______________________________________________________
APPEALS
COURT
No. 2004-P-1653
______
LUYEN HUU NGUYEN,BUI DIEM,
DINH TU NGUYEN, SANG P. LE.
BATUONG NGUYEN, XUAN M. TRAN,
LIEM THANH NGUYEN, and CHUC V. NGUYEN
Plaintiffs - Appellants.
u.
WAR AND SOCIAL CONSEQUENCES AND THE
Defendant - Appellee.
______
On appeal from a judgement of the Suffolk Superior
Court
______
BRIEF FOR APPELLEE
______
Michael P. Joyce
Associate Counsel
BBO #567292
617-287-7030
____________________________________________________
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................. i
TABLE OF AUTHORITIES .......................................................... iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW .............. 1
STATEMENT OF THE CASE ........................................................ 2
STATEMENT OF THE FACTS ...................................................... 5
STANDARD OF REVIEW .............................................................. 7
SUMMER OF THE ARGUMENT ................................................... 9
ARGUMENT .................................................................................. 11
I. THE SUPERIOR COURT CORRECTLY CONCLUDED THAT THE PLAINTIFFS
COMPLETE FAILURE TO APPLY FOR THE FELLOWSHIPS DEFEATED THEIR
CLAIM OF M.G.L.C. 151B EMPLOYMENT DISCRIMINATION .. 11
A. Plaintiffs
fail to establish a prima facie case of discrimination because they did not
apply for the fellowships 12
B. No discriminatory inference
can be drawn from the defendants methods
of advertising the year 2000
fellowships 14
C. Plaintiffs cannot invoke the futile
gesture doctrine to excuse their failure
to apply for the 2001 and 2002
fellowships because that failure was based
merely on their subjective belief that they would not
be awarded the fellowship and not based
on any specific discriminatory action
action by the defendant 16
II. THE SUPERIOR COURT CORRECTLY FOUND THAT THE PLAINTIFFS FAILED
TO ESTABLISH A CLAIM FOR M.G.L.C. 151B AGE DISCRIMINATION
BECAUSE DISPERATE IMPACT DISCRIMINATION CLAIMS ARE NOT
RECOGNIZED IN
TO ALLEGE THE AGE OF TWO OF
THE FOUR FELLOWSHIP RECIPIENTS 19
I
A. Disparate impact age discrimination claims
are not
recognized
in Masschusetts
........................19
B. The
plaintiffs fail to allege facts sufficient to establish a claim of
disparate
treatment age discrimination because they fail to allege
the ages of two out of the four 2000
fellowship recipients and fail
to allege
the age of the 2001-2002 fellowship recipients
20
III. THE SUPERIOR COURT WAS CORRECT IN HOLDING
THAT THE
PLAINTIFFS ATTEMPTED TO ESTABLISH A
PROTECTED CLASS
SOLEY DEFINED BY POLITICAL BELEIFS
AND THUS NOT
PROTECTED BY THE ANIT-DISCRIMINATION
LAWS OF THE
COMMONWEALTH
.........................................21
A. The plaintiffs fail to allege that any practice of
policy of the defendant
had a
disparate impact on a protected class with respect to
national
origin
..............................................22
IV. THE SUPERIOR COURT WAS CORRECT IN
DISMISSING THE
PLAINTIFFS M.G.L. C. 151C CLAIM FOR
FAILURE TO STATE
A CLAIM UPON WHICH RELIEF COULD BE
GRANTED
27
A. The complaint does not allow that the
plaintiffs are seeking admission
as students as required by M.G.G. c.
151C, s2(a)
27
B. The
complaint does not allege that the plaintiffs were seeking
admission
to a program or course of study leading to a degree beyond a bachelors
degree as required by M. G. L. c. 151c
s2(d)
28
C. The Creed
of Communism is not protected by M. G. L. c. 151c
31
D. All
plaintiffs failed to file a complaint with the MCAG alleging
M.G.L. c. 151c education
discrimination
.......34
II
V. THE SUPERIOR COURT WAS
CORRECT IN CONCLUDING THAT IT
HAD NO JURSDICTION TO RULE ON THE CLAIMS
OF CERTAIN
PLAINTIFFS BECAUSE THESE PLAINTIFFS FAILED
TO FILE
COMPLAINTS WITH THE MCAD PRIOR TO
INITIATING THEIR
SUIT IN SUPERIOR
COURT
......................................35
A. Plaintiffs
Bui Diem, Dinh Tu Nguyen, Sang P. Le, Ba Tuong Nguyen, Xuan M.
Tran, Nam Nhat Phan, Liem Thanh Nguyen,
and Chuc V. Nguyen did
did not
file complaints with the MCAD and, therefore , cannot maintain actions
under
M.G.l. c. 151B or 151C in
B. This defense
was not waved by the Defendant because it is a
jurisdictional
defence and cannot be waived, and was nonetheless
timely
raised in its response to the plaintiffs Second Amended
Complaint.
......................................................38
C. Plaintiffs
reliance on Christo v. Edward C. Boyle Ins. Agency to
support
their claim that the MCAD filing requirement can be
ignored by
the
exaggerated
the relevance of its holding to the case at bar.
.40
CONCLUSION
..................................................................43
ADDENDUM
A. Memorandum of Decision and Order on Defendants Motion
to Dismiss
B. M.G.l. c. 151B,
~4
C. M.G.L. c. 151B, ~5
D. M.G.L. c. 151B, ~9
E. M.G.L. c. 151C, ~2
III
TABLE OF AUTHORITIES
Cases
Barret V. City of Worcester
sch. Dept., 2001 WL 1602832 (MCAD 2001)
..30
Bowen v. Colonnade Hotel, 2
MDLR 1400 (MCAD, 1974)
..18
Chambers v. Wynne Sch Dist.,
909 F.2d 1214 (8th Cir. 1990)
..14,15
Chaplin v. Du Pont Advance
Fiber Systems 293 F. Supp. 2nd 622 ( E.D. Va . 2003) 23,26
Charland v. Muzi Motors, Inc,
417
Christo v. Edwards G. Boyle
Ins. Agency Inc., 402 Mass. 815 (1988)
passim
Cox v.
Curtis v. City of
Dorman v. Norton Co., 2003 WL
1962458 (
EEOC v. Consolidated Services
Sys. 777 F. Supp. 599 ( N.D.
EEOC v. Steamship Clerks
Espinoza v. Farah
Manufacturing Co. Inc., 414
Figueroa v. City of
Flebotte v. Dow Jones &
Co. Inc. 51 F. Supp 2d 36 (D. Mass 1999)
20
Green v. Moses Gill,
Executor, 5
Harris v. White, 479 F. Supp
996 (D. Mass, 1979)
.............16
IV
Intl. Bhd. Of Teamsters v.
Jamgochian v. Dierker, 425
Jarosz v. Palmer,
Knight v. Avon Products, inc.
, 438
Lattimore v. Polaroid Corp.,
99 F. 3rd 456 ( 1st Cir. 1996)
34
Leo v.
Lewis v.
Lewis v. Tabacco Workers
Intl Union, 577 F. 2d 1135 ( 4th Cit. 1978)
18, 19
186
(1976)
.................................................................... 32
Mole v.
Mouradin v. General Eletric
Co.,
Mullin v. Raytheon Co., 164
F. 3rd 696 ( 1st Cir. 1999)
.. 20
OConnor v. Consolidated Coin
Caterers Corp., 517
Oliver v.
V
Opinion of the Justices of the House of Representatives, 423
(1996)
........................................................................... 22, 26, 33
Sampson v.
Santiageo v. The Childrend
Place, 18 MDLR 151 (MCAD 1996)
...12, 13
Sereni v. Star Sportswear
Mfg. Corp.
(1978)
...................................................................... 11,13,34
Spinner v. Nutt, 417
Storey v. Burns Intl
Security Service, 390 F. 3rd 760 (3rd Cit. 2004)
.. 23,26
Terrill v. Chao, 31 Fed.
Appx. 99 (4th Cir. 2002)
........ 23
Thompson v. Musser, 1
Williams v. Frank, 757 F.
Supp. 112 ( D. Mass 1991)
..
.. 23,
26
Winbush v. State of
(8th Cir.
1995)
.............................................................. 17
Wolfe v. Gormally, 440
Wright v. Hollingsworth
Lessee, 26
Wynn & Wynn, P.C. v.
43
Statutes and Rules
M.G.L. c. 151B,
S4.
................................................... 32
M.G.L. c. 151B,
S5.
................................................... 36,38
VI
M.G.L. c. 151B
S9.
.................................................................. 32
M.G.L. c. 151C
.................................................................... Passim
Secondary Sources
The American Heritage
Dictionary 299 (2nd College ed. 1991)
33
CIA World Factbook,
geos/vm.html
.............................................................
24
The Vietnam War Almanac,
Harry G. Summers, Jr. (3rd ed. 1999)
. 24, 25
VII
STATEMENT
OF ISSUES PRESENTED
FOR REVIEW
I. Whether
the Superior Court correctly dismissed the plaintiffs/ complaint for
discrimination in a failure-to-hire case where none of
the plaintiffs
applied for the postion in question?
II. Whether the Superior Court correctly
found that the plaintiffs complaint
failed to state a claim for M.G.L.
c. 151B discrimination because the
complaint sought protection for a
class of people defined solely
by their political beliefs ?
III. Whether the Superior Court correctly
dismissed the plaintiffs M.G.L.
c. 151C claim because: the
plaintiffs failed to allege that they were
(a) seeking admission as students or
(b)seeking admission to a
program or course of study leading
to a degree, beyond a bachelors degree
( c ) the creed of Communism is
not pretected by that statute; and (d)
all plaintiffs failed to fillling
their complaint in Superior Court.
IV. Whether the Superior Court correctly
found that it had no
jurisdiction to rule on the M.G.L.
c. 151B claims of eight out of the nine
plaintiffs because those plaintiffs
failed to file any complaints with
the MCAD prior to filing their
complaint in Superior Court?
1
STATEMENT
OF THE CASE
On October 27, 2000, plaintiff Luyen Huu Nguyen (Luyen)
filed a complaint
at the
under M.G.L. c. 151B S4. App.
24-25. *. On April 25, 2001, Luyen moved
to have his
compaint treated as a class
action at the MCAD. App. 97-101. On May 23, 2001, the
MCAD denied this motion for a
class action. On Spetember 12, 2001 pursant to
Respondents
Motion to Dismiss, the MCAD
dismissed his complaint and issued a finding that Luyens
compaint lacked probable
casue. App. 28 -31. The MCADs order of dismissal stated:
-Complaint failed to establish a prima facie
case of disperate treatment/
failure to hire.
-Complaint failed to establish that he applied for the
position. Complaint, through his own admission,
states that he did
not submitt an application as he did not hear
about the fellowship
untill after the successful candidates were
selected.
App. 105.
On October 29, 2001, plaintiff Luyen and eleven named
plaintiffs, on behalf of themselves and a
_______________________
* Citations to the Appendix,
prepared by the plaintiff-Appellants, are referred to throughout this brief as
App. (#) .
2
proposed class of
Vietnamese-Americans over 40 years old, filed a complaint in
Superior Court alleging
employment discrimination, in violation of M.G.L. c. 151B. Plaintiff
filed a Motion to Maintain
Class Action on January 10, 2003 which the court denied from the
bench after a hearing. The Courts order stated:
Plaintiff
.has failed to demonstrate that
the proposed class members
share common questions of law and fact in
this employment
discrimination claim, which is of dubious merit in itself.
Specifically,
the claim rests on the questionable premise
that the defendants alleged failure
to more broadly advertise four research positions (two
of which were
filled
by Vietnamese) constitutes a
violation of Chapter 151B.
App. 182
Shortly after the issuance of this order, the plaintiffs
former cousel, James P. Keane,
moved to withdraw from the
case.
On November 20, 2003, Attorneys Bradley S. Clanton and
James C. Duff
appeared Pro Hac Vice on behalf of the plaintiffs in this case. On Febuary 4, 2004, plaintiffs
filed An Asseent to Motion to Amend Complaint. This motion
explicity preserved the
Defendants rights under
M.R..C.P. 12 and 15. App. 186 -187.
3
On August 27, 2004 the Superior Court, after a hearing,
allowed the Defendants
Motion to Dismiss for Failure
to Sate a Claim upon which relief could be granted and
for lack of
jurisdiction, stating inter alia:
The defendants Memorandum of law in support
to their Motion sets
forth numerous reason why the Motion to
Dismiss should be allowed.
(e.g. failure to exhaust administrative
remedies, plaintiffs are not students
or individuals undertaking a course of
study.) Without repeating all of
those
arguments, this Court simply notes that these reasons provide
alternative
grounds for this Courts conclusion that this action should proceed no further.
This Court, however, prefers to dispose of the defendants Motion based
on a more fundamental defect in the
plaintiffs case: none of the
plaintiffs applied for the fellowship
positions. The plaintiffs repsonse to
this is to allege that they would have applied in the year 2000 had
they known about the fellowship, but that the
method of advertising
the positions was itself discriminatory. As
to the two subsequent
years in which the fellowships were
offered, plaintiffs argue that
although they knew about the fellowship
opportunity, (Luyen) had
already
filed a discrimination complaint before the MCAD such
that all of the plaintiffs believed at
that point that any attempt by
them to seek a fellwoship would be futile.
This Court finds no
merit to these arguments.
App. 211 - 212 (internal
quotations omitted). The plaintiffs hve filed a timely notice of
appeal of the Superior
Courts decesion, as well as their brief.
The defendant now files this brief
in response to plaintiffs/ appeal .
4
STAEMENT
OF THE FACTS*
On July 27, 1999, the defendant
And its academic center, the
(Center) received grant
money from the Rockerfeller Foundation to establish research
fellowships for the study of
the Vietnamese Diaspora (fellowships). App 189. These
fellowships were intended to allow research into the
Vietnamese identity in the post-war
and post-refugee eras.
App.190.
The plaintiffs are all Vietnamese-American citizens or permanent United States
residents, over the age of
40, with a national origin in
them immigrated to the
thereafter. App 192 - 195.
On January 4, 2000, the Center distributed
information to the public about these
fellowships by way of press
release and letter. App. 198. This notice did not include the
application process or
requirements, but did include a deadline of January
______________________________
* This Statement of Facts is derived from the
sixty-two allegations in plaintiffs
Second Amended Complaint,
which begins on page 189 of the Apppendix.
5
31, 200 for the applications.
Hop Luu and Van Hoc. App.
199. In addition, a poster outlining the application process
was distributed after January
31, 2000. App.198
During the above time frames, plaintiff Luyen was living
in
but did not learn about the
existence of the fellowships untill April 11, 2000, when he
read a copy of the January 4,
2000 press release distributed by the Center. App. 192,198.
Luyen made no attemt to apply
for the year 2000 fellowship, or when it was
subsequently offered in 2001
and 2002. App. 198, 200.
