Opinion
Civil Action No. 98-11768-RWZ
June 1, 2001
MEMORANDUM OF DECISION
Plaintiff Pamela Campbell worked for Defendant Mitre Corporation from August, 1991 until September, 1997. She gave notice of her resignation August 15, 1997, and her last day of work was September 5, 1997. She filed a gender discrimination complaint with the Massachusetts Commission Against Discrimination on March 4, 1998. On July 13, 1998, Plaintiff filed suit in state court, charging Mitre with violating the Massachusetts Equal Pay Act (MEPA), M.G.L. c. 149, § 105A (Count I), the Massachusetts antidiscrimination statute, M.G.L. c. 151B (Count II), the Massachusetts Equal Rights Act, M.G.L. c. 93, §§ 102-103 (Count III), and the Federal Equal Pay Act (FEPA), 29 U.S.C. § 206(d)(1) (Count IV). Plaintiff subsequently waived Count III. Defendant removed the action to this court, and now moves for summary judgment on Counts I, II, and IV on the ground that all are time-barred and that Plaintiff cannot establish sufficient facts from which a fact finder could conclude that Defendant violated any of the statutes invoked.
Count II M.G.L. c. 151B
Chapter 151B makes it an unlawful practice for an employer to discriminate against an employee in compensation or in terms, conditions or privileges of employment because of the employee's sex unless based upon on a bona fide occupational qualification. M.G.L. c. 151B, § 4. Chapter 151B allows complaining parties to pursue administrative remedies before the Massachusetts Commission Against Discrimination (MCAD) and to seek judicial relief, but in either case a party seeking relief under 151B must file a complaint with the MCAD within six months after the alleged act of discrimination. M.G.L. c. 151B, § 5; 804 CMR 1.10(2) (A complaint "may be filed . . . at any time within six months after the alleged unlawful conduct; provided, however, that the six-month requirement shall not be a bar to filing in those instances where facts are alleged which indicate that the unlawful conduct complained of is of a continuing nature"). Failure to comply with this requirement bars resort to the courts. Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 816 (1988).
Plaintiff tendered her resignation from Mitre August 15, 1997, and her last day of work was September 5, 1997. Plaintiff filed her MCAD complaint March 4, 1998, six months from her last day of work. Mitre moves for summary judgment on the ground that Plaintiff failed to file her MCAD complaint within the six-month limitation period. Mitre's argument is that the limitation period began to run at the latest August 15, 1997, the day Plaintiff tendered her resignation, which was more than six months before Plaintiff filed her MCAD complaint.
Although they are not clearly delineated in her complaint, Plaintiff appears to offer two distinct arguments in opposition to Mitre's statute of limitations argument. Her first argument is that her March 4, 1998 MCAD complaint was timely because the six-month limitation period begins to run only when an employee has sufficient notice of the discriminatory act, Wheatley v. American Telephone Telegraph Co., 418 Mass. 394, 398 (1994), and because her belief that she had been the victim of gender discrimination did not "culminate" until a conversation with Barbara Wolfinger in early 1998. That argument is untenable, however, as Plaintiff testified unequivocally in her deposition that she resigned from Mitre in August 1997 because she felt that she was being discriminated against. She therefore cannot rely upon Wheatley to establish her 1998 conversation with Wolfinger as the point from which the limitation period began to run.
Plaintiff's second argument is that the "continuing violation" doctrine embodied in 804 CMR 1.10(2) requires that the six-month limitation period be calculated from her last day of work, September 5, 1997. The continuing violation doctrine is typically invoked by plaintiffs who have filed complaints within the limitation period of some clearly actionable conduct, and hope to "reach back" to seek remedies for earlier discriminatory conduct with respect to which no timely complaint was filed. See e.g., Keeler v. Putnam, 238 F.3d 5 (1st Cir. 2001); Mack v. AP, 871 F.2d 179 (1st Cir. 1989); Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198 (1981). As normally understood, the continuing violation doctrine protects only individuals who are unaware that they are being discriminated against. Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998); Sabree v. United Brotherhood of Carpenters Joiners Local No. 33, 921 F.2d 396, 402 (1st Cir. 1990).
