Thomas v. Edi Specialists, Inc.

• Decision Date: 15 August 2002
• Citation: 437 Mass. 536,773 N.E.2d 415
• Parties: Jennifer THOMAS v. EDI SPECIALISTS, INC.; Steven A. Mills, third-party defendant.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

773 N.E.2d 415

437 Mass. 536

Jennifer THOMAS v. EDI SPECIALISTS, INC.; Steven A. Mills, third-party defendant.

Supreme Judicial Court of Massachusetts, Bristol.

Argued May 8, 2002.

Decided August 15, 2002.

Randall T. Weeks, Jr. (Matthew C. Worthen with him), Boston, for the employer.

John T. Landry, III, Braintree, for the third-party defendant.

The following submitted briefs for amici curiae:

Cynthia L. Amara, Boston, for New England Legal Foundation.

Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Commonwealth.

Present: GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

We decide today whether an employer has a right of contribution or indemnification against an offending employee for alleged violations of G.L. c. 151B. Jennifer Thomas filed a discrimination action in the Superior Court pursuant to G.L. c. 151B against her employer, EDI Specialists, Inc. (EDI). In her complaint, she names Steven A. Mills, a fellow employee, as a primary offender. EDI filed a third-party complaint against Mills seeking contribution and indemnification in the event it is found liable to Thomas. Mills moved to dismiss the third-party complaint, claiming, inter alia, that G.L. c. 151B does not provide for a right of contribution or indemnification against an employee. A judge in the Superior Court agreed with Mills and dismissed EDI's third-party complaint. We affirm.

1. Facts and procedural background. We summarize the relevant facts from the Superior Court's order, supplemented by relevant information from the record. EDI is an eighteen-employee company located in Massachusetts. Thomas was hired by EDI as an implementation services manager, and Mills as an operations director. In her charge of discrimination before the Massachusetts Commission Against Discrimination (commission), Thomas named EDI as the sole respondent and claimed that, after the announcement of her pregnancy, she was subjected to continuous and ongoing discrimination. Specifically, she alleged that, after becoming pregnant, she was required to document "every minute" of her time and was harassed and subjected to derogatory comments. She claimed further that after the birth of her child, she was not returned to the assignment she had before her maternity leave as she had been promised, and she was also changed from a salaried to an hourly employee.

After waiting the requisite ninety days after the filing of her complaint with the commission, see G.L. c. 151B, § 9, Thomas commenced an action in the Superior Court under G.L. c. 151B, thereby transferring the case from the commission. EDI is the only defendant named in the complaint. Thomas alleged, inter alia, that EDI unlawfully discriminated against her on the basis of sex and in connection with her pregnancy in violation of G.L. c. 151B. According to Thomas, Mills referred to her as the "Company Prego" and told her that her inability to travel was detrimental to EDI. Thomas also alleged discriminatory behavior by the company's president, Joseph Gilbody, and EDI itself for the failure to adopt company policies regarding sexual harassment and maternity leave.

EDI filed a third-party complaint against Mills seeking indemnification and contribution. A Superior Court judge granted Mills's motion to dismiss EDI's third-party complaint, reasoning that G.L. c. 231B, § 1(a), the statute providing for the right to seek contribution, only applies to tort claims, and a claim under G.L. c. 151B is not a " tort-like' cause of action." EDI petitioned for interlocutory review of the Superior Court's order to a single justice of the Appeals Court, who granted EDI leave to file an interlocutory appeal. We transferred the case to this court on our own motion.

2. Discussion. On appeal, EDI argues that an employer sued under G.L. c. 151B may seek contribution and indemnification¹ from an offending employee pursuant to G.L. c. 231B, § 1(a). General Laws c. 151B, § 4, provides that "[i]t shall be an unlawful practice ... for an employer ... because of race, color, religious creed, national origin, sex, sexual orientation ..., genetic information, or ancestry ... to discriminate against such individual in compensation or in terms, conditions or privileges of employment ..." (emphasis added). The statute sets forth a detailed procedure that an aggrieved employee must follow in pursuing a discrimination claim, G.L. c. 151B, § 5, and has been interpreted to allow an action against an individual employee as well as an employer. See Beaupre v. Cliff Smith & Assocs., 50 Mass.App.Ct. 480, 490-492, 738 N.E.2d 753 (2000).

General Laws c. 151B contains no provision regarding an employer's right to seek contribution from the offending employee. However, EDI argues that contribution is permitted by G.L. c. 231B. That statute provides for a right to contribution "where two or more persons become jointly liable in tort," G.L. c. 231B, § 1(a), and permits a tortfeasor to seek partial reimbursement from a party who is jointly liable if he has paid more than his "pro rata share" of the damages. G.L. c. 231B, § 1(b). The language of the statute does not distinguish between intentional torts and negligence.

