'-h

NO. SJC - 10123

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT 2007-P-0680

SUFFOLK, SS

TRACY THURDIN

Plaintiff-Appellant

V.

SEI BOSTON, LLC

Defendant-Ap pellee

ON A REVIEW FROM A JUDGMENT OF THE SUFFOK SUPERIOR COURT

BRIEF OF THE DEFENDANT-APPELLEE

Joseph S. Berman, Esq. Kenneth 5. Rodriguez, Esq. Looney & Grossman, LLP 101 Arch Street, 9' Floor Boston, MA 02109

Attorneys for the Defendant-Appellee 617-951-2800

TABLE OF CONTENTS

Table of Authorities ii

Issue Presented for Review . . . . . . . . . . . . . . . . . . 1 Statement of the Case . . . . . . . . . . . . . . . . . . . . 1

Statement of the F a c t s . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . 4 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Superior Court's Decision S h o u l d Be Affirmed, Because The Exclusive Remedy For Employment Discrimination Claims Is The Massachusetts Antidiscrimination Statute, Mass. G.L. c. 151B, And A Plaintiff Such As The Appellant May Not Maintain An Alternative Action Under The Massachusetts Equal Rights Act, Mass. G.L. c . 9 3 , 5 102 . . . . . . . . . . . . . . 5

A. Mass. G.L. C. 151B Applies Only To Employers With Six Or More Employees . . . . . . . . . . . . . . . 6

B. A Plaintiff Such As The Appellant May Not Maintain An Alternative Action Under The Massachusetts Equal Rights Act, Mass. G.L. c. 93 5 102, Because Mass. G.L. c. 151B Provides The Exclusive Remedy For Claims Of Alleged Discrimination . . . . . . . . . . 16

C. The Massachusetts Equal Rights Act, Mass. G.L. c. 93 § 102, Does Not Create A Separate Remedy . . . . 22 i. The Plaintiff's and Amici's Legislative History

Arguments A r e Unavailing . . . . . . . . . . . 2 3

ii. There Is No Basis For An Alternative Remedy Under Massachusetts Law For Alleged Post-Hiring Discrimination . . . . . . . . . . . . . . . . 2 7

iii. The Massachusetts Equal Rights A c t , Mass. G . L . c . 93 § 102, Does Not Supplement Mass. G.L. c. 1 5 1 B . . . . . . . . . . . . . . . . . . . . 32

iv. There Is No Basis For This Court To Overrule The Decision Of The United States Supreme Court in Patterson . . . . . . . . . . . . . . 34

Conclusion 35 . . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES

FEDERAL CASES

I

B r e n n a n v . Board of E l e c t i o n Comm’rs of Bos ton ~ 310 Mass. 7 8 4 , 7 8 9 , 3 9 N.E.2d 636 (1942) . . . . . . . . 31

C r e w s v . Mernorex Corp. 588 F.Supp. 2 7 , 29 (D. Mass. 1984) . . . . . . . . . . . 19

Patterson v. McLean Credit Union 491 U.S. 164, 1 7 7 (1989) 5, 2 4 , 2 5 , 2 6 , 2 7 , 29, 3 0 , 3 4 , 35

STATE CASES

Boston Water & Sewer Comm’n v. Metropolitan D i s t . Comm’n 4 0 8 Mass. 5 7 2 , 5 7 8 ( 1 9 9 0 ) . . . . . . . . . . . . . . 16, 27

Carsill v. Harvard University 60 Mass. App. Ct. 585, 604 (2004) . . . . . . . . . . 17, 21

Charland v. Muzi Motors , I n c . 417 Mass. 580, 583 ( 1 9 9 4 ) . . . . . . . . . . 6 , 1 7 , 1 8 , 2 1

C o m e v v . H i l l 387 Mass. 11 (1982) . . . . . . . . . . . . . . . . . . . 2 0

Commonwealth v. Gove 366 Mass. 351, 354 (1974) . . . . . . . . . . . . . . . . 23

D . N . Kellev & Son v. Selectmen of Fairhaven 294 Mass. 570, 5 7 6 (1936) . . . . . . . . . . . . . . . . 2 3

Everett v. Revere 3 4 4 Mass. 585, 589 . . . (1962) . . . . . . . . . . . . . . 19

Gasior v. Massachusetts Genera l Hospital 446 Mass. 645 (2006) . . . . . . . . . . . . . . . . . . 3 2

Greanev v . Heritase Hosp. , Inc. N.E.2df 1995 WL 1146185 at *5 (not r e p o r t e d ) (Mass. S u p e r . 1 9 9 5 ) . . . . . . . . . . . . . . . . . . . . . . 3 0

Green v. Wavman-Gordon Co. 4 2 2 Mass. 551, 5 5 7 - 5 8 ( 1 9 9 6 ) . . . . . . . . 7 , 14, 15, 16

Guzman v . Lowinser 422 Mass. 5 7 0 , 572 ( 1 9 9 6 ) . . . . . . . . . . . . . . 7, 11

.. 11

Hoffman v. Howmedica, Inc. 373 Mass. 32, 37 (1977) . . . . . . . . . . . . . . . . . 23

Katz v. Massachusetts Comm’n Asainst Discrimination 365 Mass. 3 5 7 , 366 . . . ( 1 9 7 4 ) . . . . . . . . . . . . . . 19

Marchant v. Burlinaton Mun. EmDlovees’ Federal C r e d i t Union N.E.2d, 1998 WL 1181674(not reported)(Mass. S u p e r . 1998) 9

Massachusetts Elec. Co. V. Massachusetts Commission Auainst Discrimination

375 Mass. 160, 1 6 5 (1978) . . . . . . . . . . . . . . . . 6

Massachusetts Hosp. Ass‘n, Inc. V. Department of Medical Sec . 412 Mass. 340, 346 (1992) . . . . . . . . . . . . . . . 27

Mathewson v. Contributorv Retirement Appeal Bd. 3 3 5 Mass. 6 1 0 , 614 . . . (1957) . . . . . . . . . . . . . . 19

Neal v. Infinitv Broadcastins Corp. Of Boston 57 Mass. App. Ct. 1110 (2003) . . . . . . . . . . . 1 7 , 2 1

Pielech v. Massasoit Gsevhound, Inc. 423 Mass. 534, 539 ( 1 9 9 6 ) . . . . . . . . . . . . . . . 31