On May 12, 2000, Luyen learned that the Center awared the
year 2000
fellowship to two individuals
who were admitted agents of the Communist Party
of the Socialist Republic of
Vietnam, one Caucasian-American by birth under age
of 40, and one person of Vietnamese-America descent of
approximately 25 years
of age. In June of 2000, Luyen told the rest of the
plaintiffs named in the
complaint (remaining
plaintiffs) about the fellowships and the Centers 2000
selections.
6
The remaining plaintiffs also failed to apply for the
fellowships for the year 2000,
and decided not to apply in
years 2001 and 2002 due to the legal proceedings
instituted against the
defendants, and based on a reasonable belief that they would have
been discriminatorily
rejected had they actually applied. App 200. All plaintiffs believe
that the successful 2000
fellowship candidates were far less qualified for the
fellowships than any of the
named plaintiffs. App 199.
Specifically, the plaintiffs charge in their complaint
that the actions of
the Defendants, including the
timing and methods of the advertisement,
publication, and announcement
of the fellowships , and the evaluation and selection
of the fellowship recipients,
were taken with the deliberate, improper, and
illegal intent to exclude members of the
Vietnamese-American community over
the age of 40, including the
Plaintiffs. App.200.
STANDARD
OF REVIEW
In reviewing a judgement dismissing a complaint for
failure to state a claim
on which relief can be
granted (rule 12b (6), the Court must accept as true all
allegations of the complaint and all
7
reasonable inferences which
mya be drawn from the complaint. See Spinner v, Nutt, 417
549, 550 (1994)/ Thus, both
parties are limited, on an appeal of a 12(b) (6) motion, to the
facts that are alleged in the
complaint. See id.
A rule 12(b) (6) motion is considerably different from a
Rule 56 summary judgment
motion in that a Rule 12(b)
(6) motion is based on the pleadings and tests the legal sufficiency of
the complaint. See Sampson
v.Lynn, 405
discovery is outside the
scope of review, unlike a Rule 56 motion which does permit such
evidence. * See id.
____________________________
*Because
the case at bar is an appeal of a 12(b) (6) motion, the plaintiffs attempt
call this Courts attention to certain evidence revealed in discovery
is clearly improper.
See Spinner v. Nutt, 417
Appelants, pg. 29 ftn. 16)
Additionally, the plaintiffs try to expand
the scope of the Courts inquiry by
referencing facts alleged in a totally separate and
unadjudicated case, ( Brief of
Appellants, pg 35 ftn.20). They cite Jarosz v. Palmer,
(2000), to support their contention that the court may
take judicial notice of
.
allegations that have been made in another pending
case between parties before
the court. (Brief of Appellants , pg. 35 ftn. 20 )
(Emphasis Added)
In Jarosz this Court held that the reviewing
court must accept as true all
well-pleaded allegations in the plaintiffs complaint
unless the court knows,
because of some other already adjudicated case,
that
8
SUMMARY
OF THE ARGUMENT
The Superior Court correctly dismissed the plaintiff
complaint. The plaintiffs
failed to allege that they
applied for the fellowships, and thus cannot establish a prima facie case
of hiring discrimination. The
plaintiffs fail to allege facts sufficient to show that the defendants
method of advertising the
2000 fellowship was discriminatory. With regards to the 2001 and 2002
fellowships, the plaintiffs
calim that it would have been futile to apply does not excuse the
fact that they did not apply
for the fellowships. This theory of futility is based on the
plaintiffs subjective belief
that the defendant would have rejected their applications of
plaintiff Luyens
pending MCAD action and was not based on any discriminatory act
by the defendant . Such a
subjective
__________________________________________________________________________
the factual allegations in
the present case are not true. See Jarosz,
at 835-36. In so holding, this Court was not epanding
the univers of factual allegations
that the court must take as
true but instead allowing the reviewing
court to dispose of
certain allegations it knew to be false, because the
factual issues had already been
decided in a previous case.
See id. Again, the plaintiffs attempt to persuade the court
to consider alleged facts in
a case that has not even been decided yet and not alleged
in the complaint is clearly
improper and violates the Commonwealths
Rules of
Civil Procedure. See Mass. R.
Commonwealths Rule of Civil Prodedure. See
R. Civ. P. 12. See also
Sampson, 405
9
belief cannot be the basis
for claiming futility in a
failure-to-hire case.
Also, the Superior Court was correct in holding that the
plaintiffs compliant attempted
to establish a protected
class solely defined by their political belief, rather than by national
origin or age. It is well well-settled law in Massachusettes
that political belief cannot
form the basis for the
protected class under M.G.L. c. 151B or c. 151C. Additionally,
on the plaintiffs/ M.G.L. c.
151C claim, the Superior Court correctly found that the
plaintiffs were not students
as defined by the statute and were not seeking
admission
to a program offering an
advanced degree, as required by the statute.
Finally, the Superior Court correctly found that it
lacked jurisdiction over
the claims of certain
plaintiffs, based on their failure to exhaust administrative
remedies. All but one
plaintiff failed to file a claim of discrimination with the
MCAD prior to bringing this
claim in the Superior Court as required by the laws
of this Commonwealth. The plaintiffs contention that the defendant
waived this
defense by not raising it in
its answer to the plaintiffs original
complaint ignores the
well -
10
Settled doctrine that subject
matter jurisdiction cannot be waved, as well as long-established
rules of pleading. The
defendant properly raised this defense in its response to the
Plaintiffs Second
Amended Complaint and did not waive it.
ARGUMENT
I. THE SUPERIOR COURT CORRECTLY CONCLUDED THAT THE
PLAINTIFFS COMPLETE FAILURE TO APPLY FOR THE
FELLWOSHIPS DEFEATED THEIR CLAIN OF M.G.L.C. 151B
EMPLOYMENT DISCRIMINATION.
In order to establish a prima facie claim
of age and national origin
discrimination pursuant to
M.G.L. c. 151B in a failure-to-hire,
case the plaintiffs
must show that (1) they are a
member of a class protected by M.G.L. c. 151B;
(2) they applied for an open
position: (3) they were not selected: and (4) the employer
sought to fill the position
by hiring another individual with similar qualification. *
Wynn & Wynn, P.C. v.
(2000). Moreover, proof of discriminatory motive is
critical in disparate treatment cases.
______________________
* Failure to hire cases are
similar to failure to promote cases with
regards to prima facie
elements and fact patterns. (
i.e. employer seeking to fill a postion, applicant or
current employee seeking to
obtain position). Therefore, this brief
will also cite to failure
to promote cases.
11
Against Discrimination, 376
to establish disperate
treatment through direct ot circumstantial evidence, the plaintiffs have
the burden of proving
intentional discrimination. Cox v.
414
It is well established law in
in a failure-to-hire lawsuit
must establish that he actually applied for the job. See, e.g.
Wynn & Wynn P.C. v. MA
Commn Afainst Disrim. 431 Mass 655, 665 n. 22 (2000)
(noting plaintiffs
application for job is in an element for a prima facie failure -
to -
hire case);
Figueroa v. City of
(same.)
A. Plaintiffs
fail to establish a prima facie case of discrimination because they
did not
apply for the fellowships.
The plaintiffs complaint specifically states the none of the plaintiffs applied
for the fellowship positions at any time. App. 198-200. Not only
did all plaintiffs
fail to apply for the
fellowship when it was first offered in 2000, but they also failed
to apply for the fellowship when it was offered
in 2001
12
and 2002.
year 2000 fellowships, the
plaintiffs decided to file a lawsuit instead of filing their
application. App. 107. None
of the plaintiffs applied for the fellowships, thus none
of them can establish a prima
facie case of discrimination for failure to hire. See e.g. ,
Wynn & Wynn P.C., 431
MDLR at 134.
Moreover, by not applying for any of the fellowships, the
plaintiffs have
forever deprived the
defendant of the opportunity to rebut any claim of direct
disparate treatment towards
the plaintiffs. The defendant never had an opportunity to
consider the candidacies of
the plaintiffs because they were unaware of their existence.
Because the defendant had no
knowledge of the plaintiffs or their intent to apply for the
Fellowships , it is
impossible for the plaintiffs to ever prove that the defendant possessed
a discriminatory
motive towards any of the individual
plaintiffs.
376
disparate treatment) .
13
B. No discriminatory in ference can be drawn from the
Depfendants methods
of
advertising the year 2000 fellowships.
Despite the plaintiffs contention that the method of
advertising the year 2000
fellowships was discriminatory, as the Superior Court stated,
the mere fact that the defendant
chose to advetise as they did
is not evidence that it intended to discriminate against the
plaintiffs. App. 212 ( J.
Sanders, Memorandum of Decision and Order on Defendants
Motion to Dismiss). See also
EEOC v. Consolidated Services Systems, 777 F. Supp. 599, 607
( N.D. Ill., 1991) ( fact that the employer advertised in
Korean-language newspaper
does not demonstrate that he
harbored intent against non-Koreans).
As long as the defendant advertised
the position and had no knowledge of the
plaintiffs interest in the
fellwoship, no inference can be made from the chosen method of
advertising. See Chambers v.
Wynne Sch. Dist. 909 F. 2d 1214,1217 (8th Cir. 1990) ( in a
failure to promote case,
court held that where the employer advertised the position and
did not know about the
plaintiffs interest in the job, no inference of discrimination can
be made with respect to the
methods of advertising).
14
As the plaintiffs allege, the defendant advertised the
fellowships. App 198 - 199. They
acknowledge that the press
release and letter were sent out weeks before the application
deadline and that the
fellowships were advertised in two journals,
Hop Luu and Van Hoc.
The plaintiffs fail to allege
that the defendant knew that any of the plaintiffs were interested in
the fellowships. Thus,
discrimination cannot be inferred from the defendants method of
advertising the
fellowships. See Chambers, 909 F. 2d at
1217; Consolidated Services
Systems, 777 F. Supp. At 607.
Common sense dictates that the defendant cannot be expected to individually
contact every person that
could conceivably be interested in the felowship in order to
ensure that they are notified
of the open position. Responsibility for meeting deadlines and
seeking help in applying must
be placed on the applicant once the public has been
reasonably notified of the
opening. As the Superior Court stated, nothing about the method of
advertising gives rise to
any rational inference of age discrimination or raises the
presumption that the
defendants intended to or
15
did exclude the defendants from applying for fellowship. App.212.
C. Plaintiffs cannot invoke the futile gesture
doctrine to escuse their failure
to apply for
the 2001 and 2002 fellowships because that
failure was based
merely on
their subjective belief that they would not be awarded the
fellwoship
and not based on any specific discriminatory action by the defendant.
The plaintiffs attempt to excuse their failure to apply
for the 2001 and 2002
fellowships by claiming that
it would have been futile for them to apply. Under the
futile gesture doctrine a
plaintiff does not have to appy for a position in order to
establish a prima facie claim of discrimination if he
can overcome the not always easy
burden of showing that they
would have applied for the job if not for the employers
obstruction. Intl. Bhd. Of
Teamsters v.
also Harris v. White, 479 F.
Supp. 996, 1008 ( D. Mass. 1979); Leo v.
MDLR 60, 62 (MCAD 1996).
While creating an exception to the application
requirement, courts have made it clear
that a claim of futility
cannot be based merely on the plaintiffs subjective belief that they would
not be hired. This belief must be coupled with evidence of
actual
16
discrimination by the
defendant. See Teamsters, 431
Intl Union, 577 F. 2d
1135,1143 (4th Cir. 1978). ( holding that claim of futility cannot
be
based on subjective belief of
the plaintiffs but instead on some objective discriminatory
action taken by the
employer).
In order to avail themselves of this expection, the
plaintiffs complaint must
allege that the defendant
made statements to the plaintiffs in order to deter them from applying
for the fellowships or that
the defendant had a systematic policy or repeated discrimination
such that one would
reasonably deterred from applying for the fellowships. See, e.g.,
Teamsters , 413 U.S. 324 (
failure to apply not required because of the companys
systematic policy regarding seniority
and also because applicants were given false of
misleading information about
the availability of the position). Winbush v. State of
Glenwood State Hosp. 66
F.3d 1471, 1481 (8th Cir.,
1995) (court found that application
was not required because
either the position was not advertised or the employer misled them to
believe that applying would
be futile) ; Lewis v. Boston Public
Health Comm. 25 MDLR
353, 355-56 ( 2003) ( plaintiffs failure to apply for job that
17
was essentially a reposting
of the job she was just fired from was excusable because
employer misled her to
believe that postion was being eliminated): Leo, 18 MDLR at 62
( applicant could reasonably
have inferred that it would have been futile to apply because
employer had falsely told her
that he already chosen someone else) ; Bowen v. Colonnade
Hotel, 2 MDLR 1400, 1402,
1409 ( MCAD 1974) ( futile for applicant
to apply for
position when employer misled
her by telling her that position was no longer available).
The claim of futility that plaintiffs advance in their
brief is similar to the one
rejected in Lewis v. Tobacco
Workers International Union. 577 F. 2d at 1143. In Lewis, the
4th Cirtuit
refused to find discrimination where the plaintiffs did not actually apply for
the
job.
because the company kept
blacks and whites segregated. See Lewis, 577 F. 2d at 1137, 1142.
They did not show that the
employer actually discriminated in hiring or intended to keep
blacks and whites separate.
See id.at 1142. In rejecting the plaintiffs claims, the court
stated that a claim of
futility must be based on some direct evidence that
18
the employer did in fact discriminate. See id.
at 1143. The mere subjective
belief that they
would not be hired, as the
plaintiffs claim in the case at bar, is not sufficient to claim
futility. See id.
The plaintiffs fail to allege that any official from the
gave them false or misleading
information about the fellowships or told them not to apply.
Nor do they allege that they
were deterred from applying because of a systematic policy on
part of the defendant to
discriminate. Rather, the plaintiffs claim that they did not apply
because they believed they
would be refected because plaintiff Luyen filed a complaint with
the MCAD. App. 200. Because
their claim of futility rests solely on their subjective belief,
the Superior Court was correct in holding that their failure to
apply for the fellowship barred
the plaintiffs M.G.L. c.
151B claim.
II. THE SUPERIOR COURT CORRECTLY FOUND THAT THE PLAINTIFFS
FAILED TO ESTABLISH A CLAIM FOR M.G.L.. C. 151B AGE
DISCRIMINATION
BECAUSE DISPARATE IMPACT AGE DISCRIMINATION CLAIMS ARE
NOT
RECOGNIZED IN
ALLEGE THE AGE OF TWO OF THE FOUR FELLWOSHIP RECPIENTS.
A. Disparate impact age discrimination claim are not
recongnized in Massachusette.
