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A teen-age girl’s sexual harassment and negligent hiring claims against the city of Boston will be allowed to go to trial because the supervisor’s criminal background should have alerted the city that the crime was “foreseeable,” a Superior Judge ruled Jan. 24. The girl was raped by her supervisor in a city-sponsored summer jobs program. In Dashawna Brimage v. City of Boston, No. 97-1912, the plaintiff’s claim focuses on two rapes that occurred in 1995 when Brimage was supervised by Pedro Rosario. Rosario had served time in prison for a 1991 rape conviction, and is now serving a life sentence for another rape and murder. The city failed to do a criminal check on Rosario that could have led “a reasonable jury [to] determine that the city negligently hired Rosario, and that his hiring was a substantial contributing cause of the plaintiff’s injuries,” wrote Suffolk Superior Court Judge Thayer Fremont-Smith. OFF-PREMISES CRIMES Fremont-Smith also allowed the sexual harassment claim to proceed because, although the rapes took place at an apartment near the work site, Brimage claimed she was threatened with losing her job if she reported the assaults to anyone. Those conditions reflected both “quid pro quo harassment,” in which sexual favors were made a condition of employment, and an abusive work environment, the judge ruled. Citing College-Town, Division of Interco Inc. v. Massachusetts Commission Against Discrimination, 400 Mass. 156, 165 (1987), Freemont-Smith wrote that “under [G.L. chapter] 151B an employer is ‘strictly liable’ for sexual harassment committed by its supervisors.” The judge did grant summary judgment for the city on certain counts, dismissing claims of civil rights violation, negligent supervision by the city, and infliction of emotional distress by the city and its employees. While the judge considered the negligent supervision claim clearly barred under G.L. chapter 258, section 10(j), the state’s public duty rule in which recovery is not allowed for acts “not originally caused by the public employer or person acting on behalf of the public employer,” the judge noted. The negligent hiring complaint “stands on a different footing,” Fremont-Smith wrote. “It was an affirmative act on the part of the city that originally created a situation in which a sexual predator held a job supervising adolescents within the [city] program with foreseeable results,” he explained. “This court’s ruling that section 10(j) should not bar a negligent hiring allegation is consistent with the Supreme Judicial Court’s holding in Bonnie W. v. Commonwealth, 419 Mass. 122 (1994),” the judge noted. COMPLAINT FILED ON TIME The city also had challenged whether Brimage’s complaint was timely since she did not file it within six months after the incident, as required by the Massachusetts Commission Against Discrimination, where the original claim was filed. The judge allowed the claim to go forward because Brimage was 16 at the time of the assaults, and state law chapter 260, section 7, allows the six-month requirement to be “tolled,” or delayed until a minor reaches age 18, the age of maturity in Massachusetts. “Although the appellate courts of the Commonwealth have yet to address the issue of whether the six-month time period for filing a complaint with the MCAD can be squared with the minority tolling provision of G.L. c. 260, section 7, this court agrees with the reasoning in Bills v. Boby’s Food Enterprises Inc., 1998 WL 1184157, and adopts the analysis that the six-month period “is not a jurisdictional prerequisite,” wrote Fremont-Smith. Quincy attorney Richard M. McLeod, of the law firm Follansbee & McLeod, represented Brimage. The city’s case was argued by Susan M. Weise, chief of litigation for the city of Boston.

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