Opinion
1383CV01350
03-03-2018
Russell LOPES v. CITY OF BROCKTON et al.
File Date: March 8, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR RELIEF FROM VOID JUDGMENT AND DISMISSAL OF RETALIATION CLAIM
Joseph F. Leighton, Jr., Associate Justice of the Superior Court
1. Introduction
On January 30, 2017, after six days of trial, a jury returned a special verdict finding that the Defendant, City of Brockton (the " City" ), violated G.L.c. 151B, § § 4 and 4(4) by discriminating against the plaintiff, Russell Lopes (" Lopes" ), in its hiring practice based on his race, and by taking adverse retaliatory action against him because he expressed opposition to the discriminatory hiring practices in an interview he gave to The Brockton Enterprise . The Enterprise featured Lopes’ comments in an article it ran on July 26, 2011. The Jury awarded Lopes $1,200,000.00 in punitive damages on his discrimination claim. In addition, the jury awarded the Plaintiff $350,000.00 for emotional distress and an additional $2,500,000.00 in punitive damages on his retaliation claim.
In response to the jury’s verdict, The City filed a motion for judgment notwithstanding the verdict as well as a motion for new trial or, in the alternative, for remittitur of the damage awards. This court denied both motions. Now before the court is the City’s motion for relief from the judgment, which it claims is void, and for dismissal of the retaliation claim. After consideration of the parties’ written submissions, and after hearing, the City’s motion is DENIED for the reasons set out below.
2. The Instant Motion
The City now contends, in an argument not raised at any prior stage of the litigation, that this court lacks subject matter jurisdiction over the retaliation claim because, the City argues, Lopes did not properly plead a retaliation claim against the City at the MCAD. The essential argument is as follows: G.L.c. 151B requires a plaintiff to file a verified complaint with the MCAD as a prerequisite to filing a complaint in the Superior Court. G.L.c. 151B, § 5. The section specifically requires a plaintiff to file an administrative complaint, or charge, with the MCAD within 300 days of the events giving rise to the claim of harassment or discrimination. The Supreme Judicial Court has acknowledged that there are two reasons for the administrative pleading requirement section 5: first, it provides the agency with an opportunity to investigate and conciliate the claim, if possible; and second, the administrative filing apprises the employer of its potential liability. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 53 (2001). Thus, to serve the purposes of section 5, as a general rule, a plaintiff who files a complaint in Superior court " cannot add additional claims ... that are outside the scope of the MCAD charge ..." Everett v. 357 Corp., 453 Mass. 585, 602-03 (2009) and authorities cited.
The City maintains that it has not waived this argument by its failure to plead it as an affirmative defense or its failure to include it as grounds for any motion, including its motions for directed verdict, judgment notwithstanding the verdict and for new trial, because it relates to the jurisdiction of the court. Thus, the City maintains that the argument could not be waived and can be raised at any time. This court need not address the issue because it denies the City’s motion on its merits.
The rule is not dispositive of the instant motion, however. The SJC has specifically stated that, " The general rule, however, does not mean that the administrative complaint sets a rigid ‘blueprint’ for the civil action." Everett at 602-03, quoting, Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990). A significant exception to the rule exists where a claim not explicitly stated in the administrative complaint is based on acts of discrimination that the MCAD investigation " could reasonably be expected to uncover." Id. at 603, quoting Windross v. Village Automotive Group, Inc., 71 Mass.App.Ct. 861, 864-65 (2008) (internal quotation and citation omitted). Such a claim may be filed in the Superior Court under this exception, which has come to be known as the " scope of investigation rule." Everett at 603 and cases cited. The City maintains that the exception does not apply in this case and Lopes argues that it does.
