Smith v. Mitre Corp.

• Decision Date: 03 January 1997
• Docket Number: Civil Action No. 95-10724-RCL.
• Citation: 949 F.Supp. 943
• Parties: Patricia G. SMITH, Plaintiff, v. The MITRE CORPORATION, Defendant.
• Court: U.S. District Court — District of Massachusetts

949 F.Supp. 943

Patricia G. SMITH, Plaintiff, v. The MITRE CORPORATION, Defendant.

Civil Action No. 95-10724-RCL.

United States District Court, D. Massachusetts.

January 3, 1997.

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Theresa Finn Dever, Michael Avery, Perkins, Smith & Cohen, Boston, MA, for Patricia G. Smith.

Steven A. Kaufman, Robert B. Gordon, Daniel J. Klau, Heidi Goldstein Shepherd, Ropes & Gray, Boston, MA, for Mitre Corporation.

MEMORANDUM AND ORDER ON MOTION TO AMEND COMPLAINT

LINDSAY, District Judge.

Background

In this employment discrimination case, the plaintiff, Patricia Smith (the "plaintiff" or "Smith"), has moved to amend her complaint to add three new claims. The proposed amendments would add claims for termination in retaliation for her filing a discrimination claim under Massachusetts law (Mass. G.L. c. 151B), termination in retaliation for her filing a claim under federal law (Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ["Title VII"]), and wrongful discharge under Massachusetts common law.

The plaintiff timely filed charges against the defendant Mitre Corporation (the "defendant" or "Mitre") with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC") with respect to her original discrimination claims. In those charges she claimed that she was demoted and otherwise discriminated against in her employment with Mitre based on her age and gender.

Her proposed amendment would add claims relating to her discharge from Mitre subsequent to the filing of her original discrimination charges. On October 2, 1995, the plaintiff was notified by Mitre that she was to be terminated under a "lay-off action." She contends that the lay-off action was a pretext, and that she was, in fact, terminated in retaliation for the filing of her original charges and for the prosecution of the claims made in this lawsuit. On June 21, 1996, the plaintiff filed a charge of discrimination with EEOC stemming from the alleged retaliatory termination, and on June 24, 1996, she filed a similar charge with the MCAD.

The charge filed with the EEOC was timely, in that it came within the 300-day limit applicable in Massachusetts. See 42 U.S.C. § 2000e-5(e); Isaac v. Harvard University, 769 F.2d 817, 818-19 (1st Cir.1985) (noting applicability of 300-day limit in Massachusetts due to existence of state law remedy for employment discrimination). The charge filed with the MCAD, however, was not timely, in that it came later than 180 days after the alleged discriminatory action. See Mass. G.L. c. 151B § 5.

Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15. In considering a motion for leave to amend, however, the trial court must first consider whether the proposed new claims are futile, that is, whether they would be subject to dismissal for failure to state a claim. Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st Cir.1990). If the claims are not futile, then the trial court must consider whether, given the timing of the motion for leave to amend, such prejudice to the defendant would arise from granting the motion that the motion should be denied on that ground. See Andrews v. Bechtel Power Corp., 780 F.2d 124, 139 (1st Cir.1985), cert. denied, 476 U.S. 1172, 106 S.Ct. 2896, 90 L.Ed.2d 983 (1986). The questions of futility and prejudice are thus considered in turn in this memorandum.

Analysis

A. Futility

1. The State Law Claim for Retaliation

As noted above, the second charge filed by the plaintiff with the MCAD, alleging discriminatory termination, was not timely under Mass.G.L. c. 151B § 5. The defendant argues that the plaintiff's claim for retaliation is futile because that claim is barred by the plaintiff's failure to file a timely charge with the MCAD. The plaintiff argues that the filing of a separate charge was unnecessary, either because the Massachusetts courts would not require it under chapter 151B for a claim of retaliation, made under the circumstances presented here, or because this court can simply obtain jurisdiction over the claim by asserting "ancillary" jurisdiction.

