MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2011, the plaintiff entered into a settlement agreement with the town of Brookline (town) in which he accepted a cash payment in exchange for (1) the dismissal of his claim filed with the Massachusetts Commission Against Discrimination (commission) and (2) a general release of any and all claims he may have against the town. In 2019, the plaintiff brought an action in Superior Court against the commission and the town, in which he sought to be relieved of the settlement agreement on the theory that the commission had wrongly induced him to enter into it. The complaint, which was fashioned as one for declaratory judgement, was dismissed. We affirm the judgment because the allegations in the verified complaint, if proved, do not warrant declaratory relief.
Background.
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The plaintiff was employed in the towns department of public works as a laborer from 2003 to 2011. In June 2006, the plaintiff filed a pro se complaint with the commission alleging a hostile work environment and disparate treatment on the basis of national origin, race, and color. In February 2009, the commission found probable cause to support the plaintiffs hostile work environment claim, but not his disparate treatment claim against the town. Shortly thereafter, commission counsel William Green was assigned to the plaintiffs case. The plaintiff believed that Attorney Green “was acting as his personal lawyer in the case based on his words and actions,” and “trusted that [Attorney] Green was acting in his best interests.”
In July 2009, the plaintiff filed another pro se complaint alleging that he had been singled out for discipline and retaliated against by his supervisors as a result of his 2006 complaint, which remained pending before the commission. In June 2011, the commission found that probable cause did not support the 2009 complaint.
In October 2011, on advice from Attorney Green, the plaintiff executed a settlement agreement and release (agreement) with the town in exchange for a $15,000 payment.
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Beyond that settlement payment, the agreement did not require that the town provide any other “affirmative relief.” As part of the agreement, the plaintiff agreed to withdraw with prejudice his 2006 complaint, and to waive and release any present or future claims against the town arising out of his employment.
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The agreement also included nondisclosure provisions.
In December 2011, Attorney Green provided the plaintiff with the check from the town and an official commission envelope containing the agreement. The plaintiff did not review the contents of the envelope; however, in 2016, he provided the envelope to his present counsel who discovered that the envelope contained two confidential memoranda dated October 8, 2010, and October 21, 2011, regarding the plaintiffs case that were authored by the towns counsel and directed to its select board. Even though the memoranda were in Attorney Greens possession, he had not previously provided them to the plaintiff. The October 2010 memorandum reflected that Attorney Green made a demand below the amount authorized by the plaintiff and indicated the plaintiff “may take less.” In the memorandum, the towns counsel also expressed his opinion that the commission “could find that it is more probabl[e] than not that racist comments were made by a [z]one [m]anager,” and discussed the potential damages for emotional distress that the plaintiff may recover should the commission find in his favor. In the October 2011 memorandum, the towns counsel explained that the $15,000 settlement amount “is warranted because the [t]own has recently terminated [the plaintiff] and he is willing to provide a broad release of all claims related to his employment with the [t]own in exchange for the settlement.” The plaintiff would not have executed the agreement if he knew that Attorney Green was not acting as his personal lawyer and if Attorney Green had not concealed the nature and extent of his communications with the town.
Thereafter, the plaintiff brought his declaratory relief action in the Superior Court under G. L. c. 231A. The plaintiff sought declarations that (1) the conduct of the commission counsel assigned to prosecute the plaintiffs hostile work environment claim against his employer at the time, the town, violated the commissions regulations promulgated under G. L. c. 151B, as well as the plaintiffs due process and equal protection rights under the Federal and State Constitutions; and (2) the agreement between the plaintiff and the town is void.
A judge allowed the towns and the commissions motions to dismiss for various reasons, including that no actual controversy warranting declaratory relief existed; the plaintiff lacked standing; the plaintiff failed to allege any violation of the commissions regulations; the plaintiffs claims were time barred; and the plaintiff failed to sufficiently state a cause of action for fraud or fraud by omission based on Attorney Greens conduct. Judgment subsequently entered dismissing the plaintiffs complaint. This appeal followed.
Discussion. The plaintiff argues that the judge improperly dismissed his complaint because he sufficiently set forth claims for declaratory relief under G. L. c. 231A. The plaintiff further argues that he is entitled to a judgment declaring that Attorney Greens conduct violated the regulations promulgated by the commission under G. L. c. 151B, and the plaintiffs due process and equal protection rights, as well as a judgment declaring the agreement void.
