Windross v. Village Automotive Group, Inc.

• Decision Date: 03 June 2008
• Docket Number: No. 07-P-494.,07-P-494.
• Citation: 887 N.E.2d 303,71 Mass. App. Ct. 861
• Parties: Markdale E. WINDROSS v. VILLAGE AUTOMOTIVE GROUP, INC.<SMALL><SUP>1</SUP></SMALL>
• Court: Appeals Court of Massachusetts

887 N.E.2d 303

71 Mass. App. Ct. 861

Markdale E. WINDROSS v. VILLAGE AUTOMOTIVE GROUP, INC.¹

No. 07-P-494.

Appeals Court of Massachusetts, Middlesex.

Argued March 18, 2008.

Decided June 3, 2008.

Mark S. Bodner, Boston, for the defendant.

Brailey E. Newton for the plaintiff.

Present: COHEN, TRAINOR, & MEADE, JJ.

MEADE, J.

Following a jury trial, the defendant, Village Automotive Group, doing business as Charles River Saab (CRS), appeals from a judgment that found it liable to its former employee, the plaintiff, Markdale E. Windross, for subjecting him to a racially discriminatory hostile work environment in violation of G.L. c. 151B, § 4. CRS claims that because Windross's hostile work environment claim was not specifically pleaded in his complaint to the Massachusetts Commission Against Discrimination (MCAD), it should have been barred for his failure to exhaust administrative remedies; that Windross's Superior Court complaint was similarly deficient; and that its motions for a directed verdict and for judgment notwithstanding the verdict (judgment n.o.v.) were improperly denied. We affirm.

1. Background. Windross, a black male of Jamaican descent, worked for CRS, an automobile dealership, as a salesperson between July 1, 1999, and September 1, 1999, when his employment was terminated for poor performance. Following his termination, Windross filed a complaint with the MCAD alleging that CRS, its sales manager, Peter Didick, and its general manager, William West, had subjected him to various acts of employment discrimination based on race, color, and national origin. Thereafter, pursuant to G.L. c. 151B, § 9, Windross timely removed the MCAD complaint to Superior Court, where the case was tried before a jury. CRS moved for a directed verdict at the close of Windross's case, and again at the close of all the evidence; both motions were denied. The jury returned a verdict in favor of Windross with respect to his hostile work environment claim, but found for CRS on the wrongful termination claim. The jury also returned verdicts in favor of Didick and West on all counts of discrimination against those defendants individually. On April 5, 2005, judgment entered against CRS in the amount of $75,000, plus interest in the amount of $45,246.97. Following the denial of its motion for judgment n.o.v., CRS timely noticed an appeal.

2. Discussion. a. Exhaustion of administrative remedies. Pursuant to G.L. c. 151B, § 4(1), as appearing in St.1989, c. 516, § 4, it is unlawful "[f]or an employer, ... because of the race, color, ... national origin, ... or ancestry of any individual ... to discriminate against such individual ... in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." In addition to enabling a plaintiff to bring suit for unlawful acts of discrimination, G.L. c. 151B, § 4(1), has been interpreted to provide a cause of action for a hostile work environment based on the cumulative effect of a series of abusive acts though each in isolation might not be actionable in itself. See Clifton v. Massachusetts Bay Transp. Authy., 445 Mass. 611, 616 n. 5, 839 N.E.2d 314 (2005), quoting from Keeler v. Putnam Fiduciary Trust Co., 238 F.3d 5, 12 (1st Cir.2001) (acts giving rise to hostile work environment claim may be described as "pinpricks [that] only slowly add up to a wound"). In this context, "[a] hostile work environment is one that is `pervaded by harassment or abuse, with the resulting intimidation, humiliation, and stigmatization, [and that] poses a formidable barrier to the full participation of an individual in the workplace.'" Cuddyer v Stop & Shop Supermarket Co., 434 Mass. 521, 532, 750 N.E.2d 928 (2001), quoting from College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 162, 508 N.E.2d 587 (1987). Because a hostile work environment claim is a distinct theory of recovery requiring additional elements of proof beyond a showing of discrimination, when it is claimed along with individualized claims of discrimination, the claims must be analyzed separately.