Rambert v. Commonwealth 389 Mass. 7 7 1 , 774 ( 1 9 8 3 ) . . . . . . . . . . . . . . . 16

Rodman v. Murphv N.E.Zd, 21 Mass. L. Rptr. 56, 2006 WL 1360850 ( n o t r e p o r t e d ) (Mass. Super. 2006) . . . . . . . . . . . . . . 9

Terespolskv v. Law Offices of Stephanie K. Meilman, P.C. 1 7 Mass. L . R p t r . 317, N.E.2d, 2004 WL 333606 ( n o t reported)(Mass. Super. 2004) . . . . . . . . . . . . . 8, 9

Thibodeau v. Desiqn Group One Architects, LLC 8 0 2 A.2d 731, 740 (Conn. 2002) . . . . . . . . . . . . . 10

T u r l e v v. Securitv I n t e q r a t i o n , Inc. et al. N.E.Zd, 2001 WL 1772023 (not reported) (Mass. S u p e r . (2001) . . . . . . . . . . . . . . . . . . . . . 28 , 29, 30

STATUTES

42 U.S.C. 5 1981 . . . . . . . . . . . . . . . . . . . . . . 2 8

Mass. R. Civ. P. 12(b) (6) and/or 12( c) . . . . . . . . . . . . 2

... 111

Mass. G . L . c . 93, § 102 . . . . . . . . . . , . . . . . Passim Mass. G.L. c . 149, § 105D . . . , . . . . . - , . . . . . . . 10 Mass. G.L. c . 151B , . . . . . . . . . . . . . . . . . . . Passim Mass. G . L . c . 214, § 1C , . . . . . . . . . . . . , . . . 11, 15

St.1972, c. 790 5 1 . . . . . . . . . . . . . . . . . . . . . 9

St.1986, c . 588 . . . , . . . . . . . . . . . . . . . . .' . . 15

REPORTS AND DOCUMENTS

Governor's Committee To Recommend Fair Employment Practice Legislation

Legislative Documents, House - No. 400 J a n . 1946 Page 3 . . . . . . . . . . . . . . . . . . . . . . . 12, 2 4

iv

ISSUE PRXSENTED FOR REVIEW

1.Whether a defendant employer with fewer than six

employees may be sued for alleged gender

discrimination under Mass. G.L. c. 93, § 102

where the Massachusetts employment

discrimination statute, Mass. G.L. c. 151B,

defines "employer" as excluding an "employer

with fewer than six persons."

STATEJXENT OF THE CASE

This case is an appeal from a judgment of the

Superior Court (Suffolk County, Justice John C.

Cratsley) . The parties a r e the plaintiff-appellant,

Tracy Thurdin ("Thurdin" or "plaintiff"), and the

defendant-appellee, SEI - Boston, LLC ("SEI"). On or

about March 7, 2006, T h u r d i n filed a complaint i n t h e

Superior C o u r t Department. (App. 16.)l Count I of

Thurdin's complaint, the sole count, alleges that SEI

violated the Massachusetts E q u a l Rights Act,

G . L . c. 9 3 , § 102 ("MERA") , on account of alleged

gender/pregnancy discrimination. (App. 19.)

Mass.

Specifically, T h u r d i n claims that by taking

adverse employment actions against h e r because of her

' Citations to t h e Record Appendix will be in the following form: \\ (App. [page number] . )

1

gender/pregnancy, including placing her on unpaid

administrative leave and allegedly causing her

termination, S E I violated her rights as defined by

the Massachusetts E q u a l Rights Act. Id. -

SEI filed an Answer and Jury Demand on or about

April 25, 2006. (App. 24.) Subsequently, on or

about September 28, 2006, SEI filed a Motion to

Dismiss, or, in the alternative, Motion for Judgment

on the Pleadings, pursuant to Mass. R. Civ. P.

1 2 ( b ) (6) and/or 1 2 ( c ) . (App. 29.) Thurdin filed an

Opposition and Memorandum in Support on or about

October 10, 2006. (App. 37 and 38.) S E I then filed

a R e p l y Brief and, in response, Thurdin filed a

Surreply. (App. 69 and 76.)

After oral argument, the Superior Court issued

its Memorandum of Decision and Order on Defendant's

Motion to Dismiss. (App. 81-87.) The Superior Court

granted SEI'S motion, ruling that Mass. G.L. c. 151B,

t h e Massachusetts antidiscrimination statute, bars

employment discrimination claims brought against

employers with fewer than six employees. Further,

the judge rejected Thurdin's argument that she could

maintain an alternative action under the

Massachusetts Equal Rights Act, Mass. G.L. c. 9 3 ,

5 102. Id. -

Judgment entered on March 3, 2007.

Thurdin's appeal followed. (App. 88.)

(App. 2 . )

STATEMENT OF THE FACTS

SEI - Boston, LLC ("SEI") is a Massachusetts

limited liability company with its usual place of

business in Boston, Suffolk County. (App. 29-30.)

It is engaged in the business of providing technology

consulting services to corporate clients. (App. 30.)

In h e r Complaint, Thurdin alleges that s h e was h i r e d

on or about March 15, 2005 as an on-site information

technology consultant, working primarily in the

financial services industries. Id.

Thurdin further alleges t h a t , shortly

thereafter, on or a b o u t April 11, 2005, she informed

h e r supervisor, V i c k i Hudson, SEI'S managing

p r i n c i p a l , that she was pregnant. Id. S E I o f f e r e d

to p l a c e her on unpaid leave until she gave birth,

which time she would receive s a l a r y and benefits

through the company's short-term disability plan.

SEI also indicated that it would reinstate her at the

end of her maternity if a position were available.

Thurdin refused t h i s offer. Id.

at

By letter dated April 20, 2005, SEI placed the

plaintiff on unpaid leave. Id. Thurdin then filed a

discrimination charge against SEI with the E q u a l

Employment Opportunity Commission ("EEOC") and

Massachusetts Commission Against Discrimination.

(App. 3 . ) In response, on or about May 27, 2005, SEI

submitted its Position Statement to the EEOC.

52-56.) SEI denied that it discriminated against the

plaintiff. Id. It also pointed out that it had o n l y

three employees. (App. 52.) Accordingly, the EEOC

dismissed the charge. (App. 21-22 and 30.) This

civil action followed.

