Borase v. M/A-COM, INC.

• Decision Date: 28 November 1995
• Docket Number: Civ. A. No. 94-10407-MLW.
• Citation: 906 F. Supp. 65
• Parties: Vijay N. BORASE, Plaintiff, v. M/A-COM, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

906 F. Supp. 65

Vijay N. BORASE, Plaintiff, v. M/A-COM, INC., Defendant.

Civ. A. No. 94-10407-MLW.

United States District Court, D. Massachusetts.

November 28, 1995.

John A. Houlihan, Steven M. Cowley, Edwards & Angell, Boston, MA, for Vijay N. Borase.

David B. Ellis, James W. Bucking, Foley, Hoag & Eliot, Boston, MA, for M/A-COM, Inc.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT (# 5)

COLLINGS, United States Magistrate Judge.

INTRODUCTION

On February 28, 1994, plaintiff Vijay N. Borase ("Borase") filed a sixteen count verified complaint (# 1) against his former employer, M/A-COM, Inc. ("M/A COM") purporting to state claims of unlawful discrimination based on race, color, and/or national origin. The claims stem from Borase's dismissal by M/A-COM on January 20, 1993. M/A COM has filed a motion for partial summary judgment as to Counts II, VI and XIV.

COUNTS II AND VI — THE CLAIMS OF RETALIATION

MA/COM does not contend that the claims of alleged discrimination occurring on January 20, 1993 have not been exhausted and/or are not properly before the Court. In fact, a right to sue letter which permitted Borase to commence suit on his original allegations of discrimination was issued on January 14, 1994¹, and suit was commenced on February 28, 1994. Rather, M/A COM seeks summary judgment on Counts II and VI. In these counts, Borase alleges that M/A-COM retaliated against him because he had filed administrative claims with the EEOC and MCAD based on his January 20, 1993 termination. Count II is based on Title VII of the Civil Rights Act of 1964; Count VI is based on M.G.L.A. c. 151B.

The act of retaliation alleged is M/A-COM's decision to withhold six thousand three hundred and twenty-two (6,322) shares of stock to which Borase claims he is entitled. According to Borase, under an agreement with M/A-COM, he should have been granted options to purchase three thousand six hundred and fifty-five (3,655) shares between July and November, 1993. M/A-COM avers that it is entitled to summary judgment on Counts II and VI because Borase did not exhaust his administrative remedies on the retaliation claims before filing suit on February 28, 1994. The date of the act of retaliation is disputed. Borase contends that the date is March 7, 1994; M/A-COM claims the date is October 12, 1993. What is undisputed is that Borase did not notify either the MCAD or EEOC of the alleged retaliation or file a claim based upon it with either agency before filing suit on February 28, 1994.²

Every circuit which has had to decide the issue has held that a charge that an employer has committed acts of retaliation for an employee having filed a complaint of discrimination with an administrative agency does not have to be the subject of a separate administrative claim before the agency in order to be brought into court. A number of circuits have held flatly that "an act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint." Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10 Cir., 1994) quoting from Brown v. Hartshorne Pub. Sch. Dist. No. 1, 864 F.2d 680, 682 (10 Cir., 1988) and citing Butts v. City of New York Dep't of Housing Preservation & Dev., 990 F.2d 1397, 1403 (2 Cir., 1993); Nealon v. Stone, 958 F.2d 584, 590 (4 Cir., 1992); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7 Cir., 1989); Waiters v. Parsons, 729 F.2d 233, 237 (3 Cir., 1984). I note that when the Fourth Circuit decided the Nealon case in 1992 and determined to adopt the rule that exhaustion is not required in order for a claim of retaliation to be heard in court, Chief Judge Ervin wrote that:

All other circuits that have considered the issue have determined that a plaintiff may raise the retaliation claim for the first time in federal court. On consideration, we find these rationales persuasive and adopt this position.

Nealon, 958 F.2d at 590.

The Fifth Circuit reaches the same result but states the rule a bit differently. In the case of Gupta v. East Texas State University, 654 F.2d 411 (5 Cir., 1981), the Court held:

... it is unnecessary for a plaintiff to exhaust administrative remedies prior to urging a retaliation claim growing out of an earlier charge; the district court has ancillary jurisdiction to hear such a claim when it grows out of an administrative charge that is properly before it.

Id. at 414.

The Fifth Circuit reiterated that holding six years later in the case of Gottlieb v. Tulane University of Louisiana, 809 F.2d 278 (5 Cir., 1987).

