300 F.Supp.2d 270 (2004) | Cited 2 times | D. Massachusetts | January 29, 2004


On June 10, 2003, Anthony Errichetti brought suit in the federaldistrict court alleging that his employer, the Massachusetts WaterResources Authority (MWRA), had discriminated against him because of hisage. Errichetti also accused the MWRA of retaliating against him forhaving filed a series of dual charges with the Equal EmploymentOpportunity Commission (EEOC) and the Massachusetts Commission AgainstDiscrimination (MCAD). On September 26, 2003, the MWRA filed a motion todismiss, or in the alternative for summary judgment, arguing that TitleVII, 42 U.S.C. § 2000C-2(e), the statutory basis for the lawsuitcited by Errichetti in the Amended Complaint, does not authorize a causeof action based on age discrimination.1 The MWRA also contends thatErrichetti failed to exhaust his administrative remedies before filingsuit. Finally, the MWRA maintains that a specific instance of allegeddiscrimination set out in ParagraphPage 213 of the Amended Complaint is time-barred. A hearing was held onthe motion on January 23, 2004.

The administrative prologue to the Amended Complaint is complicated byErrichetti's serial charge filings, all but one of which were eventuallyabandoned. On December 1, 1997, Errichetti filed dual charges with theEEOC and the MCAD alleging that on November 1, 1997, he was denied apromotion because of his age (the 1997 charge).2 On January 10, 2000,the MCAD dismissed the 1997 charge for lack of probable cause. The EEOCfollowed suit on April 12, 2000. Errichetti failed to file an action inthe district court within the required ninety days. See St. Louis v.Texas Worker's Compensation Commission, 65 F.3d 43, 47 (1st Cir. 1995)(failure to file suit within ninety days after the receipt of a noticefrom the EEOC renders a plaintiff's action untimely).

On September 24, 1998, Errichetti filed dual charges alleging thatbeginning on September 15, 1998, he had been the victim of "retaliation. . . because [he] had lodged complaints of age based discrimination"(the 1998 charge). On September 5, 2000, the MCAD issued a determinationof probable cause on the 1998 charge finding that there "remain genuineissues of material facts in dispute . . . determinations of [which]require credibility determinations, which should be reserved for a publichearing." It then ordered the parties to attend a conciliationconference.

While the 1998 charge was pending, on October 25, 1999, Errichettifiled a third dual charge (the 1999 charge), alleging that the MWRA onOctober 20, 1999, had againPage 3refused him a promotion because of his age. On September 24, 2001,the EEOC dismissed the 1999 charge. Errichetti again failed to file afederal lawsuit within ninety days.3

On August 1, 2000, Errichetti filed a fourth dual charge (the 2000charge), alleging that he had been suspended by the MWRA on March 3,2000, in retaliation for his having filed the three previous charges. OnSeptember 17, 2002, the MCAD dismissed the 2000 charge for lack ofprobable cause. The EEOC adopted the MCAD ruling on February 5, 2003.Errichetti again failed to file a federal lawsuit within ninety days.

Meanwhile, on October 19, 2000, Errichetti, represented by counsel,attended the conciliation conference ordered by the MCAD on the 1998charge. After efforts to settle the charge failed, the MCAD Commissionerassigned to Errichetti's case issued a discovery order. On January30, 2001, the MWRA served written discovery on Errichetti's counsel andnoticed Errichetti's deposition. On March 1, 2001, the MWRA complained toErrichetti's counsel about the lack of a response to its writtendiscovery requests, and asked that Errichetti serve his answers by March21, 2001. Errichetti's counsel ignored the complaint. On April 18, 2001,the MWRA filed a motion to compel. On January 11, 2002, the Commissionerallowed the motion to compel and ordered Errichetti to respond to thewritten discovery and make himself available for a deposition.

On July 8, 2002, the MCAD certified the 1998 charge for a publichearing. On August 13, 2002, the MWRA moved for sanctions because ofErrichetti's refusal to providePage 4discovery or sit for a deposition. Errichetti did not oppose themotion.

On September 3, 2002, the MCAD signaled in an order to Errichetti thatit was prepared to allow the motion for sanctions. The order cited 804CMR § 1.15(5)(b) of the MCAD Rules of Procedure, authorizing aCommissioner to close a charge where there is an "[u]nreasonable refusalby Complainant to cooperate with processing of the case. Unreasonablerefusal includes failure to respond to Respondent's discovery requests."The Commissioner found that "[Errichetti's] failure to respond todiscovery constitutes unreasonable refusal to cooperate within themeaning of the above regulation." Errichetti was ordered to respond tothe MWRA's discovery requests within thirty days with the warning that"[f]ailure to comply with this order shall result in the automaticadministrative closure of this matter."