-

(App.

-

SUMMARY OF THE ARGUMENT

T h e Massachusetts antidiscrimination statute,

Mass. G.L. c. 151B, is limited to employers with six

or more employees. ( P a g e s 5-15). The statute

clearly defines "employers" as only those companies

with six or more employees. The limitation r e f l e c t s

a clear legislative policy that small companies

should be protected from litigation. (G). Moreover, a plaintiff may n o t maintain an action

u n d e r the Massachusetts Equal Rights Act, Mass. G.L.

c. 93, Sec. 102, f o r claims of alleged employment

discrimination.

4

The legislative history of section 102 does not

s u p p o r t t h e plaintiff’s argument. (Pages 22-27).

The Equal Rights Act does not create an alternative

remedy. (Pages 27-32). The supposed rights under

section 102 are not supplementary to chapter 151B.

(Pages 32-34). Indeed, under the plaintiff’s

reasoning, small companies would enjoy fewer rights

than l a r g e companies. (g). Lastly, t h e Court s h o u l d reject the arguments by

a m i c i cur iae to overrule the decision of the United

States Supreme Court in P a t t e r s o n v. New Jersey.

(Pages 34-35). That c a s e was correctly d e c i d e d ; even

if it were overruled, plaintiff s t i l l would not have

a statutory remedy under section 102. (Id). ARGUMENT

T h e Superior Court’s Decision Should Be Affirmed, Because The Exclusive R e m e d y For Employment Discrimination Claims Is The Massachusetts Antidiscrimination Statute, Mass. G.L. c. 151B, And A Plaintiff Such As The Appellant May Not Maintain An Alternative Action Under The Massachusetts E q u a l Rights Act, Mass. G.L. c. 93. tS 102

This case presents a single issue for the Court:

may a defendant employer with fewer than six

employees be subject to litigation for alleged

employment discrimination? The only relevant fact,

5

that the defendant employed fewer than six peop le , is

undisputed.

A . M a s s . G.L. c. 151B Applies Only To Employers With S i x Or More Employees

Mass. G.L. c. 151B, the Massachusetts

antidiscrimination statute, "provides a detailed

framework to protect the citizens

a g a i n s t employment discrimination

Motors, Inc., 417 Mass. 580, 583

of the Commonwealth

" Charland v. Muzi

1994). Pursuant to

Chapter 151B, 5 4:

It shall be an unlawful practice: 1. For an employer, by himself or his agent, because of the race, c o l o r , religious creed, national origin, sex, age, or ancestry of any individual, to refuse to hire or employ OK to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.

G . L . c . 1518, 5 4; Massachusetts Elec. Co. v.

Massachusetts Commission Against Discrimination, 375

Mass. 160, 165 (1978)

Any classification that r e l i e s on pregnancy as

t h e determinative criterion is a distinction based on

"sex" within the meaning of the statute.

Massachusetts Elec. Co., 375 Mass. at 161.

6

Pursuant to Chapter 151B, "The term 'employer'

does not include . . . a n y employer with fewer than

six persons in his employ." G.L. c. 151B, § l ( 5 ) .

Employers of fewer than six employees are thus

excluded. Green v. Wyman-Gordon Co., 422 Mass. 551,

557 (1996). Accordingly, an employer with fewer than

six employees is n o t subject to suit under Mass. G.L.

c. 151B. Green v. Wyman-Gordon Co., 422 Mass. at

557; Guzman v. Lowinger, 422 Mass. 570, 572 (1996).

Although the language of t h e statute is clear

and unambiguous, requiring no need to refer to the

legislative history for guidance as to the intent of

the drafters, as we will discuss below, the decision

to limit antidiscrimination suits to compan i e s with

six or more employees resulted from careful

consideration and debate. The limitation reflects

the clear policy of the Commonwealth.

In dismissing the plaintiff's claim, the

Superior Court judge correctly recognized that:

When the Massachusetts legislature enacted c. 151B, it is apparent that they contemplated the precise issue currently before this Court. The legislature considered and resolved the question of whether the antidiscrimination statute allows f o r a cause of action in pregnancy- related discrimination cases involving employers with 6 or fewer employees. From

7

the language of the statute, one can read that the legislature answered this question in the negative. Their intent is demonstrated in the definition of an employer provided within c. 151B. Employees of such smaller companies are not

protections. I am sure the legislature realized that such a limitation would c a u s e harsh consequences, but given the explicit text they enacted they must have believed that the benefits to smaller businesses outweighed all other considerations.

within the scope of the statute's intended

Justice Cratsley's decision is consistent with

other Massachusetts courts that have addressed this

issue. ,In a recent case involving a gender/pregnancy

discrimination claim, Terespolsky v. Law Offices of

Stephanie K. Meilman, P.C., 17 Mass. L . Rptr. 317,

Not Reported in N.E.2d, 2004 WL 333606 (Mass. S u p e r .

2004), J u s t i c e E. Susan Garsh granted the motion for

summary judgment by a d e f e n d a n t law firm with fewer

than six employees because the firm did not meet the

six-employee threshold required f o r application of

G . L . c . 151BS2 Justice Garsh held that:

Chapter 151B does not provide a remedy for pregnancy-related discharges against an

The plaintiff in Terespolsky had a l s o brought a claim under G.L. c. 93, 5 1 0 2 . The C o u r t dismissed that claim "on the grounds that the Massachusetts Equal Rights Act does n o t govern post-hiring discrimination by an employer." Terespolsky, 2004 WL 333606 at *l .

8

employer with fewer than six employees and, equally important, the definition of "employer" acts as a limitation on the prohibition against discriminatory discharges. C h a p t e r 151B therefore cannot be the source f o r a clearly defined public policy that would be vindicated by allowing this action to proceed. In fact, t h a t statute reflects an unambiguous public policy determination by the Legislature t h a t employers with fewer than six employees should n o t be subject to lawsuits for pregnancy-related discrimination.

Terespolsky, 2004 WL 333606 at *5. (Emphasis added.)3

This interpretation, precluding discrimination

suits against employers with fewer than 6 employees,

finds support in the plain language of the Maternity

Leave Statute, added by St.1972, c. 790, § 1, which

incorporates G.L. c. 151B's definition of "employer."

