Opinion
Civ. A. No. 74-2946-S.
November 4, 1976.
Dwight Golann, Snyder, Tepper Berlin, Boston, Mass., for plaintiff.
Stephen B. Perlman, John Clarke Kane, Jr., Boston, Mass., for defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
This is an action under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (ADEA). The defendants have moved to dismiss on the ground that the plaintiff did not make a proper application to the Massachusetts Commission Against Discrimination, asserting that such an application was required under 29 U.S.C. § 633(b). Such an application was only required if at the critical date Massachusetts was a "deferral state" as defined by the Court of Appeals of the First Circuit in Garces v. Sagner International, Inc., 534 F.2d 987 (1st Cir. 1976).
The critical issue in Garces was whether the state courts of Puerto Rico permitted suits to be brought under the Puerto Rican anti-discrimination acts without prior application to the anti-discrimination agency established by the Commonwealth of Puerto Rico. The Court of Appeals held that the availability of an alternate and independent action in the state courts disqualified Puerto Rico as a "deferral state" within the terms of 29 U.S.C. § 633(b).
I am of the opinion that during all of the times pertinent to this case, which were prior to the amendment of Mass.Gen. Laws c. 151B § 9 by St. 1974, c. 478, that an independent alternative action was available in the Commonwealth of Massachusetts. This conclusion is based upon the language of Mass.Gen. Laws c. 151B § 9 as it existed prior to the amendment, on Mass.Gen. Laws c. 214 § 2 and on Johnson v. Commissioner of Public Safety, 355 Mass. 94, 243 N.E.2d 157 (1968), in which the court ruled on the merits of a claim asserted under Mass.Gen. Laws c. 151B § 4 without there having been any prior application to the Massachusetts Commission Against Discrimination.
Accordingly, during the period which is critical in the present case, Massachusetts was not a "deferral state" and the plaintiff was not obliged to make a prior application to the Massachusetts Commission Against Discrimination before bringing the present action. The motion to dismiss is accordingly DENIED.