Martins v. University of Ma Medical School, No. 08-P-1343.

• Court: Appeals Court of Massachusetts
• Writing for the Court: Brown
• Citation: 915 N.E.2d 1096,75 Mass. App. Ct. 623
• Parties: Farouk MARTINS v. UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL & others.<SMALL><SUP>1</SUP></SMALL&gt
• Docket Number: No. 08-P-1343.
• Decision Date: 30 October 2009

915 N.E.2d 1096 75 Mass. App. Ct. 623 Farouk MARTINS
v.
UNIVERSITY OF MASSACHUSETTS

[915 N.E.2d 1097]

MEDICAL SCHOOL & others.¹ No. 08-P-1343. Appeals Court of Massachusetts, Suffolk. Argued June 8, 2009. Decided October 30, 2009.

[915 N.E.2d 1098]

Farouk Martins, pro se.

Jean Marie Kelley for the defendants.

Present: LENK, BROWN, & GRAINGER, JJ.

BROWN, J.

75 Mass. App. Ct. 624

The point of law we are required to clarify in this case is whether a complainant seeking a judicial remedy for discrimination who has satisfied his administrative requirements may bring parallel claims under G.L. c. 93, §§ 102-103, the Massachusetts Equal Rights Act (MERA), in addition to his G.L. c. 151B claims in court. Although the Supreme Judicial Court unequivocally answered this question in the negative in 1994, an element of uncertainty has crept into the case law. We now reiterate that where, as here, G.L. c. 151B remedies are or were available to a complainant, those remedies are exclusive, preempting the joining of parallel MERA claims on removal to court. Accordingly, we affirm the summary judgment entered in favor of the employer on the plaintiff's MERA claims here. As we conclude that the judge properly ordered summary judgment to enter on only two of the plaintiff's remaining five claims, further proceedings in the Superior Court will be required.

1. Facts. On de novo review of summary judgment, see Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007), we rehearse the facts of

75 Mass. App. Ct. 625

record in their aspects most favorable to Martins. See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96, 858 N.E.2d 746 (2006).

In May, 2000, the Executive Office of Health and Human Services (EOHHS) hired Farouk Martins, a fifty-one year old black man, as a program manager to work in the benefit coordination and recovery unit (BCRU). Previously, Martins had worked as a manager at Boston City Hospital. At EOHHS, Martins managed the health insurance premium program. Martins was the only black manager in BCRU, the first black manager ever hired, and the oldest mid-level manager. Through the end of June, 2003, Martins received commendable and meritorious job evaluations.

In August or September, 2003, Nancy Kealey, the director of revenue operations of BCRU, selected Anthony Zanette for the position of revenue operations manager. Martins, who previously was above Zanette in the organizational chart, was required to report to Zanette. After initially

915 N.E.2d 1099

rejecting the reporting relationship, Martins accepted Zanette's supervision rather than face disciplinary action.

During their individual meetings, Zanette repeatedly subjected Martins, over his objections, to coarse and vulgar language. Moreover, on several occasions, Charles Cook, the director of BCRU, threatened to put Martins "on the street where [he] belonged and replace [him] with a younger manager." Cook also expressed his view to Martins that city of Boston managers were not equal (i.e., inferior) to State managers. Notwithstanding the favorable job evaluations from Martins's immediate managers, Cook offered Martins a deal to leave BCRU, promising to give him any recommendation he wanted if he left voluntarily. Martins rejected the offer.

When the Commonwealth medicine revenue operations program at the University of Massachusetts Medical School (UMMS) took over the functions of the BCRU, the bulk of the BCRU staff transferred to UMMS. All BCRU staff were classified by UMMS as new hires subject to a six-month probationary period. Cook and Kealey became official UMMS employees before Martins in either 2002 or 2003.² On February 1, 2004, Martins became a UMMS employee, receiving the title of revenue

75 Mass. App. Ct. 626

operations assistant manager, which Martins viewed as a demotion. At UMMS, Martins reported first to Kealey and then later to Zanette.

After learning about his new placement in late January, 2004, Martins complained about the discrimination to Susan Levine, his UMMS contact person. Levine subsequently assured him that she had looked into the matter and that the other similarly situated BCRU managers, all white, had received the same position and title at UMMS. When Martins received a contact list from a UMMS revenue operations program he attended in June, 2004, however, he learned that all his former colleagues had been made managers at UMMS.