19
There is no cause of action for disparate impact age
discrimination in
The first Circuit has held
that under both Massachuetts and Federal law, age discrimination
claims grounded on a theory
of disparate impact are not viable. Mullin v. Raytheon Co. ,
164 F. 3d 696, 697, 704 (1st
Cir. 1999) (analysis of Massachussetts decision on viability
of disparate impact age
claims) ; Felbotte v. Dow Jones & Co. , 51 F. Supp. 2d 36, 44
(D. Mass 1999).
The Superior Court properly dismissed the plaintiffs
disparate impact age
discrimination claim because
such a claim is not recongnized by Massachusette court
thus the plaintiffs failed to
state a claim upon which relief could be granted.
B. The
plaintiffs failed to allege facts sufficient to establish a claim of disparate
treatment
age discrimination because they fail to allege the ages of two out of
the four
2000 fellowship recipients and fail to allege the age of any of the
2001 -
2002 fellwoship recipients.
Age discrimination may only be logically inferred when
the postion is given to
someone who is substantially
younger than the plaintiff. OConnor v.
Consolidated
Coin Caterers Corp. 517
413, 422 (2003) (holding that an age disparity of less than
20
five years, by itself, is too
insignificant to support a prima facie case of age discrimination).
The plaintiffs fail to allege the age of the remaining
two recipients of the year
2000 fellowships*.
Additionally, the plaintiffs fail to allege any characteristics, including
their age, of the people selected for the 2001 or 2002 fellowships.
In thei complaint the plaintiffs state that
(t)he Defendants selected candidates ( for the 2000
fellowship) with insufficient
qualifications, no experience of the Vietnamese Diaspora,
and in some instances
admitted agents of the Communist Party of the Socialist
Republic of Vietnam.
(Of the four candidates selected one was) under the age
of 40 (and another was)
approximately 25 years of age. The candidates selected were far less
qualified
than the Plaintiffs.
App. 199.
Absent the alleged ages of all the people selected for
the fellowships, no logical
inference of age
discrimination can be made. See
OConnor, 517
438
III. THE SUPERIOR COURT WAS CORRECT IN HOLDING THAT THE PLAINTIFFS
ATTEMPTED TO ESTABLISH A PROTECTED CLASS
_________________________
* The Superior Court noted
this and reasoned that such a failure would necessarily defeat the
plaintiffs claim of age
discrimintion. App. 212, ftn. 2.
21
SOLELY DEFINED BY POLITICAL BELEIFS AND THUS NOT
PROTECTED
BY THE ANTI-DISCRIMINATION LAWS OF THE COMMONWEALTH.
In order to establish a prima facie case of age and
nationail origin discrimination,
the plaintiffs must allege
that the defendants practice or policy had a disparate impact on
members of a protected class
to which he or she belongs. EEOC v. Steamship Clerks
Local 1066, 48 F. 3d 594, 601
(1st Cir. 1995). The
M.G.L. c. 151B does not
protect discrimination founded on polictical or social beliefs. See
Opinion of the Justices of
the house of Represemtatives, 423
Mass 66, 68 - 70 (1992).
A. The
plaintiffs fail to allege that any practice or policy of the defendant had a
disperate
impact on a protected class with respect to national origin.
The Supreme Court has defined national origin as
referring to the country where
a person was born, or, more
broadly, the country from which his or her ancestors came. Espinoza
v. Farah Manufacturing Co. ,
Inc. 414 U. S. 86, 88 ( 1973).
22
Groups of people who share
the same country of origin have not been afforded national
origin status based on the
individual region or sections of that country.
Claim of national
origin discrimination on the
basis of being a southern (Confederate) American have been
Rejected because southern
Americans are not distinct from northern Americans. See Storey
v. Burns International
Security Service, 390 F. 3d 760. 762-63 (3rd Cir. 2004) (Confederate
Supp. 2d 622, 628 (E.D. Va. 2003) (citing Terrill v. Chao, 31 Fed. Appx. 99 (4th
Cir. 2002)
(Confederate American can
not claim national origin discrimination because plaintiff could
not claim a distinct physical
identity); Williams v.Frank, 757 F. Supp. 112, 120 (D. Mass 1991)
(Southerness is not a
protected trait). In these cases, the courts rejected any notion that there is
a distinction between
Americans from the south and from the north. The courts also rejected the
claim that Confederate
Americans are a distinct group because
they share some common culture
or history of persecution. See Storey 390 F. 3d 760, 762 - 63.
23
All of the paintiffs allege that they were born sometime
between 1923 ( Plaintiff BUI
Diem) and 1942 (Plaintiff
country now know as
known as the Indochinese
Union) and was not knows as
(1999)* (in 1887
lasted until 1945, when the
Democratic Republic of Vietnam was proclaimed). As the
plaintiffs point out, the
political entity known as
(21) years, from 1954 to
1975. (Brief of Appellants, pg. 39).
when the plaintiffs were born
and does not exist as a country today. See Summer, supra, at 16.
Today, the area where the
plaintiffs were born in is officially known as the
of
_________________________
*The Vietnam War Almanac by
Harry G. Summers, Jr. is the same source the plaintiffs
cite to support their
argument that
While this source is not
included in the Appendix, the Defendant requests that this
Court take judicial notice of the historical fasct
contained therein.
24
http: //www.cia.gov/cia/publications/factbook/geos/vm.html ( last modified June 2, 2005) .
Additionally, contrary to the plaintiffs claim, the
catch all classification of the
Vietnamese people has
existed for more than one thousand years. (Brief of Appelants,
pg. 39).
third millennium BC
.. Summers, supra, at 2. For nearly nine hundred years, beginning
in
946 AD when
colony,
throughout this entire nine
hundred years period, the Vietnamese people developed a
sophisticated governmental
structure, a distinct language, and their own version of Buddhism.
Summers, supra, at 5. Any clain that
single and distinct country
is not historically accurate. See Summers, supra, at 2.
Thus, under the standard articulated by the Supreme Court
the plaintiffs claim of
national origin
discrimination would be one of Vietnamese and not South Vietnamese.
See Espinoza, 414
25
In claiming their orgin as South Vietnamese the
plaintiffs are attempting to
distinguish themselves from
those who hold similar national traits, I.e. Vietnamese, who
happen to reside in the north
of the country. The complaint does not allege any distinct
physical characteristics
between these two groups. The only distinction between these
two groups is found in their
respective political ideologies. As stated above, M.G.L. c. 151B
does not recongnize this
distinction. See Opinion of the Justices, 413
plaintiffs is similar to the
distinction claimed by Confererate Americans which has
repeatedly been refected by
courts. See Storey, 390 F. 3d at 762 - 63;
Chaplin, 293 F. Supp.
2d at 628; Williams, 757 F. Supp. at 120.
Under the accepted standard, the national origin that is
being claimed by the plaintiffs
should be that of Vietnamese
or at least a classification that is the same as three out of the
four fellowship recipients.
Thus, their M.G.L. c. 151B claim nesessarily fails because three out of
the four
26
fellowships were filled by
Vietnamese*. Such undisputed facts show that any actions took
did not discriminate against
any group of people sharing the same
national origin of the
plaintiffs.
IV. THE SUPERIOR COURT WAS CORRECT IN DIMISSING THE PLAINTIFFS
M.G.L. C. 151C
CLAIM FOR FAILURE TO SATE A CLAIM UPON WHICH
RELIEF COULD BE GRANTED.
A. The
compaint does not allege that the plaintiffs are seeking admission as
students
as required by M.G.L. c. 151C S2(a) .
M.G.L. c. 151C S 2 (a), prohibits educational
institutions from discriminating against
any
color, or national
origin. (Emphasis added). The plaintiffs in their complaint fail to
allege that
they were seeking admission
as students. On the contrary, the complaint alleges that the
Fellowships were treated as employees and completed IRS Form
W-4 and were issued a W-2
for income tax purposes. App.
197. The plaintiffs allege that the fellowship positions were subject
to the Universitys Hiring
Guide and
_______________________
* In addition to their M.G.L. c. 151B clain,
the fact that three out of four fellowships were
filled by Vietnamese also
defeats the plaintiffs M.G.L. c. 151C
claim. M.G.L. 151C requires
a prima facie showing of
discrimination against a protected the class of Vietnamese-Americans
Has been alleged.
27
should have complied with the
policies of the Human Resources Department at the University.
App. 196 - 197. As pled, the fellowship positions were
clearly not educational but instead
were employment positions.
Accordinly, such positions do not fall under the protection afforded
by c. 151C .
B. The
complaint does not allege that the plaintiffs were seeking admission to a
program or
course of study leading to a degree beyond a bachelors degree
as required by M.G.L. c. 151C, S2(d).
M.G.L. c. 151C, S
2 (d) prohibits discrimintion against
any person seeking admission
to a program or course of
study leading to a degree beyond a bachelors degree
(emphasis
added.) As stated previously, the complaint fails to
allege that any plaintiff actively sought
admission to any program at
the University because they failed to apply for the fellowships.
Additionally, the complaint
fails to allege that the fellowships were a program or course of
study leading to a degree beyond a bachelors
degree. On the contrary, the complaint
alleges
that the fellowships were a program or course of
study leading to a degree beyond a
bachelors
degree. On the contrary, the complaint alleges that
the fellowships were temporary and/or
grant-funded positions,
governed by the University Hiring Guide and that the Center was
required to "consult with HR prior to filling any
temporary position in order to
28
insure that the University's
hiring polocies and procedures were followed. App. 196.
The plaintiffs argue that M.G.L. c. 151C protects any person seeking admission
to any "program"
even if it does not lead to a degree beyond a bachelor's degree. ( Brief of
Applellants, pg. 49). Such a
stance clearly misreads the statute and seeks to broaden the scope
of M.G.L. c. 151C beyond what
the legislature intedned.
A reading of M.G.L. c. 151C S2(d), in its entirety,
reveals that "program" and
"course of study"
are both modified be the clause "leading to a degree, beyond a bachelor's
degree." This subsection also prohibits discrimination
against " any student admitted to
such program or course of study in providing benefits,
privileges and placement services."
study" reveals that the
legislature was referring to a specific type of program and course
of study. The word "such" refers back to the
only possible modifier in the sentence, and
that is "leading to a
degree, beyond a bachelor's degree".
29
That such a interpretation could lead to
the"absurd" result that M.G.L. c. 151C would
not prohibit discrimination
against students in non-advanced degree programs, does not
grant this Court the
authority to rewrite the statute. Contrary to the plaintiffs' unsubstantiasted
assumption regarding the
"intent of the legislature in drafting c. 151C," M.G.L.
c. 151C
does not prohibit all acts of
discrimination in education. See Barret v. City of
Dept., 2001 WL 1602832 (MCAD
2001) (no redress for discrimination
against students
once they are admitted to a
secondary school).
In Oliver c.
MCAD highlighted the
limitations of M.G.L. c. 151C, and regretfully admitted that they
lacked authority to
"amend a statute deemed to be
inconsistent and therefore lacking in
essential protections for
students.
M.G.L. only protected
students seeking admission to programs leading to advanced degrees.
Plaintiffs have failed to
allege that the fellowships lead to any
degree, and have consequently
failed to state a proper
claim.
30
C.
The creed of Communism is not protected by M.G.L. c. 151C.
M.G.L. c. 151C offers no protection
for political beliefs within the plain language of the
stature.
See M.G.L. c. 151c. The complaint alleges that the defendant discriminated
against the
plaintiffs
by favoring the creed of Communism, a political belief espoused by wo of the
four
fellows
hired. App. 203.
The
plaintiffs attempt to equate Communism to a religious belief or creed and to
manufacrure a
protection
under M.G.L. c. 151C.
Citing Wolfe v. Gormally, 440 Mass. 699 (2004), the
plaintiffs argue that because c.
151C
uses both the terms religion and
creed, that creed can not be interpreted to mean
religious
creed as it does in c. 151B. While this argument employs an accepted canon of
statutory
construction, their argument neglects
numerous other canons which undermine their
analysis
of the statute.
In addition to stating that a
statute must be construed to give effect to all its provisions,
the
canons.
See Wolfe, 440
31
statute must also be
interpreted "so as to make it an effetual piece of legislation in harmony
with common sense and sound
reason" and that it "must be viewed as a whole" and that
"it is not proper to
confine interpretation to the one section to be construed." Wolfe, 440
at 704 I citing
Masasachusetts Comm'n Against
Disrcrimination v. Liberty Mut. Ins. Co. ,
371
Under this standard, c. 151C must be viewed as a whole.
M.G.L. c. 151C is unique in
that it does not establish an
independent right of action. All c. 151C claims must be brought in
court under c. 151B, S9. (Any
person claiming to be aggrieved by a practice made unlawful......
under chapter one hundred and
fifty-one C,....may....bring a civil action for damages...."
M.G.L. c. 151B S9.) Thus in order to give effect to this
provision, c. 151C must be
interpreted in conjunction
with c. 151B. M.G.L. c. 151B does not define "creed" to include
political thought or beliefs.
M.G.L. c, 151B S 4 explicitly
states that:
"(T)he words 'creed or religion' mean
any sincerely held religious beliefs,
without regard to whether such beliefs are
approved, espoused, prescribed
required by an established church or
32
other religious institutions or
organizations." (Emphasis added.)
"Communisim" is
defined as "(a) system of government in which the state controls the
means of production and a
single, often authoritarian party holds power." The American
Heritage Dictionary 299 (2d
College ed. 1991). Some interpretations
of the communist
doctrine may prohibit certain
religious beliefs but, as the definition above suggest, the
movement is a "system of
government," not a religious institution or organization.
In
Opinion of the Justices, 423
claim for discrimination
based on political beliefs in Massachusette. In that case, the
court repeated that M.G.L. c.
151B only offered protection for "religious beliefs"
and did not extend that
protection of political thought.
there are no reported
decisions in
protection to political
thought, and such a protection is also not found in the body of
c. 151C. Any effort to
broaden the definition or creed to
include the creed of
Communism
33
ignores the context in which
M.G.L. c. 151C is placed and unjustifiably adds language to
the statute.
D. All plaintiffs failed to file complaints with the
MCAD alleging M.G.L.
c. 151C
education discrimination.
A plaintiff alleging disrimination cannot plead new
claims that he did not
orginally raise before the
MCAD, Mole v.
29, 47 (2003) (citing Lattimore v. Polaroid Corp., 99 F. 3d
456, 464 (1st Cit. 1996). The
Supreme
now claimed" that was
not presented at the MCAD.
trial court judge should have
disregarded new factual conclusions not advanced before the
MCAD).
Plaintiff Luyen failed to allege c. 151C eduction
discrimination in his October 27,
2000 complaint filed with the
MCAD, App. 24- 25. Luyen's MCAD complaint is limited
to a single claim of
employment discrimination, and failed to mention any allegation of
"education"
discrimination.
failed to allege a c. 151C
violation. App. 107 - 120.
34
Therefore because
Luyen failed to raise any claims M.G.L. c. 151C claims at the MCAD, the
Superior Court was correct to
conclude that it lacked jurisdiction and dismiss this claim.