Plaintiff does not seek to "reach back," however, but seeks instead to use the continuing violation doctrine to find actionable discriminatory conduct up to her last day of work, based upon the theory that the lower pay she received for that day's work as a result of earlier discrimination constituted actionable conduct from which the limitation period would then run. Though Plaintiff does not identify it as such, she invokes what has been called the "continuing effects" doctrine, which would allow discriminatory acts to be reached so long as their harmful effects continue to within six months of a complaint being filed. See, DeNovellis v. Shalala, 124 F.3d 298, 309-10 (1st Cir. 1997). Federal courts interpreting analogous Federal statutes have explicitly rejected the "continuing effects" doctrine, however, Id. at 309, and Plaintiff presents no authority suggesting that on the facts of this case a Massachusetts court would allow "continuing effects" reasoning to contradict the basic rule, enunciated in Wheatley, 418 Mass. at 397-98, that the limitations period begins to run when a plaintiff is aware that she has been the victim of an illegal discriminatory act. Massachusetts courts do in fact enforce the Wheatley rule in continuing violation cases. See, e.g., Greaney v. Heritage Hosp., No. 95-2547, 1995 Mass. Super. LEXIS 98 (Dec. 28, 1995) ("Where the conduct complained of is of a continuing nature, . . ., the limitations period begins when conduct with a degree of permanence triggers plaintiff's awareness of and duty to assert his or her rights.").
In Lynn Teachers Union v. Massachusetts Commission Against Discrimination, 406 Mass. 515, 520-523 (1990) the Supreme Judicial Court upheld the MCAD's application of "continuing effects" reasoning in a 151B case. In that case, however, the "continuing effects" logic was not invoked to evade the Wheatley rule, as Plaintiff seeks to do, as the SJC noted specifically that the complainants had not formally learned of their injury until within the limitation period. Id. at 518-19 n. 3.
The limitation period on Plaintiff's claim began to run at latest August 15, 1997, when it is clear that she was aware of her claim. Because her MCAD complaint was not filed within six months of that date, her claim is barred. Mitre's motion with respect to Count II is therefore allowed on statute of limitations grounds, and I need not consider Mitre's motion with respect to the merits of Plaintiff's claim.
Count I Massachusetts Equal Pay Act (MEPA)
The Massachusetts Equal Pay Act mandates that "No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character, or work on like or comparable operations." M.G.L. c. 149, § 105A. The SJC has held that determining whether work being performed by male and female employees is of "like or comparable character" requires a two-part analysis: first, is the substantive content of the jobs at issue comparable; that is, do the duties of the jobs have important common characteristics? If yes, do the positions entail comparable skill, effort, responsibility and working conditions? If the answer to both inquiries is yes, then male and female employees in the positions must receive equal pay. Jancey v. School Committee of Everett, 421 Mass. 482, 489-490 (1995) (Jancey I). To answer the first prong of the test requires an evaluation, from the viewpoint of an objectively reasonable person, of whether the "substantive content of the positions, specifically the actual duties of each position," are sufficiently similar to make the jobs comparable. Jancey v. School Committee of Everett, 427 Mass. 603, 606 (1998) (Jancey II). M.G.L. c. 149, § 105A mandates that any MEPA action be brought "within one year after the date of the alleged violation." Mitre bases its motion for summary judgment on this Count upon the relevant limitation period, as well as the substance of the claim.
With respect to the statute of limitations, Mitre argues that because Plaintiff did not file her state court complaint until July 13, 1998, she cannot collect damages for unequal pay for any period before July 13, 1997, one year prior to the day she filed suit. Given that Plaintiff only worked at Mitre until September 5, 1997, enforcement of MEPA's one-year statute of limitations in that manner would drastically reduce her claim.
Plaintiff offers no Massachusetts authority directly countering Mitre's statute of limitations argument, but instead cites McMillan v. Mass. Soc. Prev. of Cruelty to Animals, 140 F.3d 288 (1st Cir. 1998) and Jancey I for the proposition that the Massachusetts antidiscrimination and equal pay rules may be more liberal than the FEPA, which she argues "permits the continuing violation doctrine." The continuing violation doctrine does not, however, allow her FEPA claim to reach back beyond the statutory limitation period. Defendant's motion is therefore allowed with respect to the MEPA limitation period.
With respect to Mitre's motion on the merits, summary judgment in Mitre's favor will be proper if it can show that no material issues of fact exist concerning whether the jobs at issue have important common characteristics, prong one of MEPA's comparability test, Mullenix v. Forsyth Dental Infirmary for Children, 965 F. Supp. 120, 147-48 (D.Mass. 1996), or whether the jobs "entail comparable skill, effort, responsibility, and working conditions," Id. at 148 (citing Jancey I, 421 Mass. at 490), prong two of MEPA's comparability test.
Viewing the record in Plaintiff's favor, material issues of fact do exist as to whether she was paid less than men at Mitre who performed jobs which shared important common characteristics with her own, and whose positions involved comparable skill, effort, responsibility and working conditions. Mitre's motion with respect to the merits of this count is, therefore, denied.