As Justice Garsh noted in Terespolsky, the

legislature intended to shield small companies from

discrimination suits:

On the rare occasion when a trial court has permitted a plaintiff to maintain an action under G.L. c. 93, § 102, despite the inapplicability of G.L. c. 151B, including Marchant v. Burlington Mun. Employees' Federal Credit Union, Not Reported in N.E.2d, 1998 WL 1181674 (Mass. Super. 1998), and Rodman v. Murphy, Not Reported in N.E.2d, 21 Mass. L Rptr. 56, 2006 WL 1360850 (Mass. Super. 2006), the courts ignored the "unambiguous public policy determination by the Legislature that employers with fewer than six employees should not be subject to lawsuits for . . . discrimination [claims]," as held by J u s t i c e Garsh. No appellate court has agreed with these aberrant opinions.

9

The legislative intent to create that public policy is reinforced by t h e Maternity Leave Statute, G.L. c. 149, 5 105D, which grants an employee, who is absent for not more than two months for the purpose of giving birth and who has given at least two weeks notice to her "employer" of her anticipated date of departure and intent to return, the right to be restored to her previous or a similar position with the same status and pay as of the date of her leave. "For the purposes of this section, an 'employer' shall be d e f i n e d as in subsection 5 of section one of chapter one hundred and fifty-one B." G.L. c. 149, 5 105D. A common law remedy for the pregnancy-related discharge of an employee on the grounds of public policy by an employer of fewer than six employees would subvert legislatively determined public policy, "TO conclude otherwise would require [ the cour t ] to turn a blind eye t o the legislative policy decision reflected in the statutory exemption for small employers and to the reasons underlying that decision." Thibodeau v. Design Group One Architects, LLC, 802 A . 2 d 731, 740 (Conn.2002) (holding that at-will employee terminated because of her pregnancy f a i l e d to state a legally cognizable claim for wrongful discharge in violation of public policy because the statutory definition of employer in the state's anti-discrimination act reflects a considered legislative judgment that it is the public policy of the state to shield small employers from having to bear the costs of litigating sex discrimination claims regardless of their merit).

- Id. (Emphasis a d d e d . )

Clearly the legislature's incorporation of G.L.

c. 151B's definition of "employer" in the Maternity

Leave Statute indicates that the legislature was

10

aware 'that G.L. c. 151B would provide no remedy to a

plaintiff such as Thurdin, who was employed by a

company with fewer than six persons, and t h a t a

plaintiff such as Thurdin would have no cause of

action against her employer for discrimination.

Similarly, in granting the defendant's motion to

dismiss, Justice Cratsley noted here that:

when faced with a similar situation for sexual harassment cases which would otherwise be prohibited by the definition of employer under c. 15113, the legislature enacted G.L. c. 214, 5 1C in response. "Just as G . L . c. 151B provides an exclusive remedy for sexual harassment claims against employers with six or more employees, G.L. c. 214, 5 lC, provides,. the exclusive remedy for such claims against employers of fewer than six employees.'' Guzman v. Lowinger, 422 Mass. 570, 572 (1996).

(App. 8 5 . ) 4

As Justice Cratsley went on to observe:

to date no similar action has been taken by the legislature to provide similar protection for other types of discrimination claims that fall outside the scope of c. 151B. Absent any evidence of

Mass. G.L. c. 214, 5 1C provides: "A person shall have the right to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C. The superior court shall have the jurisdiction to enforce this right and to award the damages . . . " A statutory claim under G . L . c. 214, § 1C applies only to sexual harassment claims. It is a separate cause of action. Ms. Thurdin's claim does not allege sexual harassment, so chapter 214 is irrelevant.

4

11

contrary intent, c. 151B stands alone as the exclusive remedy in discrimination cases.

(App. 8 5 - 8 6 . )

Moreover, an analysis of the legislative history

of G.L. c. 151B clearly shows the legislative intent

in enacting t h i s legislation and that the legislature

f u l l y understood and intended the consequences of its

acts with respect to the exceptions in the statute.

In fact, there can be no doubt that the legislature

intentionally included a threshold of six employees

in G . L . c. 151B. In the Report of t h e Governor’s

Committee To .Recommend F a i r Employment Practice

Legislation, the legislative committee noted that:

More than two hundred persons addressed the public hearings, some speaking individually and others for many diversified groups representing religious societies and congregations, civic organizations, labor unions, employers g r o u p s and societies for the advancement of minority races and nationalities all of whom f a v o r e d legislation to eliminate discrimination.

Legislative Documents, House - No. 400, Jan. 1946,

page 3. Clearly, the legislation that resulted in

Chapter 151B was the product of careful and thorough

debate.

The legislative committee included with its

report a draft of the proposed bill, Chapter 151B,

1 2

which contains identical language of the definition

of "employer" in the subsequently enacted law: "The

term 'employer' does not include . . . a n y employer

with fewer than six per sons in his employ." Id. at

page 12. Significantly, the committee found it

important to address the exceptions to the definition

of "employer," particularly concerning the small

businesses. In the only footnote to Section 1 of the

proposed bill , Chapter 151B, the commit tee pointed

out that it had "carefully" considered the

exceptions:

Although the committee received a number of suggestions to reduce the exceptions in this section, it was decided after careful consideration to leave it unchanged. This section exempts those who employ less than six persons for reasons of practical administration and to exempt more or l e s s personal relationship, small business, and family farms from the scope of the b i l l .

Here, the Legislature has spoken, plainly and

unambiguously. It has made a policy c h o i c e and has

placed a threshold of six employees for well-reasoned

public policy determinations: small employers are

exempted from the vagaries of the administrative and

litigation process; small companies would find it

unduly burdensome to comply with the requirements of

13

G . L . C. 151B; and there is a public policy to protect

small companies from having to bear t h e costs of

litigating discrimination claims, including claims

based on alleged pregnancy discrimination.

T h e courts may not turn a blind e y e o t o the

legislative policy decision reflected in the

statutory exemption for small employers. In

addition, it would defeat this legislative policy

decision if a plaintiff such as the appellant could

avoid this exemption by the simple expedient of suing

under a different statute. A plaintiff such as the

appellant may not evade dismissal of her claim by

filing under a different statute. Otherwise, to

allow a cause of action based upon G.L. c. 93, § 102

would nullify the expressed intent of the legislature

to exclude small employers from the prohibitions

contained in G.L. c. 151B. Read together, G.L. c .

