DAVIS VS. CHARLIE BAKER

DAVIS VS. CHARLIE BAKER

   My former employer, the Commonwealth of Massachusetts,

 has refused to provide to me a copy of my personnel record. 

A part of the personnel record is maintained by the 

Massachusetts Commission Against Discrimination (MCAD)

 and another part of my personnel record is maintained by

 Massachusetts Human Resources Division (MHRD)

.

     Massachusetts General Laws (MGL), chap. 149, sec. 52C 

requires employer to maintain personnel records and allow 

employees a copy of and access to their records at least twice a 

year.  The Commonwealth has refused me access to my records.

     In 2017 I litigated the issue. The Court dismissed my 

complaint. It ruled that I did not have a right of private action

 except in the case of correcting or expunging false items. The 

inference is that the request that I made for my personnel 

records were inappropriately worded. I have rewritten the

requests. See below.

     The Court did not order the Attorney General to enforce

 Chap. 149.  There might be a separation of power issue in that 

the judicial branch of government can not evaluate how the

executive branch evaluates and carries out its responsibilities

unless specifically written in the statute.

     Should the Commonwealth again refuse to provide to me a

 copy or access to my records, it makes sense to skip the 

Attorney General and bring a complaint against the CEO of 

the Commonwealth, Governor Charlie Baker.

Chief Human Resources Officer

Massachusetts Human Resources Division

1 Ashburton Place, Room 301

Boston MA  02108

Re: Request Personnel Records

Dear Sir or Madam:

Please accept this letter as the request for my Personnel Records per M.G. L. Chapter 149, Sec. 52C.

I was an employee of the Commonwealth of Massachusetts working for the Massachusetts Commission Against Discrimination from September 2006 to April 2010.

The issue of my records has been litigated. The Court has ruled that I can receive a copy of my personnel record in order to correct and/or expunge false items. Please see attached Court ruling.

Mass. AG Policy on Enforcement of Chapter 149 Needs Fixing

Why Massachusetts Attorney General’s Policy for Enforcement of Chapter 149 Needs Fixing

The Court dismissed my suit against the Massachusetts Human Resources Division (MHRS) and the Attorney General of Massachusetts (AG). The Court ruled that I could not get my employee personnel record from the MHRD because of a limited right of private action (the right of private action is the authorization of the plaintiff to sue).

The Court also dismissed my demand that the AG office produce their policy regarding Chapter 149, sec. 52C (Chap. 149,).   However the AG stated it policy regarding the Stature in in Pleadings. Based on the policy found in the Pleading, is possible to analyze with some certainty the AG’s methods for enforcement of the Stature

Curiously the Court concluded that I had asked it to compel the AG to enforce the statute. This was a misinterpretation of the complaint. The complaint demand only from the AG that it provide a written copy of its policy regarding the enforcement of Chapter 149.

The AG policy on Chap. 149 based on its pleadings and other court documents is the following.

1.     There is no right to private action and only the AG can enforce the statute.

The Court has ruled that a plaintiff has the right of private action when it comes to the expungement or correction of items in the employee’s personnel file. [1] See images below

2.     The AG policy is that the Commonwealth of Massachusetts and its political subdivisions are not required to provide employees’ their file per Chap. 149.

The Court did not rule on this issue.

3.     The AG enforcement of Chapter 149 is outside of the jurisdiction of the Courts.

The Court ruled it had no jurisdiction in the enforcement of Chap. 149 by the AG.

The impact of this ruling is that not one employee of the Commonwealth of its political sub divisions can obtain their employee file, except at the pleasure of the Commonwealth. The AG policy is Chap. 149 does apply to the Commonwealth of Massachusetts.

Another consequence of the AG policy is that no employee working for a private company can compel through the courts his company to produce his personnel file.

There are several ways to correct this arrogance of power by the AG. The first is to request the legislature to add the right of private action expressly in Chap. 149.

The other way to use the tiny opening given by the Court for a private action to “expunge” or correct a personnel file. There is a logical necessity to the correcting of a personnel file and that logical necessity is that the employee requires a copy of his personnel file in order to correct it.

It is likely that both paths will be pursued

---

[1] Court Ruling November 15, 2017, page 2, footnote 4