Our review of an order allowing a motion to dismiss is de novo. Revere v. Massachusetts Gaming Commn, 476 Mass. 591, 595 (2017). Where the subject of a motion to dismiss is a claim for declaratory relief, we employ a two-step process. See Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13, 18 (2018). First, we determine whether a claim for declaratory relief is “properly brought.” Id. A claim is properly brought when the plaintiff demonstrates that an actual controversy exists, that the plaintiff has legal standing to sue, and that all necessary parties have been joined. Id. If a claim is “properly brought,” we next determine “whether the facts alleged by the plaintiff in the complaint, if true, state a claim for declaratory relief that can survive a defendants motion to dismiss.” Id.
Even if we assume, arguendo, that the plaintiffs claim is properly brought, dismissal is still appropriate because the facts alleged in his complaint fail to state a claim for declaratory relief. See Buffalo-Water 1, LLC, at 20 (judge may dismiss properly brought claim if complaint fails to state claim for declaratory relief). “[A] complaint for declaratory relief is an appropriate way of testing the validity of regulations or the propriety of practices involving violations of rights, which are consistent and repeated in nature.” Grady v. Commissioner of Correction, 83 Mass. App. Ct. 126, 135 (2013), quoting Nelson v. Commissioner of Correction, 390 Mass. 379, 388 n.12 (1983). See G. L. c. 231A, § 2 (declaratory relief appropriate where administrative practice or procedure is alleged to violate Constitution, State law, or rules or regulations promulgated under State law, and such “violation has been consistently repeated”). However, “declaratory judgment is not ‘an appropriate remedy where the validity of an adjudication ․ in an individual case is being challenged.’ ” Frawley v. Police Commr of Cambridge, 473 Mass. 716, 725 (2016), quoting Diatchenko v. District Attorney for the Suffolk Dist., 471 Mass. 12, 30 (2015).
In this action, the plaintiff seeks to challenge the commissions alleged practice of using its commission counsel to facilitate the unjust settlement of pro se complaints through false pretenses, which the plaintiff contends violates the commissions own regulations promulgated to effectuate its statutory charge, and the constitutional rights of pro se complainants.
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In the plaintiffs view, where the commissions regulations require that it “achieve a just resolution of the complaint [and] take such action as will assure the elimination of discriminatory practices, or the prevention of their occurrence, in the future,” those requirements can only be achieved by ensuring that any settlement agreement executed after a finding of probable cause obligates the respondent to take affirmative steps to eradicate discrimination beyond the payment of money to the complainant, and does not include nondisclosure provisions.
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804 Code Mass. Regs. § 1.18(1)(a) (1999). See G. L. c. 151B, § 5 (if probable cause found and neither party seeks judicial determination of claim, commissioner “shall immediately endeavor to eliminate the unlawful practice complained of ․ by conference, conciliation and persuasion”). The plaintiff also argues that the practice violates pro se complainants’ due process rights because commission counsel improperly induces settlement, and their equal protection rights by creating two separate and unequal classes of complainants, i.e., those who are represented by counsel acting in their best interests, and those who have commission counsel assigned to their cases.
The allegations in the plaintiffs complaint focus on Attorney Greens handling of the plaintiffs hostile work environment claim. Absent from the complaint, however, are any factual allegations to support an inference that the commission is engaged in a “repeated” practice of using commission counsel to obtain unjust settlement of pro se complaints as described above. Indeed, no facts are alleged concerning other cases where commission counsel facilitated settlement agreements at all, let alone those allegedly obtained in a similar manner or containing similar terms to the agreement here.
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Rather, the plaintiff merely alleges that “[u]pon information and belief, the [commissions] use of [c]ommission [c]ounsel in this case to obtain an unjust settlement through false pretenses represents a repeated illegal practice and procedure of the [commission] in cases involving pro se complainants.” Where no factual allegations were provided to support that bald assertion, it is insufficient to support a claim for declaratory relief under G. L. c. 231A.
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See Penal Insts. Commr for Suffolk County v. Commissioner of Correction, 382 Mass. 527, 531 (1981), quoting Poremba v. Springfield, 354 Mass. 432, 434 (1968) (“Conclusory allegations as to official duties or potential future conflicts will not do; ‘[i]t requires clear allegations of specific facts to state a case for any relief, or to show that any real controversy exists, based upon abuse of ․ official discretion’ ”). See also Buffalo-Water 1, LLC, 481 Mass. at 17, quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 165 (2014) (“allegations must be more than ‘mere labels and conclusions,’ and must ‘raise a right to relief above the speculative level’ ”).
In essence, the plaintiff seeks review of the commissions conduct in handling his particular claim. That issue is not properly resolved through a complaint for declaratory relief.
