ABRAHAM KASPARIAN, JR. v. TRANSITIONS CENTERS, INC., & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-639

ABRAHAM KASPARIAN, JR.

vs.

TRANSITIONS CENTERS, INC., & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed an eleven-count complaint in Superior

Court arising from the decision of the defendant, Transitions

Centers, Inc. (Transitions), a nonprofit corporation providing

services to individuals with certain disabilities, to rescind an

offer of employment to the plaintiff after a background check

revealed his criminal history. The defendants moved to dismiss

on the basis that the complaint failed to state a claim upon

which relief could be had. The judge allowed the motion and the

plaintiff appealed. We now affirm.

1 Lee Chamberlain, Keith Bradley, Jeni Landers, Ellen Chamsarian,
Scott Chausse, and Kristi Dolbec, all employees of Transitions.
Background. "[W]e accept as true the facts alleged in the

plaintiff['s] complaint[ ] and any exhibits attached thereto,

drawing all reasonable inferences in the plaintiff['s] favor."

Cormier v. Lynn, 479 Mass. 35, 37 (2018), quoting Revere v.

Massachusetts Gaming Comm'n, 476 Mass. 591, 595 (2017). After

the plaintiff registered with an online job-search platform and

responded to preliminary questions posed by prospective

employers, a Transitions employee contacted the plaintiff and

extended an offer for the plaintiff to interview for a job as a

driver. The job posting did not mention anything about a

background record check (CORI),2 but did list various

qualifications a person should have in order to be considered

for the position.

The plaintiff interviewed for the position and submitted

satisfactory references. He was offered the job, which he

accepted. Subsequently, a Transitions employee contacted the

plaintiff and rescinded the offer of employment after the

plaintiff's CORI revealed that he had been convicted of multiple

offenses in 2002, including armed assault with intent to murder.

A Transitions employee promised that if the plaintiff could

2 A CORI report is a "Criminal Offender Record Information"
report, i.e., a criminal background check. See Boston Globe
Media Partners, LLC v. Department of Criminal Justice Info.
Servs., 484 Mass. 279, 280 (2020).

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"[c]lean up the CORI," Transitions would reinstate his

employment. Alongside this promise, the Transitions employee

promised to supply a letter to the plaintiff detailing that his

employment would be reinstated if the CORI records could be

sealed. The letter was intended to assist the plaintiff in a

prospective motion to seal the relevant records; however,

Transitions never provided the letter. In the process of

rescinding the plaintiff's employment offer, various employees

within the Transitions organization viewed and transmitted the

plaintiff's CORI report and shared a copy with the plaintiff

himself, upon his request.

The plaintiff thereafter filed this suit, alleging numerous

statutory violations including violations of the CORI statute,

G. L. c. 6, § 172 (count I); the Whistleblower Act, G. L.

c. 149, § 185 (count IV); the Wage Act, G. L. c. 149, § 148

(count V); the wiretap statute, G. L. c. 272, § 99; and the

right to privacy, G. L. c. 214, § 1B (count VI). The plaintiff

also alleged numerous tort-based claims including intentional

infliction of emotional distress (Counts II, VIII, and IX);

negligence (Count III); breach of implied contract (count VII),

"Loss of Income and Financial Harm" (count X); and sought

declaratory judgment (count XI).

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Discussion. "In evaluating [a] motion to dismiss, we

accept the factual allegations in the . . . complaint as true,

but not the legal conclusions cast in the form of factual

allegations." Sandman v. Quincy Mut. Fire Ins. Co., 81 Mass.

App. Ct. 188, 189 (2012). "We review the grant of a motion to

dismiss de novo, accepting as true all well-pleaded facts

alleged in the complaint, drawing all reasonable inferences

therefrom in the plaintiff's favor, and determining whether the

allegations plausibly suggest that the plaintiff is entitled to

relief." Lanier v. President & Fellows of Harvard College, 490

Mass. 37, 43 (2022).

