JoulÉ Inc. v. Another2

Decision Date10 March 2011
Docket NumberSJC–10712.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesJOULÉ, INC., & others1v.Randi SIMMONS & another.2

459 Mass. 88
944 N.E.2d 143
111 Fair Empl.Prac.Cas.
(BNA) 1306

JOULÉ, INC., & others1
Randi SIMMONS & another.2


Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 1, 2010.Decided March 10, 2011.

[944 N.E.2d 144]

Thomas A. Reed, Boston (Eugene J. Sullivan, III, with him) for the plaintiffs.

[944 N.E.2d 145]

Barbara A. Robb (Nancy S. Shilepsky with her), Boston, for the defendant.Catherine C. Ziehl, Boston, for the intervener.The following submitted briefs for amici curiae:Andrew M. Abraham, Boston, & J. Michael Conley, Braintree, for The Massachusetts Academy of Trial Attorneys.John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation & another.Robert S. Mantell, Boston, for Massachusetts Employment Lawyers Association.Martha Coakley, Attorney General, & Maura T. Healey & Jonathan B. Miller, Assistant Attorneys General, for the Commonwealth.Anne L. Josephson & Heidi S. Alexander, Boston, for American Civil Liberties Union of Massachusetts & others.Present: IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.BOTSFORD, J.

[459 Mass. 89] The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Randi Simmons, from 2008 to 2009.3 Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons's discrimination claim. Before us is Joulé's interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé's motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding.

We conclude that pursuant to G.L. c. 151B, § 5, the MCAD may conduct its own, independent proceeding based on Simmons's complaint. With respect to Joulé and Simmons, however, [459 Mass. 90] if the arbitration provision in Simmons's employment agreement is valid—an issue that remains to be resolved—Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings.4

[944 N.E.2d 146]

1. Facts and procedural history.5 Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company,6 Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non–Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin.7 Simmons had not received a copy or been informed [459 Mass. 91] of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and return[ed] this [a]greement.” Simmons did not sign the agreement immediately but, rather, delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.”

[944 N.E.2d 147]

At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was born in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé's biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé's Boston office. On July 30, 2009, Joulé terminated Simmons's employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G.L. c. 151B, § 4(1) and (11A); [459 Mass. 92] G.L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G.L. c. 151B, § 4(4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD's argument that its authority to conduct an investigation and adjudication of Simmons's claim of discrimination was not affected by the parties' agreement to arbitrate, and ordered that Joulé's motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD's proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge's order pursuant to G.L. c. 251, § 18 ( a ) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD.

2. Discussion. General Laws c. 251, § 18 ( a ) (1), authorizes a party to appeal directly from the denial of an application to compel arbitration. See, e.g., Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394, 910 N.E.2d 317 (2009) ( Warfield ). All parties agree, therefore, that Joulé's interlocutory appeal from the motion judge's order is properly before us. We review the judge's order de novo. See Feeney v. Dell Inc., 454 Mass. 192, 199, 908 N.E.2d 753 (2009), citing Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844, 864 N.E.2d 505 (2007). See also Warfield, supra at 395, 910 N.E.2d 317 (motion to [459 Mass. 93] compel arbitration treated summarily and judge's order reviewed de novo).

a. Effect of the employment agreement's arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD's ability to pursue its investigation and resolution of Simmons's MCAD complaint. “The MCAD was established to enforce the Commonwealth's antidiscrimination laws.” Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 563, 808 N.E.2d 205, cert. denied

[944 N.E.2d 148]

sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against Discrimination, 543 U.S. 979, 125 S.Ct. 481, 160 L.Ed.2d 356 (2004) ( Stonehill College ). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority—and generally follows this course—to investigate and pursue complaints filed by individuals. See G.L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G.L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”).

We review briefly the MCAD's procedure in investigating such complaints. See generally G.L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(1)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the [459 Mass. 94] MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant's attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner's discretion, and also be...

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