Discrimination Cases

Psy-Ed Corporation & another vs. Stanley Klein & another; David Hirsch & others, third-party defendants (and a companion case). Middlesex. January 3, 2011. May 12, 2011. Present: Ireland, C.J., Spina, Cordy, & Botsford, JJ. Employment, Termination. Anti-Discrimination Law, Termination of employment. Employment, Retaliation. Abuse of Process. Contract, Interference with contractual relations. Consumer Protection Act, Businessman’s claim. Damages, Emotional distress, Attorney’s fees. Discussion of G. L. c. 151B, § 4 (4) and (4A), which prohibits retaliation and adverse employment actions, and of the limits that State and Federal constitutional rights to seek judicial resolution of disputes impose on the scope of the statute in circumstances in which the filing of a lawsuit is the alleged retaliatory act. [706-708, 709-710] In a civil action, the judge, in determining that a former employee had established a claim of retaliation by her employer in violation of G. L. c. 151B, § 4 (4) and (4A), properly concluded that the employee had engaged in legally protected conduct in bringing a claim of discrimination in employment before the Massachusetts Commission Against Discrimination (commission), that the civil action that the employer and an officer and director of the employer brought against the employee was an adverse employment action that was baseless, that there was a causal connection between the protected conduct and the adverse action, and that the employee acted reasonably and in good faith in believing that she had suffered discrimination and reasonably responded to that belief by filing a complaint with the commission. [710-712] In a civil action in which a former employee brought a counterclaim against his former employer for retaliation in violation of G. L. c. 151B, § 4 (4) and (4A), the judge erred in granting summary judgment in favor of the employer, on the ground that the retaliatory acts alleged occurred more than two years after the employment relationship between the two parties had been terminated, where a person need not be a current employee to enjoy the protection of the statute. [708-709, 712-713] This court vacated a judgment in a civil action in favor of two former employees on counterclaims alleging abuse of process against their former employer and an officer and director of the employer, where the judge erroneously relied on the standard for the separate tort of malicious prosecution and, with respect to one employee, did not indicate whether he adopted or rejected the employee’s position that the employer and the officer and director brought a lawsuit against her in order to gain a collateral advantage, i.e., to discourage her from pursuing her claims before the Massachusetts Commission Against Discrimination, to distract her from those claims and impose legal costs on her, and to induce her to abandon those claims [713-715]; and where, with respect to the other employee, the judge’s findings did not clearly identify what, if any, ulterior purpose and collateral advantage the employer and the officer and director sought in bringing suit against the employee [715]. This court vacated a judgment in a civil action in favor of a former employee on a counterclaim of tortious interference with his contract with his former employer, brought against an executive officer and director of the employer, where the judge made no findings on the issue whether the officer and director induced the employer to commit a breach of a contract (a promissory note) to which the officer and director was not himself a party, nor on the antecedent issue whether the vote by the board of directors of the employer (board) to suspend payments on the promissory note caused the employer to commit a breach of the contract [715-718]; further, this court reversed the judgment in favor of the former employee on his claim against the other board members for tortious interference with his contract with the employer, where the former employee failed to demonstrate actual malice [718-719]. In a civil action, the judge did not err in concluding that a former employee had not established a claim of a violation of G. L. c. 93A, § 11, against his former employer, a director and officer of the employer, and members of the board of directors (board) of the employer, where the dispute arose out of a private transaction between the board and the former employee in his role as an employee and shareholder of the company, a context in which they were operating as a single business enterprise. [719-720] In a civil action, the judge erred in dismissing the counterclaims of the defendants, an employer and an officer and director of the employer, against a former employee, on the ground that the defendants’ efforts to amend a complaint they had filed in a separate, earlier action against the former employee to raise the same claims had been denied as untimely, where the defendants’ counterclaims were not so closely connected to the claims in their own, earlier complaint as to be derivative of that pending action. [720] In a civil action in which a judge other than the trial judge held a posttrial, nonevidentiary hearing to determine damages on the successful counterclaims of two parties, the second judge acted within her discretion in her award of damages to one of the parties for emotional distress [720-721]; however, she erred in declining to hold at least a limited evidentiary