1. CORI statute. The plaintiff alleges in count I that

the defendants violated G. L. c. 6, § 172, which provides that

CORI data must be maintained by the State in a database and

limits access by others. See G. L. c. 6, § 172 (a). The

statute specifically authorizes employers to receive CORI data

for the purpose of evaluating prospective employees. G. L.

c. 6, § 172 (a) (3) (i). See Boston Globe Media Partners, LLC

v. Department of Criminal Justice Info. Servs., 484 Mass. 279,

285 (2020) (employers entitled to review CORI of prospective

employees). Because none of the allegations aver that the

defendants received the plaintiff's CORI for a reason unrelated

to "evaluat[ing] current and prospective employees," the

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plaintiff has not alleged that any defendant has violated the

statute; his claim fails as a result. See G. L. c. 6,

§ 172 (a) (3) (i).

2. Intentional infliction of emotional distress. In

counts II, VIII, and IX, the plaintiff fails to state a claim

for intentional infliction of emotional distress because the

complaint cannot be read to allege the sort of extreme and

outrageous conduct necessary to establish the elements of that

tort. See Polay v. McMahon, 468 Mass. 379, 385 (2014). Denying

someone employment opportunities because of things they have

done in the past, while understandably distressing to the

rejected person, is not "beyond all possible bounds of decency"

and "utterly intolerable in a civilized community." Agis v.

Howard Johnson Co., 371 Mass. 140, 145 (1976), quoting

Restatement (Second) of Torts: Outrageous Conduct Causing

Severe Emotional Distress § 46 comment d, at 72 (1965). See

Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 56 (2020)

(former employee's allegation that employer was intentionally

abusive and created intolerable working conditions did not

constitute extreme and outrageous conduct).

3. Negligence. The plaintiff's claim of negligence in

count III is supported only by his statement that the defendants

were negligent, a legal conclusion. The complaint does not

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allege any facts demonstrating that the defendants owed the

plaintiff a duty of care, nor does the complaint specify the

nature and origin of that duty or describe how any such duty was

breached. See Heath-Latson v. Styller, 487 Mass. 581, 584

(2021). Since bare legal conclusions are insufficient to

demonstrate an entitlement to relief, the claim fails. See

Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000) ("we do not

accept legal conclusions cast in the form of factual

allegations").

4. Whistleblower statute. In count IV, the plaintiff

alleges that the defendants violated G. L. c. 149, § 185, which

prohibits retaliatory action by an employer against an employee

who engages in certain conduct outlined in the statute. G. L.

c. 149, § 185 (b) (1). "Employer" is defined to include only a

subset of public employers. G. L. c. 149, § 185 (a) (2). The

plaintiff has not alleged that Transitions is a public entity as

defined by the statute, so the claim cannot proceed.

5. Wage Act. In count V, the plaintiff lists numerous

laws, including "any other state or municipal law, statute,

public policy, order or regulation affecting or relating to the

claims or rights of public employees" to support his claim that

he was never paid wages owed to him on the date of discharge.

Compare G. L. c. 149, § 148 (requiring some employers to pay

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employees within a certain number of days of the date of

discharge). Putting aside that the allegations are not precise

enough to put the defendants on notice of the claims being

lodged against them, see Mass. R. Civ. P. 8 (a), 365 Mass. 749

(1974), the plaintiff has not alleged that he was ever permitted

to perform any work at the job, and therefore has not

established that he is entitled to any earned but not disbursed

wages.

6. Violation of privacy. In count VI, the plaintiff

claims that the defendants violated the wiretap statute, G. L.

c. 272, § 99 (C) (1), (C) (4), which makes it unlawful (with

certain exceptions) for "any person" to secretly intercept "any

wire or oral communication" or use such intercepted

communications. G. L. c. 272, § 99 (C) (1), (4) and § 99 (Q)

(conferring upon aggrieved persons a civil cause of action to

sue under the statute). The complaint does not allege that the

defendants at any point engaged in conduct that could be

understood to run afoul of that statute's proscriptions.