As a predicate to bringing a civil action in the Superior Court alleging a violation of G.L. c. 151B, a claimant must timely file a complaint of unlawful discrimination with the MCAD. G.L. c. 151B, § 5. "The purpose of this requirement is two fold: (1) to provide the MCAD with an opportunity to investigate and conciliate the claim of discrimination; and (2) to provide notice to the defendant of potential liability." Cuddyer v. Stop & Shop Supermarket Co., supra at 531, 750 N.E.2d 928. Because those purposes would be frustrated if the claimant were permitted to allege one thing in the MCAD complaint only to allege something entirely different in the ensuing civil action, the scope of the subsequent civil proceeding is limited to matters alleged in the administrative complaint.

CRS maintains that a hostile work environment claim was not specifically pleaded in Windross's MCAD complaint as a separate and distinct cause of action and thus should have been barred for failure to exhaust administrative remedies.² In support of this contention, CRS relies on an unpublished decision of the United States District Court for the District of Massachusetts and some Superior Court decisions, which essentially hold that a hostile work environment claim must be brought as a separate cause of action because not all conduct that may be characterized as harassment rises to the level of a hostile work environment. While we are not bound by these decisions, see College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 163, 508 N.E.2d 587; Heritage Jeep-Eagle, Inc. v. Chrysler Corp., 39 Mass.App.Ct. 254, 258 n. 7, 655 N.E.2d 140 (1995), and we do not necessarily quarrel with the idea posited above, they do not properly inform the exhaustion question before us.

Rather, consistent with the general scope of the investigation rule, a claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover. See Mole v. University of Mass., 58 Mass.App.Ct. 29, 47, 787 N.E.2d 1098 (2003), S.C., 442 Mass. 582, 814 N.E.2d 329 (2004) ("[t]he scope of subsequent court proceedings is limited by the charge filed with the administrative agency and the investigation that can reasonably be expected as a result"); Lattimore v. Polaroid Corp., 99 F.3d 456, 464-465 (1st Cir.1996) (same; referring to G.L c. 151B claim); Conroy v. Boston Edison Co., 758 F.Supp. 54, 58 (D.Mass.1991) ("where the factual statement in a plaintiff's written charge should have alerted the agency to an alternative basis of discrimination, and should have been investigated, the plaintiff will be allowed to allege this claim in his or her complaint regardless of whether it was actually investigated").³ In accordance with this rule, "[a]n administrative charge is not a blueprint for the litigation to follow ... [and] the exact wording of the charge of discrimination need not presage with literary exactitude the judicial pleadings which may follow." White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 263 (1st Cir.2000), quoting from Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir.1990). Rather, as the United States Court of Appeals for the First Circuit held with respect to G.L. c. 151B, for the claim to fall within the scope of the investigation, the plaintiff must "describe the essential nature of the claim and ... identify the core facts on which it rests." Lattimore v. Polaroid Corp., supra at 464.

We discern no reason to except hostile work environment claims from the general scope of the investigation rule. Even if conduct which may be characterized as harassment may not, by itself, rise to the level of a hostile work environment, this does not mean that a heightened pleading standard exists for claims based on that theory. In relevant part, the MCAD's administrative regulations in effect when Windross filed his complaint required a complainant to include the following information in his administrative complaint: "(a) the date(s) on which such unlawful discriminatory acts occurred; ... (b) a concise statement of the alleged discriminatory acts; ... [and] (d) appropriate identification of the Complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts ..." (emphasis supplied). 804 Code Mass. Regs. § 1.10(5) (1999). Consistent with general notice pleading requirements under Mass.R.Civ.P. 8(a), 365 Mass. 749 (1974), this language does not require the claimant to state the specific legal theory on which the claim for recovery is based. See Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d 243 (1979); Ciccone v. Smith, 3 Mass.App.Ct. 733, 734, 325 N.E.2d 292 (1975), quoting from Mass.R.Civ.P. 8(a) (complaint is sufficient if it gives fair notice of claims of parties and contains "a short and plain statement of claim showing that the pleader is entitled to relief"). Cf. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (finding it "impossible to square the `heightened pleading standard' [applied to a claim brought under 42 U.S.C. § 1983] with the liberal system of `notice pleading' set up by the Federal Rules ... [which] requires that a complaint include only `a short and plain statement of the claim showing that the pleader is entitled to relief'").

Consistent with the scope of the investigation rule, the requisite degree of precision in the drafting of an MCAD complaint is satisfied if the core factual allegations underlying the claim are set forth such as to "fairly place[] [the issue] before the agency." Mole v. University of Mass., 58 Mass.App.Ct. at 48, 787 N.E.2d 1098....