We review

the allowance of a motion to dismiss de novo, accepting as true

all well-pleaded facts alleged in the complaint. We draw all

reasonable inferences in the plaintiff's favor and determine

whether the allegations plausibly suggest that the plaintiff is

entitled to relief on [his] legal claim." (Citations omitted.)

Fairhaven Hous. Auth. v. Commonwealth, 493 Mass. 27, 30 (2023).

The plaintiff was terminated by the MSP on November 13,

2018, according to the complaint. It is undisputed that the

statute of limitations runs "three years after the alleged,

unlawful practice occurred." G. L. c. 151B, § 9. Although

three years from termination was November 13, 2021, because of

the Supreme Judicial Court's orders regarding court operations

during the COVID-19 pandemic, if the statute of limitations

2 We assume without deciding that if his termination were due to
these characteristics or his status as a person of color, it
would amount to actionable race discrimination under the
statute.

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would otherwise have run on that date, it was extended until

February 28, 2022. The plaintiff, however, filed his complaint

on June 10, 2022.

At argument below, counsel for the plaintiff, who now

appears before us pro se, argued that the discovery rule tolled

the statute of limitations until, on July 1, 2019, the plaintiff

received the results of a Freedom of Information Act (FOIA)

request in which, according to the complaint, the material he

received from MSP revealed that the only alleged, comparable

disciplinary actions undertaken against probationary officers

were for acts of misconduct dramatically more serious than those

upon which his termination was based. Before us, he makes an

argument that he is entitled to equitable tolling and in the

alternative, that his counsel was ineffective in late-filing his

complaint.

Though his brief is not a model of clarity, the plaintiff

appears to raise four different arguments under the rubric of

equitable estoppel. To begin with, at one point he essentially

describes equitable estoppel as encompassing what amounts to the

discovery rule. To the extent, if any, he can be understood,

though, to raise the discovery rule, the claim is without merit.

"A cause of action will accrue when the plaintiff actually

knows of the cause of action or when the plaintiff should have

known of the cause of action." Riley v. Presnell, 409 Mass.

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239, 244 (1991). We will assume that in a discrimination case,

that occurs when a plaintiff has "ascertained sufficient

information . . . to believe that they . . . had been subjected

to discriminatory treatment." Silvestris v. Tantasqua Regional

Sch. Dist., 446 Mass. 756, 768 (2006).

The plaintiff argued below that he only came to believe

that his termination was discriminatory when he received from

the Commonwealth, in response to his FOIA request, documents

showing that other people terminated had been found to have

engaged in far more serious misconduct than he. That date of

receipt is the only date of discovery that he asserts rendered

his filing timely.

This argument, however, founders on the fact that his

complaint –- which we must take as true for purposes of a motion

to dismiss –- states that

"[s]hortly after his termination, the Plaintiff learned
that other probationary members of his recruit training
class were also involved in various other forms of
misconduct equal to or more egregious than that of the
Plaintiff, however, those probationary employees were not
terminated from their employment by the MSP. . . . None of
these other probationary employees from previous classes
who were investigated for, or charged with disciplinary
issues, were of the same age or racial identity as the
Plaintiff. . . . None of these probationary employees who
received discipline short of termination were minorities."

The complaint then goes on to list seven other probationary

officers who were not minorities who were disciplined short of

termination, and at least two of whose infractions were arguably

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more serious than the plaintiff's infractions. But the

plaintiff does not contend that his knowledge of these incidents

arose from the documents he received in response to his FOIA

request, which relate to two officers (whose racial backgrounds

are unidentified) other than the seven officers listed in the

complaint. There is also no suggestion from the plaintiff that

if the statute of limitations were triggered not on his

termination date but "shortly after his termination" when he

"learned" of these seven other disciplined probationary

officers, his complaint would as a result have been timely.

The knowledge described certainly objectively gave the

plaintiff reason to believe he had been subjected to

discriminatory treatment. Consequently the statute of

limitations began to run no later than the date on which he

acquired or reasonably could have acquired that knowledge. The

judge correctly determined that that date was not when the

plaintiff received the FOIA response, and the plaintiff

identifies no other date that would put his claims within the

limitations period. Consequently, we agree with the motion

judge that the statute of limitations had run by the time the

complaint was filed.

Plaintiff next argues that discrimination

"continues to occur whenever Mafhoum's attempts or seek
[sic] any employment opportunity in a law enforcement
agency, in addition to the psychological effects and

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flashbacks he had suffered wherever the appellee passes a
place he was called for service, responded to an accident
and conducted his duties, till present day is reminded of
the pain and suffering caused by Department of the State
Police."

This was not a basis raised below for the tolling of the statute

of limitations, nor were any of the facts he alleges included in

the complaint. Consequently this argument is thus waived, and,

on this record, without merit.

The pro se plaintiff next argues that he is entitled to

equitable estoppel because he was affirmatively misled by the

defendant into not asserting a timely claim, see Andrews v.

Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996), or the

defendant encouraged or cajoled him into inaction. See Cherella

v. Phoenix Techs. Ltd., 32 Mass. App. Ct. 919, 920 (1992). But

the complaint contains no allegations of any such conduct by the

defendant. Finally, he argues that he was misled by his

attorney into inaction. But even if that were true, the actions

of one's own counsel, as opposed to the defendant, provide no

basis for equitable tolling. See Andrews, supra at 1022.

In addition to equitable estoppel, the plaintiff brings a

claim for ineffective assistance of counsel. This, however, is

a civil action, and generally one cannot obtain a new trial in a

civil case by way of a claim for ineffective assistance of

counsel.

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"A claim of ineffective assistance of counsel is a well-
established ground for a collateral attack on a decision in
a criminal case. Such a claim is not a basis for a
collateral attack on a civil judgment, where a litigant's
sole recourse for his attorney's negligence is an action
for malpractice. As a general rule, there is no right to
the effective assistance of counsel in civil cases."
(Citations omitted.)

Commonwealth v. Patton, 458 Mass. 119, 124 (2010). As this case

does not fall into any exception to that general rule, the

plaintiff's claim about ineffective assistance of counsel is

without merit.

Judgment affirmed.

By the Court (Rubin, Blake &
Shin, JJ.3),

Assistant Clerk
Entered: April 2, 2024.

3 The panelists are listed in order of seniority.

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