Thurdin v. Sei Boston, LLC

Decision Date24 October 2008
Docket NumberSJC-10123
Citation895 N.E.2d 446,452 Mass. 436
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Daniel W. Rice, Braintree, for the plaintiff.

Joseph S. Berman, Boston (Kenneth J. Rodriguez with him) for the defendant.

The following submitted briefs for amici curiae:

James S. Weliky, Boston, for Massachusetts Employment Lawyers' Association & others.

Jo Ann Shotwell Kaplan & Martin Newhouse for New England Legal Foundation & others.

Patricia A. Washienko & Anne Josephson, Boston, for Union of Minority Neighborhoods & others.



We transferred this case from the Appeals Court on our own motion to consider whether an employee, who is unable to pursue an employment discrimination claim against her former employer pursuant to G.L. c. 151B, because the employer had fewer than six employees, may instead assert a claim under G.L. c. 93, § 102, one of the provisions of the Massachusetts Equal Rights Act (MERA). A Superior Court judge entered an order granting the defendant's motion to dismiss the plaintiff's complaint charging the defendant with sex discrimination pursuant to MERA. Because we conclude that an employee may assert a sex discrimination claim under MERA where an employer is not within the ambit of G.L. c. 151B, we vacate the order and judgment dismissing the complaint and remand the case for further proceedings.

Facts and procedure. We set forth the facts, taking as true all the allegations in the plaintiff's complaint and drawing all inferences in her favor. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407, 649 N.E.2d 1102 (1995).

On February 15, 2005, the defendant, which provides information technology services to businesses, offered the plaintiff a position as an onsite information technology consultant. The plaintiff began working on March 15, 2005, reporting to the defendant's managing principal, Vicki Hudson. On April 11, the plaintiff told Hudson that she was pregnant and had a due date of June 27. The plaintiff alleges that she could perform all of the essential functions of her job, including onsite consulting.

The next day, Hudson told the plaintiff that she had spoken to Daniel Pierce, the owner of Systems Evolution, Inc., in Mason, Ohio. Hudson stated that she and Pierce were upset that the plaintiff was pregnant and requested that the plaintiff voluntarily take an unpaid leave of absence. The plaintiff refused.

Hudson told the plaintiff that she had acted unethically by failing to reveal during her job interview, that she was pregnant.1 Hudson stated that the defendant could not place the plaintiff onsite with clients due to her pregnancy and that it would be very costly to have the plaintiff "on the bench" during the term of her pregnancy and while on maternity leave. Hudson went on to say that the plaintiff was unfairly burdening the defendant with her pregnancy because the defendant is a small company trying to develop new business in the Boston area. The plaintiff asked Hudson to view the plaintiff's situation from her perspective, to which Hudson remarked that it was "not [her] problem."

After this conversation, the plaintiff telephoned her attorney, a friend, and her husband, and relayed that she believed she was being discriminated against due to her pregnancy. Another employee overheard these calls and reported them to Hudson. Hudson ordered the plaintiff to leave the office and to "have a conversation with [herself] in the mirror and come back tomorrow with a better attitude." By a letter dated April 20, 2005, but not given to the plaintiff until April 22, the defendant placed the plaintiff on unpaid administrative leave because of her pregnancy. The plaintiff did not return to work.

Prior to receiving the letter, the plaintiff filed a charge of discrimination against the defendant with the Equal Employment Opportunity Commission (EEOC) and with the Massachusetts Commission Against Discrimination (MCAD), thus pursuing administrative remedies under Federal and State law pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000) (Title VII), and G.L. c. 151B.2 The plaintiff's complaint appears to have been closed by the EEOC for lack of jurisdiction after the defendant contended that it had only three employees.