The right of contribution created by G.L. c. 231B is not limited to those causes of action that existed when the statute became effective. Wolfe v. Ford Motor Co., 386 Mass. 95, 98-99, 434 N.E.2d 1008 (1982). Rather, in deciding whether a particular statutory action supports a claim for contribution under G.L. c. 231B, we must look to whether the underlying claim is "in essence a tort claim." Id. at 99, 434 N.E.2d 1008. See Ankiewicz v. Kinder, 408 Mass. 792, 795, 563 N.E.2d 684 (1990). Applying this principle, we have held that a defendant may seek contribution in connection with a claim of implied warranty of merchantability, Wolfe v. Ford Motor Co., supra, and a claim of violation of the lead paint prevention law, Ankiewicz v. Kinder, supra. See Framingham Union Hosp. v. Travelers Ins. Co., 744 F.Supp. 29 (D.Mass.1990) (permitting contribution in connection with claim of unfair business practices under G.L. c. 93A).

EDI maintains that a discrimination action under c. 151B, like the statutes described above, "sound[s] in tort," and thus permits third-party actions for contribution. Although we have, at times, analogized discrimination actions to tort actions, see, e.g., Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 224, 636 N.E.2d 212 (1994); Conway v. Electro Switch Corp., 402 Mass. 385, 387-388, 523 N.E.2d 255 (1988), in other contexts, we have distinguished discrimination actions from tort actions. See Jancey v. School Comm. of Everett, 421 Mass. 482, 501, 658 N.E.2d 162 (1995), S.C., 427 Mass. 603, 695 N.E.2d 194 (1998) ("acts of discrimination — whether intentional or unintentional — do not thereby become torts"). See also McMillan v. Massachusetts Soc'y for the Prevention of Cruelty to Animals, 168 F.R.D. 94, 97 (D.Mass.1995) (holding that statutory cap on tort damages recoverable against charitable organizations not applicable to claims brought under c. 151B). Our prior cases recognize that, in some but not all respects, actions brought under G.L. c. 151B are analogous to tort actions. Even if G.L. c. 151B can be considered "tort-like" for some purposes, allowing an action for contribution would undermine the statute's complex and detailed procedures; the Legislature could not have intended such a result.

General Laws c. 151B sets forth a comprehensive scheme for the resolution of discrimination claims. Guzman v. Lowinger, 422 Mass. 570, 571, 664 N.E.2d 820 (1996). Melley v. Gillette Corp., 19 Mass. App.Ct. 511, 475 N.E.2d 1227 (1985), S.C., 397 Mass. 1004, 491 N.E.2d 252 (1986). A complainant may pursue a remedy either through administrative proceedings within the commission or through the judicial system. G.L. c. 151B, §§ 5, 9. However, a complainant under G.L. c. 151B must meet certain procedural requirements before proceeding in the courts, East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444, 448, 305 N.E.2d 507 (1973); Melley v. Gillette Corp., supra at 512, 475 N.E.2d 1227, and is not permitted to withdraw the case until the completion of a ninety-day waiting period unless "a commissioner assents in writing" to an earlier withdrawal. G.L. c. 151B, § 9.

Allowing a right of contribution would interfere with the Legislature's preference for resolving the proceedings at the administrative level. Charland v. Muzi Motors, Inc., 417 Mass. 580, 585, 631 N.E.2d 555 (1994), quoting Melley v. Gillette Corp., supra at 513, 475 N.E.2d 1227 (referring to "legislative preference for an administrative solution"). The administrative process provides a defendant with notice and the opportunity for conciliation. G.L. c. 151B, § 5. Courts have recognized "the importance under c. 151B of sufficient notice being provided in the [commission] filing of the charges being made and of the parties deemed responsible, so as to allow both the opportunity to attempt early conciliation and a fair opportunity to litigate the issues raised." Beaupre v. Cliff Smith & Assocs., 50 Mass.App.Ct. 480, 492, 738 N.E.2d 753 (2000), citing Chatman v. Gentle Dental Ctr. of Waltham, 973 F.Supp. 228, 235 (D.Mass.1997). The commission's regulations do not provide a method by which a defendant may join a third party, thereby potentially depriving a third-party defendant of the opportunity to participate in the administrative process. School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 423 Mass. 7, 13, 666 N.E.2d 468 (1996) ("The investigating commissioner denied the school committee's motion to join the union as a party-respondent because the commission has no rule allozwing for third-party practice").²

Further, the short statute of limitations of G.L. c. 151B conflicts with the longer period of time in which a defendant...