Schnellbaecher v. Baskin Clothing Co., 887 F.2d at 126. See also Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378-79 (D.Mass. 1996). With these twin purposes in mind, courts have recognized an exception to the general rule that parties not named in the E.E.O.C. charge are not subject to suit in a private civil action.
An employer is not liable if it takes prompt, effective, remedial action. Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 380 (Mass. 1996). Although plaintiff has alleged two separate incidents with Cranston, any adverse effect they may have had on his work environment, was substantially alleviated in October 1999, when BMS took exceedingly strong action against Cranston.
Failure to do so ordinarily precludes the complainant from seeking damages against such individuals in a subsequent civil lawsuit. See, e.g., McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1st Cir. 1996) ("[A] plaintiff generally may not maintain a suit [under Title VII] against a defendant in federal court if that defendant was not named in the administrative proceedings and offered an opportunity for conciliation or voluntary compliance."); Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378-79 (D.Mass. 1996) (dismissing plaintiff's complaint under the Massachusetts law against discrimination because she failed to name individual defendant in her administrative charge of discrimination). Of course, it is unclear whether a complainant's failure to name an individual defendant in his or her administrative charge is a jurisdictional bar to any subsequent civil action, or whether it merely gives rise to an affirmative defense, subject to waiver.
Failure to do so likely precludes the complainant from seeking damages against such individuals in a subsequent civil lawsuit. See, e.g., McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 504 (1st Cir. 1996) ("[A] plaintiff generally may not maintain a suit [under Title VII] against a defendant in federal court if that defendant was not named in the administrative proceedings and offered an opportunity for conciliation or voluntary compliance."); Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378-79 (D.Mass. 1996) (dismissing plaintiff's complaint under the Massachusetts law against discrimination because she failed to name individual defendant in her administrative charge of discrimination). Although DeMund does not press this issue in his motion for summary judgment, he did address it in his motion to dismiss (document no. 12), which, for procedural reasons, the court did not address on the merits.
It is true that the law on this matter is unsettled and falls into two camps. A number of cases advocate a stringent rule prohibiting civil suits against parties not previously named as respondents in the charge before the MCAD. See, e.g., Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378-79 (D. Mass. 1996); Powers v. H.B. Smith Co., Inc., 42 Mass. App. Ct. 657, 667, 679 N.E.2d 252, 258-59, review denied, 425 Mass. 1105, 682 N.E.2d 1362 (1997). On the other hand, there are decisions that advocate a more forgiving rule.
It is true that the law on this matter is unsettled and falls into two camps. A number of cases advocate a stringent rule prohibiting civil suits against parties not previously named as respondents in the charge before the MCAD. See, e.g., Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378-79 (Mass. 1996); Powers v. H.B. Smith Co., Inc., 42 Mass. App. Ct. 657, 667, 679 N.E.2d 252, 258-59, review denied, 425 Mass. 1105, 682 N.E.2d 1362 (1997). On the other hand, there are decisions that advocate a more forgiving rule.
Lucent stands on somewhat different footing, having received and responded to the motion to amend. See Chapin v. University of Massachusetts at Lowell, 977 F. Supp. 72, 76 (Mass. 1997); Hayes v. Henri Bendel, 945 F. Supp. 374, 378-379 (Mass. 1996). Thus, Troconis argues that Lucent had a ten month opportunity to investigate and conciliate his handicap discrimination claims.
See Slowiak v. Land O'Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir. 1993); Trans-Orient Marine v. Star Trading Marine, 925 F.2d 566, 572-73 (2d Cir. 1991); Davidson Jones Dev. v. Elmore Dev., 921 F.2d 1343, 1352 (6th Cir. 1991).Colantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1 Cir., 1994); see also Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10 Cir., 1996); Flynn v. Menino, 944 F. Supp. 81, 88 n. 14 (D.Mass., 1996); Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 377 n. 5 (D.Mass, 1996). Thus, to the extent that the plaintiff's affidavit is found to be directly at odds with his deposition testimony, it shall be disregarded for Dambreville has offered no explanation whatever to explain any incongruity.
See, Chapin v. University of Massachusetts at Lowell, 977 F. Supp. 72, 76-77 (D. Mass. 1997) and Chatman v. Gentle Dental Center, 973 F. Supp. 228, 236 (D. Mass. 1997). See also, Hayes v.Henri Bendel, Inc., 945 F. Supp. 374, 378 (D. Mass. 1996). In general, Massachusetts courts will "apply Federal case law construing the Federal anti-discrimination statutes in interpreting G.L. c.151B."
Richards relies on federal precedent, which has allowed suits against individuals not named in the administrative claim to go forward where the unnamed individual Is closely connected with the named party, has the same interest as that named party. and has received adequate actual notice of the pending administrative proceedings. See Hayes v. Henri Bendel, Inc., 945 F. Supp. 374, 378 (D. Mass. 1996); McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st Cir. 1996). See also Sobotka v. Westfield Savings Bank, 3 Mass. L. RPTR. 346 (April 17. 1994).