hearing on the issue of attorney’s fees [722], Civil actions commenced in the Superior Court Department on December 17, 1999, and December 12, 2002. Following consolidation, the case was heard by Julian T. Houston, J., and a hearing on damages was had before Sandra L. Hamlin, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Jeffrey S. Robbins (A.W. Phinney, III, with him) for Psy-Ed Corporation & another. Donna M. Brewer for David Hirsch & others. Kurt S. Kusiak (A. Hether Cahill with him) for C. Kenneth Mehrling. George P. Field for Stanley D. Klein. Dahlia C. Rudavsky (Kevin C. Merritt with her) for Kimberly Schive. The following submitted briefs for amici curiae: Jack F. St. Clair for International Committee Against Mental Illness & others. Anne L. Josephson, Heidi S. Alexander, & Nina Joan Kimball for Charles Hamilton Houston Institute for Race and Justice & others. Robert S. Mantell, Elizabeth A. Rodgers, Sara Smolik, & Tara M. Swartz for Massachusetts Employment Lawyers Association. Simone R. Liebman & Catherine Ziehl for Massachusetts Commission Against Discrimination. Joseph Valenzano, Jr. Kimberly Schive. Robert Striano, Donald S. Chadwick, and C. Kenneth Mehrling. Stanley D. Klein vs. Psy-Ed Corporation & another. Botsford, J. This case involves bitter litigation spanning more than a decade. It raises the question, among others, whether actions taken by an employer against a former employee may violate G. L. c. 15IB, § 4 (4) and (4A), sections of the anti-discrimination law that respectively prohibit retaliation and interference with a protected right. On this question, we conclude that an employer or other person may be liable to a former employee under these sections for retaliatory or interfering conduct that occurs after the employment relationship has terminated. We defer all discussion of the additional issues raised until later in this opinion. 1. Background, a. Introduction. Before us are cross appeals from judgments in two actions in the Superior Court. The first was brought in 1999 by Psy-Ed Corporation (Psy-Ed, or company) and Joseph Valenzano, Jr., against Dr. Stanley Klein and Kimberly Schive. Klein brought the second action in 2002 against Valenzano and Psy-Ed, setting out a claim of retaliation. The two actions were consolidated prior to trial, which took place in 2006. We summarize first the facts as the trial judge found them, followed by a summary of the procedural history of the two actions. We reserve for later discussion the posttrial proceedings. b. Facts. Klein, Maxwell Schleifer, and a third man founded Psy-Ed in 1969. In 1971, Psy-Ed began publishing Exceptional Parent (EP), a magazine for families of children with disabilities and special health care needs; Klein and Schleifer served as copublishers. In the early 1990s, Psy-Ed began to have financial problems, and in 1993, Valenzano was approached to evaluate Psy-Ed as an investment opportunity. He decided to invest, and brought in about forty other investors. In the resulting restructuring of the company, Psy-Ed bought Schleifer’s shares, Klein remained with the company and became editor-in-chief of EP, Valenzano joined Psy-Ed as president, chief executive officer, a member of the company’s board of directors (board), and publisher, and the company opened a second office in New Jersey in addition to its original Massachusetts office. At various times after 1993, the third-party defendants, Kenneth Rossano, Dr. David Hirsch, Robert Striano, Donald S. Chadwick, and Robert K. Hopkins, served as members of the board. During Klein’s employment as editor-in-chief, there were disagreements between him and the board. From 1993 until 1996, Schive worked for Psy-Ed in the Massachusetts office, first as an assistant editor of EP and later as associate editor. Schive, who is deaf, required certain accommodations to be provided by her employer, including an interpreter at meetings. On several occasions, she was not provided an interpreter at meetings, and she perceived Valenzano to be impatient and angry at questions she asked while attempting to follow the discussion. In the summer of 1996, during the restructuring process initiated by Valenzano’s new management team, certain functions were moved to New Jersey, and Schive was told she would continue to have a role at Psy-Ed. However, she was offered only a three-month position as a part-time consultant, and thereafter she no longer worked for the company. On February 13, 1997, Schive filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD). On June 13, 1997, at Valenzano’s request and despite misgivings of which Valenzano was aware, Klein signed an affidavit generally supportive of Psy-Ed’s position in Schive’s MCAD matter. Klein was informed in June, 1997, that his employment contract with Psy-Ed was due to expire on June 30, and that it would not be renewed. Klein still held a twenty-one per cent interest in the company, however, and he proposed an alternative slate of Psy-Ed directors for election at a shareholders’ meeting on September 30, 1997. Valenzano, meanwhile, promoted the election of his own preferred slate. Klein’s attempt to have Psy-Ed shareholders elect his slate of directors failed at the September shareholder meeting. His proxy fight lost, Klein entered into negotiations with representatives of Psy-Ed for a complete and permanent separation from the company. Valenzano began negotiating with third-party defendant C. Kenneth Mehrling