Before Martins became a UMMS employee, Pat Hart, a contractor, at Zanette's request, documented inaccuracies in Martins's spreadsheets and other shortcomings in Martins's work. On several occasions at EOHHS and at UMMS, Martins complained to Zanette that he was unable to read the size nine font required on the spreadsheets. Zanette refused to allow Martins to use either a larger font size or capitals and abbreviations because the spreadsheets were expected to look a certain way and changes would cause the form not to run properly.

In March, 2004, Martins formally complained to Catherine Parker, UMMS's manager of employee and labor relations, and to Julie Forgione, the assistant director of UMMS, that he was being treated differently from other employees. Martins maintained that he was being ostracized, stripped of his managerial duties, and humiliated and insulted by Zanette in front of his coworkers.³ Martins also specifically

915 N.E.2d 1100

complained to Parker, Kealey, and Forgione about Zanette's continuing use of "obscene" language, asking that it be stopped.

Although Martins applied for higher level managerial positions

75 Mass. App. Ct. 627

in March or April, 2004, he was passed over in favor of white applicants, including Zanette, who were more than ten years younger than Martins.

In April, 2004, Zanette and Kealey met with Martins to discuss performance issues. At the end of May, Zanette reported to Forgione an improvement in Martins's attitude, performance, and interaction with his customers. Forgione congratulated Zanette in turning around a difficult situation.

On June 3, 2004, Zanette completed his evaluation of Martins, rating him as meeting standards (the highest of the three available ratings) both over-all and on six of eight categories.⁴ Disappointed with the evaluation because Zanette had recently informed him that he "was doing a good job," Martins refused to sign it. After the evaluation, Zanette told everyone that he and Martins were getting along well.

In connection with its 2004 better government competition, the Pioneer Institute for Public Policy Research selected Martins's program for an award. On June 11, 2004, Kealey sent the members of the unit, including Martins, a memorandum congratulating them and commending them for their hard work.

A week later, during a routine meeting, Zanette yelled at Martins that "he [was] paying [Martins] and [he had] to do whatever it is he wants." When Zanette brought up the subject of mistakes on the spreadsheets again, Martins told Zanette that the font size needed to be increased. Zanette responded, "[Y]ou are too fucking old to see." Zanette then turned to Martins's appearance, exclaiming that he "look[ed] like fuck."⁵ Zanette asked why Martins did not leave and find another job. As Martins got up and attempted to leave the room, Zanette told him "to sit the fuck down" as he was not finished with him. A coworker, Elsa Rodriguez, who was present during the altercation, corroborated Martins's account concerning Zanette's hostility and inappropriate conduct toward him.

Later that same day, Martins sent an electronic mail message (e-mail) to Zanette, requesting that Zanette keep their meetings

75 Mass. App. Ct. 628

strictly at a professional level. On June 21, 2004, Martins reported Zanette to Kealey and to Forgione.

On June 28, 2004, Zanette informed Martins that his UMMS employment was terminated, advising him that UMMS's grievance procedure entitled him to a hearing on the matter. Parker made arrangements to have a State police officer in plain clothes, in addition to the usual security, present during the termination. After giving Martins fifteen minutes to pack his belongings, three individuals escorted Martins from the building. Martins had no history of violence or of making threats.⁶ Kealey was unaware of armed security being used in connection with any previous employee terminations.

That evening, an interagency memorandum regarding the "personnel action" was sent by e-mail to the other tenants of 600

915 N.E.2d 1101

Washington Street, the building in which Martins had worked, and forwarded to UMMS's office staff. Employees were reminded not to let anyone, including "familiar faces," enter the workspace without an access card.

On some undisclosed date in July, 2004, Martins filed an internal discrimination complaint with UMMS's equal opportunity office. On November 1, 2004, following an investigation, the grievance proceedings ended unfavorably for Martins. On December 23, 2004, Martins filed his administrative complaint at the Massachusetts Commission Against Discrimination (MCAD).

2. Discussion. a. Count I (G.L. c. 151B, §§ 4[1], 4[1C], & 4[4]). (i) Statute of limitations. Most, if not all, of the discriminatory actions at issue in this litigation, including the demotions, failures to promote, retaliation, and termination, occurred between January, 2004, and June 28, 2004. Where, as here, the complainant entered into grievance proceedings with his employer concerning the alleged discriminatory acts within 300 days of the complained of conduct and filed his complaint at MCAD within 300 days of the conclusion of those proceedings, the statute of limitations was tolled during the pendency of those proceedings.⁷

75 Mass. App. Ct. 629

See G.L. c. 151B, § 5, as amended by St.2002, c. 223, § 1; 804 Code Mass. Regs. § 1.10(2) (2004); Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 770, 847 N.E.2d 328 (2006). Thus, factoring out that four-month period (July to November, 2004) here,...