151B and G . L . c. 93, 5 102 preclude suits against

employers with fewer than six employees.

As t h e Supreme Judicial Court has concluded,

G.L. c. 151B’s “comprehensive remedial scheme is

exclusive, in the absence of an explicit legislative

command to the contrary.” Green v. Wyman-Gordon Co.,

supra , at 557-58. It is important to note that there

14

is no explicit legislative command to the contrary

here. The legislature has n o t amended the statute

nor provided clear alternative remedies, as, for

example, it did when it enacted G.L. c. 214, 5 lC,

“An act prohibiting sexual harassment.” The Supreme

Judicial Court n o t e d that, in “response to the

problem of sexual harassment in the Massachusetts

workplace,” the legislature:

enacted St.1986, c. 588, entitled “An act prohibiting sexual harassment.” Chapter 588 amended G.L. c. 151A (unemployment Compensation), G.L. c. 151B (employment discrimination), G.L. c. 151C (education), and G.L. c. 214 (equity jurisdiction). The legislation added a definition of sexual harassment to G.L. c. 151B, § 1, see St.1986, c. 588, 5 2, and added subsection 16A to 5 4, declaring it to be an unlawful practice under c. 151B for an employer “to sexually harass any employee.” St.1986, c. 588, § 3. In addition, the statute added G.L. c. 214, § lC, which s t a t e s : “A person shall have the r i g h t to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C. The superior court shall have the jurisdiction in equity to enforce this right and to award damages.” St.1986, c. 588, § 6.

See Green v. Wyman-Gordon Co., s u p r a , at 553.

Obviously, when the legislature seeks to expand

remedies, it knows how to do so and acts accordingly.

Thus, it clearly added “sexual harassment” to the

panoply of rights under G.L. c. 151B. The absence of

1 5

any change to the definition of "employer" in the

statute is irrefutable evidence that the remedy is

limited to companies with six or more employees.

The Legislature is "'presumed to understand a n d

intend all consequences' of its a c t s . " Boston Water

& Sewer Comm'n v. Metropolitan Dist. Comm'n, 408

Mass. 5 7 2 , 578 (1990), q u o t i n g Rambert v.

Commonwealth, 389 Mass. 771, 774 (1983). If there is

an ambiguity in the statutes that needs to be

clarified, it is the legislature's responsibility,

not the court's, to c l a r i f y it.

B. A P l a i n t i f f May N o t Maintain An Alternative Action Under The Massachusetts E q u a l R i g h t s A c t , Mass. G.L. c. 93 5 102, Because Mass. G.L. c. 151B Provides the Exclusive R e m e d y For Claims Of Alleged Discrimination

A plaintiff alleging discrimination i n her

employment may not bring an action under the

Massachusetts Equal Rights Act, Mass. G.L. c. 93, 5

102, as T h u r d i n , the plaintiff-appellant, tried to do

h e r e . Massachusetts courts have made c l e a r that the

exclusive remedy for employment discrimination claims

is the Massachusetts antidiscrimination statute,

Mass. G.L. c. 151B. See , e . g . , Green v. Wyman-Gordon

16

Co., 422 Mass. 551, 557-58 (1996); Charland v. Muzi

Motors, Inc., 417 Mass. 580, 586 (1994); Cargill v.

Harvard University, 60 Mass. App. Ct. 585, 604 (2004)

("MERA does not create an independent right to

vindicate an alleged wrong that c a n otherwise be

redressed under G.L. c . 151B"); Neal v. Infinity

Broadcasting Corp. of Boston, 57 Mass. App. Ct. 1110

(2003) (unpublished opinion) ("Chapter 151B of the

General Laws provides the exclusive remedy f o r such

5 employment discrimination claims").

Therefore, the plaintiff-appellant's Equal

Rights allegations are preempted, because the

Massachusetts Equal Rights Act, Mass. G . L . c. 93, 5

102, does not create an independent r i g h t to

vindicate an alleged wrong that would fall within the

general ambit of Mass. G.L. c. 151B. Cargill v,

Harvard University, supra , at 585. The plaintiff-

appellant tried to avail herself of the protections

of the Massachusetts Equal Rights Act, Mass. G.L. c .

93 § 102, but it is clear t h a t the Massachusetts

antidiscrimination s t a t u t e , Mass. G.L. c. 151B,

provides her sole remedy.

'Pursuant to Rule 1:28, this case is cited for its persuasive, n o t precedential, value.

17

Charland v. Muzi Motors , Inc., supra , is

direct 1 y on p o i n t . There, the Supreme Judicial Court

granted direct appellate review to a plaintiff who

alleged that an employer discriminated against him

based on his age or national origin in violation of

the Massachusetts Equal Rights Act, Mass. G.L. c. 93,

5 102 and 5 103. The plaintiff conceded that he did

not proceed under Mass. G.L. c. 151B because he

f a i l e d to file a complaint with the Massachusetts

Commission Against Discrimination (MCAD) within the

required six-month period. The Supreme Judicial

C o u r t held that the exclusi-ve remedy for employment

discrimination claims is Mass. G.L. c . 151B:

We therefore conclude that, where applicable, G.L. c. 151B provides the exclusive remedy for employment discrimination not based on preexisting tort law or constitutional protections, and that the plaintiff's failure to adhere to the requirements of G.L. c. 151B required the dismissal of his complaint.

Charland v . Muzi Motors, Inc., 417 Mass. at 586.

The Charland court categorically rejected

plaintiff's argument that the E q u a l Rights Act

provides "alternative remedies for employment

discrimination in concert with c. 151B. " Id. at - 582.

The court went on to note that:

18

'the clear purpose of G.L. c. 151B is to implement the right to equal treatment guaranteed to all citizens by the constitutions of the United S t a t e s and the Commonwealth.' Katz v. Massachusetts Comm'n Against Discrimination, 365 Mass. 357, 366 . . , (1974),

'As a starting point f o r o u r analysis we assume, as we must, that the Legislature was aware of the existing statutes in enacting [the equal rights act], Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 614 . . . ( 1 9 5 7 ) , and that if possible a statute is to be interpreted in harmony with prior enactments to give rise to a consistent body of law. Everett v. Revere, 344 Mass. 585, 589 . . . (1962) . I

Id. at 582-83.