to arrange financing for the acquisition of Klein’s shares. On March 27, 1998, Klein, Psy-Ed, and Valenzano executed a settlement agreement that included a mutual release of all claims (settlement agreement). Under the terms of the settlement agreement, Klein received an initial payment of $45,000 and a promissory note specifying sixteen quarterly payments of $13,797.19, for a total of $265,755, while Psy-Ed reacquired all of Klein’s shares in the company. On October 6, 1997, without Valenzano’s knowledge and while the negotiations over buying out Klein’s Psy-Ed shares were in process, Klein signed a second affidavit in connection with Schive’s MCAD charge against Valenzano and Psy-Ed. In his second affidavit, which was filed with the MCAD, Klein stated that after preparing his June, 1997, affidavit, he had become aware of and dissatisfied with the company’s response to Schive’s charge, as well as the manner in which his earlier affidavit had been characterized in that response. Klein also stated in the second affidavit that after completing the first affidavit, he had been reminded of certain incidents by former members of the Massachusetts staff. In September, 1999, Valenzano became aware of Klein’s second affidavit in the Schive MCAD matter. He became aware as well that a former Psy-Ed sales and marketing contractor, Lawrence Qualiano, also had signed an affidavit in support of Schive’s claim. At the next formal meeting of Psy-Ed’s board of directors, held on September 30, 1999, the directors addressed the affidavits of Klein and Qualiano. They decided to terminate the company’s involvement in an ongoing mediation of Schive’s discrimination complaint before the MCAD, and agreed to “litigate this matter aggressively.” On December 2, 1999, the MCAD issued a probable cause determination in Schive’s favor on her complaint. On December 17, 1999, Psy-Ed and Valenzano filed a complaint against Klein and Schive in which they alleged defamation, violation of G. L. c. 93A, § 11, civil conspiracy, and tortious interference with contractual and business relations (1999 action). Before serving either defendant, the board met on December 23, 1999, and voted five-to-one to discontinue further payments to Klein under the promissory note attached to the settlement agreement until Klein signed a settlement agreement between Psy-Ed and Qualiano, and until authorized by the board “based on the opinion of Boston counsel and their assessment and evaluation of alternative scenarios and their estimate of legal costs associated with the litigation the company has filed against Stan Klein and Km Schive.” Rossano’s was the sole dissenting vote. c. Prior proceedings. As just stated, Psy-Ed and Valenzano filed their action against Kein and Schive in December, 1999. In response, Klein counterclaimed against Psy-Ed and Valenzano and brought a third-party complaint against Rossano and the other members of the board. In his counterclaim and third-party complaint, Klein alleged interference with contractual relations by Valenzano, Rossano, and the other board members. He also alleged abuse of process by Psy-Ed and Valenzano, and violations of G. L. c. 93A, § 11, by Psy-Ed, Valenzano, and the board members. On account of Psy-Ed’s 1999 action, Schive filed another complaint with the MCAD on February 17, 2000, asserting a claim of retaliation in violation of G. L. c. 151B against Psy-Ed and Valenzano. Thereafter, as authorized by G. L. c. 151B, § 9, she brought this retaliation claim in the Superior Court as a counterclaim in the 1999 action. At the same time, Schive counterclaimed against Psy-Ed and Valenzano for abuse of process. Psy-Ed and Valenzano moved to amend their complaint in November, 2000, to add an allegation that by executing the settlement agreement without disclosing his second affidavit, Klein fraudulently induced them to enter the settlement agreement. A Superior Court judge (the eventual trial judge) denied Psy-Ed’s and Valenzano’s motion as untimely under the tracking order applicable to the case. In 2002, Klein filed a separate complaint against Psy-Ed and Valenzano alleging retaliation in violation of G. L. c. 15IB, § 4 (4) and (4A) (§ 4 [4] and [4A]) (2002 action). In response, Psy-Ed and Valenzano counterclaimed, alleging breach of contract and fraud. On December 1, 2003, a Superior Court judge allowed Klein’s motion to dismiss the counterclaims because in the 1999 action, Psy-Ed and Valenzano’s attempt to add a breach of contract claim had been dismissed as untimely, and the allegation of fraud arose out of the same transaction as the barred breach of contract claim. In April, 2005, a different Superior Court judge (motion judge) entered judgment sua sponte against Klein on his retaliation claims because the alleged conduct had occurred when he was no longer an employee. By the time of trial, in June, 2006, no claims remained in Psy-Ed’s and Valenzano’s 1999 action against Schive, and only one claim, for defamation, remained against Klein. The trial judge tried that claim and the remaining counterclaims and third-party claims of Klein and Schive in a jury-waived trial, and thereafter issued findings of fact, rulings of law, and an order of judgment. He rejected Psy-Ed’s and Valenzano’s claim of defamation. The judge found in favor of Klein on his claim of tortious interference with contractual relations, in favor of Klein and Schive on their respective claims of abuse of process, and