Opinion
Civil Action No. 03-12183-DPW.
December 6, 2004
MEMORANDUM AND ORDER
Plaintiff Margaret A. Cummings brings this action against Pearson Education, Inc. ("Pearson"), Judi Grossman, and Elizabeth Caron, seeking recovery under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. She alleges that the defendants passed over her employment applications, hiring less qualified applicants, because of her age. The defendants move to dismiss the case for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons stated below, I will deny the motion.
I. Factual and Procedural Background
During the months of April and May of 2002, Pearson sought applicants for an "editorial assistant." (Compl. ¶ 6.) The plaintiff submitted a resume and alleges that she was denied an interview because of her age. (Id. ¶ 5.) In June of 2002, the plaintiff applied for another opening as an editorial assistant. (Id. ¶ 8.) After communications with Pearson surrounding her June application, Ms. Cummings was barred from the selection processes at Pearson. (Id.) In August of 2002, the plaintiff again inquired about another position for an editorial assistant, but received no reply. (Id. ¶ 9.)
As discussed in Section II.A. infra, I "must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff" when considering this motion to dismiss for lack of subject matter jurisdiction. Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996). Therefore, the facts recited are drawn primarily from the plaintiff's complaint. Because this motion relates to whether and when certain filings were made, and not to the substance of the plaintiff's claim, I will focus the factual review accordingly.
A specific date in August could not be found in the complaint. The defendants, however, state that the plaintiff alleged that the last discriminatory act occurred on August 31, 2002. (Def.'s Mem., at 3 n. 3.) For purposes of the timeliness determinations made herein, I will apply the August 31, 2002 date provided by the defendants.
Consequently, on September 20, 2002, Ms. Cummings filed a complaint with the federal Equal Employment Opportunity Commission ("EEOC"). (Id. at ¶ 10). The defendants responded to the EEOC charge on July 28, 2003 and the EEOC apparently closed the plaintiff's case on September 10, 2003. (Def.'s Mem., at 2 n. 1.; Pl.'s 3/10/04 Letter.) The plaintiff filed her complaint in this case on November 4, 2003.
In a brief letter which is apparently intended by the plaintiff to respond to defendants' motion to dismiss, she asserts:
Plaintiff filed in U.S. District Court against Pearson Education, Inc., et al. in accordance with Form 161 (3/98) "Information to Filing Under The Laws Enforced by the EEOC." This form accompanied the EEOC's report to complainant, dated 10 September 2003, and is attached.
(Pl.'s 3/10/04 Letter.) The attached form instructed the plaintiff that she had 90 days from the date she received the form within which to file a lawsuit.
II. DISCUSSION
A. Standard of Review Under 12(b)(1)
Federal courts have "limited jurisdiction"; they are empowered only to hear those cases that fall within Article III of the Constitution or an explicit grant of jurisdiction by Congress thereunder. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). If challenged, federal jurisdiction is presumed to be lacking until established otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Once a defendant moves pursuant to Rule 12(b)(1) for an action to be dismissed for want of subject matter jurisdiction, the plaintiff shoulders the burden of proof in demonstrating the existence of such jurisdiction. Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996); Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995).
When considering a motion to dismiss for lack of subject matter jurisdiction, the court "must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff." Aversa, 99 F.3d at 1210. When considering the allegations of a pro se plaintiff, a less stringent standard is to be applied than for pleadings drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). This relaxed standard, however, neither requires the court to "conjure up unpled allegations" in a pro se complaint, Haines, 404 U.S. at 521, nor relieves the pro se plaintiff of his obligation to prove a jurisdictional basis for his lawsuit by mustering more than "unsupported conclusions or interpretations of law." Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st Cir. 1993). Dismissal is called for when it appears "the court lacks jurisdiction over the claims or the parties." Overton v. Torruella et al., 183 F.Supp.2d 295, 303 (D. Mass. 2001) (holding that pro se plaintiffs "must comply with applicable procedural and substantive rules of law").
B. Timeliness of Federal Claim
In order for this court to have jurisdiction over a claim arising under the ADEA, the plaintiff must first have initiated proceedings with the Massachusetts Commission Against Discrimination ("MCAD"). See Oscar Mayer Co. v. Evans, 441 U.S. 750, 753 (1979) (holding that a claimant may not bring suit under the ADEA "until he has first resorted to appropriate state administrative proceedings"). The threshold issue in this case is whether Ms. Cummings's filing of a complaint with the EEOC constructively initiated a claim before the MCAD. I find that it did and, therefore, that this court has subject matter jurisdiction over the plaintiff's claim.
The plaintiff apparently did not submit a claim directly to the MCAD and the MCAD, according to the defendants, has no record of a charge on file. The defendants correctly point out that in a "deferral state" such as Massachusetts the filing of an age discrimination complaint with the MCAD is a prerequisite for bringing an ADEA claim and the MCAD must be given 60 days of sole jurisdiction over the claim before further action may be taken by the plaintiff:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 7 of this Act [ 29 U.S.C. § 626] before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. . . .29 U.S.C. § 633(b).
