Start of Discovery, Davis vs. Mass. Attorney General

Start of Discovery

Discovery is the seeking of dispositive evidence from the litigants or any related party. In my case against the Massachusetts Attorney General (AG) and the Massachusetts Human Resources Division. (MHRD). For the Plaintiff Discovery can begin once the Defendant is served with the Complaint. For the Defendant Discovery can start when the Complaint is filed at the Clerk of Court office.

There are several types of Discovery, documents, addmittals, dispositions, and questions.

At this time I have sent to the MHRD and the AG requests for the production of documents. A copy of the Request for Documents can be seen below. 

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   COMMONWEALTH OF MASSACHUSETTS

                                                                                                                                       WORCESTER,  SS                                  SUPERIOR COURT  

Docket No. 1785 CV00873 D                                                                                                                                                                                                                                                                                                     

                                                                                                     

                                                          

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GORDON T. DAVIS, Plaintiff                                          

                                                                                            

                             Vs.                                                         

                                                                                            

Massachusetts Human Resources Division,                                                                                                                 

Office of Massachusetts Attorney General                                                                                                                                                                     

Defendants                                                                        

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PLAINITFF’S REQUEST FOR FIRST SET OF DCOUMNETS FROM DEFENDANT MASSACHUSETTS HUMAN RESOURCES DIVISION (HRD)

In the above entitled action, and request, pursuit to Rule 34 of the Massachusetts Rules of Civil Procedure the Defendant Massachusetts Human Resources produce and permit the inspection and photocopying of the documents designated herein and by M.G.L. Chapter 149, Section 52C 

Section 52C: Personnel records; review by employee; corrections; penalty

Section 52C. As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

''Employee'', a person currently employed or formerly employed by an employer; provided, however, that for purposes of this section, persons who are employed, or were formerly employed, by a private institution of higher education in positions which may lead to tenure, are tenured, or which involve responsibilities similar to those in tenure-track positions, shall not be considered employees.

''Employer'', an individual, corporation, partnership, labor organization, unincorporated association or any other legal business, public or private, or commercial entity including agents of the employer.

''Personnel record'', a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person's privacy. Without limiting the applicability or generality of the foregoing, all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee. A personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink.

These documents are to be produced to the Plaintiff at 416 Lake Ave, Worcester, MA 01604 within thirty (30) days of the date of this Request.

DEFINITIONS

1.     “You” and “yours” refer to “Massachusetts Human Resources Division” (and any other person or entity under its control or acting on its behalf)

2.     As used herein “copy” or “copies” or “documents” shall mean written recorded, or graphic matter of every type and description, however, and by whomever prepared, produced, reproduced, disseminated, or made, which is in the custody, control, or possession of HRD, its agents, or attorneys.  Documents produced shall include each copy of any document which is not identical to any other copy and shall include any copy of any document upon which any marking or notation is made which is not made upon the original or copy thereof.

3.     Unless otherwise specified the time period for which documents requested is from September 1, 2006 to present, updated seasonally. 

DESTRUCTION OF REQUESTED DOCUMENTS

If any document sought by this Request has been destroyed, and if no copy exists within your possession, control, or custody, please identify the document, the date of its destruction, the person responsible for ordering its destruction, the person performing the destruction, the method of its destruction, and purpose thereof.

PRIVILEDGE OF WORK PRODUCT PROTECTION

Any document requested to be produced that you believe may be withheld on the grounds of either privilege or work product protection is to be listed with a brief description of the document and a statement for the basis of the withholding.

PRODUCTION OF REQUESTED DOCUMENTS

The documents that are produced that are produced in response to these requests shall be organized and labelled to the numbered requests herein.

                                   REQUESTS

1.     Any and all documents as described in M.G.L. Chapter 149, Section 52C.

2.     Any and all documents given to NAGE/SEIU regarding allegations of contract violations by HRD against Plaintiff.

3.     Any and all documents regarding HRD policies regarding compliance with MG.L. Chapter 149, Sec. 52C.

4.     Any and all documents provided to the HRD by the Office of the Massachusetts Attorney General regarding the enforcement of or compliance with M.G.L. Chapter 149, Sec. 52C

Sincerely,

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Gordon T. Davis                                            Date                                                            Pro Se Plaintiff                                                                                                                

Why I Am Suing the Massachusetts Attorney General

Why I Am Suing the Massachusetts Attorney General

  

   

This case is based on the alleged civil violations of Massachusetts General Law,  Chapter 149, Section 52C. This statute compels an employer to provide to an employee or former employee a copy of his "personnel record". The employer is required to provide the personnel record within five (5) business days of the receipt of a written request for the personnel records made by the employer.

 The statute authorizes the Massachusetts Attorney General  to enforce its requirements by means of fines up to twenty-five thousand dollars ($25,000).

I worked for the State until 2010. I wrote a request for a copy of my personnel record from two State agencies, MCAD and the Massachusetts Human Resources Division (MHRD). The MHRD did not provide a copy of my personnel record in its custodial care.

I contacted the  Massachusetts Attorney General Office (AG) and requested that it enforce M.G.L Chapter 149, Sec. 52C. The AG first said it would enforce the statute, but never did. One of its attorneys said that the MHRD was never my employer and its did not have to comply with the Statute.. This contradicts the black letter of the Statute which says

   "  Employer'', an individual, corporation, partnership, labor organization, unincorporated association or any other legal business, public or private, or commercial entity including agents of the employer."

As the State was my employer and the MHRD has been a part of the State: the MHRD was my employer or at least an "agent" of my employer.