Thus, the Supreme Judicial Court noted that the

legislature intended that the sole remedy for acts of

alleged employment discrimination is chapter 151B.

That statute:

provides a detailed framework to protect the citizens of the Commonwealth against employment discrimination. It defines terms and prohibited practices and establishes procedures for the filing, investigation, and disposition of complaints. . . . 'An antidiscrimination statute such as Chapter 151B reflects the legislature's balancing of competing interests. Employees are protected against certain types of discharge. Employers are protected from unnecessary litigation by a relatively short statute of limitations . . . and a mandatory conciliation process.'

- Id. at 583, c i t i n g Crews v. Memorex Corp., 588

19

F.Supp. 27, 29 (D. Mass. 1984). The court concluded

that:

[ i ] n view of procedures o in adopting Legislature and competin the problem the Commonwe

the car

the equa intended g altern of emplo alth.

Nf C. 151 eful B, i 1 ri to

a t i v ymen

lY c t is ghts crea .e to t di

:rafted unli k e l act, th

te a par dealing s crimina

y that,

allel with tion in

.e

Id. at 584.

A plaintiff such as the appellant has one remedy

for claims alleging employment discrimination: Mass.

G . L . c. 151B and its attendant requirements. The

Massachusetts Appeals Equal Right.s Act does not

provide s u c h a remedy. If it did, employers would

face a confusing array of statutory liability and

procedures. The result would be complicated and

6 expensive, and cause multiple litigation.

The Massachusetts Appeals Court has a l s o held

that the exclusive remedy for employment

discrimination claims is Mass. G.L. c. 151B, noting

Amici argue that the language of Mass. G.L. c. 151B acknowledges its own non-exclusivity. (Amici Brief, p . 25.) However, the statute refers to a non- exclusive "procedure ." (Emphasis added. ) A claimant may decide to pull her case out of the administrative process and sue in court. And, s h e may bring parallel tort claims. However, she may not bring claims under MERA f o r alleged discrimination. The case relied on by a m i c i , Comey v. Hill, 387 Mass. 11 (1982) pre-dates MERA.

20

that the Massachusetts Equal Rights Act, Mass. G.L.

c. 93, § 102, “does not create an independent right

to vindicate an alleged wrong t h a t can otherwise be

redressed under G.L, c. 151B.” Cargill v. Harvard

University, 60 Mass. App. Ct. at 585. In Neal v.

Infinity Broadcasting Corp. of Boston, 57 Mass. App.

Ct. 1110 (2003) (unpublished opinion), the Appeals

Court affirmed the dismissal of the plaintiff‘s claim

filed u n d e r the Massachusetts E q u a l Rights Act. The

plaintiff, an African-American employee who alleged

employment discrimination action against his

employer, claimed that he consistently was g i v e n a

lower salary than white, full-time radio announcers.

The Appeals Court held that:

[the plaintiff’s] claim under t h e Massachusetts E q u a l Rights Act was properly dismissed. Chapter 151B of the General Laws provides the exclusive remedy f o r s u c h employment discrimination claims, Charland v. Muzi Motors, Inc., 417 Mass. 580, 586 . . . (1994), and, because a remedy under c. 151B was available to him, [plaintiff] may n o t bring a claim under G.L. c . 93 , 5 102.

Thurdin’s argument would eviscerate the

definition of “employer” in G.L. c. 151B. According

to Thurdin, that definition is meaningless and this

C o u r t s h o u l d simply ignore it. According to Thurdin,

21

despite the legislature's clear intent to limit

discrimination cases to employers with six or more

employees, a small company such as S E I , with only

t h r e e employees, still may be sued for

discrimination. Obviously, this argument runs

counter to the language of G.L. c. 151B and the

caselaw of the Commonwealth.

C . T h e Massachusetts E q u a l R i g h t s Act, Mass. G.L. c. 93 5 102, Does N o t Create A Separate Remedy

The plaintiff and a m i c i cuxiae7 argue that, even

though plaintiff may not have a remedy u n d e r Chapter

151B, s h e may sue under the Massachusetts E q u a l

Rights Act, Mass. G.L. c . 9 3 , § 102. As discussed in

the prior sections, the argument would require the

Court to ignore the plain limitation in Chapter 151B

to employers with six or more employees. It also

ignores cases that limit employment discrimination

claims to G.L. c. 151B. Furthermore, there is no

basis for a separate remedy.

Massachusetts Employment Lawyers' Association, American Civil Liberties Union of Massachusetts, and Jewish Alliance for Law and Social Action.

22

i. The Plaintiff's and Amici's Legislative History Arquments Are Unavailing

Plaintiff a n d the a m i c i rely on legislative

history to argue that G . L . c. 93 5 102 creates

remedies that supplement G.L. c. 151B. These

arguments are simply incorrect.

First, when the statutory language is plain and

unambiguous, as here, legislative history is not a

proper source of construction, particularly where the

history is o f f e r e d to cont rad,ict the statute's plain

meaning. Hoffman v. Howmedica, Inc., 373 Mass. 3 2 ,

37 (1977); D. N. Kelley & Son v. Selectmen of

Fairhaven, 294 Mass. 570, 576 (1936). The Supreme

Judicial Court has made clear that the statutory

language itself is the primary s o u r c e of insight into

the legislative purpose. Commonwealth v. Gove, 366

Mass. 351, 354 (1974).

Second, the legislative history on which a m i c i

rely does not support the plaintiff's argument.

Indeed, the legislative history of G.L. c. 151B

d i r e c t l y contradicts the plaintiff's argument. That

legislative history reflects a rational, considered

policy decision to exempt small companies from

discrimination claims. As noted above, the

23

legislature found it important to address the

exceptions to the statutory definition of "employer,"

particularly concerning the small businesses:

Although the committee received a number of suggestions to reduce the exceptions in t h i s section, it was dec ided after c a r e f u l consideration to leave it unchanged. This section exempts those who employ l e s s than six persons for reasons of practical administration and to exempt more or less personal relationship, small business, and family farms from the scope of the bill.

Legislative Documents, House - No. 400, Jan. 1946,

page 3.

