By Jody L. Newman
Send Email to: jnewman@dwyercollora.com
One thing is certain: all plaintiffs with c.151B claims against employers with six or more employees must initially file the claim at the MCAD within the six month statute of limitations. Far less certain is what to do next. Under c.151B, §9, the plaintiff elects whether to seek adjudication of the case through a public hearing at the MCAD or through a trial in court.[2] Whether to actually litigate at the agency is a complex strategic and practical decision with no definitive, generalized answer. This article discusses both some of the factors which, generally speaking, weigh in favor of staying through an adjudication at the MCAD, and also those which often weigh in favor of going (after filing there) to court.
A. Reasons to Stay at the MCAD
1. Arbitration Agreements
The MCAD has historically not recognized arbitration agreements or arbitration clauses in employment contracts. Such contracts, however, are generally enforced by state and federal courts. If a discrimination plaintiff has dim prospects for a jury trial he or she may prefer to have the case adjudicated by the agency whose mission it is to enforce anti-discrimination laws -- rather than in arbitration, traditionally considered by most plaintiffs’ discrimination lawyers to be a forum which ranges from indifferent to hostile . On the other hand, arbitration procedures in employment disputes have significantly improved in recent years; and arbitration is a much faster process than MCAD litigation.
2. Venue Concerns
Where will the case be tried if you go to court? There is little point in expending the effort required for a jury trial if the county where the case will be tried has a poor track record for plaintiffs,, e.g. where the jury pool demographics will have offer almost no true peers on the jury. Also, the proper venue may be in an inconvenient location. Another word of caution on proper venue. Massachusetts law is presently unclear as to where the case must be filed, in a county where a party lives or has a usual place of business (G.L. c.233, §1) or in the county where the unlawful act occurred (G.L. c.151B, §9). While the venue provisions of c.151B have generally been viewed as supplemental to the Commonwealth’s general venue positions, a recent Appeals Court decision suggests the exclusivity of c.151B venue provisions. See Cormier v. Pezrow New England, Inc., Mass. App. [LEXIS 122 (2-27-01)].
3. Strong Emotional Distress Evidence
The MCAD cannot award punitive damages. Unless the plaintiff has provable significant financial losses, the potential of a large MCAD award lies in strengths of the emotional distress evidence. The Commission has, in recent years, awarded significant amounts for emotional distress damages. Our firm’s recent, informal survey found 22 emotional distress awards of between $75,000 and $300,000 since 1995. The most common factor in the large awards appeared to be compelling testimony of hurt and pain by the claimant or family members, with medical or mental health treatment as a secondary factor. Nonetheless, it is worth remembering that emotional distress is often theScylla and Charybdis of plaintiffs’ lawyers -- potentially lucrative, but often unpredictable for a recovery.
4. Cost
Notwithstanding the MCAD’s new procedural rules (explained elsewhere in this program), it is usually far less costly in terms of both lawyer time and expenses to litigate at the MCAD rather than in the trial courts. Although current MCAD procedures require briefing at the initial determination stage and prior to certification for public hearing, the labor involved in these procedures does not match the labor required to defeat the customary summary judgment motion later filed in court. Also, at the MCAD there is usually far less potential for either discovery abuse or excessive motion practice than in court. To be sure, the new regulations significantly expand the role of the plaintiff’s attorney from the predetermination stage onward, making the cost differential less of a factor than in the past. In any event, a successful outcome in either forum will require active and good lawyering at every step of the process.
