The Massachusetts Supreme Judicial Court ruled on October 4, 2016 in favor of Pierce Davis & Perritano’s client when it declined to recognize that union members’ communications with their unions are protected by privilege in a civil case alleging employment discrimination. The case, Chadwick v. Duxbury Pub. Sch., 475 Mass. 645, 59 N.E.3d 1143 (2016), was argued in May 2016.
PDP partner John Cloherty is defending the Town of Duxbury against a lawsuit by one of its former high school teachers who asserts she was retaliated against based on a pre-existing disability of Post-Traumatic Stress Disorder. The Plaintiff, who also served as a president of the teachers union, refused to respond to discovery requests for her relevant communications with other union members or representatives. In this case of first impression, the SJC ruled that union communications in civil litigation are not protected under Massachusetts’ collective bargaining statutes or common law. The court rejected a retired public school teacher’s efforts to protect her communications with her union from discovery in an employment discrimination case.
The SJC viewed this as a pure question of law, and then rejected the two claims plaintiff relied upon to invoke the proposed privilege: (1) the Statute creating the right for public employees to collectively bargain (Ch. 150E); and (2) the common-law privileges that may be judicially created.
The court’s decision rejecting the statutory basis for the privilege stated:
“In her challenge to the defendant’s discovery requests, the plaintiff concedes that a union member-union privilege has never been recognized in Massachusetts. She argues, however, that G. L. c. 150E, the statute establishing the collective bargaining rights of public employees, should be interpreted to recognize a union member-union privilege and that such a privilege bars the employer’s access to the requested discovery.”
“Unlike proceedings that are directly connected to the collective bargaining context, the plaintiff here seeks a protective order in a civil lawsuit against her employer. Civil lawsuits are beyond the zone of protection for union rights contemplated in G. L. c. 150E. Therefore, the plain and unambiguous language of § 10 (a) (1) does not require that communications between union members and union representatives be protected from interference by an employer defending itself from an employee’s civil action.”
As for the common-law analysis, the Court said “we now decline the plaintiff’s request to judicially create such a privilege.” The SJC stated that it “has the power to create privileges, but ‘it is a power that we have exercised sparingly.’” The opinion then cited case law from other jurisdictions that recognized such a privilege, and alternatively rejected such a privilege. Continuing, which the Court said “In any event, the question whether to create such a privilege is better left to the Legislature. The decision to create a privilege requires a ‘balancing of the public’s interest in obtaining every person’s [evidence] against public policy considerations in favor of erecting a . . . privilege.’” The Court also remarked that “this is not an appropriate case on which to judicially create such a privilege” based on the thin record being limited to a privilege log which does not convey “the content of those communications or the context in which they were made.”
Commenting on the broader consequences of this case, attorney John Cloherty said, “Massachusetts is a leading jurisdiction for employment law. I think other jurisdictions will look to Massachusetts to set the tone for whether a privilege should be recognized.” This case has been heavily covered by the media and reported in publication including, Law360, Massachusetts Lawyers Weekly, and The Patriot Ledger.
The defendant’s retaliation and discrimination case is ongoing.
The case is Chadwick v. Duxbury Public Schools, case number SJC-12054 in the Massachusetts Supreme Judicial Court. Duxbury Public Schools is represented by John J. Cloherty III of Pierce Davis & Perritano LLP.
A video of the oral argument can be watched here: http://www.suffolk.edu/sjc/archive/2016/SJC_12054.html