Lopes’ MCAD complaint, in one relevant part, states as follows: " The City of Brockton is currently being investigated for nepotism in its hiring, and the Brockton Enterprise newspaper ran an article on my situation on July 26, 2011." MCAD Charge, Paragraph 8. As noted above, the July 26, 2011 article is at the core of Lopes’ retaliation claim; his opposition to the City’s discriminatory hiring practices, as reported in that article, is the protected behavior to which retaliation is prohibited pursuant to G.L.c. 151B, § 4(4). Moreover, on July 28, 2011, the Enterprise ran a follow-up article reporting that a Brockton police officer and a captain from the Brockton Fire Department " visited" Lopes at his home on July 27, 2011, the day after the first article ran, ostensively to find out whether the Plaintiff was running an illegal business out of the house. At trial, Lopes testified that he understood this visit to be an act of retaliation intended to intimidate him. The fire department captain acknowledged at trial that he would have been intimidated by the visit had he been in Plaintiff’s shoes on that day. In opposition to the instant motion, the plaintiff provided an affidavit by which he avers that he spoke with the Commission’s intake coordinator about the fire department captain’s visit and that the coordinator helped draft the agency complaint, including its reference to the first Enterprise article.
3. Discussion
As a threshold matter, chapter 151B " is to be construed liberally for the accomplishment of the purposes thereof." Smith v. Mitre Corp., 949 F.Supp. 943 (D.Mass. 1997), quoting G.L.c. 151B, § 9. See also Cuddyer, 434 Mass. at 521 (2001) (In rejecting federal case law requiring strict adherence to a statutory timeline for the filing of discrimination claims, the Supreme Judicial Court (SJC) specifically recognized that " some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess ... discriminatory nature," rendering a strict adherence to such a timeline as antithetical to the spirit of chapter 151B). Consistent with this approach, case law strongly supports liberal interpretation of a plaintiff’s administrative charge at the MCAD. See, e.g., 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" ); White v. New Hampshire Dept. of Corrections, 221 F.3d 254, 263 (1st Cir. 2000) (" An 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" ); Windross v. Village Automotive Group, Inc., 71 Mass.App.Ct. 861, 866 (2008) (" 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" ), Smith v. Mitre Corp., 949 F.Supp. 943, 948 (D.Mass. 1997) (In allowing the plaintiff to pursue a retaliation claim in court even though that claim was not mentioned in the agency charge, the court stated that the complainant need not submit a separate administrative filing to pursue retaliation civil action).
After consideration of the instant motion with the above principles of construction in mind, I conclude that Lopes’ retaliation claim was properly included in the Superior Court complaint even though it was not specifically articulated as a count of his MCAD charge because it could have been discovered by reasonable investigation at the agency level.
To fall within the scope of investigation rule, the claim need only been discoverable through competent investigation to survive the City’s motion. In Pelletier v. Town of Somerset, 458 Mass. 504 (2010), the SJC specifically held that a claim is properly raised and exhausted at the agency level if it is directly referenced in the Charge, related to allegations therein, or within the anticipated " scope" of the agency’s investigation, such that the agency would have reasonably been expected to investigate the claim. See Pelletier, 458 Mass. at 513-17. In the case at bar, the retaliation claim is surely related to the claim of discrimination stated in Lopes’ MCAD charge, and it arises directly from the newspaper article specifically referenced in that charge. From these bases, and from the personal contact between Lopes and an agency intake person, the MCAD had more than just a reasonable opportunity to uncover the retaliation claim. Citing Ianetta v. Putnam Invs., Inc., 142 F.Supp.2d 131, 134 (D.Mass 2011), the Pelletier court emphasized that " [i]t is irrelevant whether the agency actually investigates the claim." Pelletier, at 514. " What controls is not what the [agency] did but what it was given the opportunity to do." Id., citing Borase v. M/A-COM, Inc., 906 F.Supp. 65, 68 (D.Mass. 1995). " The MCAD’s duty is to investigate and assess charges of discrimination, not to close down lines of inquiry through inflexible application of procedural rules." Pelletier at 515.