V. THE SUPERIOR COURT WAS COEECT IN CONCLUDING
THAT IT HAD NO
JURISDICTION TO RULE ON THE CLAIMS OF
CERTAIN PLAINTIFFS BECAUSE
THESE PLAINTIFFS FAILED TO FILE
COMPLAINTS WITH THE MCAD PRIOR TO
INTIATING
THEIR
A. Plaintiffs, Bui Diem, Dinh Tu
Nguyen, Sang P.Lee,Ba Tuong Nguyen, Xuan M. Tran,
Nam Nhat Phan, Liem Thanh Nguyen
and Chuc V. Nguyen did not file complaints with
complaints with the MCAD and,
therfore, cannot maintain actions under M.G.L. c. 151B
or 151C in
A party must file a timely complaint with the MCAD in
order to maintain an action
under M.G.L. c.151B or c,
151C in Massachusetts Superior Court. Charland v. Muzi Motors,
Inc., 417 Mass. 580, 583
(1994): Christo v. Edward G. Boyle Ins. Agency, Inc., 402
815, 816 (1988). "Resort to the courts is not available
for a complaint of discrimination
within the jurisdiction of
the MCAD unless the person claiming to have been the object of
unlawful discrimination first
makes a timely complaint to that agency."
Charland, 417
MCAD on a timely basis. See
Mouradin v.
35
General Electric Co.,
claims in Superior Court when
plaintiff did not file timely with the MCAD) ; Sereni
v. Star Sportswear Mfg.
Corp.,
directed verdict when
plaintiff did not file M.G.L. c. 151B claim with the MCAD).
Finally, all such complaints
must be filed with the MCAD within 30 days of the alleged
discriminatory act, or they
will be time-barred. M.G.L. c. 151B S5.
In the case at bar, all plaintiffs, with the exception of
plaintiff Luyen and his
M.G.L. c. 151B claim, failed
to file a complaint with the MCAD for
the claims that are
contained in the plaintiffs'
Second Amended Complaint. Plaintiffs'
Second Amended
Complaint does not allege any
of the plaintiffs filed any action at the MCAD. Despite the
plaintiffs' failure to plead
this basic jurisdictional requirement in their complaint, the
defendant will concede that
on October 27, 2000, Plaintiff Luyen filed a complaint with
the MCAD, listing himself as
the sole complainant in an action against the William Joiner
Center, and failed to name or
mention any of the remaining plaintiffs in this complaint.
App. 86 -87. Plaintiff
36
Luyen later moved to amend
his complaint at the MCAD to add a class action. App. 97 - 101.
This motion was opposed by
the University and denied by the MCAD. App. 28 - 31. This
decision was not appealed and
the remaining plaintiffs never failed individual complaints
with the MCAD. App.22. In addition, the MCAD decision denying
Luyen's compaint lists
a single complaint filed by
Luyen and makes no mention of the existence of any other
complainants to that action.
App 28 31.
Therefore, because the remaining plaintiffs failed to
file individual MCAD
complaints and failed to
satisfy a condition precedent to filling a c. 151B suit in
Superior Court, the Superior
Court was correct in concluding that it
lacked jurisdiction to
hear the plaintiffs' claims.
Additionally, the remaining plaintiffs are time- barred
from filing complaints at the
MCAD and thus can never
satisfy a condition precedent to filling their claim in
Court. Plaintiffs' complaint
alleges that the remaining plaintiffs first learned about the
defendant's alleged
disriminatory acts in June, 2000. App. 199.
All c. 151B discrimination
complaints must be filed with
the MCAD within 300 days.
37
of the alleged discriminatory event. *
"M.G.L. c. 151, S5. Thus, the
remaining plaintiffs
had until approximately
April, 2001 to file individual complaint with the MCAD. They
failed to file any individual complaints with the
MCAD.Therefore, the remaining
plaintiffs are time barred
from filing complaints with MCAD and they will never be
able to fulfill this
condition precedent to filing a c. 151B claim in Superior Court.
Thus their claims were
rightly dismissed with prejudice by the Superior Court.
B. This defense was not waived by the
Defendant because it is
a
jurisdictional defense and cannot be
waived, and was nonetheless ,
timely raised in its response to the
plaintiffs' Second Amended Complaint.
Recent Superior Court decisions have ruled that filing a
complaint with the MCAD is
a jurisdictional requirement
for a plaintiff to sure in Superior Court under M.G.L. c. 151B. See
Curtis v. City of
___________________
* The statute of limitations
for actions filed in the MCAD was 180 days at the time of the
alleged discriminatory act in
this matter, (May or June, 2000). This limitation period was
extended prospectively to 300 days effective November
5, 2000. See
period, may apply to the
conduct alleged in this complaint. Under either analysis, the
plaintiffs are time
barred.
38
2003 WL 21500532 (Mass. Super. 2003) ; Dorman v. Norton Co.,
2003 WL 1962458 (Mass.
Super. 2003) .
Claims of lack of jursdiction cannot be waved by either
party. See e.g. Jamgochian
v. Dieker, 425
does not bar it from raising
it later because jurisdictional claims cannot be waved) ;
Littleton Business Sys v.
Comm'r of Revenue, 383
matter jurisdiction cannot be conferred by consent, conduct, or
waver).
It
is well-settled law that
"(w)henever the plaintiff ameds his declaration, the defendent
of course has liberty to
replead..." Green v. Moses Gill,
Executor, 5
See also Wright v.
Hollingsworth Lessee, 26
admendment being made to
declaration, the defendant had a right to plead de novo) ;
Thompson
v. Musser, 1
to
the complaint without giving the defendant the opportunity to answer) .
Despite the plaintiffs' contention,
the defendant did not waive its defense that
certain
plaintiffs' failure to file in the MCA barred their claims in Superior Court.
The claim
was
made in the Defendant's
39
Memorandum
of Law in Suppert of its Motion to Dismiss plaintiffs' Amended Complaint .
App.
8 - 11 . The plaintiffs argue that
because the defense was not raised in the answer to
the
first complaint any subsequent response is barred from raising it. ( Brief of Appellants,
pg.
45 - 46).
The plaintiffs ignore long-standing
principles of responsive pleading when they
attempt
to limit the defendant to its answer to the orginal complaint. The defendant
has a
right
to respond to any claim put forward by the plaintiffs. This defendant exercised
this
right
in a timely fashion by filing its motion to dismiss. App. 1-2. Defendant's
Motion to
Dismiss
raised the claim that certain plaintiffs failed to file in the MCAD. App. 6-11.
Thus,
the claim was not waived and was properly accepted by the Superior Court.
C.
Plaintiff's reliance on Christo v. Edward C. Boyle Ins. Agency to
support their claim
that the
MCAD filing requirement can be ignored by Massachusette courts
is misplaced and
greatly exaggerates the relivance of its
holding to the case
at bar.
The plaintiffs cite to the
Ins. Agency, 402 Mass 815
(1998) , to support their
40
contention that a defense of
failure to echaust administrative remedies can be waived
by the defendant, (Brief of
Appellants, pg. 44 - 45)
In Christo, the court rerterates the well - settled rules
that " before intiating ( a
discrimination claim under
M.G.L. 151B S9 in Superior Court) the plaintiff must have
filed a timely complaint
within six months of the act of discrimination ( with the MCAD)"
Christo, 402
equitable tolling, it did not
decide whether the limitation should be tolled in that case ,
but remanded it for decsision
by the Superior Court.
simply held that the Superior
Court was not bound by the MCAD investigator's
determination of the tolling
question.
Brief of Appellants, pgs. 44
- 48), the court did not state that the MCAD filing requirement
could be ignored by the
Superior Court. See id.
Additionally, at most, the court implied that the tolling
of the MCAD filing
requirement could be allowed
if there was some showing that the defendant misled the
plainftiff or discouraged her
from filling a timely complaint with the MCAD. Christo, 402 Mass
at
41
816. The plaintiffs do not
allege in their complaint that they were misled or discouraged
by the defendant from filing
a claim with the MCAD. In fact, the plaintiffs offer no
explanation for the
plaintiffs' failure to file in the MCAD. The fact that plaintiff
Luyen was able to make a
timely complaint in the MCAD is evidence
that the other
plaintiffs had the
opportunity to satisgy the filling requirements of M.G.L. c. 151B
but, for reasons not
mentioned in their complaint, failed to do so.
Without alleging any effort on the part of the defendant
to mislead or dissuade
the plaintiffs from filing
acomplaint with the MCAD, the requirement that the
plaintiffs first file in the
MCAD cannot be wavied by the defendant. See Charland, 417
42
CONCLUSION
For all the foregoing reasons, the defendant respectfully
requests that the
Court's decision allowing the
motion to dismiss and the order dismissing the complaint
be affirmed.
Dated: June 20, 2005
Respectfully
submitted,
UNVERSITY
OF MASSACHUSETTES,
By
Their Attorney,
-----------------------------------------------------------
Michale
P. Joyce (BBO#567292)
Associate
Counsel
Office
of the General Counsel
12th
Floor
(617)
287 - 7030
43
ADDENDUM
No.
01 4507
LUYEN HUU NGUYEN, et al.
Plaintiffs
v.
OF WAR AND SOCIAL CONSEQUENCES, and
Defendants
MEMORANDUM OF DECESSION AND ORDER
ON DEFENDANTS' MOTION TO DISMISS
This is an action alleging discrimination in the method by which the
defendants
advertised
for and ultimately selected individuals for certain fellowship position in a
program to promote research into the Vietnamese identity in the era following
the Vietnam War. Plaintiffs concede that they never applied for the position
but nevertheless allege, in a three-count Second Amended Complaint, violarions
of G>L.c. 151B and 151C. The defendants now move to dismiss the Second
Amended Complaint pursuant to Rule 12(b)(1) and 12 (b) (6), Mass. R. Civ. P.
This Court concludes that the Motion must be Allowed , for the
following reasons.
BACKGROUND
The Second Amended Complaint sets forth the following relevant factual
allegations, which this Court assumes to be true for purpose of this Motion. On
July 27,1999, the defendants, the
1
funding
a research program entitled "Constructing Identity and Place in the
Vietnamese Diaspore." The study was
inteded to look into "how diverse constructions of Vietnamese
identity
and community...are being shaped and reshaped to the contemporary post war
and post-refugee eras across generations" following the Vietnam War. These fellowships
temporary
postions funded on a yearly basis. Those who received the fellowships were
afforded certain faculty privileges, which included access to the University's
library and office space provided by the
Center.
Plaintiffs are all over the age of
40 and were all born and raised in
Some
of them were officers in the South Vietnamese Army during the Vietnam War,
others were government officals in
On January 4, 2000 the Center
dissminated information to the public about the fellowships it was
offering. It did so by way of a press
release and a letter; it also advertised in two Vietnamese publications, Hop
Luu and Van Hoc. The deadline for filing
applications was January 31, 2000. Four people were awarded the fellwoships.
The group consisted of "two" admitted agents of the Communist
Party" who immigrated to the United States from North Vietnam, a
"Caucasian-American" by birth under the age of 40," and
"one person of Vietnamese American descent" under 40.
None of the plaintiffs received information
about the fellowships before January 31,2002 deadline, although Nguyen, the
2
None
of the plaintiffs applied for the positions.
Because the Motion to Dismiss raises certain
jurisdictional issues, a breif review
of
the procedural history of this matter is also in order. It began with the
filing of a complaint on October 27, 2000 with the Massachusetts Commission
Against Discrimination ("MACD"). The complaint was brought by a
single individual, plaintiff Nguyen, and asserted a single count of employement
discrimintion under G.L.C. 151B against the University. On April 25, 2001, Nguyen
sought to amend the complaint to have the action proceed as a class action. The
pleading, entitled "Amendment to Charge of Discrimination to have the
Action Treated as a Class Action", named in its caption additional
plaintiffs, who sought to proceed (according to the caption) "Individually
and as Representatives of the Class."
The request to amend the MCAD complaint was summarily denied on May 23,
2001.
On Spetember 12, 2001, the MCAD
dismissed Nguyen's complaint after a finding that it lacked probable cause. On
October 29, 2001, Nguyen instituted this action, alleging employment
discrimination under G.L.c. 151B. After the Court denied his Motion to Maintain
a Class Action and Nguyen changed legal counsel after amending the Complaint
once, he successfully sought to amend the Complaint a second time so as to add
additional plaintiffs and additionl counts. Within a month of recieving notice
of the amendment, the defendants filed the instant motion, seeking to dismiss
the Second Amended Complaint.
DISCUSSION
The plaintiffs allege that the
defendnts's actions, "including the
timing and method of the advertisement, publications and announcement of the
Fellwoships, and the evaluation and selection of the Fellowship recipients,
were take with deliberate, improper and illigal intent
3
to
exclude members of the Vietnamese-american community over the age or 40.
including the Plaintiffs. "Second Amended Complaint S42. The Second
Amended Complaint seeks relief for employment discrimination under G.L.c. 151B,
proceed on a disperate treatment theroy ) ( Count I) as well as a disperate
impact theory (Count II). In adition, the plaintiffs allege discrimination in education, seeking relief
unfer G.L.c. 151C (Count III) Central to the plaintiffs' case is their postion
that, because they are natives of South Vietnam, their national origin is
distinct from those who immigrated to the United States from North Vietnam. In
selecting individuals with roots in
The defendants' Memorandum of Law in
support of their Motion sets forth numerous reasons why the Motion to Dismiss
should be allower. Without repeating all of those arguments, this Court simply
notes that these reasons provide alternative grounds for this Court's
conclusion that this action should proceed no further. Some of these arguments
do not directly address the nature of the plaintiffs' claims but rather point
out procedural deficiencies.For example, other than Nguyen, no plaintiff filed
a complaint with the MCAD*. This failuer to exhaust administrative remedies
means that this Court has no jurisdiction to entertain those
plaintiffs' claims under either G.L.C 151B or 151C. Charland v. Muzi Motors
Inc., 417 Mass 580, 583 - 586 (1994). The defendants also make certain
statutory arguments which warrant dismissal of at least some of the plaintiffs'
claims. Thus, the defendants point out that G.L.c. 151C, by its
_______________________
* I agree with
the defendants position, set forth in footnote 2 of their Memorandum, that the
attempt to amend Nguyen's MCAD complaint in April 2001 to have it proceed as a
class action does not satisfy the requirement
that each individual plaintiff file an MCAD complaint in a timely fashion.
4
terms, protects students who seek admission to an educational
institution, as well as any person
seeking admission to a program or course of study leading to a degree, beyond a
bachelors degree.... See G.L.c. 151C S2(a) and S2(d). Those accepted for the
fellowships, however, are neither students nor individuals who are undertaking
a course of study in order to obtain as
advanced degree. Accordingly, Count III
should be dismissed for failure to state a claim under 151C.
