Grandoit v. Massachusetts Commission Against Discrimination Grandoit v. Boston Housing Authority

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18-P-762 Appeals Court
18-P-1493
GERARD D. GRANDOIT vs. MASSACHUSETTS COMMISSION AGAINST
DISCRIMINATION & others1
(and three consolidated cases2).
GERARD D. GRANDOIT vs. BOSTON HOUSING AUTHORITY & another.3
Nos. 18-P-762 & 18-P-1493.
Suffolk. May 14, 2019. - July 12, 2019.
Present: Agnes, Shin, & Wendlandt, JJ.
Massachusetts Commission Against Discrimination. Jurisdiction,
Judicial review of administrative action. Administrative
Law, Adjudicatory proceeding, Administrative Procedure Act,
Judicial review. Practice, Civil, Action in nature of
certiorari, Dismissal, Review of administrative action.
Civil actions commenced in the Superior Court Department on
September 22, 2017.
1 Executive Office of Health and Human Services and Mark
Cowell.
2 Gerard D. Grandoit vs. Massachusetts Commission Against
Discrimination & others; Gerard D. Grandoit vs. Massachusetts
Rehabilitation Commission & others; Gerard D. Grandoit vs.
Massachusetts Office on Disability & others.
3 Massachusetts Commission Against Discrimination.
2
Motions to dismiss were considered by Robert L. Ullman and
Hélène Kazanjian, JJ.
Civil action commenced in the Superior Court Department on
October 3, 2017.
A motion to dismiss was heard by Linda E. Giles, J.
Gerard D. Grandoit, pro se.
Simone R. Liebman for Massachusetts Commission Against
Discrimination.
Gabriel S. Gladstone for Operation A.B.L.E. & another.
Kimberly A. Parr, Assistant Attorney General, for Executive
Office of Health and Human Services & others, was present but
did not argue.
Michael J. Louis, for Boston Housing Authority, was present
but did not argue.
SHIN, J. The plaintiff filed five complaints with the
Massachusetts Commission Against Discrimination (commission or
MCAD), alleging discrimination in housing and various
discriminatory acts relating to his efforts to obtain job-
training services. All of the complaints were dismissed after
MCAD investigating commissioners conducted preliminary hearings
and found a lack of probable cause to support the allegations.
The question we address in these appeals is whether the Superior
Court had jurisdiction under the Administrative Procedure Act,
G. L. c. 30A, or the certiorari statute, G. L. c. 249, § 4, to
review the investigating commissioners' lack of probable cause
3
determinations.4 We conclude that the court had no jurisdiction
and thus affirm the judgments of dismissal.
Statutory and regulatory framework. "There are two largely
independent avenues for redress of violations of the
antidiscrimination laws of the Commonwealth, one through the
MCAD (G. L. c. 151B, §§ 5-6) and the other in the courts (G. L.
c. 151B, § 9)." Christo v. Edward G. Boyle Ins. Agency, Inc.,
402 Mass. 815, 817 (1988). For claims of discrimination
relating to housing, complainants may elect at the outset to
commence a civil action in court within one year of the
allegedly discriminatory act, or file a complaint with the
commission within 300 days. See G. L. c. 151B, §§ 5, 9.5 For
all other claims, complainants must first file a complaint with
the commission within 300 days. See G. L. c. 151B, § 5.
Once a complaint is filed, the commission has exclusive
jurisdiction over it for a period of ninety days. See G. L.
c. 151B, § 9; Depianti v. Jan-Pro Franchising Int'l, Inc., 465
Mass. 607, 613 (2013). At the expiration of the ninety days,
4 The cases were paired for consideration and oral argument
in this court.
5 "General Laws c. 151B, § 9, was amended by St. 1991, c.
323, to permit a plaintiff alleging housing discrimination to
commence a civil action . . . within one year after the unlawful
discrimination occurred without first filing a complaint with
the MCAD." King v. First, 46 Mass. App. Ct. 372, 373 n.2
(1999).
4
"or sooner if a commissioner assents in writing," the
complainant may, "not later than three years after the alleged
unlawful practice occurred, bring a civil action for damages or
injunctive relief or both." G. L. c. 151B, § 9. The civil
action and the commission proceeding may not occur
simultaneously. Thus, if a complainant brings a civil action,
the commission must dismiss any pending complaint, and the
complainant "shall be barred from subsequently bringing a
complaint on the same matter before the commission." Id. See
Christo, 402 Mass. at 817.