Nothing in the history suggests that the

legislature intended G.L. c. 93, 5 102 to supplement

and override G.L. c. 151B.8 The plaintiff's and

amici's argument appears to be that G . L . c . 93, § 102

was passed in response to the decision of the United

States Supreme Court in Patterson v. McLean Credit

Union, 491 U.S. 164, (1989), which held that the

federal antidiscrimination statute did not a p p l y to

Amici argue that the Court should presume that the legislature intended to apply MERA to employers with fewer than six employees, since Chapter 151B pre- dates MERA. (Amici Brief, p. 14). Not so. Since MERA does not address the definition of "employer," t h e legislature intended to limit MERA's reach. As a m i c i point out, M E W relies on Chapter 151B for other definitions, such as "handicap or age." (Amici Brief, p . 14). The statute pointedly omits any reference to the definition of "employer."

24

employment discrimination claims that arise after the

plaintiff was hired (as opposed to discriminatory

hiring decisions). The a m i c i speculate that the

legislature could have intended to provide

alternative remedies in G.L.. c. 93, § 102 in response

to Patterson. However, this conjectural argument is

belied by the facts. First, G.L. c . 93, 5 102 was

proposed and reported favorably out of committee

b e f o r e the Patterson decision. The legislature has

many talents, but it should n o t be considered

clairvoyant. Although rumors .of a possible decision

may have c i r c u l a t e d be fo re Patterson, the amici‘s

argument demonstrates the risks of attempting to

speculate about legislative intent. Nothing in the

statute or the o f f i c i a l legislative history ( a s

opposed to comments by outsiders) suggests that MERA

was intended to supplement and over-ride Chapter

151B. Second, it is one thing to suggest that G.L. c.

93, § 102 was intended to apply to post-hiring

discrimination in “anticipation” of Patterson. It is

q u i t e another thing to then suggest that a whole

range of other issues was also addressed, s u c h as

exposing small companies to discrimination

litigation. Even if one c o u l d divine that the

25

Legislature sought to overrule Patterson, there is no

evidence that it sought to expose small companies to

discrimination suits. There is no evidence that the

Legislature intended to over-rule the definition of

"employee" in chapter 151B.

Even if G.L. c. 93, 5 102 applied to employment

contracts, and even if it applied to contracts after

employment commenced (see Section ii, post.), nothing

in the legislative history supports the proposition

that G.L. c. 93, 5 1 0 2 was intended to apply to

companies with fewer than six employees. Nothing in

the legislative history or the plain language of the

statute suggests that G.L. c. 93, § 102 is intended

to apply to employers with fewer than six employees.

Other arguments proffered by the plaintiff are

equally dubious. First, the a m i c i curiae brief puts

undo weight on the comments of a single legislator,

State Senator John Olver ( a m i c i c u r i a e brief, page

21), to the effect that G.L. c. 93, 5 102 was

intended to overrule the Supreme Court's ruling in

Patterson v. McLean Credit Union, 491 U.S. 164, 177

(1989). Setting aside the obvious point that Senator

Olver's comments do n o t even touch on t h e issue in

this case, as the a m i c i candidly admit ( a m i c i curiae

26

b r i e f , fn. 5 , pages 21-22), a single legislator's

comments are not "legislative history." See Boston

Water & Sewer Comm'n v. Metropolitan Dist. Comm'n,

408 Mass. 572, 5 7 8 (1990).'

S e c o n d , the a m i c i then make a large stretch from

legislative history to "the history of the times."

(Amici Curiae brief, f n . 5, pages 1 8 - 2 2 . ) There i s

no basis for reliance on "the history of the times"

to support an argument for statutory construction.

It is "the history of the statute," not the "the

history of the times," that the Court considers. See

Massachusetts Hosp. Ass'n, Inc. v. Department of

Medical Sec., 412 Mass. 340, 346 (1992). And, even

legislative history must give way to plain and

unambiguous statutory language.

ii. There Is No Basis For A n Alternative R e m e d v Under Massachusetts Law For Alleaed Post-Hirina Discrimination

A critical foundation of t h e plaintiff's

argument that G.L. c. 93, 5 102 may create an

alternative remedy to G.L. c. 151B is the hypothesis

Senator Olver's comments were made a f t e r the decision in Patterson was issued. The "legislative history" presented by a m i c i is therefore a backda ted version and does not reflect the legislative intent prior to the enactment of G.L. c. 93, 5 102.

27

that G.L. c. 93, § 102 might apply to post-hiring

discrimination under a contract theory.

Massachusetts law does not support this foundation,

and therefore the entire construction collapses.

Simply put, a plaintiff such as the appellant may not

maintain an alternative action under G.L. c. 93, §

102, because that statute does not apply to post-

hiring discrimination.

Mass. G.L. c. 93, § 102 does not apply to

alleged post-hiring discrimination. Turley v.

Security Integration, I n c . et al., Not Reported in

N.E.2d, 2001 WL 1772023 (Mass. Super. 2001).

G.L. c. 93, § 102 provides in relevant part:

All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have . . . the same rights enjoyed by white male citizens, to make and enforce contracts.

G.L. c. 93, 5 102(a); (App. 86.).

Although there are no Massachusetts appellate

decisions interpreting the critical phrase "make and

enforce contracts," the United States Supreme Court

has interpreted the identical phrase in 42 U.S.C.

§ 1981 to encompass contract formation claims, s u c h

as the. discriminatory r e f u s a l to enter into an

2 8

employment contract, but not to discrimination an

employer such as by b r e a c h of the contract or

imposition of discriminatory working conditions after

the contract relationship has been established. See

Patterson v. McLean Credit Union, 491 U . S . 164, 177

(1989).

In Patterson, the Supreme Court held that:

By its plain terms, the relevant provision in 5 1981 protects two rights: "the same right . . . to make . . . contracts" and "the same right . . . to . . . enforce contracts." The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the o f f e r to make a contract only on discriminatory terms. B u t the right to make contracts does n o t extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment.

Patterson, 491 U.S. at 176-77.

As Justice Isaac Borenstein noted in Turley v.

Security Integration, Inc. et al.:

In response to Patterson, Congress in 1991 amended 5 1981 to expand the definition of

2 9

"make and enforce contracts" to include "performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." See P.L. 102-166, 105 Stat. 1071. Massachusetts has not so amended the language of G.L. c. 93 , § 102.

Turley v . Security Integration, Inc. et al., 2001 WL

1772023 at *9, n.5. As the court noted in Greaney v.

