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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WORCESTER, SS
SUPERIOR COURT
********************************
GORDON T. DAVIS, Plaintiff *
*
Vs. *
*
Massachusetts Human Resources
Division, *
Office of Massachusetts Attorney
General *
Defendants *
********************************
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
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