In March, 2006, the plaintiff filed a complaint in the Superior Court alleging gender and pregnancy discrimination under MERA. After answering the complaint, the defendant filed a motion to dismiss or, in the alternative, a motion for judgment on the pleadings. The judge found that it is undisputed that the defendant employed less than six people. He concluded that G.L. c. 151B is the exclusive remedy in employment discrimination cases and that, as evidenced by the statute's definition of "employer," the Legislature intended that discrimination claims would not lie against employers having fewer than six employees.3 The judge also concluded that, in any event, the plaintiff did not have an alternative remedy under MERA because the statute's phrase "make and enforce contracts" applies only to claims of discrimination during the hiring process. To support his conclusion, the judge relied on the United States Supreme Court's interpretation of comparable language that existed in 42 U.S.C. § 1981, at the time of its decision in Patterson v. McLean Credit Union, 491 U.S. 164, 176-177, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), abrogated by the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071.4 A judgment entered dismissing the plaintiff's complaint. The plaintiff appealed.

Statutory scheme. We begin with an overview of the pertinent provisions of the relevant statutes.

MERA. General Laws c. 93, § 102 (a), inserted by St.1989, c. 332, provides, in pertinent part:

"All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other"5 (emphasis supplied).

The language of § 102 (a) drew on language in 42 U.S.C. §§ 1981 and 1982 (2000), as they existed at the time, but expanded the category of those covered, as §§ 1981 and 1982 cover only race. See Johnson, The 1989 Massachusetts "Equal Rights Law": A Short History, 34 B.B.J. 17, 18 (1990) (Johnson) (MERA added sex and religion to language fashioned from §§ 1981 and 1982). The statute was proposed in anticipation of the United States Supreme Court's Patterson decision. Id. at 17. General Laws c. 93, § 103, inserted by St.1990, c. 156, extended the rights afforded under § 102 to persons with a handicap or over forty years of age, as defined in G.L. c. 151B, § 1(8), (17), and requires a "reasonable accommodation" concerning those rights.

General Laws c. 151B. General Laws c. 151B is an antidiscrimination statute originally enacted in 1946. St.1946, c. 368, § 4. General Laws c. 151B, § 4(1), (1A), (1B), and (3), as amended through St.2004, c. 355, § 1, forbids discrimination in employment on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, ancestry, age, or handicap.6 For purposes of the statute "employer" is defined to expressly exclude "any employer with fewer than six persons in his employ."7 G.L. c. 151B, § 1(5). The Massachusetts Commission Against Discrimination (MCAD) is the administrative agency that enforces the statute. G.L. c. 151B, §§ 1(7), 3, 5. General Laws c. 151B, § 9, first par., provides that the statute "shall be construed liberally for the accomplishment of its purposes." It states that "any law inconsistent with any provision of this chapter shall not apply, but nothing contained in this chapter shall be deemed to repeal any provision of any other law of the commonwealth relating to discrimination" (emphasis added).8 Section 9, second and third pars., also states that ninety days (but not later than three years) after filing a complaint with the MCAD, a plaintiff may choose to bring an action for damages (actual and punitive) in the Superior Court, Probate and Family Court, or Housing Court.

Thus the statute provides an aggrieved party with "two largely independent avenues for redress of violations of [G.L. c. 151B], one through the MCAD (G.L. c. 151B, §§ 5-6), and the other in the courts (G.L. c. 151B, § 9)." Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 565, 808 N.E.2d 205, cert. denied 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), quoting Brunson v. Wall, 405 Mass. 446, 452, 541 N.E.2d 338 (1989).9 However, the judicial remedy is available only after a party has first filed a complaint with the MCAD,10 and while administrative procedures are pending pursuant to G.L. c. 151B, §§ 4 and 5, that procedure is exclusive. G.L. c. 151B, § 9, as amended through St.2002, c. 223, § 2. Moreover, if G.L. c. 151B is available, an aggrieved employee may not bring a claim under another statute in the first instance.11 Charland v. Muzi Motors, Inc., 417 Mass. 580, 586, 631 N.E.2d 555 (1994) (Charland) (where G.L. c. 151B applies, it is exclusive remedy for employment discrimination).

Furthermore, "the primary purpose of an administrative proceeding before the MCAD is to vindicate the public's interest in reducing discrimination in the workplace." Stonehill College, supra at 563, 808 N.E.2d 205....

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