Heritage Hosp. , Inc., Not Reported in N.E.2d, 1995 WL

1146185 at *5 (Mass. Super. 1995):

Despite this readily available model draft from Congress [i.e., the amended 5 19811, the state legislature has not acted to add any such expanded definition to the state's Equal Rights Act. Thus, having not given any definition of ' m a k e and enforce contracts' beyond that provided by Patterson at the time the Equal Rights Act was passed, the state legislature has still not acted to adopt the language later enacted by Congress. If the legislature wishes to define 'make and enforce contracts' in the expansive way that Congress has now done, it may do so. It is n o t up to the court to impose on the statute some amendment that the legislature has not seen fit to adopt.

In the absence of an amendment to G.L. c. 93, 5

102 or an explicit legislative command to the

contrary, courts may not imply a legislative intent

that "make and enforce contracts" includes post-

hiring discrimination. Courts must construe statutes

3 0

as they are written, and it is the j o b of the

legislature, not the court, to draft legislation.

See Pielech v. Massasoit Greyhound, Inc., 423 Mass.

534, 539 ( 1 9 9 6 ) ( " t h i s court is under a d u t y 'to

avoid judicial legislation in the guise of new

constructions to meet real or supposed new p o p u l a r

viewpoints, preserving always to the Legislature

alone i t s p r o p e r prerogative of adjusting the

statutes to changed conditions.' . . . Statutory language is the principal source of insight into

[llegislative purpose."); Brennan v. Board of

Election Comm'rs of Boston, 310 Mass. 784, 7 8 9 , 39

N.E.2d 636 (1942); P i e l e c h v. Massasoit Greyhound,

Inc., 423 Mass. 534, 539 (1996). Here, it is plain

that G.L. c. 93, 5 102 contains no language

permitting claims for alleged post-hiring

discrimination in employment contracts. It is

evident t h a t the legislature c o u l d have simply

written into G.L. c. 93, 5 102 express language

indicating that the Massachusetts Equal Rights Act

governed all employment relationships. It chose not

to do so, leaving G.L. c. 151B as the exclusive

remedy for alleged post-hiring discrimination (other

than claims f o r sexual harassment under chapter 214).

31

Relying on Gasior v. Massachusetts General

Hospital, 446 Mass. 645 (2006), the plaintiff and

amici argue that an at-will employee may maintain a

MERA claim for discrimination based on the "making"

of a contract whenever he or she suffers a

discriminatory term of employment under which he or

she is required to work. However, the Supreme

Judicial Court did not hold in Gasior that G.L. c. 93

§ 102 applies to claims for alleged post-hiring

discrimination in at-will employment relationships. 10

Merely because G.L. c. 93 5 102 might a p p l y to

contracts does not equate with employment

discrimination. Obviously, not all contracts a r i s e

in the employment arena. Thus, the plaintiff's

reliance on Gasior is unavailing.

iii. The Massachusetts E q u a l R i q h t s A c t , Mass. G.L. c. 93 § 102, Does N o t Supplement Mass. G.L. c. 151B

Amici argue that the two statutes may be

reconciled because G.L. c. 93 5 102 supplements G.L.

c. 151B. Not true. First, as discussed above, G.L.

lo Neither the plaintiff nor the a m i c i cite Massachusetts a u t h o r i t y f o r the proposition that the at-will employment contract is renewed each day and that therefore a claim under G.L. c. 93 § 102 may be maintained.

32

c. 151B provides the exclusive remedy for employment

discrimination claims. Second, u n d e r the plaintiff's

theory, G.L. c. 93 5 102 may apply to small companies

that are protected from actions under G.L. c. 151B.

Indeed, under t h e plaintiff's theory, small companies

e n j o y fewer protections than large companies.

T h e plaintiff's burden of proof is easier under

G.L. c. 93 § 102 than G.L. c. 151B. Also, under G.L.

c. 93 5 102, plaintiffs enjoy a longer statute of

limitations. Section 102 does not provide an

administrative procedure for discrimination claims.

Most significantly, G.L. c . 93 § 102 allows for

punitive damages. It is inconceivable that the

legislature would treat small employers so much more

harshly than large companies. Nor did the

Legislature intend to create a separate cause of

action that would d e p r i v e employers and employees of

a carefully crafted administrative process. Such a n

interpretation is belied by the plain language of

G.L. c. 151B. Furthermore, nothing in the

legislative history specifically s a y s that G.L. c. 93

§ 102 s h o u l d fill in the "gap" in G.L. c. 151B for

small companies. Plaintiff's interpretation clearly

-

33

eviscerates the express definition of "employer" in

G . L . c. 151B.

In sum, nothing in the legislative history of

G . L . c . 93, 5 102 supports the argument that it

provides an alternative route for employment

discrimination claims. Nothing in the history,

moreover, supports the hypothesis that G.L. c. 93, 5

102 should apply against employers who are exempt

u n d e r G.L. c. 151B. The arguments run directly

contrary to the text of G.L. c. 151B and its

legislative history.

iv. There Is No Basis For This C o u r t To Overrule The Decision of the United S t a t e s Supreme Court in Paterson

In a desperate last ditch e f f o r t to.argue around

G.L. c. 151B, a m i c i argue that the Supreme Court

incorrectly decided Patterson. This argument is

irrelevant. Even if Patterson were somehow wrongly

decided (which it was not), that does not change the 8

f a c t that MERA does not apply to employment

discrimination claims, there is currently no statute

or case that creates a post-hiring remedy for alleged

discrimination aside from chapter 151B, and chapter

151B limits employment discrimination claims in

34

Massachusetts to employers with six o r more

employees. Indeed, even if this Court were to

somehow overrule P a t t e r s o n , MERA still would be

inapplicable to employment claims. Moreover, no

appellate court of this Commonwealth h a s ever called

P a t t e r s o n into question.

CONCLUSION

F o r a l l of the r e a s o n s stated above and for the

r e a s o n s a t oral argument, this Court should affirm

t h e Memorandum of Decision and Order of the Supericr

C o u r t judge .

Respectfully submitted,

pK:;mN;; 56mJ odrigue z ,

BBO No. 663363 LOONEY & GROSSMAN LLP 101 Arch Street Boston, MA 02110 (617) 951-2800

Dated: November 8, 2007

35