In deciding a Title VII case, the First Circuit in EEOC v. Green, 76 F.3d 19 (1st Cir. 1996) noted, however, that:
Many state agencies, in order to facilitate the federal processing of charges, have entered into "worksharing agreements" with the EEOC in which the state agency agrees to waive its right to the sixty-day period of exclusive jurisdiction for certain categories of claims. . . . The EEOC and the MCAD have entered into a Worksharing Agreement to avoid duplication of effort by apportioning the responsibilities of processing charges.Id. at 21. The worksharing agreement between the EEOC and MCAD as of December 7, 1999, as applied by Seery v. Biogen, Inc., 203 F. Supp. 2d 35 (D. Mass 2002) in a case arising under the Americans with Disabilities Act, provided:
• "[a]s charges are received by one Agency against a Respondent on the other Agency's litigation list a copy of the new charge will be sent to the other Agency's litigation unit within 5 working days.";
• the "EEOC and the [MCAD] each designate the other as its agent for the purpose of receiving and drafting charges, including those that are not jurisdictional with the agency that initially receives the charges. EEOC's receipt of charges on the [MCAD's] behalf will automatically initiate the proceedings of both the EEOC and the [MCAD].";
• "[c]harges that are received by the [MCAD] whether in person or by mail and jurisdictional with the EEOC and timely filed by the Charging Party . . . will automatically be filed with the EEOC. The date of receipt will be the date of filing.";
• "[f]or charges originally received by the EEOC and/or to be initially processed by the EEOC, the [MCAD] waives its right of exclusive jurisdiction to initially process such charges for a period of 60 days for the purpose of allowing the EEOC to proceed immediately with the processing of such charges before the 61st day."Id. at 41.
As an initial matter, I must observe that neither the defendants nor the plaintiff have submitted a copy of the applicable worksharing agreement to the court. The defendants, however, do not contend that the agreement lacks a provision which serves to make a filing of an EEOC charge a constructive filing of an MCAD charge, noting that they "acknowledge that two cases suggest that the MCAD and EEOC have a dual automatic filing arrangement in what is known as a Worksharing Agreement." (Def.'s Mem., at 5.) Accordingly, I will assume that the worksharing agreement in place at the time the plaintiff filed her EEOC charge contained a provision purporting to turn her EEOC filing into an MCAD filing and to waive MCAD's 60-day exclusive jurisdiction period.
The defendants maintain, however, that such a worksharing agreement is not enforceable. The defendants seek a determination that "the MCAD and EEOC have no authority to abrogate the federally-mandated condition precedent to suit in federal court. . . ." (Id.) I conclude there is no basis for doing so.
The First Circuit has not expressly and definitively resolved this question. In Fite v. Digital Equipment Corp., 232 F.3d 3 (1st Cir. 2000), the court noted that "the extent to which filing of the complaint with the EEOC should, under a worksharing agreement between the agencies, be deemed to constitute a filing with the Massachusetts commission is an issue on which this court specifically reserved judgment in EEOC v. Green, 76 F.3d 19, 23 n. 6 (1st Cir. 1996)." Id. at 6. The Fite court saw "no reason to reenter this morass." Id. Despite the characterization of the issue by the court in Fite, courts — including the First Circuit — have shown little hesitancy in treating such agreements as enforceable. See, e.g., Davis v. Lucent Technologies, Inc., 251 F.3d 227, 231 n. 1 (1st Cir. 2001) (stating in dicta that "claims filed with either the MCAD or the EEOC are effectively filed with both agencies"); Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994); EEOC v. Rotary Corp., 297 F. Supp. 2d 643, 659 (N.D.N.Y. 2003) (applying a worksharing agreement with similar provisions and finding that "where a plaintiff originally files a charge with the EEOC, he or she is deemed to have 'initially instituted' proceedings with [the state agency]. . . ."); Seery, 203 F. Supp. 2d at 47 ("By virtue of the worksharing agreement in place in 1999 between the EEOC and the MCAD, [the plaintiff's] filing with the EEOC . . . simultaneously initiated and terminated proceedings at the MCAD on [the plaintiff's] behalf."); Bolinsky v. Carter Machinery Co., Inc., 69 F. Supp. 2d 842, 847 (W.D. Va. 1999); see also Errichetti v. Mass. Water Resources Auth., 300 F. Supp. 2d 270, 272 n. 2 (D. Mass 2004) (noting in ADEA case that "[b]ecause of a Worksharing Agreement between Massachusetts and the federal government, a complainant may with a single filing initiate both state and federal proceedings"); 29 C.F.R. § 1626.10(c) (2003) ("Charges received by one agency under the [worksharing] agreement shall be deemed received by the other agency for purposes of § 1626.7 [the C.F.R. provision relating to timeliness].")
