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Judge: MCAD not a necessary first step for public accommodations case

Exclusivity applies to only certain bias claims

The plaintiff, a Black woman, is suing after being subjected to a lengthy ordeal by security guards at the Prudential Center, much of which bystanders captured on video, which was then uploaded to YouTube

The plaintiff, a Black woman, is suing after being subjected to a lengthy ordeal by security guards at the Prudential Center, much of which bystanders captured on video, which was then uploaded to YouTube

A person aggrieved by discrimination in a place of public accommodation need not file a charge with the Massachusetts Commission Against Discrimination and exhaust her administrative remedies before filing suit, a Superior Court judge has decided.

In so ruling, the judge clarified that the exclusivity provision of the commonwealth’s §9 applies only to certain unlawful acts of discrimination enumerated elsewhere in G.L.c. 151B.

Judge Debra A. Squires-Lee found that although the public accommodations law appears in G.L.c. 272, it is “integrated” into Chapter 151B by a provision in §5 that allows aggrieved people to file a complaint and avail themselves of the MCAD’s capacity to investigate, conciliate and adjudicate such matters.

Squires-Lee cited to the Supreme Judicial Court’s 2012 decision in Currier v. National Bd. of Med. Examiners, which involved a nursing mother who was denied the opportunity to express breast milk while taking the exam for a medical license.

The plaintiff in Currier was found to be entitled to summary judgment on her public accommodations claim, despite having not proceeded before the MCAD prior to filing suit in Superior Court.

Similarly, in the 2018 case CapoDiCasa v. Ware, U.S. District Court Judge Mark G. Mastroianni determined that plaintiffs are not required to bring their claims of public accommodation discrimination to the MCAD, Squires-Lee noted.

Squires-Lee reached the same conclusion, noting that the exclusivity provision of G.L.c. 151B, §9, mandates that a charge of discrimination with the MCAD is the exclusive remedy only “as to the acts declared unlawful by section 4.”

Those acts include “discrimination by private and public employers against employees or prospective employees; by those in the insurance or bonding business, by persons in the mortgage business and persons in the business of selling or renting real estate,” but not discrimination in public accommodations.

The defendants’ reliance on the 2003 Appeals Court case Borne v. Haverhill Golf & Country Club, along with three federal court cases, was misplaced, Squires-Lee found.

Those cases did not address the language in §9 providing exclusivity before the MCAD only for claims declared unlawful under §4, or language in §5 that an MCAD claim “shall not be a bar to proceedings” under the public accommodations law, the judge explained.

Moreover, two of those cases also involved claims of employment discrimination, which clearly fall under §4, Squires-Lee said.

The 16-page decision is Peters v. Boston Properties, Inc., et al.

Plaintiff’s option

Boston attorney Jeffrey P. Wiesner, who is representing the plaintiff with law partner Jennifer A. McKinnon, credited Squires-Lee for “cutting through the thicket of conflicting decisions” over the requirement to exhaust administrative remedies before the MCAD.

While some may believe that all discrimination cases must first be brought before the MCAD, “ultimately that is not what the statute says,” Wiesner said.

Squires-Lee’s decision makes clear that a plaintiff with a public accommodations claim has the option to either proceed before the MCAD or file suit in Superior Court, and plenty of plaintiffs may still opt for the MCAD’s less complicated and less expensive administrative process, he said.

wiesner-jeffreyWhile some may believe that all discrimination cases must first be brought before the MCAD, “ultimately that is not what the statute says,” said Boston attorney Jeffrey P. Wiesner, who is representing the plaintiff with law partner Jennifer A. McKinnon.

By leaving a plaintiff’s options open, “the decision is really in line with the broad purposes of 151B to protect people from discrimination,” he added.

Haverhill attorney Marsha V. Kazarosian said the decision would prompt her to think longer and harder about whether to initiate certain discrimination cases before the MCAD or in Superior Court, adding that the pros and cons of each forum would depend on the facts of the case.

Kazarosian highlighted the lack of punitive damages available at the MCAD and the ability to be the “master of your own destiny” with how discovery is conducted as relevant strategic considerations that might lead a plaintiff to forgo the MCAD and head directly into court.

Waltham attorney Joseph L. Sulman said he also thought Squires-Lee was correct in determining that the plaintiff’s failure to name certain defendants was not fatal to her claims under the “scope of investigation” rule.

“A defendant should not be able to dismiss a complaint based on the technicality that a plaintiff did not use its correct name at the agency level when it was fully informed and on notice of the charges against it,” he said.

However, Wiesner said he was dismayed by the MCAD’s refusal to allow his client to amend her charge, suggesting possible disinterest in ensuring that the victim of a “completely outrageous situation” receives a proper remedy.

