Representing Clients Before the MCAD in Employment Discrimination

Representing Clients Before the MCAD in Employment Discrimination Cases PANELISTS ROB FISHER BRIAN MACDONOUGH MIKE BIRCH, MODERATOR

Hypothetical Jane is an accountant in the finance department of a software company. In January 2016, about six weeks after returning from a four-month maternity leave, her boss, Bill (who is the CFO), presents Jane with her annual performance review. He rates her as “below expectations, ” the lowest rating she has ever received in her four years working for the company. According to Bill, the rating was due to the fact that Jane had wired company funds to the wrong account In July. Jane believes that the review is due to her maternity leave. She did make a mistake in July, but the money was recovered. Other employees (not Bill) had told her not to worry about it. Plus, a female friend who works in a different department told her that she had received a negative review after returning from her leave.

Why Go to the MCAD? � Chapter 151 B is exclusive means for bringing discrimination claims against a covered employer � Filing a charge of discrimination with the MCAD or EEOC is an administrative prerequisite to filing suit under Chapter 151 B � Failure to first file with the MCAD is grounds for dismissal of a Chapter 151 B claim in court � The need to first file at the MCAD can create challenges/ timing problems for plaintiffs who have common law or other statutory claims, as well as Chapter 151 B claims

The Charge/Complaint � First step of the process for Jane is to file a charge � Signed statement by the complainant under penalties of perjury regarding nature of allegations against an employer Should be reasonably detailed Cover all potential bases for recovery Date(s) of unlawful conduct Concise statement of the alleged discriminatory acts Identification of the “respondents” being sued � Must be filed within 300 days of the alleged acts, unless continuing violation � Key issues: Do you first send a demand letter? How much detail should you include in the charge? Do you name Bill, as well as the employer, as a Respondent

Amending the Charge �Two months after filing her charge, the software company terminates Jane’s employment �Jane has the right to amend her charge to add a retaliation claim �Does she have to? Under the “scope of the investigation rule, ” an employment discrimination claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover. Pelletier v. Town of Somerset, 458 Mass. 504 (2010)

The Answer and Position Statement � Respondent(s) must file an answer in the form of a position statement within 21 days Extensions are routine � Not like a court answer Typically a narrative of the facts Also have to assert all legal defenses Must be signed under pains and penalties of perjury � Key issues for the Respondent(s) Attorney or no attorney? Is there a basis to file a motion to dismiss instead of an answer? Do you address treatment of other employees or focus on Complainant? How do you manage confidentiality concerns? Do you provide documents or not? Witness statements or affidavits

Complainant’s Rebuttal �Complainant has a right to file a rebuttal in response to the position statement, but is not required to do so Address factual assertions and defenses made in position statement Witness statements or affidavits Direct MCAD to what documents/witnesses might be helpful

Mediation �The MCAD offers mediation sessions as a means of resolving cases �Mediations are voluntary: Parties may request mediation at any time of the complaint process, or they may receive an invitation from the MCAD

The Investigative Conference � After the filing of the position statement and any rebuttal, the MCAD will schedule an Investigative Conference � Opportunity for the Commission to: Obtain evidence Identify issues in dispute Ascertain the positions of the parties � In practice, the investigator typically asks a few questions about the facts � Failure to attend the conference can result in dismissal of the charge or default � Usually followed by pre-determination discovery by the Commission, usually a combination of interrogatories and document requests

Pre-Determination Discovery �Under current practice, investigator typically requests discovery �Rules contemplate where parties are represented by counsel, they may initiate and engage in full discovery �MCAD has largely abandoned this process �There was a 2007 Standing Order that allowed for this discovery in some cases, but revoked in 2014

Removal to Court �Complainant has the right to pursue Chapter 151 B claim in court rather than before MCAD �By statute, a complainant cannot file a court complaint for at least 90 days after filing charge �Respondent(s) have no control over this, and cannot remove the case from the MCAD �Do you remove and, if so, when? Do you wait until the investigative disposition?

Determination �Probable Cause Determination: Lack of Probable Cause: MCAD did not find sufficient evidence to support a conclusion that discrimination occurred Probable Cause: MCAD has found sufficient evidence to support a conclusion that unlawful discrimination may have occurred MCAD does not resolve material factual disputes at this stage �Withdrawal �Lack of Jurisdiction �Administrative closure �Default (if Respondent failed to answer)

Appeal of PC or LOPC Determination �Complainant has the right to appeal LOPC within 10 days of receiving determination Unlike a court appeal, the complainant has the right to present new, additional evidence at the hearing The case can be sent back for further investigation or the determination can be reversed or upheld �Respondents can also appeal a probable cause finding by filing a Motion for Reconsideration of Probable Cause

Conciliation �Unlike mediation, conciliation is mandatory and occurs shortly after the probable cause determination �Attempt to resolve the matter before further discovery �If not resolved, the case will move to post- determination discovery and eventually a public hearing

Post-Determination Discovery �Regulations require the parties to ask for discovery, but generally occurs automatically �Usually can include Interrogatories Requests for the production of documents Depositions �Discovery must be completed by the Certification Conference

Certification Conference �Similar to a pre-trial conference in court �MCAD may require the parties to submit a joint certification conference memorandum or separate memoranda

Public Hearing �Formal proceeding where witnesses testify under oath before a Hearing Commissioner or designee �The Commissioner serves as the judge and makes findings of facts and law. �Relaxed rules of evidence �No ruling from the bench Parties submit proposed written findings of facts and law MCAD issues a written Hearing Decision Can take months

Appeal of Hearing Decision �Appeal to the Full Commission Complainants or Respondents may appeal a Hearing Decision to the Full Commission with 10 days of receiving the Notice of Decision �Judicial review pursuant to M. G. L. c. 151 B, s. 6 and M. G. L. c. 30 A �If no appeal, MCAD decision is subject to judicial enforcement