Count IV Federal Equal Pay Act (FEPA)
The Federal Equal Pay Act (FEPA), like MEPA, prohibits employers from discriminating in the payment of wages on the basis of sex. 29 U.S.C. § 206(d)(1). It uses somewhat different standards, however. To establish a prima facie case under the FEPA, "a plaintiff must show that her employer was subject to the Act, and that she was paid less than her male counterparts who were performing work requiring substantially equal skill, effort, and responsibility under similar working conditions." LeGoff v. Trustees of Boston Univ., 23 F. Supp.2d 120, 125 (D.Mass. 1998) (quoting McMillan, 140 F.3d at 298). Once a plaintiff sets forth a prima facie case, the defendant must establish one of four affirmative defenses: that the wage discrepancy resulted from (i) a seniority system, (ii) a merit system, (iii) a system measuring earnings by quantity or quality of production, or (iv) a differential based on a factor other than sex. Mullenix, 965 F. Supp. at 139-140 (citing Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir. 1995)). The FEPA requires that claims be brought within two years after the cause of action arises, unless the violation is "willful," in which case a three-year limitation period applies. 29 U.S.C. § 255(a). Mitre moves for summary judgment on statute of limitations grounds, as well as on the merits of Plaintiff's claim.
With respect to the statute of limitations, Mitre argues that because Plaintiff filed her state court action July 13, 1998, any claims she might have for unequal pay prior to July 13, 1996 are time-barred. In response Plaintiff invokes the continuing violation doctrine to argue that she should be able to seek damages dating back to her initial hiring by Mitre, because she believes her unequal pay began then and continued throughout her employment.
Unlike the continuing violation cases discussed in connection the Plaintiff's 151B claim (Count II), recent cases applying the continuing violation doctrine in the FEPA context have not focused on reaching back to conduct outside the limitation period, but have instead focused on when FEPA causes of action accrue, thus starting the limitation clock. See, Cheng v. IDEAssociates, Inc., No. 96-11718-PBS, 2000 U.S. Dist. LEXIS 10517 (D.Mass. July 6, 2000); LeGoff, 23 F. Supp.2d 120. In that context, the cases have found that unequal pay constitutes a continuing violation through the end of employment, so that the limitation period begins to run from that time. Cheng, 2000 U.S. Dist. LEXIS 10517, at *21; LeGoff, 23 F. Supp.2d at 126. Thus, in the FEPA context, courts recognize something like the "continuing effects" doctrine, but this does not settle the question of how far back a plaintiff with a timely complaint can reach in seeking remedies. Cheng and LeGoff also contain language suggesting that the continuing violation doctrine may allow a FEPA plaintiff to seek damages for the entire period of employment, regardless of the limitation period, and cite expansive language from the First Circuit to the effect that "a decision to hire an individual at a discriminatorily low salary can, upon payment of each subsequent paycheck, continue to violate the employee's rights," E.E.L.O.C. v. McCarthy, 768 F.2d 1, 3-4 (1st Cir. 1985) (quoting Lamphere v. Brown Univ., 685 F.2d 743, 747 (1st Cir. 1982)). Neither McCarthy nor Lamphere directly confront the question of back pay, however, and McCarthy upheld a district court decision which treated the applicable FEPA limitation period as providing the outer limit on how far back the plaintiff could reach in claiming back pay damages, even though the pay disparity at issue began earlier. E.E.O.C. v, McCarthy, 578 F. Supp. 45, 49 (D.Mass. 1983). See also, Smallwood v. Liberty Mutual Ins. Co., No. 98-351-B, 2000 U.S. Dist. LEXIS 2624, at *57 (D.N.H. Mar. 6, 2000) (citing Pollis v. New School for Social Research, 132 F.3d 115, 118-19 (2nd Cir. 1997)).
As Plaintiff cites no persuasive authority challenging this established application of the FEPA limitation period, and does not argue that Mitre willfully violated the FEPA, I find that FEPA's two year limitation period means that Plaintiff may claim damages for unequal pay back only to July 13, 1996, two years prior to the date of her complaint. Mitre's motion on statute of limitations grounds is therefore allowed.
Defendant also moves for summary judgment on the merits of Plaintiff's FEPA claim. A defendant in a FEPA action can prevail on summary judgment by showing that the plaintiff has failed as a matter of law to establish a prima facie case, Mullenix, 965 F. Supp. at 140-41, or asserting one of the available affirmative defenses, and demonstrating that no genuine issue of material fact exists concerning whether the elements of the defense have been met. Id. at 141.
Viewing the record in Plaintiff's favor, there do exist material issues of fact as to whether she was paid less than male counterparts who were performing work requiring substantially equal skill, effort, and responsibility under similar working conditions. In addition, material issues of fact exist concerning whether Mitre has established any of the affirmative defenses available to FEPA defendants. Mitre's motion with respect to the merits of this count is therefore denied.
Mitre's motion with respect to Count II is allowed. The motion to limit the damage period for Counts I and IV on limitations grounds is allowed. The motion for summary judgment as to the merits of Counts I and IV is denied.