[FN8] |
[FN9] See id. at 672. In an effort to provide guidance to trial court judges, the Supreme Judicial stated, "[S]hould a judge decide that G.L. c. 151B is or was available to the plaintiff, the plaintiff would have no viable c. 93, § 103, claim under the teaching of Charland." Read together, these cases |
established that the right to file a parallel MERA claim in court turns not on the proper exhaustion of administrative remedies, but on the availability of a remedy under c. 151B. |
FN1. Charles Cook, Nancy Kealey, and Anthony Zanette. |
FN2. Although Cook retired on January 1, 2004, he continued to work at UMMS as a consultant. |
FN3. That assertion was not without record support. For example, a December 3, 2003, electronic mail message (e-mail) showed that Martins had not been invited to monthly managers' meetings. Cook told investigators looking into Martins's complaints in March of 2004 that when he took over as the director of BCRU, he was "not going to fire a middle aged black man first thing on the job"; instead, he had decided to "work around him." In their answer, the defendants admitted that the number of employees reporting to Martins had decreased from nine to five at EOHHS and then from five to one at UMMS. Finally, while all the other managers had been assigned offices as of January, 2004, Martins worked out of a small cubicle filled with files. |
FN4. In two categories, Martins received the middle rating ("needs improvement"). |
FN5. Martins viewed this as a racist comment. |
FN6. In a March 19, 2004, e-mail to Marlene Tucker, the assistant director of UMMS's equal opportunity office, Catherine Parker, indicated that Kealey was worried about violence if UMMS terminated Martins. Kealey denied making this statement. |
FN7. Effective November 5, 2002, the limitations period was extended from six months to 300 days. MCAD's procedural rules were amended in July, 2004, to conform to the statute. |
FN8. Calling the question of his performance a "hotly contested credibility dispute," Dragonas v. School Comm. of Melrose, 64 Mass.App.Ct. 429, 443 (2005), Martins did not dispute that the defendants met their second-stage burden of articulating and producing credible evidence of a nondiscriminatory reason for his termination. |
FN9. Agin claimed that MCAD had informed him that he could not file a complaint because his employer was not covered by c. 151B. Since it was unclear whether equitable tolling was appropriate, the Supreme Judicial Court remanded the case for further findings. |
FN10. After a bench trial solely on the c. 149 claims, a judge found in favor of the plaintiffs. The MERA claims were not otherwise mentioned in the Supreme Judicial Court's decision. |
FN11. The Supreme Judicial Court noted that, in 1965, the Legislature had added gender as a protected status and at the same time had added the antirepeal language to c. 151B, § 9, specifically referencing c. 149. The court also applied the general rule of statutory construction requiring courts to interpret statutes, if possible, "in harmony with prior enactments to give rise to a consistent body of law." Jancey v. School Comm. of Everett, supra at 496, quoting from Charland v. Muzi Motors, Inc., 417 Mass. at 583. Originally enacted in 1989 and 1990, MERA, unlike c. 149, significantly postdated the original enactment of c. 151B. See Thurdin v. SEI Boston, LLC, 452 Mass. 436, 440 (2008). In 2002, the Legislature streamlined the exclusivity provision of c. 151B, § 9, deleting the specific references to c. 149 and to other statutes. See id. at 441 & n. 8. |
FN12. So far as appears from our canvassing of the published case law, with only one exception, Federal courts have read c. 151B, as interpreted in Charland and Agin, to state a rule of preemption rather than exhaustion. |
Some Federal judges have found the case law from Massachusetts appellate courts to be unclear. Compare McDonnell v. Certified Engr. & Testing Co., 899 F.Supp. 739, 750-751 (D.Mass.1995), with Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.1994); Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 n. 2 (1st Cir.1995). See Edsall v. Assumption College, 367 F.Supp.2d 72, 81 (D.Mass.2005); Ahanotu v. Massachusetts Turnpike Authy., 466 F.Supp.2d 378, 388 (D.Mass.2006); Svensson v. Putnam Invs. LLC, 558 F.Supp.2d 136, 146 (D.Mass.2008); Flipp v. Rockland, 613 F.Supp.2d 141, 146 (D.Mass.2009). |
FN13. In Thurdin, it was undisputed that the plaintiff's employer had fewer than six employees and thus was not covered by c. 151B. After her administrative complaints were dismissed for want of jurisdiction, Thurdin filed one claim under MERA in court. The issue before the court thus concerned the viability of alternative remedies under MERA where c. 151B was inapplicable. No issue regarding parallel claims was before the court. |
FN14. MERA was modeled upon 42 U.S.C. § 1981, the Civil Rights Act of 1866. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., is the Federal counterpart to c. 151B. Employees are permitted to bring race-based discrimination claims under § 1981 in court in addition to, or independently |
of, c. 151B and Title VII claims. See Thurdin v. SEI Boston, LLC, 452 Mass. at 462 n. 10 (2008) (Botsford, J., concurring). See also CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951, 1960 (2008). |
FN15. By failing to address his claim regarding the false statement in UMMS's policy manual in his brief, Martins has waived it. See Dragonas v. School Comm. of Melrose, 64 Mass.App.Ct. at 436 n. 21. |
FN16. To the extent Martins discusses new bases of liability in his brief, any claims, arguments, and issues raised for the first time on appeal are not properly here. See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004). |
FN17. Again, any new theories of liability raised for the first time on appeal are deemed waived. See Cariglia v. Bar Counsel, 442 Mass. at 379. |