This Court,
however, prefers to dispose of the defendants Motion based on a more
fundamental defect in the plaintiffs case: none of the plaintiffs applied for
the fellowship positions. Among the elements of any discrimination case under
G.L.c. 151B is the requirement that the plaintiff applied for the position and
was not selected. See e.g. Wynn &
Wynn P.C. v . MCAD 431 Mass 655, 665 n. 22 (2000). Similarly, under G.L.c.
151C, the plaintiffs must have sought and have been denied admission to an
educational institution or educational program.
In the instant case, it is conceded that, even after being informed of
the fellowships in the spring of 2000,
none of the plaintiffs submitted applications for either 2001 or 2002
even though applications were being accepted. Nor are there any allegations
that the defendants did anything to discourge or deter the plaintiffs from
applying. Because the defendants never recieved any application from the
plaintiffs and therefore took no adverse action with respect to them, there is
no possibility that the plaintiffs will be able to prove that the defendants
discriminated against them. Stated another way, the plaintiffs will be unable
to prove that they have suffered any particulairzed harm.
The plaintiffs
responce to this is to allege that they would have applied in the year 2000 had they known
about the fellowships, but that the method of advertising the positions was
itself
5
discriminatory. As to the two subsequent years in which the
fellowships were offered, plaintiffs argue that, although they knew about the
fellowship opportunity. Nguyen had already filed a discrimination complaint
before the MCAD, such that all of the plaintiffs beleived at that point that
any attempt by them to seek a fellowship would be futile. This Court finds no
merit to these arguments.
First, with
respect to the method of advertising, the only facts alleged in support of the
allegation that it was intenntionally discriminatory are that the notice for
the position in 2000 was circulated by press release and by letter 26 days
before the deadline, and that it was published in only two Vietnamese
publications. Although this is alleged to have violated the terms of the Program
Description put together by the defendants, see Second Amended Complaint 29 -
30, This Court fails to see how these facts could possibly constitute unlawful
discrimination. Certainly, there is nothing about the method to give rise to
any rational inference of age discrimination or that the defendants intended to
or did exlude Vietnamese from being notified, the notice having appeared in two
Vietnamese publications. Indeed, of those accepted for the 2000 fellowships,
three were of Vietnamese origin.*
Second, this is not the kind of case where
the doctrine of futility of applies. That doctrine was first announced in International
Brotherhood of Teamster v. United States, 431 U.S. 324 (1997), where there
had been a showing of class wide discriminatory practice in adwarding
line-driver jobs so as to exclude blacks.
In upholding the lower courts decision to extend relief to those
plaintiffs who had not actually applied for a ling drive job, the Superior
Court held that,
_________________________
*The second
Amended Complaint does not specify how old two of the four reciepients were in
the year 2000, nor does it allege anywhere that only those under 40 were
accepted for fellwoships - an essential fact, it would seem, to the plaintiffs
claim of age discrimination.
6
where there is a consistently enforced discriminatory policy which
excludes minorties, then it isnot an inexorable bar to relief that a
particular plaintiff has not engaged in the wholy futile gesture of
applying. By way of example, the Court
noted that, if an employer posted a sign stating the only whites need to apply,
his victims would not be limited to the
few who ignored the sign and subjected themselves to personal rebuffs.
Finally, even
apart from this fatal defect in the plaintiffscase, the plaintiffs attempt to
place themselves within a group protected by either G.L.c. 151B or 151C fails.
Their claim is not simply that the defendants discriminate against
persons over 40 or that defendants discriminate against persons of Vietnamese
ancestry. Rather, it is that the defendants awarded fellowships to those who
adhered to or were sympathetic with the Communist government of
7
anti-Communist
views for research fellowships would have a chilling effect on the
institutions own First Amendment rights.
CONSLUSION AND ORDER
For all the
foregoing reasons and for the reasons set forth in the Defendants Memorandum
of Law, the defendants Motion to Dismiss is ALLOWED, and it is
hereby
ORDERED that the Second Amended
Complaint is DISMISSED, with prejudice.
________________________________
Janet L. Sanders
Justice
of the Superior Court
Dated: August 27, 2004.
8
OF
THE TRIAL COURT
CIVIL
ACTION NO. 01-4507E
______________________________________
Luyen Huu Nguyen, Bui
Diem, )
Dinh
Tu Nguyen Sang P.Le, )
Ba
Tuong Nguyen, Xuan M. Tran )
And Chuc V. Nguyen, )
)
Plaintiffs )
v. )
William Joiner Centre for the Study )
of War and Social
Consequences and the )
)
Defendants )
______________________________________ )
MOTION OF THE DEFENDANT,
UNVERSITY OF MASSACHUSETTES
TO DISMISS PURSUANT TO MASS.R. CIV. P. 12(b)(1) AND
12(b)(6).
The Defendant in the above action, the William Joiner Centre at the University of
Massachusetts,
Boston moves pursuant to Mass R, Civ. P. 12(b)(1) and 12(b)(6) to dismiss
Counts I, II, and III of plaintiffs Second Amended Complaint.
As reasons therefore the Defendant
states that the court lacks subject matter jurisdiction over all claims made by
Plaintiffs Bui Diem, Dinh Tu Nguyen, Sang Phuoc Le, Ba Tuong Nguyen, Xuan M.
Tran, Nam Nhat Phan, Liem Thanh Nguyen and Chuc V. Nguyen, because these
individuals failed to file claims with the Massachusettes Commission Against Discrimination, prior to
filing their complaint with this court. In
WestLaw. page
1
M.G.L.A.
151B S4
MASSACHUSETTS
GENERAL LAWS ASSNOTATED
PART 1. ADMINISTRATION OF
THE GOVERNMENT
TITLE XXI. LABOUR AND
INDUSTRIES
CHAPTER. 151B . UNLAWFUL
DISCRIMINATION BECAUSE OF RACE, COLOR
RELIGIOUS CREED, NATIONAL
ORIGIN, ANCESTRY OR SEX.
=> S 4. Unlaful practices.
It shall be an unlawful
practice:
1. For an employer, by himself or his agent,
because of the race, color, religious, national origin, sex sexual orientation,
which shall not include persons whose sexual orientation involves minor
children as the sex object, genetic information, or ancestry of any individual
to refuse to hire or employ or to be bar or to discharge from employment such individual
or to discriminate against such individual is compensation or in terms,
conditions or privileges of employment, unless based upon a bona fide
occupational qualification.
1A.
It shall be unlawful discriminatory practice for an employer to impose an
individual as a condition of obbtaining or retaining employment any terms or
conditions, complianace with which would require such individual to violate ,
or forego the practice of, his creed or religion as
required by the creed or religion including but not limited to the observence of any
particular day or days or any portion thereof as a sabbath or holy day and the
employer shall make reasonable accommondation to the religious needs of such
individual. No individual who has given notice as hereinafter providde shall be
required to remain at his place of employment during any day or days or portion
thereof that, as a requirement of his religion, he observes as his sabbath or
other holy day, enculding a reasonable time prior and subsequent thereto for travel
between his place of employment and his home, provided, however, that any
employee intending to be absent from work when so required by his creed or
religion shall notify his or her employer not less than ten days in advance of each absence, and that
any such absence from work shall, wherever practicable in the judgement of the
employer, be made up by an equivalent
amount of time at some other mutual convient time. Nothing under this subsection shall be deemed to require an
amployer to compensate an employee for such absence. "Reasonable
Accommodation", as used in this subsection shall mean such accommodation
to an employee's or propective employees religious observance or practice as
shall not cause undue hardship in the conduct of the employer's business. The employee shall have the burden of proof
as to the required practice of his creed or religion. As used in this subsection, the words
"creed or religion" mean any sincerely held religious beliefs,
without regard to whether such beliefs are approved, epoused, prescribed or
required by an established church or other religious institutions or
organization.
Undue
hardship, as used herein, shall include the inability of an employer to provide
services which are required by and in compliance with all federal and state
laws, including regulations or tariffs promulgated or required by any
regulatory agency having jurisdiction over such services or where the health or
safety of the public would be unduly compromised by the absence of such
employee or employees, or where the employer's presence is indispensabel to the
orderly transaction of business and his or her work cannot be performed by
another employee of substantially similar qualifications during the peroid of
absence, or where the employee's presence is needed to alleviate an emergency
situation. The employer shall have the burden of proof to show undue hardship.
1B.
For an smployer in the private sector, by himself or his agent, because of the
age of any individual, to refuse to hire or employ or to bar ot to discharge
from employment such individual, or to discriminate against such individual in
compensation or in terms, condition or privileges of employment, unless based
upon a bona fide occupational qualification.
1C.
For the commonwealth or any of its political subdivisions, by itself or its
agent, because of the age of any individual, to refuse to hire or employ or to
bar or discharge from employment such individual in compensation or in terms,
conditions or privileges of employment unless pursuant to any other general or
special law.
<(Subsection ID as inserted
by 2004, 335, Sec. 1 effective December 22, 2004.)>
@ 2005 Thomson/West no Claim to Orig.
M.G.L.A. 151B S4 Page
2
1D. For an employer , an
employment agency, the commonwealth or any of its polictical subdivisions, by
iself or its agents, to deny initial employment, reemployment, retention in employment, promotion or any
benefit of employment to a person who is a member of, applies to perform or has
an obligation to perform, service in a uniformed military service of the United
States, including the National Guard, on the basis of that membership,
application or obligation.
2. For a labor
organization, because of the race, color, religious creed, national origin,
sex, sexual orientation, which shall not included persons whose sexual
orientation involves minor shildren as the sex object, age, genetic
information, or ancestry of any individual, or because of the handicap of any person alleging to be a qualified handicapped
person, to exclude from full membership rights or to expel from its membership
such individual or to discriminate in any way against any of its members or
against any employer or any individual employed by an employer unless based
upon a bona fide occupational qulification.
3. For any employer or employment agency to print ot
circulate or cause to be printer or circulated any statement, advertisement or
publication, or to use any form of application for employment or to make any inquiry or record in connection
with employment, which expresses directly or indirectly, any limitations,
specifications or driscrimination as to the rece, color, religious creed,
national origin, sex, sexual orientation which shall not include persons whose sexual
orientation invloves minor children as the sex object, age, genertic
information or ancestry of the handicap of a qualified handicapped person or
any intent to make such limitation, specification or driscimination, or to
discriminate in any way on the ground of race, color, religious creed, national
origin, sex, sexual orientation, age, genetic information, ancestry or the
handicap of a qualified handicapped person, unless based upon a bona fide
occuptional qualification.
3A. For any person engged in the insurance or bonding business, or
his agent, to make any inquiry or record of any person seeking a bond or surely
bond conditioned upon faithful performance of his duties or to use any form of
application in connection with the furnishing of such bond, which seeks
information relative to the race, color, religious creed, national origin, sex, sexual orientation, which shall
not include persons whose sexual orientation involves minor children as the sex
object, genetic information or ancestry of the person to be bonded.
3B. For any person whose business includes granting mortgage loans
or engging in residentail real esate-related transactions to discriminate
against any person in the granting or any mortgage loan or in making available
such a transaction, or in the terms or conditions of such a loan or
transaction, because of race, color, religion, sex, sexual orientation which
shall not include persons whose sexual orientation involves minor children as
the sex object, children, national orgin, gentic information, ancestry, age or
handicap. Such transactions shall
include, but not be limited to:
(1) the making or purchasing of loans or the provision of other
financial assistance for purchasing, constructing, improving, reparing, or
maintaining a dwelling: or the making or purchasing of loans or the provision
of other financial assistance secured by residential real easte; or
(2) the selling, brokering, or appraising of resdential real
estate.
In the case of age, the following shall not be an unlawful practice:
(1) an inquiry of age for the purpose of determining a pertinent
element of credit worthiness;
(2) the use of an empirically derived credit system which considers age; provided, however, that such
syatem is based on demonstrably and statistically sound data; and provided,
further, that such system does not assign negative factor or score to any
applicant who has reached afe sixty-two;
(3) the offering of credit life insurance or credit disablilty
insurance, in conjunction with any mortgage loan, to a limited age group;
(4) the failure or refusal to grant any mortage loan to a person
who has not attained the age of majority;
(5) the failure or refusal to grant any mortgage loan the duration
of which exceeds the life expectancy of the applicant as determined by the most
recent Individual Mortality Table.
@ 2005 thomson/West No Claim to Orig.
M.G.L.A. 151B
S4
Page 3
Nothing in this subsection prohibits a person in engaged in the
business of furnishing appraisals of realy property from taking into
consideration factors other than those hereinabove proscribed.
3C. For any person to deny another person access to, or membership
or participation in, a multiple listing service, real estate brokers'
organizations, or facility relating to
the business of selling or renting dwellings, or to drisciminate against such
person in the terms or conditions of such access, membership, or participation,
on account of race, color, religion, sex, sexual orientation which shall not
include pesons whose sexual orientation involves minor children as the sex
object, children, national origin, genetic information, ancestry, age or
handicap.
4. For any person, employer, labour organization or employment
agency to discharge, expel or otherwise discriminate against any person because
he has opposed any practices forbidden under this chapter or because he has
filed a complaint, testified or assisted in any proceeding under section
five.
4A. For any person to coerce, intimidate, threaten, or interfere
with another person in the excerise or enjoyment of any right granted or
protected by this chapter, or to coerce, intimidate, threaten or interfere with
such other persons for having aided or encouraged any other person to the
excerise or enjoyment of any such right granted or protected by this chapter.
5. For a person, whether an employer or an employee or not, to
aid, abet, incite, compel or coerce the doing of any of the acts forbidden
under this chapter or to attempt to do so.
6.For the owner, lessee, sublessee, licensed real estate broker,
assignee or managing agent to publicly assisted or multiple dwelling or
contiguously located housing accommodation or other person having the right of
ownership or possession or right to rent or lease, or sell or negotiate for the
sale of such accommodations, or any
agent or employee of such a person, or any organization of unit owners in a
condominium or housing cooperative: (a) to refuse to rent or lease or sell or
negotiate for sale or otherwise to deny to or withold from any person or group
of persons such accommodation because of race, religious creed, color, national
origin, sex, sexual orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, age, gentic information,
ancestry or martial status of such person or persons or because such person is
a veteran or member of the armed forces, or because such person is blind, or
hearing impaired or has any other handicap.