Upon the filing of a complaint, the commission will assign
an individual commissioner to investigate the allegations and
make a determination whether probable cause exists for crediting
them. See G. L. c. 151B, § 5. If the investigating
commissioner finds that there is probable cause (and the
complainant has not elected to bring a court action), the
commission will issue a complaint against the respondent and
hold an adjudicatory hearing. See id.6 Pursuant to G. L.
6 If the investigating commissioner finds probable cause in
the context of housing discrimination, the commission must also
serve notice on both "the complainant and respondent of their
right to elect judicial determination of the complaint as an
alternative to determination in a hearing before the
commission." G. L. c. 151B, § 5. If a party elects a judicial
determination, "the commission shall authorize, and not later
than thirty days after the election is made the attorney general
shall commence and maintain, a civil action on behalf of the
5
c. 151B, § 6, a party aggrieved by the commission's decision
after the adjudicatory hearing may seek judicial review in
Superior Court in accordance with the standards for review set
out in G. L. c. 30A, § 14. See East Chop Tennis Club v.
Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 447
(1973).
If the investigating commissioner instead finds no probable
cause to support the allegations, complainants may request a
"preliminary hearing" within ten days of service of written
notice of the finding. G. L. c. 151B, § 5. A preliminary
hearing is an informal proceeding held before the investigating
commissioner who made the initial finding (or his or her
designee), at which complainants may "present orally or in
writing reasons why the [l]ack of [p]robable [c]ause
determination is in error and to present such evidence in
support of their argument as the [i]nvestigating [c]ommissioner
or his/her designee deems appropriate." 804 Code Mass. Regs.
§ 1.15(7)(d) (2008). After the preliminary hearing, the
investigating commissioner may affirm, modify, or reverse the
lack of probable cause determination, reopen the matter for
further investigation, or "[t]ake such other action as he/she
deems necessary in the interest of justice." Id. Even where
complainant." Id. The "complainant may intervene as of right"
in any such action. Id.
6
the investigating commissioner affirms the finding of no
probable cause, nothing in the statute precludes the complainant
from filing a civil action under G. L. c. 151B, § 9, so long as
it is initiated within the limitations period.
Discussion. The plaintiff brought separate actions in
Superior Court seeking judicial review of the five lack of
probable cause determinations issued by the investigating
commissioners after preliminary hearings. In each action one or
more of the defendants moved to dismiss under Mass. R. Civ. P.
12 (b) (1), 365 Mass. 754 (1974), on grounds that the lack of
probable cause determinations were not reviewable under G. L.
c. 30A or G. L. c. 249, § 4. We review the decisions allowing
those motions de novo. See 311 W. Broadway LLC v. Board of
Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016).
Judicial review under G. L. c. 30A, § 14, is available to
persons "aggrieved by a final decision of any agency in an
adjudicatory proceeding." An "adjudicatory proceeding" is
defined as "a proceeding before an agency in which the legal
rights, duties or privileges of specifically named persons are
required by constitutional right or by any provisions of the
General Laws to be determined after opportunity for an agency
hearing." G. L. c. 30A, § 1. Agencies must conduct
adjudicatory proceedings in compliance with certain statutory
requirements, including giving the parties the right to call,
7
examine, and cross-examine witnesses and issuing "a statement of
reasons for the decision, including determination of each issue
of fact or law necessary to the decision." G. L. c. 30A, § 11.
As the Supreme Judicial Court concluded in Christo, 402
Mass. at 818, a preliminary hearing before an investigating
commissioner is not an "adjudicatory proceeding" within the
meaning of G. L. c. 30A, "and no statutory right of appeal for
judicial review applies to . . . a determination [by the
investigating commissioner]." Indeed, G. L. c. 151B, § 5,
expressly provides that "a preliminary hearing shall not be
subject to the provisions of chapter [30A]." Moreover, while
G. L. c. 151B, § 6, provides for judicial review of "such
order[s] of the commission," G. L. c. 151B, § 5, does not refer
to determinations of no probable cause, issued before or after a
preliminary hearing, as "order[s]." It is thus clear that the
judicial review provision applies only to "order[s]" issued
after the full adjudicatory hearing that the commission will
hold upon an investigating commissioner's affirmative
determination that probable cause exists. See G. L. c. 151B,
§ 5 (after adjudicatory hearing, commission shall issue either
"an order requiring [the] respondent to cease and desist" or "an
order dismissing the . . . complaint as to such respondent").
Consistent with the statutory scheme, the commission's
implementing regulations state that a "[f]inal" decision is one
8
that is issued by the "[f]ull [c]ommission." 804 Code Mass.
