Everett v. 357 Corp.

• Decision Date: 13 April 2009
• Docket Number: No. SJC-10238.,SJC-10238.
• Parties: Joseph R. EVERETT v. The 357 CORP. & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

904 N.E.2d 733

453 Mass. 585

Joseph R. EVERETT v. The 357 CORP. & another.¹

No. SJC-10238.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued December 2, 2008.

Decided April 13, 2009.

Gary M. Feldman, Boston, for the defendants.

Jeffrey M. Feuer, Cambridge (Lee D. Goldstein with him) for the plaintiff.

Beverly I. Ward, Boston, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief.

Nina Joan Kimball, Boston, for Charles Hamilton Houston Institute for Race & Justice & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

MARSHALL, C.J.

The plaintiff, Joseph R. Everett, brought suit in the Superior Court alleging that his former employer, The 357 Corp. and Trans-Lease Group (collectively, the company), discriminated against him in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. (2000 ed.), and the Massachusetts antidiscrimination statute, G.L. c. 151B, when it did not permit him to return to work as a commercial truck driver after his discharge from a psychiatric hospital in 1996. In his complaint and pretrial pleadings, Everett asserted that he was seeking damages for wrongful actions occurring "in February 1997 and thereafter." As we describe below, on February 14, 1997, in conformity with regulations promulgated by the Federal Motor Carrier Safety Administration of the United States Department of Transportation (DOT), the company's physician declined to certify Everett as medically qualified to drive a commercial motor vehicle.²

At trial, Everett changed his theory of liability to cover alleged acts of discrimination occurring only in 1999, expressly and repeatedly waiving all claims of discrimination by the company before 1999.³ The company vigorously contested the "waiver" of the earlier claims at every step. See infra. After the close of evidence, again over the company's vigorous objection, Everett moved to amend his complaint to conform to the evidence by asserting, among other things, a claim for damages based solely on his 1999 claims. The judge submitted both the 1996-1997 claims and the 1999 claims to the jury. The jury found that the company had acted lawfully in connection with Everett's 1996-1997 termination, but had discriminated against Everett by refusing to reinstate him in 1999. They awarded Everett damages in the amount of $757,701 on the 1999 claims. The trial judge then allowed Everett's motion to amend, and subsequently awarded Everett fees and costs in the amount of $370,678.58. The company appealed, and we transferred the case here on our own motion.

Of the several grounds to vacate urged by the company, we consider only the dispositive issue whether the judge erred in permitting Everett's 1999 claims to go to the jury where, as we shall explain, he did not file a complaint with the Massachusetts Commission Against Discrimination (MCAD) related to those claims. We conclude that Everett's failure to file a predicate complaint with MCAD deprived the court of subject matter jurisdiction on the only claims for which the jury awarded Everett damages, his 1999 claims. G.L. c. 151B, §§ 5, 9. The company's motion for judgment notwithstanding the verdict on that ground should have been allowed. We set aside the jury verdict and the award of fees and costs, and remand the case to the Superior Court for the entry of a judgment of dismissal.⁴

1. Factual background. We recite the relevant facts as the jury could have found them and, where relevant, include additional uncontested material. See Pardo v. General Hosp. Corp., 446 Mass. 1, 3, 841 N.E.2d 692 (2006).

a. The events of 1996 and 1997. This dispute has its origins in 1996. In late January or early February of 1996, Everett, who had been employed as a commercial truck driver by the company since 1986, was suspended for one month for sending an inappropriate letter to a woman coworker. Fearing that his job was in jeopardy, Everett contacted Dr. Lillian Sober-Ain, a clinical psychologist, for mental health treatment. Dr. Sober-Ain diagnosed Everett as suffering from an adjustment disorder with depressed mood, and posttraumatic stress disorder with delayed onset.⁵

Everett returned to work but, as he testified at trial, when he did so, he was "very nervous," and "I thought I was being followed by different people, groups of people, whether it be the company, or that girl." Everett's mother testified that, when her son returned to work, "he started telling us" that the women who were "involved in his being suspended were following him to his work places." Everett's mother also testified that, in June, 1996, while Everett was visiting his family, she became concerned because "he was very upset and yelling about these girls," saying "they're following me again." He would "sometimes" run outside in the dark, stating that "he heard something," "thought somebody was trying to do something to his car," and said that he "heard voices." His mother testified that her son began "to seem a little paranoid."