The other issue in the case is whether an employee can go to court and sue for his personnel record. The AG has said "no".  The ruling in this case could open the door to working people who feel we have been unlawfully terminate to gather evidence from "agents" of our former employers.

Below is the Complaint filed in Worcester Superior Court.

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                   COMMONWEALTH OF MASACHUSETTS

                                                                                                                                                                     WORCESTER,          SS                                                           

SUPERIOR COURT                                                                                                                                                                                                                                                                                                        

                                                                                                     

                                                          

********************************                                                                                                                                      

GORDON T. DAVIS, Plaintiff                                          *

                                                                                            * 

                             Vs.                                                         * 

                                                                                            *

Massachusetts Human Resources Division,             *                                                                                                       

Office of Massachusetts Attorney General                         *                                                                                                                                       

Defendants                                                                        *

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COMPLAINT

Parties

1.     The Plaintiff is Gordon T. Davis who resides at 416 Lake Ave, Worcester MA 01604.

The Plaintiff is now self-employed  as an Advocate, helping people with discrimination cases at the Massachusetts Commission Against Discrimination and employment cases at the Department of Unemployment Assistance.

The Plaintiff at all times of the violations of M.G. L. Chap. 149, Sec. 52C  a Plaintiff in a separate litigation against the Massachusetts Commission Against Discrimination.

2.     The Defendants are:

Office of the Massachusetts Attorney General

1 Ashburton Place 18th Floor

Boston MA 02108

Massachusetts Human Resource Division

1 Ashburton Place Room 301

Boston MA 02108

Counts

3.   In 2013 the Plaintiff in accordance with M.G.L. chapter 149, § 52C had written to the Massachusetts Human Resources Division requesting a copy of his personnel record.

4.   The Massachusetts Human Resources Division did not respond in any manner to the Plaintiff’s written request for his personnel record.

5.   In 2013 subsequent to the failure of the Massachusetts Human Resources Division to provide the Plaintiff a cop of his personnel record as required by the statute, the plaintiff contacted the Massachusetts Attorney General Martha Coakley. The Plaintiff asked the Attorney General Coakley to enforce M.G. L. Chap. 149, Sect 52C.

6.   The Attorney General Office did not respond immediately to the 2013 request by the Plaintiff to enforce M.G.L. Chap. 149, Sec. 52C.  By means of a phone call the Plaintiff followed up on his request to Attorney General Coakley.

7.   Mr. Bruce Trager informed the Plaintiff during the aforementioned phone call (item 6) that he would contact the Massachusetts Human Resources Division.

8.    When in April 2014 Mr. Trager failed to contact the Plaintiff about the Attorney General’s efforts to enforce M.G.L. Chap.49, Sec.52C against the Massachusetts Human Resources Division. As a response to this failure the Plaintiff wrote Mr. Trager requesting a letter to privately sue the Massachusetts Human Resources Division for his personnel record. (Exhibit 1)

9.   Mr. Trager by means of a phone call denied the Plaintiff a letter allowing him to privately sue for his personnel record from the Massachusetts Human Resources Division.

10.             After the election of Maura Healy as Attorney General of Massachusetts the Plaintiff wrote again to the Attorney General’s Office in 2017 requesting that it enforce M.G.L. Chap. 49, Sec. 52C and compel the Massachusetts Human Resources Division to provide the Plaintiff with a copy of his personnel record.

11.             Ms. Lauren Goldman of the Attorney General Office responded to the Plaintiff’s 2017 request for the enforcement of M.G.L. Chapter 149, Sec. 52C by phone. She said that the Attorney General Office would not enforce the statute for the following reasons:

a.     That Howard Meshnick of the Attorney General Office and defense counsel for the Massachusetts Commission Against Discrimination told her that the Massachusetts Human Resources Division had already provided the Plaintiff’s personnel record to the Plaintiff.

b.     That Mr. Meshnick, being the defense attorney for the Massachusetts Commission Against Discrimination, was more credible than the Plaintiff in the matter. (Exhibit 2)

12.             The Plaintiff told Ms. Goldman during the phone call seen in item 11 above that:

c.      That Mr. Meshnick was not the defense attorney for the Massachusetts Human Resources Division.

d.     That the Plaintiff had evidence that his personnel file was not provided to him. (Exhibit 1)

e.     That the litigation against Massachusetts Commission Against Discrimination was not related to the enforcement of M.G.L. Chapter 149, Sec. 52C (against the Massachusetts Human Resources Division) as the Plaintiff was not suing the Massachusetts Human Resources Division.

f.       That the issue of whether any document was provided to the Plaintiff via discovery in the litigation of the Massachusetts Commission Against Discrimination was not relevant and is not a defense for the violation of the statute by the Massachusetts Human Resources Division to provide the Plaintiff his personnel record separately from such litigation.

g.     Ligation against a State agency does not relieve the Office of the Attorney General from its statutory requirement of the enforcement of M.G.L. Chap.149, Sec. 52C.

Demands

The Plaintiff respectfully asks the Court for the following:

13.             The Plaintiff seeks a copy of his personnel file from the Massachusetts Human Resources Division.

14.             The Plaintiff asks the Court to order the Office of the Attorney General to clarify its policies and procedures regarding the enforcement of M.G.L. Chap.149, Sec. 52C when there is litigation against a State agency. As the Office of Attorney General is defense counsel in such cases and the enforcement agency for the statute, there is a conflict of interest.

15.             The rule on whether a plaintiff has the right to privately sue under M.G.L. Chap. 149, Sec. 52C when the Office of Attorney fails to enforce the statute.

Signed under the pains and penalties of perjury

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Gordon T. Davis                                            Date                                                                            Pro Se Plaintiff