Also on September 3, 2002, the EEOC notified Errichetti that his EEOCcharge would be dismissed if he did not comply with the MCADCommissioner's thirty-day order. Errichetti did not, and on October 10,2002, the MCAD dismissed his 1998 charge. On March 17, 2003, the EEOCdismissed the 1998 federal charge indicating that Errichetti "had failedto cooperate to the extent that it was not possible to resolve [his]charge."

Errichetti filed this lawsuit within ninety days of this latest EEOCdismissal. His Amended Complaint references the 1997 charge, the 1998charge, and in Paragraph 13, alludes to the 2000 charge. As Errichetti'sonly timely filing followed the dismissal of the 1998 charge, he isbarred from pursuing any claim based on the 1997, 1999, and 2000 charges.

As a further preliminary matter, the MWRA's argument, that byerroneously bringingPage 5his lawsuit under Title VII, Errichetti is precluded from maintaining anage discrimination suit, is simply wrong.4 It is apparent from theface of the Amended Complaint that Errichetti has plead a viable cause ofaction under the Age Discrimination in Employment Act (ADEA),29 U.S.C. § 626(e).

A complaint need not point to the appropriate statute or law in order to raise a claim for relief under Rule 8. . . .[A] complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as relief is possible under any set of facts that could be established consistent with the allegations. Tolle v. Carroll Touch. Inc., 977 F.2d 1129, 1134 (7th Cir. 01992) (internal quotation marks omitted); See Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989): see also Simonton v. Runvon. 232 F.3d 33, 36-37 (2d. Cir. 2000).Morales-Vallellanes v. Potter. 339 F.3d 9, 14 (1st Cir. 2003).

The MWRA's more convincing argument focuses on Errichetti's failure toexhaust his administrative remedies by refusing to cooperate with thediscovery process ordered by the MCAD and the EEOC. Numerous casessupport the MWRA's position.

Though plaintiff did file a charge with the Equal Employment Opportunity Commission, her interaction with that agency and the state agency was otherwise nominal and without substance. By her own non-cooperation, plaintiff made it impossible for the administrative agency to attempt to resolve her case and in this respect did not adequately exhaust her administrative remedies so as to warrant the invocation of this court's jurisdiction. To hold otherwise would clearly frustrate the congressional intent and purpose behind the enactment of Title VII.Dates v. Phelps Dodge Magnet Wire Co., 604 F. Supp. 22, 27 (N.D. Ind.1984).

Courts have held that because "`[f]ailure to cooperate in an EEOC investigation, no less than failure to file with the administrative agency, serves to thwart the policy underling [sic] the enactment of Title VII,'" a plaintiff whose case has been dismissed by the EEOC for lack ofPage 6 cooperation on her part, may not bring the same Title VII claims in federal court. Davis v. Mid-South Milling Co. Inc., No. 89-2829-TUB, 1990 WL 275945, at *3 (W.D. Tenn. Dec. 14, 1990) (citation omitted). Duncan v. Consolidated Freightwavs Corp., 1995 WL 530652, at *4 (N.D. Ill. 1995) (same). To allow plaintiffs to bring their Title VII claims in federal court under such circumstances would be to allow them to "emasculate[ ] Congressional intent by short circuiting the twin objectives of investigation and conciliation." Robinson v. Red Rose Communications, Inc., No. CIV. A. 97-CV-6497, 1998 WL 221028, at *3 (E.D. Pa. May 5, 1998) (despite issuance of early right-to-sue letter, complainant may not file suit until expiration of the 180-day investigation and conciliation period). . . . But see Melincoff v. East Norriton Physician Service. Inc., No. CIV. A. 97-4554, 1998 WL 254971 (E.D. Pa. April 20, 1998) (holding that plaintiff whose case EEOC dismissed for failure to cooperate was not barred from bringing Title VII claim).

McLaughlin v. State System of Higher Education. 1999 WL 239408. *2 n.1(E.D.Pa. 1999).

Errichetti does not dispute the factual basis of his failure tocooperate with discovery, only its significance. He points to the factthat he attended the conciliation conference ordered by the MCAD. That,in Errichetti's view, together with the MCAD's determination of probablecause, satisfied his obligations to the administrative process. Whateverinterest the EEOC and the MCAD had in promoting conciliation, Errichettiargues, was exhausted when the conciliation effort failed, while anyinvestigative interest in his charge on the agencies' part wasextinguished by the finding of probable cause.

