                                                                   Supreme Court

                                                                   No. 2014-61-Appeal.
                                                                   (PC 09-1670)


             Dorcas Henderson                  :

                     v.                        :

    Kevin Fitzgerald, in his capacity as       :
treasurer for the City of East Providence et
                     al.


                                            ORDER

       This matter came before the Supreme Court on January 26, 2016, pursuant to an order

directing the parties to appear and show cause why the issues raised should not be summarily

decided. We conclude that cause has not been shown and that the appeal may be decided at this

time. For the reasons set forth herein, we affirm the judgment of the Superior Court.

       At all times relevant to this dispute, plaintiff, Dorcas Henderson (plaintiff or Henderson),

was employed by the City of East Providence (the city), first as a laborer, then as a “light duty

employee,” and finally as a janitor. The essence of her grievance is that, due to various medical

issues that caused her to miss work on multiple occasions, the city mistakenly regarded her as

disabled. According to plaintiff, as a result of her perceived disability, in December 2006, the

city transferred her from her position as a laborer with the highway division to a position as a

custodian, which resulted in a pay cut. Following another absence from work due to a job-

related injury, plaintiff was assigned to a “light duty” receptionist position at city hall. She was

reassigned to her custodial position in May 2008, but, according to plaintiff, the work she was

assigned to do “was more difficult than the work load assigned to other custodians * * *.” In

July 2008, plaintiff sustained a back injury while working, forcing her to take yet another leave
                                                   -1-
of absence. In February 2009, her doctor cleared her to return to work “without restriction.”

However, when she inquired about returning, she alleges that she was told she was not allowed

to work for the city because she had a discrimination claim pending with the Rhode Island

Commission for Human Rights, as well as a pending workers’ compensation claim.

       On March 23, 2009, plaintiff filed a three-count complaint in Providence County

Superior Court alleging employment discrimination and constructive termination in violation of

the Civil Rights of People with Disabilities Act, G.L. 1956 chapter 87 of title 42, and the State

Fair Employment Practices Act, G.L. 1956 chapter 5 of title 28, as well as a violation of the

Rhode Island Whistleblowers’ Protection Act, G.L. 1956 chapter 50 of title 28. She sought

damages for back pay, emotional pain and suffering, punitive damages, attorney’s fees, and

reinstatement to her job with the city as a laborer.

       On September 25, 2013, plaintiff filed a motion for the hearing justice to recuse herself

based on an allegation that the hearing justice made an ex-parte telephone call to plaintiff’s

counsel. The plaintiff asserted that this ex-parte communication was “a clear violation of the

cannons [sic] of ethics” because the phone call concerned pending litigation, and she had “no

other alternative” but to have the hearing justice recuse herself. The defendants objected to the

motion, arguing that plaintiff failed to set forth any facts to suggest that the hearing justice had a

“‘personal bias or prejudice’ * * * that would ‘impair [her] impartiality and sway [her]

judgment’” and that the phone call to plaintiff’s counsel was “clearly in the context” of the

hearing justice’s effort to settle the case, which—according to defendants—is not in violation of

the ethical canons.

       On October 31, 2013, plaintiff filed a motion to amend her complaint, arguing that she

had a right to amend it to conform to the evidence. The defendants objected, arguing that the



                                                 -2-
new complaint contained allegations arising from a different occurrence or transaction than what

was referred to in the original complaint, and that the new claims were barred by the statute of

limitations because the underlying incidents referenced in the amended complaint occurred on

November 19, 2007, and January 22, 2008. The hearing justice denied plaintiff’s motion to

amend because it was, in her words, “crystal clear from a comparison of the two complaints that

the new complaint point[ed] to different transactions than identified in the original complaint,”

and that it would be an abuse of her discretion to allow plaintiff to amend her complaint to

include the time-barred claims.

        Following the denial of her motion to amend her complaint, plaintiff suggested that she

would not be able to proceed on her original one. Accordingly, the hearing justice dismissed her

complaint pursuant to Rule 41(b) of the Superior Court Rules of Civil Procedure.              Final

judgment entered in favor of defendants on November 5, 2013. The plaintiff filed a timely

notice of appeal. 1

        The plaintiff presents two issues on appeal. First, she argues that the hearing justice

abused her discretion in denying her motion to amend her complaint. She also avers that the

hearing justice should have recused herself in light of the ex-parte telephone call she made to

plaintiff’s counsel in which she “indicated that he should settle th[e] case for the amount * * *

offered by [defendants],” in violation of the Code of Judicial Conduct.

        “Rule 15(a) [of the Superior Court Rules of Civil Procedure] governs amendments to

pleadings * * * and provides that once a responsive pleading is served, ‘a party may amend [her]

pleading    only      by   leave   of   court   or    by   written   consent    of   the    adverse

party; and leave shall be freely given when justice so requires.’” Medeiros v. Cornwall, 911

1
  It should be noted that the original notice of appeal is not contained within the record; however,
this Court granted plaintiff’s motion to replace the original one with a copy of the same.
                                                -3-
A.2d 251, 253 (R.I. 2006). “[T]he decision to grant or to deny a motion to amend a complaint is

confided to the sound discretion of the [hearing] justice.” Lomastro v. Iacovelli, 56 A.3d 92, 94

(R.I. 2012) (quoting Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 529 (R.I.