in favor of Schive on her retaliation claim. He found against Klein on his remaining claims, including violation of G. L. c. 93A, § 11. In his order, the trial judge indicated a hearing would be held to determine damages with respect to those counterclaims on which he had found liability. However, the trial judge retired before holding such a hearing. As we explain in more detail below, a different Superior Court judge (posttrial judge) held a nonevidentiary hearing on damages on January 4, 2008. On March 13, 2009, she awarded Klein $125,000 in emotional distress damages in connection with his claims of abuse of process and tortious interference with contractual relations, $124,174.71 plus prejudgment interest in connection with the unpaid principal on the promissory note, $510,960.23 in attorney’s fees, and $17,002.50 in costs. The same day, she awarded Schive $125,000 in emotional distress damages, $443,040.95 in attorney’s fees, and $20,407.65 in costs. In Schive’s case, judgment entered against Psy-Ed and Valenzano, the only defendants named in her counterclaims. All amounts due to Klein, however, were awarded and assessed jointly and severally against Psy-Ed, Valenzano, and four of the six third-party defendants: Hirsch, Striano, Chadwick, and Mehrling. Before us are multiple appeals. Psy-Ed and Valenzano appeal from and argue error in the judgments against them on Klein’s claims of tortious interference with contractual relations and abuse of process, and on Schive’s claims of abuse of process and retaliation. Psy-Ed and Valenzano also argue abuse of discretion or other error of law in the denial of Psy-Ed’s and Valenzano’s motion to amend the complaint in the 1999 action and in awarding damages without conducting further evidentiary hearings. Hirsch, Chadwick, Striano, and Mehrling appeal from and claim error in the judgments against them on Klein’s claim of tortious interference with contractual relations. Finally, Klein appeals and challenges the entry of summary judgment on his claims of retaliation under § 4 (4) and (4A) and the entry of judgment against him on his claim of unfair or deceptive conduct under G. L. c. 93A, § 11. 2. Retaliation, a. Generally. Both Schive and Klein claim they were the victims of retaliation in violation of G. L. c. 151B. Chapter 151B, however, does not actually use the word “retaliation.” Rather, § 4 (4) makes it unlawful for “any person ... to discharge, expel or otherwise discriminate against any person because he has . . . filed a complaint, testified or assisted in any proceeding under [G. L. c. 15IB, § 5],” while § 4 (4A) makes it unlawful for “any person to coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by this chapter.” A claim of retaliation may succeed even if the underlying claim of discrimination fails, provided that in asserting her discrimination claim, the claimant can “prove that [she] reasonably and in good faith believed that the [employer] was engaged in wrongful discrimination.” Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000), quoting Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). In the absence of direct evidence of a retaliatory motive, to make out a prim

Joulé, Inc., & others vs. Randi Simmons & another. Suffolk. November 1, 2010. March 10, 2011. Present: Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Arbitration, Termination of employment. Contract, Arbitration. Employment, Discrimination. Practice, Civil, Interlocutory appeal. Massachusetts Commission Against Discrimination. Massachusetts Arbitration Act. Federal Arbitration Act. Public Policy. This court concluded that even where an employee has signed a presumptively valid employment agreement requiring arbitration of any claim arising from the employee’s employment, including a claim of discrimination, the Massachusetts Commission Against Discrimination (MCAD) has authority under G. L. c. 151B, § 5, to conduct its own independent proceeding based on such an employee’s complaint of discrimination, and that nothing in such an arbitration provision prohibits the employee from testifying before the MCAD or from providing information, materials, or responses that are necessary for investigation of the case. [93-98] In a civil action seeking to compel arbitration of a claim of discrimination in employment, the judge erred in granting a stay of further proceedings, where, assuming the validity of the arbitration provision in an employment agreement between the parties, the effect of such a stay was to place in the Massachusetts Commission Against Discrimination primary jurisdiction over the employee’s discrimination-based claims rather than to enforce the agreement to arbitrate. [98-100] Civil action commenced in the Superior Court Department on November 19, 2009. A motion to intervene was heard by Thomas E. Connolly, J., and a motion to compel arbitration was heard by Paul E. Troy, J. The Supreme Judicial Court granted an application for direct appellate review. Thomas A. Reed (Eugene J. Sullivan, III, with him) for the plaintiffs. Barbara A. Robb (Nancy S. Shilepsky with her) for the defendant. Catherine C. Ziehl for the intervener. The following submitted briefs for amici curiae: Andrew M. Abraham & J. Michael Conley for The Massachusetts Academy of Trial Attorneys. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. Robert S. Mantell for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Maura T. Healey & Jonathan B. Miller, Assistant Attorneys General, for the Commonwealth. Anne L. Josephson & Heidi S. Alexander for American Civil Liberties Union of Massachusetts & others. Joulé Technical Staffing, Inc.; John G. Wellman; Kristin Motta Zwickau; and Kari Burke. Massachusetts Commission Against Discrimination, intervener. Botsford, J. The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Ranch Simmons, from 2008 to 2009. Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons’s discrimination claim. Before us is Joulé’s interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé’s motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding. We conclude that pursuant to G. L. c. 15IB, § 5, the MCAD may conduct its own, independent proceeding based on Simmons’s complaint. With respect to Joulé and Simmons, however, if the arbitration provision in Simmons’s employment agreement is valid — an issue that remains to be resolved — Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings. 1. Facts and procedural history. Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company, Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non-Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin. Simmons had not received a copy or been informed of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and retum[ed] this [agreement.” Simmons did not sign the agreement immediately but, rather, delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.” At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was bom in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé’s biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé’s Boston office. On July 30, 2009, Joulé terminated Simmons’s employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B, §§ 4 (1) and (11A); G. L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G. L. c. 15IB, § 4 (4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD’s argument that its authority to conduct an investigation and adjudication of Simmons’s claim of discrimination was not affected by the parties’ agreement to arbitrate, and ordered that Joulé’s motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD’s proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge’s order pursuant to G. L. c. 251, § 18 (a) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD. 2. Discussion. General Laws c. 251, § 18 (a) (1), authorizes a party to appeal directly from the denial of an application to compel arbitration. See, e.g., Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394 (2009) (Warfield). All parties agree, therefore, that Joulé’s interlocutory appeal from the motion judge’s order is properly before us. We review the judge’s order de novo. See Feeney v. Dell Inc., 454 Mass. 192, 199 (2009), citing Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). See also Warfield, supra at 395 (motion to compel arbitration treated summarily and judge’s order reviewed de novo). a. Effect of the employment agreement’s arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD’s ability to pursue its investigation and resolution of Simmons’s MCAD complaint. “The MCAD was established to enforce the Commonwealth’s antidiscrimination laws.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority — and generally follows this course — to investigate and pursue complaints filed by individuals. See G. L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G. L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”). We review briefly the MCAD’s procedure in investigating such complaints. See generally G. L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(l)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant’s attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner’s discretion, and also be allowed to testify at the hearing. 804 Code Mass. Regs. § 1.20(4) (2004). If, after the hearing, the MCAD finds that the respondent employer has engaged in an unlawful practice as defined in the statute, the MCAD may require the respondent to “cease and desist from such unlawful practice,” and may grant relief specific to the complaining individual such as “hiring, reinstatement or upgrading of [the] employee[], with or without back pay ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter.” G. L. c. 151B, § 5. See 804 Code Mass. Regs. § 1.22 (1999). Under both Federal and Massachusetts arbitration statutes, it is clear that parties can agree to arbitrate claims of employment discrimination. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991); Warfield, 454 Mass, at 395-396; Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17-21 (1st Cir. 1999). By its express terms, the arbitration provision in Simmons’s employment agreement is governed both by the Massachusetts Arbitration Act, G. L. c. 251, § 2 (MAA), and by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). For agreements governed by the FAA, the statute’s presumption of arbitrability means that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration” (citation omitted). Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-476 (1989). In Warfield, supra at 398, we acknowledged this point, but also held that, in view of the strong public policy against discrimination in employment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably. Even where there is a clear and unmistakable provision in an employment agreement requiring arbitration of discrimination claims, however, it would not affect the MCAD’s authority under G. L. c. 151B, § 5. “The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so’. . . . ‘Arbitration under the [FAA] is a matter of consent, not coercion.’ ” EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 294 (2002) (Waffle House), quoting Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 478, 479. The MCAD is not a party to the employment agreement at issue here, has not agreed to arbitration of Simmons’s MCAD complaint, and cannot be bound by the agreement’s arbitration provision. “[T]he proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.” Waffle House, supra at 294. Accordingly, assuming the validity of the agreement’s arbitration provision, nothing in it precludes the MCAD from proceeding with its investigation and resolution of Simmons’s discrimination complaint — including, if the evidence warrants, granting relief specific to Simmons. This conclusion is consistent with, and advances, the broad statutory responsibility and authority of the MCAD to investigate and remedy instances of discrimination in the Commonwealth. See Stonehill College, 441 Mass, at 562-563, and cases cited (“While the main object of a judicial proceeding under [G. L. c. 15IB,] § 9[,] is to recover damages for the individual victim of unlawful discrimination, . . . the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees” [citation omitted]). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534 (2001), quoting Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 523 (1990) (“the MCAD ‘has been charged with the task of combating discrimination in the Commonwealth’ ”); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156,170 (1987) (“commission is given broad authority to remedy discrimination”); 804 Code Mass. Regs. § 1.13(4) (1999) (“No waiver agreement signed by any individual shall affect the [MCAD’s] right and statutory duty to enforce [ ] G. L. c. 151B . . . or to investigate any complaint filed before it”). The United States Supreme Court reached the same result in the Waffle House case where an employee alleging handicap discrimination declined to initiate arbitration proceedings mandated by his employment agreement, but instead timely filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII. Waffle House, 534 U.S. at 283, 285. The Court concluded that the EEOC was authorized to bring its own enforcement action against the employer, notwithstanding the arbitration agreement between the employer and employee. Id. at 291-292, 296. It further stated that “once a charge is filed ... the EEOC is in command of the process. . . . Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief.” Id. at 291-292., Joulé appears to agree both that the MCAD is empowered and entitled to pursue investigation of Simmons’s discrimination complaint under G. L. c. 151B, § 5, and also that nothing in the arbitration provision of the parties’ employment agreement does, or could, preclude Simmons from filing a complaint with the MCAD. Joulé argues, however, that beyond filing a complaint with the MCAD, under the arbitration provision, Simmons is barred from being a litigant or party to the MCAD proceeding, and that the motion judge erred in ruling otherwise. Again, if the arbitration provision in Simmons’s employment agreement is valid (see Part 2[b], infra), we would agree. When a complainant files a request to intervene, see 804 Code Mass. Regs. § 1.20(4), she must certify her “allegations of discrimination.” 804 Code Mass. Regs. § 1.20(3)(a) (2004). Thus, in essence, the complainant is required to advance a claim of discrimination in her own name. Allowing Simmons to seek to intervene as a party in the MCAD proceeding and to assert directly her individual claim of discrimination would contravene the requirement of the arbitration provision that she resolve her own disputes with Joulé through arbitration. The question whether Simmons may participate in the MCAD proceeding is a different matter. Nothing in the arbitration provision prevents her from testifying before the MCAD, see G. L. c. 151B, § 5, or from “providing] information, materials or responses to [Joulé’s] submissions which are necessary for investigation of the case” to obviate administrative foreclosure in accordance with 804 Code Mass. Regs. § 1.15(5)(b) (1999). b. Stay of court proceedings. It is Joulé’s position that the motion judge erred in granting the stay of further proceedings in its Superior Court action because, in accordance with War-field, the terms of the arbitration provision are clear and unmistakable, and Simmons lacks any ground sufficient to revoke her agreement to arbitrate. See Warfield, 454 Mass, at 398. We agree that the stay should not have been granted, but for different reasons. The motion judge assumed in effect that the arbitration provision was valid and, by staying Joulé’s court action until the MCAD concluded its proceeding, appears to have adopted the premise advanced by the MCAD, namely, that the agency’s proceeding takes precedence over any arbitration. However, “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Preston v. Ferrer, 552 U.S. 346, 349-350 (2008). In staying further proceedings in Joulé’s action to enforce the parties’ agreement to arbitrate, the motion judge in effect placed primary jurisdiction over Simmons’s discrimination-based claims in the MCAD. This was error. If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844-849 (2007) (arbitration provision enforced where dispute “falls squa