Against this background, it is necessary to consider the First Circuit's decision in the case of Johnson v. General Electric, 840 F.2d 132 (1 Cir., 1988) upon which the defendant relies in seeking dismissal of the retaliation claims for failure to exhaust administrative remedies. In the Johnson case, the First Circuit dismissed Counts I and II of plaintiff's complaint of acts of racial discrimination because plaintiff had "... not asserted facts sufficient to create inferences that would support a finding that he would have been treated differently had he not been black." Johnson, 840 F.2d at 138 (citation omitted). As to Count III charging retaliation for filing the EEOC complaint, the Court wrote:

The district court properly dismissed this count on the ground that plaintiff had not adequately exhausted required EEOC procedures.

No claim may be brought in federal court unless the prerequisite of administrative investigation has first been met. A complaint related to that brought before the EEOC, but which was not itself made the subject of a separate EEOC complaint, must reasonably have been expected to have been within the scope of the EEOC's investigation in order to meet the jurisdictional prerequisite. See, e.g., Miller v. International Tel. & Tel. Corp., 755 F.2d 20, 23-24 (2d Cir.1985). The retaliation claim here could not have been expected to be part of the scope of the EEOC's investigation growing out of plaintiff's earlier complaints, because plaintiff has not alleged that he even informed the EEOC of the alleged retaliation. See Meyers v. Amerada Hess Corp., 647 F.Supp. 62, 67 (S.D.N.Y.1986). (footnote)

Id. at 139.

In the footnote, the Court wrote:

We need not decide whether we would have "ancillary" jurisdiction over the retaliation claim even in the absence of an EEOC complaint, see Gottlieb v. Tulane Univ. of Louisiana, 809 F.2d 278, 284 (5th Cir.1987); Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir.1981), because with the dismissal of the remaining counts, there is no longer any federal court case to which the retaliation claim might be ancillary.

Id.

The first question under the Johnson holding is whether or not a retaliation claim might "... reasonably be expected to have been within the scope of the EEOC's investigation ...". Johnson, 840 F.2d at 139. It does not matter whether the administrative agency actually conducted an investigation of either the initial complaints or the claims of retaliation. "What controls is not what the EEOC did but what it was given the opportunity to do." Oglesby v. Coca-Cola Bottling Co., 620 F.Supp. 1336, 1344 (N.D.Ill., 1985) quoted verbatim in the case of Powers v. Grinnell Corp., 915 F.2d 34, 39 n. 4 (1 Cir., 1990). See also Conroy v. Boston Edison Co., 758 F.Supp. 54, 58 (D.Mass., 1991).

Clearly, any of the acts, be they preliminary or final, respecting the denial of the stock options which occurred between the date of the filing of the original administrative claims (July 19, 1993) and the right to sue letter on those claims (January 14, 1994) would have reasonably been expected to have been within the administrative agency's investigation. However, what seems quite clear from the holding in the Johnson case is that they cannot be within the scope of the agency's investigation unless the agency is informed of them. In the instant case, there is no evidence that Borase informed any administrative agency of the alleged retaliatory acts concerning the stock options during the period from July 1993 to January 1994 when the administrative agency was investigating the case. In the words of the Oglesby case, the administrative agency would have had no opportunity or reason to look into these acts during the period when Borase's case was under investigation.

In sum, in view of the Johnson precedent, there are preconditions which must be found before "an act committed by an employer in retaliation for the filing of an EEOC complaint is reasonably related to that complaint, obviating the need for a second EEOC complaint" as was held in the Ingels case, 42 F.3d at 625 and other cases cited therein. These preconditions are, first, that the plaintiff must have informed the administrative agency of the alleged acts of retaliation, and, second, that the notice must have been given during the time when the agency had the original charges of discrimination under investigation. Notice after the administrative agency had ceased its investigation and issued a right to sue letter would not suffice since, as of that time, the investigation would have been concluded and a new administrative complaint would have had to have been filed to provide the administrative agency the opportunity to investigate the charge of retaliation.

I note that other circuits do not draw this distinction with respect to retaliation claims. Butts, 990 F.2d at 1402; Malarkey v. Texaco, Inc., 983 F.2d 1204, 1209 (2 Cir., 1993). In Butts, the Second Circuit wrote that with respect to claims of retaliation:

...The EEOC charge requirement is not excused because the new claims likely would have been discovered by the EEOC investigation. While this is possible, it is equally possible that the retaliation would come after the EEOC investigation was completed. Malarkey, 983 F.2d at 1209 ("We see no reason why a retaliation claim must arise before administrative

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