(b) to discriminate against any person because of his race, religious
creed, color, national origin, sex, sexual orientation, which shall not include
persons whose sexual orientation involves minor children as the sex object,
age, ancestry or martial status or because such person or veteran or
member of the armed forces, or because
such person is blind, or hearing impaired or has any other handicap in the
terms, conditions or privileges of such accommodations, or the acquisitions
thereof, or in the furnishings of facilities and services in connection
therewith, or because such a person possesses a trained dog guide as a
consequence of blindness, or hearing impairment; (c) to cause to be made any written or oral
inquiry or record concerning the race, religious creed, color, nation origin,
sex, sexual orientation, which shall not include persons whose sexual
orientation involves minor children as the sex object, age, genetic
information, ancestry or material status of the person seeking to rent or lease
or buy any such accommodation, or concerning the fact that such person is a
veteran or a member of the armed forces or because such person is blind or hearing impaired or has
any other handicap. The word "age" as used in this subsection shall
not apply to persons who are minors nor to residency in state-aided or
federally-aided housing developments for the elderly nor to residency in
housing developments assisted under the federal low income housing tax credit
and intended for use as for persons 55 years of age or over, or 62 years of age
or over, nor to residency in communities consisting of either a structure or
structures constructed expressly for use as housing for persons 55 years of age or over or 62
years or over on 1 parcel or on contiguous parcels of land, totaling at least 5
acres in size. For the purpose of this subsection, housing intended for
occupancy by persons fifty-five or over and sixty-two or over shall comply with
the provisions set forth in 42 USC 3601 et seq.
For purposes of this subsection, discrimination on the bases of
handicap includes, but is not limited to, in connection with the design and
construction of: (1) all units of a
dwelling which has three or more units and an elevator which are constructed
for first occupancy after March thirteenth, nineteen hundred and ninety-one ;
and (2) all ground floor unites other dwellings consisting of three or more
units which are constructed for first occupacy after March thirteenth, nineteen
hundred and ninety one, a failure to design and construct such dwellings in
such a manner that (i) the public use
and common use portions of such dwellings are readily accessible to and usable
by handicapped persons; (ii) all doors are designed to allow passage into and
within all premises within such dwellings and are sufficiently wide to allow
passage by handicapped persons in wheelchairs; and ( iii) all premises within
such dwellings contain the following features of adaptive designs, ( a ) an
@ 2005 Thomas/West. No Clain to Orig.
M.G.L.A. 151B ~~4
page 4
accessible route into and through the dwelling; (b) light
switches, electrical outlets, thermostats and other enviromental controls in
accessible locations; (c) reinforcements in bathroom walls to allow later
installation of grab bars; and (d) usable kitchens and bathrooms such that an
individual in a wheelchair can maneuver about the space.
7. For the owner, lesse,
sublessee, real estate broker, assignee or managing agent of other covered
housing accommodations or of land inteded of any housing accommodation included
under subsection 10,11,12 or 13 of section one, or other person having the right of ownership
or possession or right to rent or lease or sell or negotiate for the sale or
lease of such land or accommodation, or any agent or employee of such a person or any organization of unit
owners in a condominium or housing cooperative: (a) to refuse to rent or lease
or sell or negotiate for sale or lease or otherwise to deny or withold from any
person or group of persons such accommodation or land because of race,
religious creed, national origin, sex, sexual orientation which shall not
include persons whose sexual orientation involves minor children as the sex
object, age, gentic information, ancestry, or martial status, veteran
status or membership in the armed forces, blindness, hearing impairment or
because such person possesses a trained dog guide as a consequence of blindness
or hearing impairment or other handicap of such a person or persons; (b) to
discriminate against any person because of his race, color, religiou creed,
national origin, sex, sexual orientation, which shall not include persons whose
sexual orientation involves minor children as the sex object, age, genetic
information, ancestry, or martial status, veteran status or membership in the
armed forces, blindness or hearing impairment or other handicap, or because
such person possesses a trained dog guide as a consequence of blindness or
hearing impairment in terms, conditions or privileges of such accommodations or
land or the acquisition thereof, or in the furnishing of facilities and
services in the connection therewith or (c) to cause to be made any written or
oral inquiry or record concerning the race, color, religious creed, national
origin, sex, sexual orientation, which shall not include persons whose eexual
orientation involves minor children as the sex object, age, genetic
information, ancestry, martial status, veteran status or membership in the
armed forces, blindness, hearing impairment or other handicap or because such
person possesses a trained dog guide as a consequence of blindness or hearing
impairment, of the person seeking to rent or lease or buy such accommodtaion or
land; provided however, that this subsection shall not apply to the leasing of
a single apartment or flat in a two family dwelling, the other occpupancy unit of which is
occupied by the owner as his residence. The word "age" as used in
this subsection shall not apply to persons who are minors nor to residency in
state-aided or federally-aided housing developments for the elderly nor to
residency in housing developments assisted under the federal low income housing
tax credit and intended for use as housing for persons 55 years of age or over
or 62 years of age or over, nor to residency in communities consisting of
either a structure or structers constructed expressly for use as housing for
persons 55 years of age or over or 62 years of age or over, on 1 parcel or on
contiguous parcels of land, totaling at least 5 acres in size. For the purpose
of this subsection, housing intended for occupancy by person fifty-five or over
and sixty-two or over shall comply with the provisions set forth in 42 USC 3601 et.seq.
7A. For purposes of
subsection 6 and 7 disrimination on the basis of handicap shall include but not
limited to:
(1) a refusal to permit or to make, at the expense of the
handicapped person, reasonable modification of existing premises occupied or to
be occupied by such person if such modification is neccessary to afford such person full enjoyment of such premises;
provided however that, in the case of publicy assisted housing, multiple
dwelling housing consisting of ten or more units, or contiguously located
housing consisting of ten or more units, reasonable modification shall be at
the expense of the owner or other person having the right of ownership;
provided , further, that in the case of public ownership of such housing units the cost of such reasonable modifiction shall be
subject to appropriation; and provided further, that, in the case of a rental,
the landlord may, where the modification to be paid for by the handicapped
person will materially alter the marketability of the housing, condition
permission for a modification on the tenant agreeing to restore or pay for the
cost of restoring, the interior of the premises to the condition that existed
prior to such modifictation, reasonable wear and tear excepted:
(2) A refusal to make reasonable accommodations in rules, policies
or services when such accommodations may be necessary to afford a handicapped
person equal opportunity to use and enjoy a dwelling; and
(3) discrimation against or a refusal to rent to a person because
of such persons need for reasonable modification or accommodation.
Reasonable modification shall include but not be limited to,
making the housing accessible to mobility-impaired, hearing impaired and
sight-impaired person including installing raised nubers which may be read by a
sight-impaired person, installing a door bell which flashes a light for a
hearing-impaired person, lowering a cabinet, ramping a front entrance of five
@2005 thomson/West No Clain to Orig. U.S. Govet. Works.
M.G.L.A. 151B ~~ 4 Page
5
or fewer vertical steps, widening a doorway, and installing a grab
bar; provided, however that for purposes of this subcestion, the owner or other person having
the right of ownership shall not be required to pay for ramping a front
entrance of more than five steps or for installing a wheelchair lift.
Notwithstanding any
other provisions of this subsection, an accomodation or
modification which is paid for by the owner
or other person having the right of ownership is not considered to be
reasonable if it would impose an undue hardaship upon the owner or other person
having the right of ownership and shall therefore not be required. Factors to be considered shall include, but
not limited to, the nature and cost of the accomodation or modification needed,
the extent to which the accomodation or modification would materially alter the
marketability of the housing, the overall size of the housing business of the
owner or other person having the right of ownership, including but not limited
to, the number and type of housing units, size of budget and avaiable assets,
and the ability of the owner or other persons having the right of ownership to
recover the cost of the accommadation through a federal tax deduction. Ten
persent shall be the maxium number of units for which an owner or other person
having the right of ownership shall be required to pay for a modification in
order to make units fully assessible to persons using a wheelchair pursant to
the requirements of this subsection.
In the event a wheelchair accessible unit becomes or will become
vacant, the owner or other persons having the right of ownership shall give
timely notice to a person who has, within the previous twelve months, notified
the owner or person having the right of ownership that such person is in need
of a unit which is wheelchair accessible, and the owner or other person having
the right of ownership shall give at least fifteen days notice of the vacancy
to the Massachuestts rehabilitation commission, which shall maintane a central
registry of accessible apartment housing under the provisions of section
seventy-nine of chapter six. During such fifteen day notice period, the
owner or other persons having the right of ownership may lease or agree to
lease the unit only if it is to be occupied by a person who is in need of
wheelchair accessibility.
Notwithstanding any general or special law, by-law or ordinance to
the contrary, there shall not be established or imposed a rent or other charge
for such handicap-accessible housing which is higher than the rent or other
charge for comparable nonaccessible housing of the owner or other person having
the right of ownership.
7B. For any person to make
print, or publish, or cause to be made, printed or published any notice,
statement or advertisement, with respect to the sale or rental of multiple
dwelling, contiguously located, publicly assisted or other other covered
housing accomodations that indicates any preference, limitation, or
discrimination based on race, color, religion, sex, sexual orientation which
shall not include persons whose sexual orientation involves minor children as
the sex object, national origin, genetic information, ancestry, children,
martial status, public assistance recipiency, or handicap or an intention to
make any such preference, limitation or dircrimination expect where otherwise
legally permitted.
8. For the owner, lessee,
sublesse, or managing agent of, or other person having the right of ownership
or possession of or the right to sell, rent or lease, commercial space: (1) To
refuse to sell, rent, lease or otherwise deny to or withhold from any person or
group of persons such commercial space because of race, color, religious creed,
national origin, sex, sexual
orientation, which shall not include persons whose sexual orientation
involves minor children as the sex object, age, genetic information, ancestry
handicap or martial status of such person or persons. (2) To discriminate against any person because of
his race, color, religion creed, national origin, sex, sexual orientation,
which shall not include persons whose sexual
orientation involves minor children as the sex object, age, genetic
information, ancestry, handicap or martial status in the terms, conditions or
privileges of the sale, rental or lease of any such commercial space or in the
furnishing of facilities or services in connection therewith. (3) To
cause to be made any written or oral inquiry or record concerning the race,
color, religious creed, nation origin, sex, sexual orientation, which shall not
include persons whose sexual orientation involves minor children as the sex
object, age, genetic information, ancestry, handicap or martial status of a
person seeking to rent or lease or buy any such commercial space. The word
"age" as used in this subsection shall not apply to persons who are
minors, nor to residency in state-adided or federally- aided housing
developements for the elderly nor to residency in self-contained retirement
communities constructed expressly for use by the elderly and which are at least
twenty acres in size and have a minium age requirement for residency of at
least fifty-five years.
9. For an employer, himself or through his agent, in connection
with an application for employment, or the terms, conditions, or privileges of
employment, or the transfer, promotion, bonding, or discharge of any persons,
or in any other matter relating to the employment of any person, to request any
information, to make or keep a record of such information, to use any form of
application or application blank which resquests such information, or to
exclude, limit or otherwise discriminate against any person by reason of his
failure to furnish such information through a written application or oral
inquiry or otherwise
M.G.L.A.
151B S4
page
6
regarding: (i) and arrest, detention or disposition regarding any violation of law in which no conviction
resulted, or (ii) a first conviction for
any of the following misdemeanors : drunkenness, simple assault, speeding,
minor traffic violtions, affray, or disturbance of the peace, or (iii) any
conviction of a misdemeanor where the date of such conviction or the completion of any period of
incarceration resulting therefrom, whichever date is later, occurred five or more years prior to the date
of such appication for employment or such request for information , unless such
person has been convicted of any offense within five years immediately
preceeding the date of such application for employment or such request for
information.
No person shall be held under any provision of any law to be
guilty of perjury or of otherwise giving a false statement by reason of his
failure to recite or acknowledge such information as he has a right to
withhold by this subsection.
Nothing contained herein shall be construded to affect the
application of section thirty-four of chapter ninety-four C, or of chapter two hundred and seventy-six relative
to the sealing of records.
9A. For an employer himself
or through his agent to refuse, unless based upon a bonafide occuptional
qualification, to hire or employ or to
bar or discharge from employment any person by reason of his or her failure to furnish
information regarding his or her admission, on one of more occasions,
voluntarily or involuntarily, to any public or private facility for the care
and treatment of mentally ill persons, provided that such person has been
discharged from such facility or facilities and can prove by a psychiartrists
certificate that he is mentally competent to peform the job or the job for
which he is applying. No application for
employment shall contain any questions or requests for information regarding
the admission of an applicant, on one or more occasions, voluntarily or
involuntarily, to any public or private facility for the care and treatment of
mentally ill persons, provided that such applicant has been discharged from suc
public or private facility or fcilities and is no longer under treatment
directly related to such admission.
10. For any person furnishing credit, services or rental
accomodations to discriminate against any individual who is a recipient of
federal , state, or local public assistance, inculding medical assistance, or
who is a tenant receiving federal. state, or local housing subsidies, including
rental assistance or rental supplements, because the individual is such a
recipient, or because of any requirement of such public assistance, rental
assistance, or housing subsidy program.
11. For the owner, sublessees, real estate broker, assignee or
managing agent of publicy assisted or multiple dwelling or contiguosuly located
housing accommodation or other covered housing accommodations, or other person
having the right of ownership or possession
or right to rent or lease or sell such accommodation, or any agent or
employee of such a person or organization of unit owners in a condominium or
housing cooperative, to refuse to rent or lease or sell or otherwise to deny to
or withhold from any person such accommodations because such person has a chil
or children who shall occupy the premises with such person or to discriminate
against any person in the terms, conditions or privileges of such accommodations
or the acquisition thereof, or in the furnishing of facilities and services in
connection therewith, because such person has a child or children who occupy or
shall occupy the premises with such person; provided, however, that nothing
herein shall limit the applicabily of any local, state, orfederal restriction
regarding the maximum number of persons permitted to occupy a dwelling. When
the commission or a court finds that discrimination in violation of this paragraph has occurred
with respect to a residential premises containg dangerous levels of lead in
paint, plaster, soil or other accessible
material, notification of such finding shall be sent to the director of the
childhood lead poisoning prevention program.
This subsection shall not apply to:
(1) Dwellings containing three apartment or less, one of which
appartments is occupied by an elderly or infim person for whom the presence of
children would constitute a hardship. For purposes of this subsection an
"elderly person" shall mean a person sixty-five years of age or over,
and an "infirm person" shall mean a person who is disables or
suffering from a chronic illness.
(2) The temporary leasing or temporary subleasing of a single
family dwelling , a single apartment, or single unit of a condominium or
housing cooperative, by the owner of such dwelling, apartment, or unit, or in
the case of subleasing, by the subessor thereof, who ordinairly occupies the
dwelling, apartment, or unit as his or her principle place of residence. For
purpose of this subsection, the term "temporary leasing" shall mean
during a period of the owners's or sublessor's absence not to exceed one year.
@ 2005 Thomson/West. No Claim to Orig.
M.G.L.A. 151B S4 Page
7
(3) The leasing of a single dwelling unit in tow faily dwelling,
the other occupancy unit of which is occupied by the owner as his residence.
11A. For an employer, by himself or his agent to refuse to restore
certain female employees to employment following their absence by reason of a
maternity leave taken in accordance with section on hundred and five D of
chapter one hundred and forty nine or to otheriwse fail to comply with the
provisions of said section, or for the commonwealth and any of it boards,
departments and commission to deny
vacation credits to any female employee for the fiscal year during which
she is absent due to maternity leave taken in accordance with said section or
to impose any other penalty as a result of a maturnity leave of absence,
12. For any retail store shich provides credit or charge account
privileges to refuse to extend such privileges to a customer soley because said
customer had attained age sixty-two or over.
