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, theref ore, 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 . TRANSITION S CENTER S, INC. , & others
. 1 MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The plaintiff filed a n eleven

- count complaint in Superior
Court arising from the decision of the defendant , Transition s Center s , Inc. (Transition s ) , a nonprofit corporation providing services to individua ls 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, K eith Bradley, Jeni Landers, Ellen Chamsarian, Scott Chausse, and Kristi Dolbec , all employees of Transition s .2

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). A fter the plaintiff regist ered with an online job

- search platform and responded to preliminary questions posed by prospective employers, a Transition s employee contacted the plaintiff and
extended an offer for the plaintiff to interview for a job as a driver
. The job posting did n ot mention anything about a background record check (CORI) , 2 but did list various qualifications a person s hould have in order to be considered
for th e position
. The plaintiff intervie wed for the position and submitted satisfactory references
. H e was off ered 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)
.3

"[c]lean up the CORI," Transitions would reinstate his employment . Alongside this promise, the Tra nsitions 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; how ever, 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 himse lf , upon his request
. The plaintiff thereafter filed this suit, alleging numerous statutory violations including violations of the CORI statute,
G. L. c. 6, § 172 ( c ount I); the W histleblower Act , G. L.

c. 149, § 185 ( c ount IV); the Wage Act, G. L. c. 149, § 148 ( c ount V); the wiretap statute, G. L. c. 272, § 99 ; and the right to privacy, G. L. c. 214, § 1B ( c ount VI) . The plaintiff also alleged numerous tort

- based claims including intentional infliction of emotional dis tress (Counts II, VIII, and IX); negligence (Count III); b reach of i mplied c ontract ( c ount VII) , "Loss of Income and Financial Harm" ( c ount X) ; and sought d eclaratory j udgment ( c ount XI).4

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 r eview 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 plai ntiff is entitled to relief. " Lanier v. President & Fellows of Harvard College , 490 Mass. 37, 43 (2022). 1. CORI s tatute . The plaintiff alleges in c ount 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 authorize s 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," the5

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

c ounts II, VIII, and IX , the plaintiff fail s 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. Ho ward Johnson Co ., 371 Mass. 140, 145 (1976), quoting Restatement (Second) of Torts : Outrageous Conduct Causing Severe Emotional Distress § 46 c omment d , at 72 (1965). See Kelleher v. Lowell Gen
. Hosp . , 98 Mass. App. Ct. 49, 56 (2020) ( former employee's a llegation 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

c ount III is supported only by his statement that the defendants were negligent , a legal conclusion
. T he complaint does not6

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 suc h 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) (" w e do not

acce pt legal conclusions cast in the form of factual allegations"). 4. Whistleblower statute
. In c ount IV , the plaintiff alleges that the defendants violated G. L. c. 149, § 185 , which prohibits retaliatory action by an employer against an employee who enga ges in certain conduct outlined in the statute. G. L.

c. 149, § 185 ( b ) (1). "Employer" is defined to include only a subset of public employe r s. 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 c ount V , the plaintiff list s numerous laws , including "any other state or municipal law, statute, public policy, order or regulation affecting or relating to the claims or rights of pu blic 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 pay7

employees within a certain number of days of the date of discharge). Putting aside that t he 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 th erefore has not established that he is entitled to any earned but not dis burse d
wages. 6
. Violation of p rivacy
. In c ount 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 cau se 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 violation s of the Priv acy Act , G. L. c. 214, § 1B, in c ount 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' breach8

of a supposed contract to seal the plaintiff's CORI sheet. A s we explain below, the complaint does not allege the existence of a legally valid contract . Consequently, this theory fails.
The plaintiff next allege s that the defen dants violat ed the
statute by sharing the plaintiff's CORI among themselves and with the plaintiff himself. However, the defendants were specific ally authoriz ed by the CORI statute to have access to the plaintiff's CORI in connection with their considerat ion 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, s haring 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 i mplied c ontract . The plaintiff alleges breaches of two purported agreements. First, the plaintiff9

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 th e 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, 39 1

- 395 (2019) (dismissal proper where failure to per form condition precedent is undisputed)
. S ee 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 g ood cause to have his CORI records sealed. Contract formation requires consideration
. S ee 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")
. Con sideration 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.10

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 . I n other words , "[t]here was no legal benefit to the promisor nor detriment to the promisee, and thus no considerat ion." 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. Northeas tern Univ ., 493 Mass. 570, 585 (2024). 8. Remaining claims
. c ount 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, c ount XI, seeking d eclaratory j udgment, similarly cannot go forward since all of the underlying claims11

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.