A physician recommended by Everett's union was consulted by the family, who were told that Everett "could be a danger to himself or others and should be in the hospital." Everett's family persuaded him to receive treatment at Cape Cod Hospital, and then involuntarily committed him to Bournewood Hospital. See G.L. c. 123, § 12. Everett remained an inpatient at Bournewood Hospital for two weeks, during which time he was diagnosed with paranoid schizophrenia.⁶ His treating physician at that hospital testified that Everett's condition was a "lifelong" illness. On his discharge on July 9, 1996, Everett was given prescriptions for antipsychotic medications, including Haldol and Cogentin.⁷

Following his discharge from Bournewood Hospital, Everett sought to return to work with the company. Consistent with Federal regulations governing the commercial trucking industry,⁸ the company required Everett to be medically evaluated to determine whether he remained physically and mentally qualified under DOT regulations to drive heavy commercial vehicles on the public roads. Dr. David M. Roston, a psychiatrist at Atlantic Health Group, conducted the evaluation. On July 18, 1996, based on his examination, Dr. Roston refused to issue Everett a medical examination certification of fitness to drive a commercial motor vehicle (DOT certificate) at that time. Dr. Roston also recommended to the company that Everett "undergo an independent psychiatric evaluation." On September 26, 1996, at the company's request and expense, Everett was evaluated by psychiatrist Dr. Roy Lubit. Using criteria established by the DOT, 49 C.F.R. § 391.41(b)(9), Dr. Lubit concluded that "I cannot certify this individual as healthy to drive." Dr. Lubit stated that he had "discussed this issue with Dr. Roston who agrees."

Everett then sought an examination by a doctor of his own choosing, Dr. James R. Bieber. On January 25, 1997, Dr. Bieber evaluated Everett to determine whether "he is able to return to his job of driving a truck while on medication." Dr. Bieber concluded that Everett "is able to return to the work of driving a truck," noting, however, that Everett should be "carefully" monitored, and that either emotional or physical stress "could lead to another decompensation." Dr. Bieber's report made no reference to DOT qualification requirements.

Dr. Roston reviewed Dr. Bieber's report and the mental health qualification requirement of 49 C.F.R. § 391.41, and on February 14, 1997, reported to the company that, although Everett was responding well to his medications, "he has the risk of future psychotic episodes which could interfere with his ability to safely operate a truck." In light of the requirements of the DOT regulations, he again declined to issue the DOT certificate. The company refused to permit Everett to return to work.

In February, 1997, Everett, through his union, filed a grievance seeking reinstatement. In connection with the grievance, Everett and the company sought a mutually agreed-upon third-party medical evaluation of Everett by an expert, whom Everett's business agent termed at trial "a neutral third party." The parties agreed to have Dr. Lubit serve in that role. In a June 26, 1997, report that again cited DOT regulations, Dr. Lubit concluded: "I cannot state that [Everett's] psychiatric problems will not be a problem. They are a continual risk to his driving and I would be unable to qualify him."

DOT regulations require drivers who wish to overturn adverse medical evaluations to appeal from the decision to the DOT.⁹ While the administrative appeal is pending, the driver is deemed not medically qualified to operate commercial motor vehicles. 49 C.F.R. § 391.47(f) (where driver and motor carrier disagree about medical certification, "the driver shall be deemed disqualified until such time as the [DOT] makes a determination" [emphasis added]). See Carolina Freight Carriers v. Pennsylvania Human Relations Comm'n, 99 Pa.Cmwlth. 428, 436, 513 A.2d 579 (1986) ("where there is a conflict in the medical evidence a driver will remain unqualified until the federal government decides to the contrary" [emphasis in original] ). Everett did not file an appeal with the DOT at any time to review the adverse conclusion of the mutually agreed-upon medical specialist, Dr. Lubit. He did, however, through his union, file a request to arbitrate his grievance. The arbitration panel dismissed Everett's claim.

On July 3, 1997, one week after Dr. Lubit had declined a second time to certify Everett as medically qualified to drive a commercial motor vehicle, Everett filed a charge of discrimination with the MCAD, which also was filed with the Equal Employment Opportunity Commission (EEOC).¹⁰ He asserted, among other things, that in June, 1996, he "went on a medical leave of absence," that he was "well enough to return to work in July, 1996 but [the...