13. For any person to directly or indirectly induce, attemp to
induce, prevent, or attempt to prevent the sale, purchase, or rental of any dwelling or dwellings by:
(a) implicit or explicit representations regarding the entry or
prospective entry into the neighbourhood of a person or persons of a particular
age, race, color, religion, sex, national or ethnic origin, or economic level
or a handicapped person, ora person having a child, or implicit or explicit
repersentations regarding the effects or consequences if any such entry ro
prospetive entry;
(b) unrequested contact or communication with any person or
persons, initiated by any means for the purpose of so inducing or attemping to
induce the sale, purchase, or rental of any dwelling or dwellings when he knew
or, in the execise of reasonable care, should have known that such unrequested
solication would reasonably be associated by the persons solicited with the
entry into the nieghborhood of a person or persons of a particular age, race,
color, religion, sex, national or ethnic origin, or economic level or
handicapped person or person having a child;
(c) implicit or explicit false respersentation regarding the
availbility of suitable housing within a particular neighborhood or area, or
failure to disclose or offer to show all properties listed or held for sale or
rent withing a requested price or rental range, regardless of location; or
(d) false representations regarding the listing, prospective
listing, sale, or prospective sale of any dwelling.
14. For any person furnihsing credit or services to deny or
terminate such credit or services or to adversely affect an individual's credit
standing because such individual's sex, martial status, age or sexual
orientation, which shall not include persons whose sexual orientation involves
minor children as the sex object; provided that in the case of age the
following shall not be unlawful practices:
(1) an inquiry of age for the purpose of determining a pertinent
element creditworthiness;
(2) the use of empirically derived credit systems which consider
age, provided such systems are based on demonstrably and statistically sound data and provided further that such
systems do not assign a negative factor or score to any applicant who has
reached age sixty-two;
(3) the offerning of credit life insurance or credit disability
insurance, in conjunction with any credit or services, to a limited age group;
(4) the denial of any credit or services to a person who has not
attainted the age of majority;
(5) the denial of any credit of any credit or services the
duration of which exceeds the life expenctancy of the applicant as determined
by the most recent Individual Auunity Mortality table; or
(6) the offering of more favorable credit terms to students, to
persons aged eighteen to twenty-one or to persons who have reached the age of
sixty-two.
@ 2005 Thomson/West. No Claim to Orig. U.S.
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M.G.L.A.
151B S4 page
8
Any person who violates the provisions of this subsection shall be
liable in an action of contract for the actual damages; provided, however,
that, if there are no actual damages, the court may assess special damages to
the aggrieved party not to exceed one thousand dollars; and provided further,
that any person who has been found to violate a provision of this subsection by
a court of competent jurisdiction shall be assessed by the cost of reasonable
legal fees actually incurred.
15. For any person responsible for recording the name of or
establishing the personal indentification of an individual for any purpose, including that of extending credit,
to require such individual to use, because of such individual's sex, or
martial status, any surname other than
the one by which such individual is generally known.
16. For any employer, personally or through an agent, to dismiss
from employment or refuse to hire, rehire or advance in employment or otherwise
discriminate against, because of his handicap, any person alleging to be a
qualified handicapped person, capable of performing the essentail functions of
the position involved with reasonable accommodation, unless the employer can
demonstrate that the accommodation required to be made to the physical or
mental limintations of the person would impose an undue hardship to the
employer's business. For the purpose of this subsection the word employer
shall include an agency which employs
individuals directly for the purpose of furnishing part-time or temporary help
to to others.
In determining whether an accommodation would impose an undeu
hardship on the conduct of the employer's business, factors to be considered
include:--
(1) the overall size of the employer's business with respect to
the number of employees, number and type of facilities, and size of budget or
available assets;
(2)the type of the employer's operation, including the composition
and structore of the employer's workforce; and
(3) the nature and cost of the accommodation needed,
Physical or mental job qualification requirement with respect to
hiring, promotion, demotion or dismissal from employment or any other change in
employment status or responsibilities shall be functionally related to the
specific job or jobs for which the individual is being considered and shall be
consistent with the safe and lawful performance of the job.
An employer may not make preemployment inquiry of an applicant as
to wheather the applicant is a handicapped individual or as to the nature or
severity of the handicap, except that an employer may condition an offer of
employment on the result of a medical examination conducted soley for the
purpose of determining whether the employee , with
resonable accommodation, is capable of performing the essential
fuctions of the job, and an employer may
invite applicants to voluntarily disclose their handicap for purpose of
assisting the employer in its affirmative action efforts.
16A. For an employer, personally or through its agents to sexually
harass any employee.
17. Notwithstanding any provision of this chapter, it shall not be
an unlawful employment practice for any
person, employer, labor organization or employment agency to:
(a) observe the terms of a bona fide seniority or any bona fide
employee benefit plan such as a retirement, pension or insurance plan, which is
not a subterfuge to encade the purpose of this section, except that no such
employee benefit plan shall excuse the failure to hire any person, and no such
seniority system or employee benefit plan shall require or permit the
involuntary retierement of any person because of age except as permitted by
paragraph (b).
(b) require the complusory retirement of any person who has
attained the age of sixty-five and who, for the two year period immidiately
before retirement, is amployed in a bona fide executive or high policymaking
position, if such person entitled to an immediate nonforfeitable annual
retirement benefit from a penson, profit-sharing, savings or deferred
compensation plan, or any combination of such plans, of the employer, which equals , in the aggregate, at
least forty-four thousand dolars.
(c) require the retirement of any employee who has attained
seventy years of age and who is serving under a contract of unlimited tenure or
similar arrangement providing for unlimited tenure at an independent
institution of higher education.or to limit the employment in a faculty capacity
of such an employee, or another person who has attained seventy years of age
who was formely employed under a contract of
unlimited tenure or similar arrangement, to such terms and to such a
period as
@2005 Thomson/West. No Claim to Orig U.S.
Govt. Works
M.G.L.A.
151B S4 page
9
would serve the present and future needs of the institution, as
determined by it; provided, however, that in making such a determination, no institution shall
use as qualification for employment or reemployment, the fact that the
individual is under any particular age.
18. For the owner, lessee, sublesse, licensed real estate broker,
assignee, or managing agent of publicly
assisted or multiple dwelling or contiguously, located accommodtion or other
covered housing accommodations, or other person having the right of ownership
or possession or right to rent or lease, or sell or negotiate for the sale of
such accommodation, or any agent or employee of such person or any organization
of unit owners in a condominium or housing cooperative to sexually harass any
tenant, propesctive tenant, purchaser or prospective purchaser of property.
Notwithstanding the foregoing provisions of this section, it shall
not be an unlawful employment practice for any person, employer, labor
organization ot employment agency to inquire of an applicant for employment or
membership as to whether or not he or she is a veteran or a citizen.
Notwithstanding the provisions of any general or special law
nothing herein shall be sonstrude to bar any religious or denominational
institution or organization, or any organization operated for chartiable or
educational purposes, which is operated, supervised or controlled by or in
connection with a religious organization, from limiting admission to or giving
preference to persons of the same religion or denomination or from taking any
action with respect to matters of employment, discipline, faith, internal
organization, or ecclesiastical rule, custom, or law which are calculated by
such organization to promote the religious principles for which it is
established or maintained.
Notwithstanding the foregooing provisions of this section, (a)
every employer, every employment agency, including the division of employment
and training and every labor organization shall make and keep such records
relating to race, color, or national origin as the commission may prescribe
from time to time by rule or regulation, after public hearing as reasonably
necessary for the purpose of showing compliance with the requirements of this
chapter, and (b) every employer and labor organization may keep and maintain
such records and make such reports as may from time to time be necessary to
comply, or show compliance with, any excutive order issued by the President of
the United States or any rules or regulation issued thereunder prescribing fair
employment practices for contractors and subcontractors under contract with the
United States, or, if not subject to
such order, in the manner prescribed therein and subject to the jurisidiction
of the commission. Such requirements as the comission may, by rule or
regulation, prescribe for the making and keeping of records under clause (a)
shall impose no greater burden or requirements on the employer, employment
gency or labor organization subject thereto, than the comparable requirements
which could be prescribed by Federal rule or regulation so long as no such
requirements have in fact been prescribed, or which have in fact been
prescribed for an employer, employment agency or labor organization under the
authority of the Civil Rights Act of 1964, from time to time amended. [FN1]
This paragraph shall apply only to employers who on each working day in each of
twenty or more calendar weeks in the annual period ending with each date set
forth below, employed more employees than the number set forth beside such
date, and to labor organizations which have more members on each such working
day during such period.
Minimum
Employees
Period Ending or members.
June 30, 1965.......................................................................................................100
June 30,
1966.........................................................................................................75
June 30, l967..........................................................................................................50
June 30, 1968 and
thereafter..................................................................................25
Nothing contained in this chapter or in any rule or regulation issued
by the commission shall be interpreted
as requiring any employer, employment angecy or labor organization to grant
preferential treatment to any individual or to any group because of the race,
color, religious creed, national origin, sex, sexual orientation, which shall
not include persons whose sexual orientation involves minor children as the sex
object, age, genetic information or ancesty of such individual or group because
of imbalance which may exist between the total number or percentage of persons
employed by any employer, referred or classified for employment by any
employment agency or labor organization, admitted to membership or classified
by any labor organization or admitted to or employed in, any apprenticeship or
other training program and the total number or percentage of person of such
race,color, creed, national origin, sex, sexual orientation, which shall not
include
@ 2005 Thomson/West, No. Claim Orig, U.S.
Govt. Works
M.G.L.A.151B
S4
Page
10
person whose sexual orientation involves minor children as the sex
object, age, genetic information or ancestry in the commonwealth or in any
community, section or other area therein, or in the available work force in the
commonewealth or in any of its political subdivisions.
19. (a) It shall be unlawful discrimination for any employer,
employer agency, labor organization, or licensing agency to
(1) refuse to hire or employ, represent, grant membership to, or
license a person on the basis of that person's genetic information;
(2) collect, solicit, or require, disclousure of genetic
information from any person as a condition of employment, or membership,
or of obtaining a license;
(3) solicit submission to, require, or administer a genetic test
to any person as a condition of employment, membership, or obtaining a license;
(4) offer a person an inducement to undergo a genetic test or
otherwise disclose genetic information;
(5) question a person about their genetic information or genetic
information concerning their family members , or inquire about previous genetic
testing;
(6) use the results of a genetic test or other genetic information
to affect the terms, conditions, compensation or privileges of a person's
employment, representation, membership, or the ability to obtain a license;
(7) terminate or refuse to renew a person's employment,
representation, membership. or licenese on the basis of a genetic test or other
genetic information; or
(8) otherwise seek, receive, or maintain a genetic information for
non-medical purposes.
(FN1) 42 U.S.C.A. S 2000a.
Current through Ch. 34 of the 2005 1st Annual Sess.
@
2005 Thomson/West
END OF DOCUMENT
@ Thomson/West. No Claim to Orig. U.S.
Govt. Works.
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M.G.L.A. 151B S5
MASSACHUSETTS GENERAL LAWS ANNOTATED
PART I. ADMIMISTRATION
OF THE GOVERNMENT
TITLE XXI. LABOR AND INDUSTRIES
CHAPTER 151B. UNLAWFULL DISCRIMINATION BECAUSE OF RACE, COLOR,
RELIGIOUS CREED, NATIONAL ORIGIN, ANCESRTY OR SEX
S5.
Complaints; procedure; limitations; bar to proceeding; award of damages
Any person claiming to be aggrieved by an alleged unlawful
practice or alleged violation of clause (e) of section thirty-two of chapter
one hundred and twenty-one B or sections
ninety-two A , ninety-eight and ninety-
eight A of chapter two hundred and seventy-two
may, by himself or his attorney, make, sign and file with the
commission a verified complaint in writing which shall state the name and
address of the person, employer, labor organization or employment agency
alleged to have comitted the unlawful practice complained of or the violation
of said clause (e) of said section thirty-two or said sections ninety-two A,
ninety-eight and ninety-eight A which shall set forth the particulars thereof and contain such
other information as may be required by the commission. The attorney general
may, in like manner, sign and file such complaint. The commission, whenever it
has reason to believe that any person has been or is engaging in an unlawfull
practice or violation of said clause (e) of said section thirty-two or said
section ninety-twoA, ninety-eight and ninety-eight A, may issue such a
complaint. Any employer whose employees, or some of them, refuse or threaten to
refuse to cooperate with the provisions of this chapter, may file with the
commission a verified complaint asking for assistance by conciliation or other
remedial action.
After the filing of any complaint, the chairman of the commission
shall designate one of the commissioners to make, with the assistance of the
commission's staff, prompt investigation in connection therewith. If such
commissioner shall determine after such investigation that no probable cause exists for crediting the allegations of
the complaint, the commission shall, within ten days from such determination,
cause to be issued and served upon the complainant written notice of such
determination, and the said complainant or his attorney may, within ten days
after such service, file with the commission a written request for a
preliminary hearing before the commission to determine probable cause for
crediting the allegations of the complaint, and the commission shall allow such
request as a matter of right; provided, however, that such a preliminary
hearing shall not be subject to the provisions of chapter thirty A. If such
commissioner shall determine after such investigation or preliminary hearing
that probable cause exists for crediting the allegations of a complaint
relative to a housing practice, the commissioner shall immediately serve notice
upon the complainant and respondent of
their right to elect judical determination of the complaint as an alternative
to determination in a hearing before the commission. If a complainant or
respondent so notified wishes to elect such judicial determination, he shall do
so in writing, within twenty days of receipt of the said notice. The person
making such election shall give notice of such election to the commission and
to all other complainants and respondents to whom the probable cause finding
relates. The commission, upon receipt of such notice, shall dismiss the
complaint pending before it without prejudice and the complainant shall be
barred from subsequently bringing a complaint on the same matter before the
commission. If any complainant or respondent elects judical determineation as
aforesaid, the commisson shall authorzie, and not later than thirty days after
the election is made the attorney general shall commence and maintain, a civil
action on behalf of the complainant in the superior court for the country in
which the unlawfull practice occurred. Any complainant may intervene as of
right in said civil action. If the court
in such civil action finds that a discriminatory housing practice has
occurred or is about to occur, the court may grant any relief which a court
could grant with respect to such discriminatory housing practice in a civil
action under section nine. Any relief so granted that would accreu to an
aggrieved person in a civil action commenced by that aggrieved person under
said section nine shall also accrue to that apprieved person in a civil
action under this section. If such commissioner shall determine after such
investigation or preliminary hearing that probable cause exists for crediting
the allegations of any complaint and no complainant or respondent has elected
judical determination of the matter, he shall immediately endeavor to eliminate
the unlawful practice complained of or the violation of said clause (e) of said
section thirty or said sections ninety-two A, ninety-eight and ninety-eight A
by conference, conciliation and persuasion. The members of the commission and
its staff shall not disclose what has occurred in the course of such endeavors,
provided that the commission may publish the facts in the case of any
@
2005 Thomas/West No. Claim to Orig. U.S. Govt. Works
M.G.L.A.