The plaintiff also alleges a number of violations of the

Privacy Act, G. L. c. 214, § 1B, in count VI, which authorizes a

Superior Court judge to award damages to recompense

interferences with one's privacy. See G. L. c. 214, § 1B. The

first alleged violation of the statute is the defendants' breach

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of a supposed contract to seal the plaintiff's CORI sheet. As

we explain below, the complaint does not allege the existence of

a legally valid contract. Consequently, this theory fails.

The plaintiff next alleges that the defendants violated the

statute by sharing the plaintiff's CORI among themselves and

with the plaintiff himself. However, the defendants were

specifically authorized by the CORI statute to have access to

the plaintiff's CORI in connection with their consideration of

the plaintiff's employment application. See G. L. c. 6,

§ 172 (a) (3) & (a) (3) (i). The complaint does not allege that

the defendants shared the report with the public at large or

disseminated it to persons who did not have a legitimate

business purpose in reviewing it; therefore, the complaint fails

to allege an unreasonable interference in the plaintiff's

privacy.

Furthermore, sharing the plaintiff's records with the

plaintiff himself could not have affected the plaintiff's

privacy because the facts of his own criminal record are within

his knowledge. In any event, Transitions was required by law to

provide the plaintiff with a copy of the CORI relied on to

rescind his offer. See G. L. c. 6, § 172 (c).

7. Breach of implied contract. The plaintiff alleges

breaches of two purported agreements. First, the plaintiff

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states that Transitions and its employees breached an agreement

to reinstate the plaintiff if he managed to seal his CORI. He

does not allege that he ever did "[c]lean up the CORI," though,

so the condition necessary for Transitions' obligation to

perform never has come due and the plaintiff therefore has not

alleged a breach. See Ferguson v. Maxim, 96 Mass. App. Ct. 385,

391-395 (2019) (dismissal proper where failure to perform

condition precedent is undisputed). See also Hanover Ins. Co.

v. Cape Cod Custom Home Theater, Inc., 72 Mass. App. Ct. 331,

336 (2008), quoting Twin Fires Inv., LLC v. Morgan Stanley Dean

Witter & Co., 445 Mass. 411, 420 (2005) (a condition precedent

is an event which must occur before any obligation to perform

arises under a contract).

The complaint also alleges that the defendants breached an

agreement to provide the plaintiff a letter that he could

attempt to use to establish good cause to have his CORI records

sealed. Contract formation requires consideration. See

Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277,

280 (2006) ("An oral contract, like any other, requires an

offer, acceptance, and consideration"). Consideration is

"satisfied if there is either a benefit to the promisor or a

detriment to the promisee." Fall River Hous. Joint Tenants

Council, Inc. v. Fall River Hous. Authority, 15 Mass. App. Ct.

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992, 993 (1983), quoting Marine Contractors Co. v. Hurley, 365

Mass. 280, 286 (1974). Here, the plaintiff did not offer to do

anything in exchange for the defendants' promise to supply the

letter. In other words, "[t]here was no legal benefit to the

promisor nor detriment to the promisee, and thus no

consideration." Congregation Kadimah Toras-Moshe v. DeLeo, 405

Mass. 365, 366 (1989), citing Marine Contractors Co., supra.

The offer to provide a letter was therefore an unenforceable

promise. Moreover, the plaintiff does not allege that he

undertook any course of action in reasonable reliance upon the

promise, and thus cannot show an entitlement to relief under a

quasi-contract promissory estoppel theory. See Columbia Plaza

Assocs. v. Northeastern Univ., 493 Mass. 570, 585 (2024).

8. Remaining claims. count X, "Loss of Income and

Financial Harm," is derivative of other claims, relating only to

remedy, and so does not allege any claim in itself. The final

remaining claim, count XI, seeking declaratory judgment,

similarly cannot go forward since all of the underlying claims

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potentially justifying the requested declaratory relief have

been dismissed.

Judgment affirmed.

By the Court (Massing,
Singh & Grant, JJ.3),

Clerk

Entered: June 28, 2024.

3 The panelists are listed in order of seniority.

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