25 Mass. App. Ct. 87 | Mass. App. Ct. | 1987
The plaintiff has appealed from a summary judgment entered in the Superior Court which dismissed an action by which (in the only surviving count of the complaint) the plaintiff sought to recover damages under the second paragraph of G. L. c. 151B, § 9 (as appearing in St. 1974, c. 478), for
The discharge occurred on March 17, 1982. The plaintiff filed no complaint with the Massachusetts Commission Against Discrimination (MCAD) until October 1, 1982. On May 6, 1983, the investigating commissioner, acting on motion of the defendant, entered an order dismissing the complaint because it had not been filed within the six-month period specified in the second paragraph of G. L. c. 151B, § 5, inserted by St. 1946, c. 368, § 4. The plaintiff did not appeal from that order or otherwise seek relief within the MCAD. On June 13, 1983, she commenced the present action in the Superior Court. The defendant moved for summary judgment of dismissal by reason of the plaintiff’s failure to file a complaint with the MCAD within the aforementioned six-month period. The motion was allowed, and the case is here on the plaintiff’s appeal from the ensuing judgment.
We think it too late in the day for the plaintiff to argue that a timely filing with the MCAD is not a prerequisite of the filing and maintenance of an action in court under G. L. c. 151B, § 9. See Mouradian v. General Elec. Co., 23 Mass. App. Ct. 538, 540-541 (1987); Sereni v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 430 (1987); Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 190-191 (1st Cir. 1982); Hester v. Lawrence, 602 F. Supp. 1420,1421 (D. Mass. 1985); Flynn v. New England Tel. Co., 615 F. Supp. 1205, 1208-1209 (D. Mass. 1985); Ackerson v. Dennison Mfg. Co., 624 F. Supp. 1148, 1150 (D. Mass. 1986). We note that all but two of the cases just cited had been decided before the plaintiff’s brief was filed in this court.
The plaintiff’s fallback position is that, by reason of certain facts asserted in the affidavits filed by her in opposition to the motion for summary judgment, we should hold that the six-
The plaintiff does not dispute the existence of that power in the full commission or in the individual investigating commissioners. Instead, she ignores the existence of the power, ignores the fact that the investigating commissioner considered but expressly declined to exercise the power in this case, ignores the fact that she did not seek administrative relief from the order of dismissal, and asks this court to substitute itself for the full commission of the MCAD. We decline the invitation for reasons akin to those expressed in East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 448, 452-453 (1973); and Melley v. Gillette Corp., 19 Mass.
Judgment affirmed.
The decision in the Serení case should have come as no surprise because it is expressly based on what the First Circuit had said in the Carter case in 1982.
We leave to another day the question whether there might be judicial review of a final decision of the full commission on the issue of timeliness.