151B S5 Page
2
compainnt which has been dismissed, and the terms of conciliation
when the complaint has been so deposed
of. In case of failure so to eliminate such practice or violation, or in
advance thereof if in his judgment circumstances so warrant, he shall cause to
be issued and served in the name of the commission, a written notice, together
with a copy of such complaint as the same may have been amended, requiring the
person, employer, labor orgainization or enployment agency named in such
complaint, hereafter referred to as respondent, to answer the charges of such
complaint at a hearing before the commission, at a time and place to be
specified in such notice. The place of any such hearing shall be the office of
the commission or such other place as may be designatied by it. Before or after
a determination of probable cause hereunder such commissioner may also file a
petition in equity in the superior court in any country in which the unlawfull
practice which is the subject of the complaint of the complaint occurs, or in a
country in which a respondent resides or transacts business, or in Suffolk
county, seeking appropriate injusntive releif against such respondent,
including orders or decrees restraining and enjoining him from selling,
renting, or otherwise making unavailable to the complainant any housing
accommodations or public accommodations with respect to which the complaint is
made, pending the final determination of proceedings under this chapter. An
affidative of such notice shall forthwith be filed in the clerk's office. The court shall have to power to grant such
temporary releif or restraining orders as it deems just and proper. The case in
support of the complainant shall be presented before the commission by one of
its attorneys or agents or by an attorney retained by the complainant, and the
commissioner who shall have previously made the investigation and caused the
notice to be issued shall not participate in the hearing except as a witness,
nor shall he participate in the diliberations of the commission in such case
except when necessary to decide an appeal to the full commission; and the
aforsaid endeavors at conciliation shall not be received in evidence. If an
investigating commissioner determines that probable cause exists to credit the allegations of a complainant
that a respondent has refused to sell, rent, or to negotiate in the sale,
rental, or leasing of, housing accommodations or commercial space and if he
determines that such respondent is a nonresidence of the commonwealth and
cannot be personally served with process in the commonwealth, such
investigating comissioner may file a petition in equity in the nature of an in
rem proceeding seeking appropriate injunctive relief against such property with
respect to which a complaint has been made , including orders or decrees
restraining and enjoining any sale, rental, lease, or other disposition of such
property which would render it unavailable to the complainant pending the final
determination of proceedings under this chapter. Such commissioner shall send by
registered mail, with a return receipt requested, a copy of such petition to
the last address of such respondent known to the commissioner. An affidavit of
compliance herewith, and the respondent's return receipt or other proof of
actual notice, if received, shall be filed in the case on or before the return
day of the process or within such further time as the court may allow. A copy of the order or decree of the court
running against such property of a nonresident respondent shall be recorded in
the registry of deeds in the county
wherein such housing accommodations or commercial space is located, and
a copy of such order or decree shall be attached in a conspicuous place to the
property which has been the subject of a complaint under section four by
the sheriff of the county wherein such property is located, or by his
authorized agent or employee. Any person
purchasing housing accommodations or commercial space, subsequent to the
recording of the order or decree in the registry of deeds, shall be, as a
matter of law, bound by the terms of any order
which the commission has made or may make relating to such property
which has been the subject of an order or decree of the superior court. Any person renting ot leasing housing
accommodations or commercial space subsequent to the attachment of a copy of an
order or decree referred to above by the sheriff of the county wherein such
property is located or by his authorized agent or employee
shall be, as a matter of law, bound by the terms of any order which the
commission has made or may make relating to such property. The respondent may
file a written verified answer to the complaint and appear at such hearing in
person or otherwise, and submit testimony. In the discretion of the commission,
the complainant may be allowed to intervene and present testimony in person or
by counsel. The commission or the complainant shall have the power reasonably
and fairly to amend any complaint, and the respondent shall have like power to
amend his answer. The commission shall not be bound by the strict rules of
evidence prevailing in courts of law or equity.
The testimony taken at the hearing shall be under oath and be
transcribed at the request of any party. If, upon all the evidence at the
hearing the commission shall find that a respondent has engaged in any unlawful
practice as defined in section four or violation of said clause (e) of said
section thirty-two or said sections ninety-two A, ninety eight and ninety-eight
A, the commission shall state its
findings of fact and shall issue and cause to be served on such respondent an
order requiring such respondent to cease and desist from such unlawful practice
or violaton of said clause (e) of said section thirty-two or said sections
ninety-two A, ninety eight and ninety eight A to take such affirmative action,
including but not limited to, hiring, reinstatement or upgrading of employees,
with or without back pay, or restoration to membership in any respondent labor
orginization, as, in the judgement of the commission, will effectuate the
purpose of this chapter or of said labor organization, as, in the judgement of the commission, will
effectuate the purpose fo this chapter or of said clause (e) of said section
thirty-two or said sections ninety-two A, ninety-eight and ninety- eight A, and
including a
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requirement for report of the manner of compliance. Such case and
desist orders and orders for the affirmative relief may be issued to operate
prospectively. If , upon all the
evidence, the commission shall find that a respondent has not engaged in ay
such unlawful practice or violation of said clasuse (e) of said section
thirty-two or said sections ninety-two A, ninety-eight and ninety-eight A, the
commission shall state its findings of fact and shall issue and cause to be
served on the complainant an order dismissing the said complaint as to such
respondent. In addition to any such relief, the commission shall award
reasonable attorney's fees and costs to any prevailing complaint. A copy of its order shall be delivered in all
cases to the attorney general and such other public officers as the commission
deems proper. The commission shall establish rules of practice to govern,
expedite and effectuate the foregoing procedure and its own actions thereunder.
Any complaint filed pursant to this section must be so filed within 300 days
after the alleged act of discrimination.
The institution of proceedings under this section, or an order
thereunder, shall not be a bar to proceedings under said section ninety-two A,
ninety-eight and ninety-eight A, nor shall the institution of proceedings under
said sections ninety-two A, ninety-eight and ninety-eight A, or a judgment
thereunder be a bar to proceedings under this section.
If upon all the evidence at any such hearing the commission shall
find that a respondent has engaged in any such unlawful pratice relative to
housing or real estate or violated clause (e) of said section thirty-two it
may, in addition to any other action which it may take under this section,
award the petitioner damages, which damages shall include, but shall not be
limited to, the expenses incurred by the petitioner for obtaining alternatice
housing or space , for storage of goods and effects, for moving and for other
costs actually incurred by him as a result of such unlwaful practice or
violation. Any person claiming to be aggieved by such an award of damages may,
notwithstanding the provisions of section six and within ten days of notice of such award,
bring a petition in the municpal court of the city of Boston or in the district
court within the judicial district of which the respondent resides, addressed
to the justice of the court, praying that the action of the commission in
awarding damages be reviewed by the court. After such notice to the parties as
the court deems necessary, it shall hear witnesses, review such action, and
determine whether or not upon all the evidence such an award was justified and
thereafter affirm, modify, or reverse the order of the commission. The decision
of the court shall be final and conclusive upon all the parties as to all
matters of fact.
If, upon all the evidence at any such hearing, the commission
shall find that a respondent has engaged in any such unlawful practice, it may
in addition to any other action which it may take under this section, assess a
civil penalty agains the respondent:
(a) in an amount not to exceed $10,000 if the respondent has not
been adjudged to have committed any prior discriminatory practice;
(b) in an amount not to exceed $25,000 if the respondent has-been
adjudged to have committed one other discriminatory practice during the 5-year
period ending on the date of the filing of the complaint, and
(c) in an amount not to exceed $50,000 if the respodent has bee
adjudged to have committed 2 or more discriminatory practices during the 7-year
period ending on the date of the filing of the complaint. Notwhithstanding the
aforesaid provisions, if the acts constituting the discriminatory practice that
is the object of the complaint are committed by the same natural person who has
been previously adjudged to have committed acts
constituting a discriminatory practice, then the civil penalties set
forth in clauses (b) and (c) may be
imposed without regard to the period of
time within which any subsequent discriminatory practice occurred.
Current through Ch. 34 of the 2005 1st Annual Sess.
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M.G.L.A.
151B S9
MASSACHSETTES GENERAL LAWS ANNOTATED
PART I. ADMINISTRATION
OF THE GOVERNMENT
TITLE XXI. LABOR AND INDUSTRIES
CHAPTER 151B. UNLAWFUL DISCRIMINATION BECAUSE OF RACE, COLOR,
RELIGIOUS CREED, NATIONAL ORIGIN, ANCESTRY, OR SEX
=> S9.
Construction and enforcement of chapter; inconsistent laws; excluxiveness of
statutory procedure; civil remedies; speedy trial; attorney's fees and costs;
damages
<[First paragraph applicable to claims pending on and arising
after November 5, 2002. See 2002, 223, Sec.4]>
This chapter shall be construed liberally for the accomplishment
of it pirpose and 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 this commonwealth relating to discrimination;
but, as to acts declared unlawful by section 4, the administrative procedure
provided in this chapter under section five shall, while pending, be
exclusive; and the final determination on the merits shall exclude any other
civil action, based on the same grievance of the individual concerned.
Any person claiming to be aggrieved by a practice made unlawful
under this chapter or under chapter one hundred and fifty-one C, or by any
other unlawful practice within the jurisdiction of the commission, may, at the
expiration of ninety days after the filing or a complaint with the commission,
or sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice
occurred, bring a civil action for damages or injuctive relief or both in the
superior or probate court for the country in which the alleged unlawful practice
occurred or in the housing court within whose district the alleged unlawful
practice occurred if the unlawful practice involves residential housing. The petitioner shall norify the commission of
the filing of the action , and any complaint before the commission shall then
be dismissed without prejudice, and the petitioner shall be barred from
subsequently bringing a complaint on the same matter before the
commission. Any person claiming to be
aggrieved by an unlawful practice relative to housing under this chapter, but
who has not filed a complaint pursuant to section five, may commence a
civil action in the superior or probate court for the country in which the
alleged unlawful practice occurred or in the housing court within whose
district the alleged unlwaful practice occurred; provided, however, that such
action shall not be commenced later than one year after the alleged unlawful
practice has occurred. An aggrieved
person may also seek temporary injunctive relief in the superior, housing or
probate court within such country at any time to prevent irreparable injury
during the pendency of or prior to the filing of a complaint with the
commission.
An action filed pursiant to this section shall be advanced for a
speedy trial at the request of the petitioner. If the court finds for the
petitioner, it may award the petitioner actual and punitive damges. If the
court finds for the petitioner it shall, in addition to any other relief and
irrespective of the amount incontroversy, award the petitioner reasonable
attorney's fees and costs unless special circumstances would render such award
unjust. the commission shall upon the filing of any complaint with it, notify
the aggrieved person of his rights under this section.
Any person claiming to be aggrieved by a practice concerning age
discrimination in employment made unlawful by section four may bring a
civil action under this section for damages or injunctive relief, or both, and
shall be entitled to a trial by jury on any issue of fact in an action for damages
regardless of whether equitable relief is sought by a party in such action. If the court finds for the petitioner,
recovery shall be in the amount of actual damages; or up to three, but not less
than two, times such amount if the court finds that the act or practice complained of was committed with knowledge or
reason to know that such act or pratice violated the provisions of said section
four. The prorovisions set forth in the first, second and third paragraphs
shall be applicable to such complaint or action to the extent that such
provisions do not conflict with the provisions set forth in this paragraph.
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Current through Ch. 34 of the
2005 1st Annual Sess.
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M.G.L.A. 151C ~~2
C
MASSACHUSETTS GENERAL LAW
ANNOTATED
PART I. ADMINISTRATION OF
THE GOVERNMENT
TITLE XXI. LABOR AND
INDUSTRIES
CHAPTER 151C. FAIR
EDUCATION PRACTICES
=>S
2. Unfair practices
It shall be an unfair
educational practice for an educational institution:--
(a)
To exclude or limit or ortherwise discriminate against any United States
citizen or citizens seeking admission as student to such institution because of
race, religion, creed color, or national origin.
(b)
To penalize any of its employees or students or any applicant because he has
testified, participated or assisted in any proceeding under this section.
(c)
To cause to be made any written or oral inquiry concerning the race, religion,
color or national origin of a person seeking admission, except that a religious
or denominational educational institution which certified to the commission
that it is a religious or denominational educational institution may require as
to the religious or denominational affiliations of applicants for admission.
(d)
To exclude, limit or otherwise discriminate against any person seeking
admission to a program or course of study leading to a degree, beyond a
bachelor's degree, because of race, religion, creed, color, age, sex, or
national origin, or to so discriminate against any student to such program or
course or study in providing benefits, privileges and placement services.
(e)
To exclude from admission any student because said student is blind,or deaf or
require the use of a dog guide.
(f)
To request any information, to make or keep a record of such information, to
use any form of application or application blank which requests infromation or
to exclude or limit or ortherwise discriminate against any person by reason of
his or her failure to furnish information through a written application or oral
inquiry or otherwise regarding: (i) an arrest, detention or disposition
regarding any violation of the law in which no conviction resulted or in which
a conviction has bee vacated, or (ii) a first conviction for any of the
following misdemeanors: drunkness, simple assault, minor traffic violations,
affray or disturbance of the peace, or (iii) any conviction of a misdemeanor
where such conviction occurred more than
five years prior to the date of such application or admission, unless
the applicant was sentenced to imprisonment unpon conviction of such
misdemeanor, or such individual has been convicted of any offense within the
five years' period.
(g)
To sexually harass students in any program or course of study in any
educational institution.
This
section is not intended to limit or prevent an educational institution from
using any criteria other than race, religion, creed, sex, color or national
origin in admission of students
Current through Ch. 34 of the
2005 1st Annual Sess.
@
2005 Thomson/West
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END OF DOCUMENT
@
2005 Thomas/West. No Claim to Orig. U.S. Govt. Works.
No. 2004-P-1653
______
LUYEN HUU NGUYEN,BUI DIEM,
DINH TU NGUYEN, SANG P. LE.
BATUONG NGUYEN, XUAN M. TRAN, NAM NHAT PHAN
LIEM THANH NGUYEN, and CHUC V. NGUYEN
Plaintiffs - Appellants.
u.
WILLAIM JOINER CENTER FOR THE STUDY OF
WAR AND SOCIAL CONSEQUENCES AND THE
UNIVERSITY OF MASSACHUSETTS, BOSTON
Defendant - Appellee.
______
On appeal from a judgement of the Suffolk Superior Court
______
BRIEF FOR APPELLEE
THE END