In Clockedile v. New Hampshire Dept. of Corr., 245 F.3d 1 (1st Cir. 2001), which the SJC cited with approval in Everett, the First Circuit Court of Appeals court explicitly recognized the deterrent effect of retaliation after an initial complaint and, on the subject of preservation of such claims beyond the literal scope of agency filings, held that " [R]elaliation claims are preserved so long as the retaliation is reasonably related to and grows out of the discrimination complained of to the agency." Clockedile, at 5-6. Building on this reasoning the SJC in Everett observed that " [r]etaliation claims typically fall within the scope of investigation rule." Everett, at 603. See, e.g., Clifton v. Massachusetts Bay Transp. Auth., 445 Mass. 611, 618 (2005) (retaliation for filing complaint with MCAD " subsumed within the original charge" ). The reasoning cited controls the outcome of the motion before the court.
The City cites Everett in support of its motion because in that case, though the SJC recognized that chapter 151B is to be liberally construed and further recognized the scope of investigation rule and its usual application to retaliation claims, it still vacated a jury’s award to the plaintiff on a claim that had not been raised in an MCAD complaint. The City’s reliance on Everett is misplaced, however, because the facts of that case are meaningfully distinguishable from the facts of the case at bar.
Everett involved a plaintiff truck driver who was terminated by his employer in February of 1997, after a series of incidents and reports implicating his mental health and stability. On July 3, 1997, Mr. Everett filed a complaint with MCAD asserting, among other things, that his employer wrongfully refused to allow him to return to work after he had regained the ability to perform the essential functions of the job. On December 11, 1998, after an investigation, the MCAD issued a Lack of Probable Cause Determination. On January 12, 1999, claiming that he had new evidence of his stability, Everett initiated a grievance through his union for reinstatement to his former position. That effort was unsuccessful. Mr. Everett did not file a separate complaint with MCAD based on the events of 1999. On February 11, 2000, Everett filed a Complaint in the Superior Court, which did not specifically refer to the events of 1999. The case ultimately went to trial in April of 2005, by which time Everett’s position was that the only issue for resolution by the jury involved the 1999 events. After a jury found for the plaintiff on the failure to rehire in 1999 claim, the defendant sought a judgment notwithstanding the verdict on the grounds that the court lacked subject matter jurisdiction over that claim because it had not been raised before the MCAD. The trial court denied the motion and the SJC reversed, explicitly noting that no discriminatory nexus connected the termination from 1996-1997 and the failure to rehire from 1999. Accordingly, the Court held that the refusal to re-hire was " free-standing" and " not preceded by a predicate MCAD complaint." Id. at 605. The nexus that was found not to exist in Everett clearly exists in this case. Lopes’ retaliation claim is not unmoored from his claim of discrimination, but is directly related to it, temporally and causally.
Moreover, it is important to note that Everett involved a claim that could not have been raised in the plaintiff’s original agency complaint because it did not exist at the time. No amount of investigation of Mr. Everett’s original claim by the MCAD could have " uncovered" his then inchoate claim concerning his employer’s future unwillingness to re-hire him. The SJC’s holding in Everett is not surprising under the circumstances- a claim that does not exist at the time of the investigation does not fall within the scope of the investigation rule. That holding, however, simply does not compel allowance of the instant motion. In the case before this court, Lopes’ retaliation claim not only existed at the time of his MCAD complaint, it was clearly closely related to the charge and it arose out of the newspaper article referenced in the agency complaint. Lopes’ retaliation claim was susceptible to discovery through reasonable investigation by the MCAD.
Based on all of the above, I find that the Lopes retaliation claim was properly included in his Superior Court complaint and that this court has jurisdiction over that claim. Accordingly, the retaliation claim is not dismissed and the jury’s award and the judgment entered in connection with that claim is not vacated.
ORDER
The City’s " Motion for Relief From Void Judgment and Dismissal of Retaliation Claim" is DENIED.