Such agreements appear to be consistent with the overarching policy goals of the statutory scheme. See EEOC v. Commercial Office Products Co., 486 U.S. 107 (1988); Sofferin v. American Airlines, Inc., 923 F.2d 552, 555 (7th Cir. 1991) (beginning the analysis of a case arising under Title VII by noting that "[t]he use of worksharing agreements between states and local agencies and the EEOC has been encouraged by Congress and approved by the Supreme Court" which "has found the use of worksharing agreements consistent with statutory sections" of Title VII); see also Puryear v. County of Roanoke, 214 F.3d 514, 520-21 (4th Cir. 2000). In fact, contrary to the defendants' depiction of the agreement as the agencies' attempt to "contract away the statutory requirement" of exhaustion of state remedies, worksharing agreements
are much more like government regulations than any sort of contract, since they are agreements between governmental agencies, are authorized by specific statutory provisions, and have been adopted by federal regulations as an integral part of the regulatory scheme. In a sense, they are localized subsets of federal regulations.Ford v. Bernard Fineson Development Center, 81 F.3d 304, 307 n. 5 (2d Cir. 1996).
Applying the worksharing agreement apparently in place between the EEOC and MCAD, I find that upon the filing of the EEOC charge the plaintiff is deemed to have filed her MCAD charge.
To be timely, the plaintiff's complaint with MCAD must have been filed within six months of the last discriminatory act. Mass. Gen. Laws ch. 151B, § 5 (effective November 5, 2002 the period was extended to 300 days). Therefore, the determination of when her MCAD complaint is deemed filed will impact the timeliness of her claim. As noted above, the plaintiff asserts she filed her complaint on September 20, 2002. In a letter to the court dated November 12, 2003, the plaintiff adds that the EEOC had all of the relevant documentation for her case by October 26, 2002. To this letter the plaintiff attached copies of the letter, job posting, and chronological list of events that she sent to the EEOC on October 25, 2002. Without formulating a clear argument that the EEOC complaint was untimely for purposes of the MCAD filing requirements, the defendants respond that the date of the filing was sometime in March or May of 2003, referring to the EEOC charge — a document not found in the record. Taking the factual contentions in the complaint and related documents the plaintiff has submitted as true, I find that the plaintiff filed her MCAD charge in a timely manner and will not dismiss her claim on those grounds.
Even if I were not to find that the plaintiff has sufficiently pled a timely filing date, she would potentially benefit from equitable tolling of the limitations period. See Davis, 251 F.3d at 234 (agreeing with the plaintiff's contention "that the six-month filing period in section five of chapter 151B is subject to equitable tolling"). In a letter dated October 23, 2002, the EEOC acknowledged receipt of the plaintiff's submission of a general questionnaire in September of 2002 and requested more detailed information in order to prepare a charge. The plaintiff has filed with the court copies of her response letter and the attached information requested, as well as emails she sent inquiring about her case. The first email was dated February 7, 2003. The EEOC investigator then sent an email to the plaintiff asking if she was still interested in bringing a charge. The plaintiff responded on February 25 that she had sent an inquiry via email earlier that month regarding the status of her complaint. Ms. Cummings also included a handwritten note dated that same day, February 25, 2003, that appears to be initialed by the Federal Investigator at the EEOC with whom she had been corresponding, indicating that a letter had been misfiled, resulting in a delay. Therefore, on the basis of the record before me, I find
[t]he apparent "legal mistake" . . . was manifestly not of the plaintiff's doing, nor was it within [her] knowledge or within [her] control to rectify. To deny relief to the plaintiff under the peculiar facts of this case "would be to exalt form over substance and preclude relief to a potentially meritorious claim simply because it was the victim of a bureaucratic mix-up," as well as to defeat two of the goals sought by the [government agencies]: the minimization of red tape and the efficient processing of discrimination charges. The errors of the administrative agencies should not be visited upon the plaintiff, where [s]he did all that [s]he could have reasonably done to file a charge of discrimination in an otherwise timely manner.Brown v. Crowe, 963 F.2d 895, 900 (6th Cir. 1992) (internal citations omitted) (holding "that the equitable doctrine of tolling applies under these circumstances"). For present purposes, therefore, the plaintiff may proceed on her claim that by their acts of August 2002, the defendants violated the ADEA.
On the present record, I cannot determine whether the acts dating back as early as April 2002 may form the basis of a valid claim. But, as noted above, for purposes of this motion, the court has jurisdiction over the claim at least so far as the plaintiff contends she was discriminated against because of age in August of 2002. Moreover, prior discriminatory acts could be evidentiary on that issue.
III. CONCLUSION
For the reasons set forth more fully above, the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is DENIED.