“We think discrimination against Black and brown people in high-cost retail environments is a very significant concern, which we hope the MCAD would take a much more serious look at,” he said.

The defendants’ attorneys, Boston’s Tracy McDevitt Waugh and Kevin B. Smith, had not responded to requests for comment before deadline.

Disturbing detention

Plaintiff Catherine Peters, then 22, was visiting Boston from New Jersey on Dec. 8, 2017, and was on a date with a white man at the Prudential Center at around 11:30 p.m., according to her complaint.

She and her companion walked through the mall, arriving at the pedestrian area in the Hynes Court section, where they entered a closed Ben & Jerry’s vendor kiosk.

Upon exiting the kiosk, Peters and her date were confronted by some of the five security officers on duty and ordered to provide identification.

Peters’ companion refused to provide his ID, argued with the officers, walked away, and eventually exited the Prudential Center without being detained.

Meanwhile, Peters provided her identification to the officers, which they refused to return, she says.

Peters claims that when she reached for her identification, one or more of the security officers grabbed at and pushed her on her shoulder and chest, and one of the officers threw her ID into a trash receptacle.

When she ran to the receptacle to retrieve her ID, the officers grabbed her from behind and threw her to the floor, causing the receptacle to tip over, she alleges.

For about 10 minutes, Peters was pinned face down on the floor near the trash with her dress flipped up, exposing her buttocks, she claims.

Throughout the episode, officers pushed on her back, making it hard to breathe, and Peters feared she would have an asthma attack. In addition to painfully forcing her wrists backwards, Peters says one of the security officers referred to her by the n-word.

Attendees of a convention for Rabbis for the Union of Reform Judaism then happened upon the scene. When the onlookers expressed concern for Peters’ well being, the officers told them to mind their own business.

As seen in video taken by one of those onlookers, a female security officer sarcastically asked if the person recording was trying to get a picture of Peters’ “butt.”

After being pinned face down on the floor for more than 23 minutes, Boston Police officers arrived, helped Peters up, and, after talking with her, allowed her to leave. She was never charged with any crime.

Peters filed a verified charge of discrimination with the MCAD on Oct. 2, 2018, naming as respondents BP, Inc.; The Prudential Center c/o Boston Properties; Allied Universal Security Services, LLC; and several of its officers, whose names were not yet known to her.

The MCAD issued a finding of probable cause against the respondents on Aug. 19, 2019. Peters then filed a motion to amend her charge on Oct. 25, 2019, and a supplemental motion on Feb. 21, 2020. The goal of the motions was to identify more precisely the five individual respondents and the entity that owns the Prudential Center.

Peters’ motion to amend was denied on Aug. 12, 2020. On Oct. 26, 2020, she withdrew her MCAD charge and filed suit in Suffolk Superior Court.

No names, no problem

In addition to resolving the exclusivity issue, Squires-Lee determined that Peters’ public accommodations claim could proceed against the defendants not specifically named in her MCAD charge because each had notice and an opportunity to conciliate.

To reach her decision, Squires-Lee looked to the five factors Superior Court Judge Edward P. Leibensperger had outlined in the 2011 case Haapanen v. Gold Medal Bakery, Inc.

As to the “Prudential Center defendants,” Squires-Lee found that there was a “sufficiently close nexus” between them and the entity that had been named, BP, Inc.

The same counsel had represented all three layers of corporate entities involved in owning and operating the Prudential Center both before the MCAD and in the Superior Court case, the judge noted.

As for the individual security officer defendants, Squires-Lee said that Peters had put their conduct directly at issue and cited to a YouTube video from which Allied, which had been named in the MCAD charge, could easily identify its employees.

The judge added that the fact that Peters had sought to amend her complaint to add all of the defendants as respondents put them on notice and provided them with the opportunity to conciliate.

“Considered in their entirety, the above facts — a close business relationship between the entities that own or operate the Prudential Center, clear identification of the role of each defendant in the wrongful conduct, an attempted amendment naming the entities and individual defendants, and representation by the same counsel — are sufficient to avoid the dismissal of defendants who were not named in Peters’ MCAD Charge,” Squires-Lee concluded.

Squires-Lee also declined to dismiss Count II of Peters’ complaint, a claim under the Massachusetts Civil Rights Act.

The defendants argued that the claim was barred because it had not been included in Peters’ MCAD charge. But Squires-Lee said the same logic — that Peters was not required to file an MCAD charge before filing suit in Superior Court — applied to the civil rights claim.

Even if that determination turns out to be wrong, Squires-Lee wrote that a claim not specifically asserted before the MCAD may nonetheless proceed under the “scope of the investigation” rule if it is “based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover.”

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