Tracy Thurdin vs. SEI Boston, LLC
Case Details
- Citation
- 452 Mass. 436
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Supreme Judicial Court of Massachusetts reversed the dismissal of the plaintiff's sex and pregnancy discrimination complaint filed under the Massachusetts Equal Rights Act (MERA), holding that an employee can assert a discrimination claim under MERA against a small employer (fewer than 6 employees) who falls outside the scope of G.L. c. 151B, and that MERA's "make and enforce contracts" language covers discriminatory treatment during employment, not just hiring.
Excerpt
Tracy Thurdin vs. SEI Boston, LLC. Suffolk. May 5, 2008. October 24, 2008. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, II. Constitutional Law, Sex discrimination. Anti-Discrimination Law, Employment, Sex. Employment, Discrimination. Discussion of G. L. c. 93, § 102 (a), one of the provisions of the Massachusetts Equal Rights Act. [439-440] Discussion of G. L. c. 151B and the administrative and judicial avenues for redress of employment discrimination in violation of the statute. [440-443] A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination against the plaintiff’s employer, where although the employer, which had fewer than six employees, was not amenable to suit under G. L. c. 151B, the plaintiff could nonetheless assert a claim under the Massachusetts Equal Rights Act (MERA), G. L. c. 93, § 102 (a), a result confirmed by the plain language of the two statutes and case law [443-448], as well as the legislative intent evident from the history of MERA [448-452], Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. A Superior Court judge erred in dismissing a civil action alleging gender and pregnancy discrimination under the Massachusetts Equal Rights Act, G. L. c. 93, § 102, against the plaintiff’s employer (which, having fewer than six employees, was not amenable to suit under G. L. c. 151B), where the phrase “make and enforce contracts” in G. L. c. 93, § 102, was not limited to the hiring phase of employment, but rather covered discriminatory treatment during the course of employment. [452-455] Botsford, J., concurring, with whom Marshall, C.J., and Greaney, J., joined. Cordy, J., dissenting, with whom Cowin, J., joined. Civil action commenced in the Superior Court Department on March 8, 2006. A motion to dismiss was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Daniel W. Rice for the plaintiff. Joseph S. Berman (Kenneth J. Rodriguez with him) for the defendant. The following submitted briefs for amici curiae: James S. Weliky for Massachusetts Employment Lawyers’ Association & others. Jo Ann Shotwell Kaplan & Martin Newhouse for New England Legal Foundation & others. Patricia A. Washienko & Anne Josephson for Union of Minority Neighborhoods & others. Ireland, J. 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 plaintiffs 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 plaintiffs complaint and drawing all inferences in her favor. Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (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. 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. 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. 15IB 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. 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 (1989), abrogated by the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071. 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” (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. 15IB, § 1 (8), (17), and requires a “reasonable accommodation” concerning those rights. General Laws c. 15IB. General Laws c. 151B is an antidis-crimination statute originally enacted in 1946. St. 1946, c. 368, § 4. General Laws c. 151B, § 4 (1), (1A), (IB), 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. For purposes of the statute, “employer” is defined to expressly exclude “any employer with fewer than six persons in his employ.” G. L. c. 151B, § 1 (5). The Massachusetts Commission Against Discrimination (MCAD) is the administrative agency that enforces the statute. G. L. c. 15IB, §§ 1 (7), 3, 5. General Laws c. 15IB, § 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). 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. 15IB], 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, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College), quoting Brunson v. Wall, 405 Mass. 446, 452 (1989). However, the judicial remedy is available only after a party has first filed a complaint with the MCAD, 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. Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 (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. During the administrative process, the commission, not the complainant, prosecutes the claim, and “the commission is empowered to fashion equitable remedies designed chiefly to protect and promote the broader public interest in eradicating systemic discrimination” (emphasis added). Id. If the complainant chooses the judicial route to recover damages for his or her individual discrimination, the MCAD takes no further action. Id. Rather, the case is considered no longer “pending” pursuant to G. L. c. 151B, §§ 4, 5, and 9. Charland, supra at 585. Discussion. 1. In his written decision granting the defendant’s motion to dismiss, the judge stated: “[I]t is apparent that [the Legislature] contemplated the precise issue currently before this Court. [It] considered and resolved [in the negative] the question of whether the antidiscrimination statute allows for a cause of action in pregnancy-related discrimination cases involving employers with [six] or fewer employees. . . . [Its] intent is demonstrated in the definition of an employer provided in [G. L.] c. 151B. Employees of such smaller companies are not within the scope of the statute’s intended protections . . . [and] given the explicit text they enacted [it] must have believed that the benefits to smaller businesses outweighed all other considerations.” In support of this conclusion, the judge stated that in the case of sexual harassment, the Legislature enacted G. L. c. 214, § 1C, to cover employees working for small firms. He concluded that because the Legislature did not enact a statute to cover pregnancy-related discrimination for employees of small firms, it was evidence that the Legislature intended G. L. c. 15IB to be the exclusive remedy for such discrimination. The defendant argues that the judge’s interpretation of the statute is correct because G. L. c. 151B’s definition of “employer” is plain and unambiguous, and because there was a footnote in the bill proposed in 1946 stating that the Legislature deliberately excluded small businesses from the scope of the statute. See note 7, supra. The defendant further contends that this position is bolstered by G. L. c. 149, § 105D, which provides, in certain circumstances, maternity leave for female employees, and for the restoration of their job (or similar position) and protection of, inter alla, seniority and level of pay. The statute states that an employer “shall be defined as in [G. L. c. 151B, § 1 (5)].” Although the defendant does not argue that maternity leave is at issue here, it argues that this statute is evidence that small employers were exempted deliberately from pregnancy discrimination. We disagree. Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent. See Sterilite Corp. v. Continental Cas. Co., 397 Mass. 837, 839 (1986), and cases cited. Moreover, we construe civil rights statutes liberally, giving effect to every provision to produce a consistent body of law. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 554 (1996); Batchelder v. Allied Stores Corp., 393 Mass. 819, 822 (1985), citing 3 C. Sands, Sutherland Statutory Construction § 72.05, at 392 (4th ed. 1974) (civil rights statutes are remedial and entitled to liberal construction). “The mle for the construction of remedial statutes is that cases within the reason, though not within the letter, of a statute shall be embraced by its provisions . . . .” Batchelder v. Allied Stores Corp., supra, quoting 2A C. Sands, Sutherland Statutory Construction § 54.04, at 570 (4th ed. 1974). We also assume the Legislature is aware of existing statutes when it enacts subsequent ones. Green v. Wyman-Gordon Co., supra. Furthermore, where there is an express exception in a statute, it comprises the only limit on the operation of the statute and no others will be implied. General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 805-806 (1999), quoting District Attorney for the Plymouth Dist. v. Selectmen of Middleborough, 395 Mass. 629, 633 (1985). Here, there is nothing in the plain language of § 102 of MERA that excludes small employers from its application. It expressly states, in pertinent part, that “[a]ll persons” shall have a right to “make and enforce contracts” without regard to sex. Moreover, there is nothing in the plain language of G. L. c. 15 IB stating that, where it does not apply, aggrieved parties are excluded from using other statutes to vindicate their right to be free from employment discrimination. Rather, the statute expressly states that “nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth relating to discrimination,” unless it is inconsistent with G. L. c. 15IB (emphasis added). G. L. c. 15IB, § 9, first par. The statute’s phrase “nothing contained in this chapter” would include the definition of “employer” in G. L. c. 15IB, § 1 (5), because § 9 allows no exception, reflecting a determination by the Legislature that antidiscrimination statutes should be applied as written. See General Elec. Co. v. Department of Envtl. Protection, supra. In addition, there is nothing “inconsistent” between the two statutes because they do not cover the same employers and provide different remedies. We also do not agree with the defendant that our Charland decision supports its interpretation of G. L. c. 15IB. In Char-land, the plaintiff failed to file a timely complaint with the MCAD and filed suit in the Superior Court under MERA. The court’s conclusion that G. L. c. 151B is the “exclusive remedy” for employment discrimination because “it is unlikely . . . the Legislature intended to create a parallel and competing alternative to dealing with the problem of employment discrimination,” was expressly qualified by the words “where applicable.” Char-land, supra at 584, 586. The Charland court discussed Melley v. Gillette Corp., 397 Mass. 1004 (1986), and Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 541-542 (1987), where G. L. c. 151B did apply, and where the Appeals Court concluded that it would not, respectively, create a new common-law cause of action or permit an action under the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 111, in lieu of G. L. c. 151B. See Charland, supra at 585-586. However, Charland did not state that there were no alternative remedies where G. L. c. 151B did not apply. Rather, it quoted this portion of the Mouradian case: “There may be a case in which the termination of an at-will employee could give rise to a tenable complaint seeking relief under G. L. c. 12, §§ 11H and 111.” Id. at 586, quoting Moura-dian v. General Elec. Co., supra at 543. The Charland court went on to state that its decision was in keeping with its decisions (predating MERA) in O’Connell v. Chasdi, 400 Mass. 686 (1987), and Comey v. Hill, 387 Mass. 11 (1982). Charland, supra. The court stated that the O’Connell case held that the exclusivity provisions of G. L. c. 15IB “do not preclude an independent claim of a violation of an employee’s equal protection rights under art. 1 of the Declaration of Rights.” Charland, supra. The court also stated that the Comey case held that an employee could maintain a tort claim based on common-law principles that existed prior to the adoption of G. L. c. 151B. Id. Thus, we do not read Charland to stand for the proposition that G. L. c. 15IB is the exclusive remedy for all employment discrimination claims. Cases subsequent to MERA’s enactment support our reading of Charland. In Agin v. Federal White Cement, Inc., 417 Mass. 669, 670 (1994), the court was faced with a reported question similar to the one here, where an employee filed an age discrimination complaint pursuant to § 103 of MERA, and remanded the case because there had been no finding whether G. L. c. 151B applied to the employer. Id. at 672-673. However, the court did not state that if G. L. c. 15IB was not available, the plaintiff could not use MERA. In addition, this court has stated in two other cases that if G. L. c. 151B is not available for an employee alleging sexual harassment, the sexual harassment statute, G. L. c. 214, § 1C, is available as an alternative. Compare Guzman v. Lowinger, 422 Mass. 570, 572 (1996) (G. L. c. 151B unavailable), with Green v. Wyman-Gordon Co., 422 Mass. 551, 554-555 (1996) (G. L. c. 151B available). In Guzman v. Lowinger, supra,
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