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See Grady, 83 Mass. App. Ct. at 136 (declaratory relief not appropriate where plaintiff “failed to raise or plead sufficient facts to establish that the regulation at issue has resulted in an ongoing, repeated violation of his constitutional rights”). See also Frawley, 473 Mass. at 725-726 (declaratory relief not appropriate where substance of complaint challenged propriety of commissioners decision to deny plaintiffs application for replacement retired officer identification card); Nelson, 390 Mass. at 388 n.12 (complaint for declaratory relief does not give right to de novo hearing in Superior Court concerning propriety of conduct of individual disciplinary hearing).
For the reasons described, we conclude that the judgment dismissing the plaintiffs complaint was proper.
Judgment affirmed.
FOOTNOTES
3
. We accept as true the factual allegations in the plaintiffs verified complaint and supporting inferences that may be drawn from those alleged facts. See Revere v. Massachusetts Gaming Commn, 476 Mass. 591, 595 (2017).
4
. The motion judge considered the language of the agreement in her decision on the motions to dismiss. It appears that the agreement was provided with the towns motion to dismiss and not attached to the verified complaint; however, it was properly considered because the plaintiff had notice of the agreement and relied on it in framing his complaint. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004).
5
. At the time the agreement was executed, the town had recently terminated the plaintiffs employment.
6
. At the time, the relevant regulation provided that a case could be presented before the commission by one of its attorneys or agents, or, at the commissions discretion, by an attorney retained by the complainant. See 804 Code Mass. Regs. § 1.09(5)(a) (1999). The regulation also provided that the commission could exercise its discretion to appoint commission counsel in a matter after considering the extent of the complainants search for private counsel and “the public interest in [c]ommission counsel representation in a particular matter, including consideration of complainants ability to pay for counsel.” 804 Code Mass. Regs. § 1.09(5)(b) (1999). The pertinent regulations have since been amended to reflect that in cases where a complainant is pro se, appointment of commission counsel must occur following a probable cause determination but prior to conciliation. See 804 Code Mass. Regs. § 1.15(5) (2020) (requiring that following probable cause determination, case in support of complaint must be presented by commission attorney or, in commissions discretion, by attorney retained by complainant). As amended, the regulation provides:“The case in support of the complaint at conciliation shall be presented either by private counsel retained by complainant or by counsel for the [c]ommission. A complainant may not proceed pro se at conciliation. A complainants failure to retain counsel or cooperate with counsel for the [c]ommission shall be grounds for dismissing the matter.”804 Code Mass. Regs. § 1.09(2)(b) (2020).
7
. The regulations list various types of relief that “may” be sought for an aggrieved person through conciliation as well as provisions that may be sought for the vindication of the public interest, including prevention of future discriminatory practices, remedial affirmative activities to overcome discriminatory practices, reporting requirements, monitoring and enforcement activities, and educational and training efforts. 804 Code Mass. Regs. § 1.18(1)(b)-(c) (1999).
8
. The complaint references only two other people who filed complaints with the commission. The first, another resident of the town, was a complainant in a case where a different attorney for the commission “pressured him to settle,” but the complaint provides no other details, including whether that individual did, in fact, settle and, if so, whether the settlement reached was unjust and obtained through false pretenses. The other was a town employee who prevailed before the commission in demonstrating that the town failed to respond in a timely manner to a report of a racist comment, did not impose a meaningful punishment on the person who made the racist remark, overlooked ongoing retaliation against the complainant, and promoted a false narrative that the complainant was a paranoid employee who could not “move on” from the racist comment. The complaint contains no allegations about potential settlement with respect to that employees case.
9
. While the plaintiff argues otherwise, the commission made no admission in its brief to undertaking a practice of dismissing pro se complaints of racial discrimination after probable cause findings based only on the payment of money subject to nondisclosure. Indeed, where this matter was resolved on motions to dismiss, the commission did not even answer the complaint.
10
. To the extent that the plaintiff argues that irrespective of any challenge to a pattern or practice of the commission, he is entitled to a declaration that the agreement is void based on Attorney Greens allegedly fraudulent conduct, that argument also fails. Because the commission is not a party to a settlement agreement, any fraudulent conduct on the part of a commission employee would not render the agreement voidable if the town, as the other party to the agreement, acted “in good faith and without reason to know of the misrepresentation[, and] either gives value or relies materially on the transaction.” Lawton v. Dracousis, 14 Mass. App. Ct. 164, 172 (1982), quoting Restatement (Second) of Contracts § 164(2) & comment e (1981). The town did provide the plaintiff with the $15,000 settlement payment, and the plaintiff does not allege a lack of good faith on the towns part during settlement negotiations nor its knowledge of Attorney Greens allegedly fraudulent conduct directed to the plaintiff.