B. Reasons to Go to Court A.S.A.P.[3]
1. Post Certification Dismissal
In Lavelle v. MCAD, supra, the SJC granted defendants a right to a jury trial after a final adverse adjudication at the Commission. The new regulations, however, allow the investigating Commissioner to dismiss the case prior to the public hearing upon the respondent’s reservation of its Lavelle rights at the certification conference. See 804 CMR 1.20(5)(d)(1). The notion of having a single trial instead of two trials certainly appears on the surface to benefit most plaintiffs -- and to preserve judicial economy. However, many plaintiffs’ attorneys believe it creates more problems than it solves. First, the Lavelle ruling does not guarantee two trials in all cases where the plaintiff prevails at the MCAD. Many defendants would chose not to have a second trial after losing the first. Second, pre-hearing dismissal comes late in the MCAD process -- after both pre- and post-determination discovery has been completed. This procedure thus inevitably protracts further an already protracted litigation process. Third, the regulation creates a host of practical problems with which neither the MCAD nor the trial courts have as yet adequately addressed. Which side files the complaint? What is the status of superior court tracking orders and federal court case management standards when the case has already been litigated and is essentially in the court system for trial only? What if the statute of limitations has passed at the time the MCAD dismisses the claim? (Although this last issue may seem to be clear-cut, this author is currently faced with litigating it in federal court.) In sum, under such circumstances, rather than waiting to be forced into court, plaintiffs may well be advised to remove the case immediately and litigate only one proceeding -- in court.
2. No Punitive Damages at MCAD
For many, this has probably been one of the most decisive factors; but it should not be an automatic decision. In court, punitive damages are hard to obtain, and even harder to retain after appeal. If the plaintiff has strong emotional distress evidence and other reasons to stay at the MCAD, it may not be worth gambling on significant punitive damages. See Section A.3 infra.
3. Complex or Novel Legal Issues
In spite of their best efforts, the MCAD remains overburdened and understaffed, and has less resources to deal with complex or novel legal issues than the court system. On the other hand, a thoroughly considered, full, and just adjudication in any forum -- including court -- is by no means a certainty; and there are a host of conflicting decisions in the superior court on some important issues, such as the “continuing violation” doctrine. But where a case has critical legal issues that are not run-of-the-mill, then seeking court adjudication may be the preferable strategy.
4. Time
The process to a final adjudication of a discrimination case is exceedingly slow by normal standards in any legal forum, but remains slowest at the MCAD. The superior court’s time standards and the federal court’s case management standards virtually assure a faster trial than the time it will take to get to a public hearing at the MCAD. And, after the public hearing, it often takes more than a year to receive a written decision from the hearing officer; and then follows a long wait to receive the decision of the full Commission on appeal. At that point, the respondent may then appeal to the superior court. Until the MCAD is better funded, the court system, slow as it often is, is definitely the faster path.
C. A Reason to Stay at the MCAD -- for a While
It is often a wise strategy to stay at the MCAD long enough to take advantage of its alternative dispute resolution process and expedited pre-determination discovery process. The benefits of early ADR, encouraged by the MCAD procedures, need no explanation. Even where both parties chose not to participate in mediation or where the mediation is unsuccessful, much can be gained in the pre-determination discovery process. Key facts can be quickly developed within the confines of the limits on depositions and written discovery, often facilitating settlement at still an early stage of the process. Even if the case does not settle following pre-determination discovery, the plaintiff’s attorney will be better informed about the strengths and weaknesses of the case in making the determination of whether to keep the case at the MCAD or remove it to proceed in court.
D. Conclusion
In sum, discrimination cases are invariably complex, both on the facts, as well as on the law and procedures. The question of where -- and when -- to litigate them is especially complicated. Both the law and the practices seem to constantly evolve and change. In making this, as well as any significant tactical decision, lawyers are well advised to consult with experienced discrimination lawyers.
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[1] The Clash, Combat Rock, (Sony/Epic, circa 1982).
[2] By law, a defendant has a right to a trial by jury only after losing at the MCAD public hearing. Lavelle v. MCAD, 426 Mass. 332, 338 (1997) But see Section B.1. infra regarding contrary MCAD regulation 804 CMR 1.20(5)(d)(1), authorizing the Commission to dismiss the claim prior to public hearing for a first instance jury trial.
[3] Under MCAD rules, a plaintiff may request removal from MCAD to file in court after the case has been pending for 90 days. However, upon a showing of good cause, earlier removal is permitted -- and often granted.