Regs. § 1.24 (1999). See Massachusetts Teachers' Retirement
Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 297
(2013), quoting Borden, Inc. v. Commissioner of Pub. Health, 388
Mass. 707, 723, cert. denied sub nom. Formaldehyde Inst., Inc.
v. Frechette, 464 U.S. 936 (1983) ("[A] properly promulgated
regulation has the force of law . . . and must be accorded all
the deference due to a statute"). An investigating
commissioner's determination to uphold an initial finding of
lack of probable cause is not a decision by the full commission
because only the investigating commissioner (or his or her
designee) presides at a preliminary hearing. See 804 Code Mass.
Regs. § 1.15(7)(d). The investigating commissioner's
determination is therefore not a "final" agency decision subject
to judicial review under G. L. c. 30A or, by extension, G. L.
c. 151B, § 6.
Nor is judicial review available under the certiorari
statute, G. L. c. 249, § 4. "Certiorari is a limited procedure
reserved for correction of substantial errors of law apparent on
the record created before a judicial or quasi-judicial
tribunal." School Comm. of Hudson v. Board of Educ., 448 Mass.
565, 575-576 (2007). To be entitled to certiorari review, a
plaintiff must demonstrate three elements: "(1) a judicial or
quasi judicial proceeding, (2) from which there is no other
9
reasonably adequate remedy, and (3) a substantial injury or
injustice arising from the proceeding under review." Indeck v.
Clients' Sec. Bd., 450 Mass. 379, 385 (2008).
Here, even assuming that a preliminary hearing is a quasi
judicial proceeding,7 certiorari review is unavailable because
the plaintiff has an adequate alternative remedy and has not
suffered a substantial injury or injustice from the
investigating commissioners' lack of probable cause
determinations. The purpose of the preliminary hearing is to
determine what formal action, if any, the commission will take
on the complaint pursuant to G. L. c. 151B, § 5. See Stonehill
College v. Massachusetts Comm'n Against Discrimination, 441
Mass. 549, 563 (2004) ("The complainant . . . may be a party to
a § 5 proceeding and may present testimony at the public
hearing, but it is the MCAD, and not the complainant, that
7 Whether a proceeding qualifies as quasi judicial is
governed by a flexible, multifactor test. See Revere v.
Massachusetts Gaming Comm'n, 476 Mass. 591, 600-601 (2017).
Factors indicating that the preliminary hearing is not quasi
judicial include that it is not "preceded by specific charges,"
and the investigating commissioner is not required to take
"sworn testimony by witnesses" or issue "formal findings of
fact." Id. On the other hand, complainants are given the
"opportunity to respond" to the initial finding of no probable
cause, the investigating commissioner is "required to conduct
[an] investigation[] into the" allegations of the complaint, and
the investigating commissioner will then issue an
"individualized determination" that does "not concern a new rule
of general applicability." Id. at 601. Given that the
plaintiff cannot satisfy the other requirements for certiorari
review, we need not resolve this issue.
10
prosecutes the discrimination claim"). An investigating
commissioner's determination of no probable cause will end the
administrative process but will not preclude the complainant
from bringing a civil action under G. L. c. 151B, § 9, against
the person or entity that committed the alleged discrimination.
Chapter 151B thus provides for a reasonably adequate remedy,
barring review under the certiorari statute. See Cumberland
Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605,
608 (2002) (certiorari review unavailable because "zoning appeal
pursuant to G. L. c. 40A, § 17, provided a reasonably adequate
remedy").
For related reasons the plaintiff cannot show that he
suffered a substantial injury or injustice from the commission's
decision not to institute formal proceedings. Chapter 151B does
not compel the commission to prosecute each one of the many
complaints that it receives. Rather, the statute leaves that
decision wholly within the discretionary authority of the
commission, see G. L. c. 151B, § 5, while providing complainants
with an adequate alternative remedy in the event the commission
declines to take formal action. Certiorari is not available to
the plaintiff in these circumstances. See State Bd. of
Retirement v. Bulger, 446 Mass. 169, 173 (2006), quoting
Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth,
430 Mass. 783, 790 (2000) (certiorari can be used to "rectify
11
only those errors of law which have resulted in manifest
injustice to the plaintiff or which have adversely affected the
real interests of the general public"); Stonehill College, 441
Mass. at 563 ("primary purpose of an administrative proceeding
before the MCAD is to vindicate the public's interest in
reducing discrimination in the workplace by deterring, and
punishing, instances of discrimination by employers against
employees").8
Judgments affirmed.
8 Given our decision we do not reach the remaining issues
raised by the parties.