The Massachusetts courts have not addressed whether a separate filing with the MCAD is required to give a court jurisdiction over a claim that an employer has taken adverse employment action against an employee in retaliation for her filing an earlier charge of discrimination. In interpreting the Massachusetts employment discrimination laws, however, Massachusetts courts often look to, although they are not bound to follow, interpretations by federal courts of similar federal laws. See, e.g., College-Town v. MCAD, 400 Mass. 156, 508 N.E.2d 587, 591 (1987) ("In interpreting our statute, we may look to the interpretations of Title VII of the analogous Federal statute."); Massachusetts Electric Co. v. MCAD, 375 Mass. 160, 375 N.E.2d 1192, 1198 (1978) ("While interpretations of a Federal Statute [Title VII] which is similar to the State statute [chapter 151B, § 4] under consideration are often helpful in setting forth all the various policy considerations, such interpretations are not binding on a State court construing its own statute."). Therefore, in attempting to determine how the Massachusetts courts would interpret chapter 151B, with respect to the question now before this court, the court first turns for guidance to interpretations by federal courts of Title VII, the federal analogue of chapter 151B, and then to a determination of the extent to which, if any, Massachusetts courts would follow those interpretations.

Federal law requires that an administrative charge be filed by a claimant before she may bring suit for employment discrimination. See 42 U.S.C. § 2000e-5(b). This requirement of Title VII has been analyzed under two slightly different standards, insofar as it relates to claims that have not been specifically presented to the EEOC, but which a plaintiff seeks to include in a civil action. The First Circuit holds that claims related to those brought before the EEOC, but not specifically raised there, may be made the subject of a civil suit if the claims can reasonably be said to have been within the scope of the EEOC's original investigation. This means, in the First Circuit's view, that the related claims must have been brought to the EEOC's attention while the EEOC was still able to investigate them. "A complaint related to that brought before the EEOC, but which was not itself made the subject of a separate EEOC complaint, must reasonably be expected to have been within the scope of the EEOC's investigation in order to meet the jurisdictional prerequisite. The retaliation claim here could not have been expected to be part of the scope of the EEOC's investigation growing out of appellant's earlier complaints, because plaintiff has not alleged that he even informed the EEOC of the alleged retaliation." Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir.1988) (citation omitted).

The other circuits that have considered the question have applied a more lenient test in allowing retaliation claims to be added to lawsuits stemming from previously-filed EEOC complaints. See McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 482 (7th Cir. 1996) for a discussion of the decisions of the various circuits on this question.

The Tenth Circuit has found justification for not requiring a separate charge to be filed with the EEOC, in situations like the one presented in this case, in the two-fold purpose of the requirement of exhaustion of administrative remedies itself. In Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994), the court noted that the two purposes of the exhaustion requirement are: "1) to give notice of the alleged violation to the charged party; and 2) to give the EEOC an opportunity to conciliate the claim, which effectuates Title VII's goal of securing voluntary compliance." The court went on to point out, however, that "[i]n the retaliation context, notice has already been given and there is little likelihood that a second administrative complaint would lead to conciliation." Id. (citations omitted).

The Second Circuit has noted the risks of increased delay and expense that would accompany the requirement of a separate administrative filing. "[R]equiring a plaintiff to file a second EEOC charge under these circumstances could have the perverse result of promoting employer retaliation in order to impose further costs on plaintiffs and delay the filing of civil actions relating to the underlying acts of discrimination." Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1402 (2d Cir.1993).

The Fifth Circuit takes jurisdiction over retaliation claims without a second administrative filing by exercising "ancillary" jurisdiction. In Gupta v. East Texas State University, 654 F.2d 411 (5th Cir.1981), the Fifth Circuit held "that 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 the court." Id. at 414. The court justified this holding on the practical reason that another administrative claim would simply be "a needless procedural barrier," id., and on the policy consideration that the holding serves to "deter employers from attempting to discourage employees from exercising their rights under Title VII," id.; see also Gottlieb v. Tulane University, 809 F.2d 278, 284 (5th Cir.1987) (re-affirming Gupta).

The First Circuit has specifically left open the question of applying this "ancillary" jurisdiction approach. In Johnson, the First Circuit noted that "[w]e need not decide whether we would have `ancillary' jurisdiction over the...