2011)). “Accordingly, we afford ‘great deference to the [hearing] justice’s ruling on a motion to

amend,’ and we ‘will not disturb [that] ruling unless the [hearing] justice committed an abuse of

discretion.’” Id. (quoting Harodite Industries, Inc., 24 A.3d at 529).

       The claims plaintiff seeks to add via her amendment would undoubtedly be barred by the

applicable statute of limitations—one year for claims under the State Fair Employment Practices

Act, see § 28-5-17(a), and, at most, three years for civil rights claims, 2 see G.L. 1956 § 9-1-

14(b)—given that the underlying incidents occurred in November 2007 and January 2008. In

order to add a claim that falls outside the applicable statute of limitations, the proposed

amendment must “relate back” to the date of the original pleading. Manocchia v. Narragansett

Capital Partners Television Investments, 658 A.2d 907, 909 (R.I. 1995). “The parameters of this

relation-back doctrine incorporate several underlying policies, not the least of which is to

ameliorate the effect of the statute of limitations.” Mainella v. Staff Builders Industrial Services,

Inc., 608 A.2d 1141, 1143 (R.I. 1992). “The test of relation back is whether the amended

pleading alleges a matter that arises out of the same ‘conduct, transaction, or occurrence set forth

or attempted to be set forth in the original pleading.’” Id. (quoting Rule 15(c)).



2
  The plaintiff’s second claim is brought pursuant to the Civil Rights of People with Disabilities
Act (CRPDA), G.L. 1956 chapter 87 of title 42. This Court has not yet ruled on whether
employment discrimination claims brought under the CRPDA are subject to the three-year
statute of limitations in G.L. 1956 § 9-1-14(b) or whether they are subject to a shorter limitations
period. See Horn v. Southern Union Co., 927 A.2d 292, 296-97 (R.I. 2007) (holding that
employment discrimination claims asserted under the Rhode Island Civil Rights Act are subject
to the one-year statute of limitations contained in the State Fair Employment Practices Act).
Given that plaintiff’s claims are barred under either the one-year or three-year statute of
limitations framework, we need not decide at this time which is applicable.
                                                -4-
       The amended complaint seeks to add claims arising from entirely different transactions or

occurrences than those referenced in the original complaint. In the original complaint, plaintiff

alleged that the discriminatory action was the city assigning her out of the laborer’s position as a

result of her perceived disability; in the amended complaint, plaintiff alleges that the

discriminatory action was the city assigning her work that is beyond the scope of the “light duty”

receptionist position “[d]espite the fact that she was physically limited.” The retaliation claims

are also different: In the original complaint, plaintiff alleges that the retaliatory conduct was that

she was no longer allowed to work as a laborer, while in the amended complaint she alleges that

the retaliatory conduct was that she was no longer allowed to work in her light duty position as a

receptionist. Since the claims in the amended complaint do not arise out of the same transaction

or occurrence, they cannot “relate back” to the date of the original complaint. Thus, plaintiff’s

claims fall outside the statute of limitations. As a result, the hearing justice did not abuse her

discretion in denying plaintiff’s motion to amend her complaint. 3

       The plaintiff’s other contention is that the hearing justice should have recused herself

following an ex-parte telephone call she made to the plaintiff’s counsel. To be sure, we are

troubled by these types of ex-parte telephone calls made to counsel; however, although a motion

to recuse and objection thereto was filed by the parties, and, while both parties argued it before

this Court, the record reveals that in fact the plaintiff failed to press her motion for recusal any

further in the Superior Court. The hearing justice never ruled on the motion, no order was ever

entered, nor does the plaintiff present a transcript of any proceedings pertaining to the motion.



3
  Furthermore, we note that plaintiff’s motion to amend came mere days before the case was set
to reach trial. See, e.g., Harodite Industries, Inc. v. Warren Electric Corp., 24 A.3d 514, 532-33
(R.I. 2011) (noting that the hearing justice did not abuse her discretion by denying the plaintiff’s
motion to amend given the plaintiff’s delay in filing the motion, the proximity of the motion to
trial, and the prejudice to the defendant in having to defend the new allegations).
                                                 -5-
As such, the plaintiff’s motion for recusal is not properly before this Court. Connor v. Jablonski,

105 R.I. 705, 709, 254 A.2d 763, 765 (1969) (noting that where the plaintiff fails to point to a

specific ruling to be reviewed, “[t]here is * * * nothing for us to review inasmuch as we consider

only questions and issues which were properly raised in the court below”); cf. Lembo v. Lembo,

677 A.2d 414, 420 (R.I. 1996) (We will not consider arguments for the first time on appeal

“[w]hen * * * no express ruling has been made * * * and no objection was raised by the

complaining party * * *.”).

        For the reasons set forth above, the judgment of the Superior Court is affirmed, and the

record of this case shall be returned to that tribunal.



                Entered as an Order of this Court, this 17th day of February, 2016.

                                                          By Order,



                                                          ____________/s/______________
                                                                     Clerk




                                                  -6-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Dorcas Henderson v. Kevin Fitzgerald, in his capacity as treasurer
                    for the City of East Providence et al.

CASE NO:            No. 2014-61-Appeal.
                    (PC 09-1670)

COURT:              Supreme Court

DATE ORDER FILED:   February 17, 2016

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Providence County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Patricia A. Hurst

ATTORNEYS ON APPEAL:

                    For Plaintiff: Arthur Chatfield, Esq.

                    For Defendants: Kathleen A. Hilton, Esq.
                                    Marc DeSisto, Esq.
                                    Brian Clifford, Esq.
