Christo v. Edward G. Boyle Ins. Agency, Inc.

• Citation: 525 N.E.2d 643,402 Mass. 815
• Parties: , 61 Fair Empl.Prac.Cas. (BNA) 3, 47 Empl. Prac. Dec. P 38,287 Kathleen CHRISTO v. EDWARD G. BOYLE INSURANCE AGENCY, INC.
• Decision Date: 12 July 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 643

525 N.E.2d 643

402 Mass. 815, 61 Fair Empl.Prac.Cas. (BNA) 3,

47 Empl. Prac. Dec. P 38,287

Kathleen CHRISTO v. EDWARD G. BOYLE INSURANCE AGENCY, INC.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 7, 1988.

Decided July 12, 1988.

Richard L. Neumeier, Boston, for plaintiff.

Karen M. Thursby (John J.C. Herlihy, Boston, with her), for defendant.

Jean A. Musiker and Nathaniel Berman, Cambridge, for Massachusetts Com'n Against Discrimination, and Marjorie Heins, Boston, for Civil Liberties Union of Massachusetts, amici curiae, joined in a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The plaintiff (Christo) filed a complaint in the Superior Court alleging that the defendant discriminated against her on the basis of her age and sex in discharging her from employment. Under G.L. c. 151B, § 9 (1986 ed.), a person claiming such discrimination may maintain a civil action only if she has previously filed a timely complaint with the Massachusetts Commission Against Discrimination (MCAD) and ninety days have passed (or a commissioner has assented to an earlier filing).

Christo agrees that, as a precondition to maintaining an action under § 9, any complaint to the MCAD must have been filed, as provided in G.L. c. 151B, § 5 (1986 ed.), within six months of the alleged act of discrimination, unless there is some reason to toll the six-month period. Her complaint was filed with the MCAD more than six months after her discharge and, for that reason, the investigating commissioner dismissed her complaint. The commissioner recognized that the six-month period could be tolled for equitable reasons but concluded that there was no factual basis to justify tolling in her case. Christo claims that within six months of the discrimination MCAD "intake" personnel thwarted her attempt to file a complaint. With the aid of counsel, Christo eventually did file a complaint with the MCAD, but, as we have said, after the six-month period had expired.

The basic question in this appeal by Christo from a summary judgment dismissing her claim of age and sex discrimination is whether a Superior Court judge in a proceeding under G.L. c. 151B, § 9, may make an independent determination whether the six-month period should be tolled or whether only the MCAD may do so, as the Superior Court judge and the Appeals Court have concluded (see Christo v. Edward G. Boyle Ins. Agency, Inc., 25 Mass.App.Ct. 87, 89-90, 515 N.E.2d 594 [1987] ). We granted Christo's application for further appellate review.

We decide that (a) Christo is not bound by the ruling of the investigating commissioner, (b) Christo had no right by appeal to obtain a ruling on the tolling question from the full commission, and (c) there is no principle applicable here analogous to the requirement of the exhaustion of administrative remedies. See East Chop Tennis Club v. Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 452-453, 305 N.E.2d 507 (1973). We vacate the summary judgment for the defendant and remand the case for further proceedings.

There are two largely independent avenues for redress of violations of the anti-discrimination laws of the Commonwealth, one through the MCAD (G.L. c. 151B, §§ 5-6) and the other in the courts (G.L. c. 151B, § 9). See Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 190-191 (1st Cir.1982). The statutory scheme rejects the administrative law principles of primary jurisdiction and exhaustion of administrative remedies. The filing of a § 9 court action requires the MCAD to dismiss without prejudice any complaint pending before it and bars the plaintiff from pursuing the matter subsequently before the MCAD. G.L. c. 151B, § 9.

It is true that, before initiating a § 9 action, the plaintiff must have filed a timely complaint within six months of the act of discrimination. This deadline is in effect a statute of limitations subject to equitable tolling. See Christo v. Edward G. Boyle Ins. Agency, Inc., 25 Mass.App.Ct. at 89, 515 N.E.2d 594. The same principle applies in analogous Federal civil rights actions where the 180-day deadline for filing a complaint with the Equal Employment Opportunity Commission (EEOC), which is a precondition to maintaining a civil action, has been treated as a statute of limitations subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Bonham v. Dresser Indus., Inc., 569 F.2d 187, 192-193 (3d Cir.1977). The Federal courts decide equitable tolling issues under the cognate Federal law, and we see no reason why our courts should not decide these same issues in actions under § 9. The policy of giving employers fresh notice of complaints may be outweighed by considerations which justify equitable tolling of the statute. See Zipes v. Trans World Airlines, Inc., supra 455 U.S. at 398, 102 S.Ct. at 1135. If, in this case, Christo was misled by agency employees who discouraged her from filing a timely complaint with the MCAD, perhaps the six-month filing period should be tolled to allow her to proceed with this action.

The essential question before us is not whether tolling is appropriate in the circumstances but rather whether, because the investigating commissioner determined that Christo did not make a case for equitable tolling and because she sought no further relief before the MCAD, Christo has lost her right to an independent determination of the equitable tolling question in this § 9 action. We note first that, as the friend of the court brief here points out, there was no...