Errichetti's arguments stand the MCAD's procedures and their purpose ontheir head. The conciliation process is not a one-time event. Nor areconciliation and discovery separable concepts. Discovery aidsconciliation. As the parties explore the strengths and weaknesses of oneanother's case, the prospects for a resolution short of litigation areenhanced, thereby serving an important goal of the anti-discriminationlaws. Carter v. Commissioner of Correction, 43 Mass. App. Ct. 212, 217(1996). For that reason, wherePage 7Congress has mandated that a plaintiff exhaust administrative remediesbefore bringing suit, as it has with ADEA and other employmentdiscrimination laws, the duty to do so is absolute.5 See Clarke v.Kentucky Fried Chicken of California, Inc., 57 F.3d 21, 25 (1st Cir.1995) ("Charland [v. Muzi Motors. Inc., 417 Mass. 580, 586 (1994)]categorically states that a claimant alleging an unlawful discriminatoryact listed [in Chapter 151 B] must comply with the MCAD administrativeprocess, absent clear evidence that the Legislature carved out anexception.").

Moreover, Errichetti reads entirely too much into the MCAD'spreliminary determination of probable cause. Under MCAD procedures, apreliminary determination of probable cause functions much as it does inthe criminal justice system. It authorizes a charge to proceed to thehearing stage when issues of material fact are in dispute. 804 CMR §1.15(7)(a). The discovery order in Errichetti's case was issued to enablethe parties to prepare for that hearing. Thus, Errichetti's argument thathis lack of cooperation did not impact on the MCAD's investigatorymission is wrong-headed as it remained open to the MWRA to seek aredetermination of probable cause upon the completion of discovery. Id.§ 1.7(c)(1).6 Because Errichetti has offered no good orsufficient reason toPage 8justify his failure to exhaust the administrative remedies that heelected to pursue, his last ditch resort to the federal courts isunavailing, and his case must be dismissed.7


For the foregoing reasons, the MWRA's motion for summary judgment isALLOWED. The Clerk will enter judgment accordingly.


1. As both parties incorporate EEOC and MCAD documents in theirpleadings and have complied with Fed.R.Civ.P. 56.1, the court willtreat the MWRA's motion as a motion for summary judgment.

2. Because of a Worksharing Agreement between Massachusetts and thefederal government, a complainant may with a single filing initiate bothstate and federal proceedings.

3. The record does not indicate the date of the MCAD dismissal ofthe 1999 charge, although the EEOC in its order indicated that it wasadopting the action taken earlier by the MCAD.

4. The Amended Complaint alleges a single count referencing TitleVII as its statutory basis.

5. The exhaustion requirement is not onerous. M.G.L. c. 151B, §9, permits a complainant to file an action in the Superior Court ninetydays after the filing of a charge with the MCAD (or earlier with theMCAD's consent). Alternatively, a complainant may elect to pursue a fulladministrative resolution of his charge, although his right to judicialreview is restricted as a result. See Brunson v. Wall, 405 Mass. 446,452-453 (1989).

6. That neither the MCAD or the EEOC had come to any final conclusionas to the merits of Errichetti's case is made clear by the EEOC's orderof dismissal, which cited Errichetti's "failure to cooperate to theextent that it was not possible to resolve [his] charge."

7. The MWRA argues vigorously that Erechetti's claim should be barredby laches. "The equitable defense of laches will bar a party fromasserting a claim if the party so unreasonably delayed in bringing theclaim that it caused some injury or prejudice to the defendant." PolaroidCorp. v. The Travelers Indemnity Co., 414 Mass. 747, 759-760 (1993). Seealso Costello v. United States. 365 U.S. 265, 282 (1961). The applicationof the doctrine is within the sound discretion of the district court.Puerto Rican-American Ins. Co. v. Benjamin Shipping Co., Ltd.,829 F.2d 281, 283 (1st Cir. 1987). It would be unfair to hold Errichettiresponsible for any delay attributable to the MCAD proceedings. Aplaintiff may participate in the administrative process before electing tofile a lawsuit so long as he does so before the charge is resolved and solong as the suit is filed within the three-year statute of limitations ofM.G.L. c. 151B, § 9. The unnecessary delay caused by Errichetti'srefusal to cooperate with the MCAD process is another matter. As the MWRApoints out, it has no more information about Errichetti's claim than itdid when he filed the charge in 1998. While cases in which laches hasbeen found to bar a complaint tend to cluster on the extremes, seeJeffries v. Chicago Transit Auth., 770 F.2d 676, 680 (7th Cir. 1985) (tenyears), Whitfield v. Anheuser-Busch. Inc., 820 F.2d 243, 245 (8th Cir.1987) (same), as the MWRA points out, during the five years that elapsedsince Errichetti filed the 1998 charge, the supervisor accused byErrichetti has left employment at the MWRA and may no longer be availableto the defense. If this is true, the MWRA's argument has particularforce. See Boone v. Mechanical Specialties. 609 F.2d 956, 960 (9th Cir.1979). However, given the disposition of the case, the laches issue neednot be definitively decided.Page 1

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