41 Mass. App. Ct. 443 | Mass. App. Ct. | 1996
Aetna Life & Casualty Company (Aetna) fired Donald Tardanico, a senior technical automobile claims representative, on April 29, 1991, for the stated reason that he had falsified repair appraisals. At the time, Tardanico was fifty-seven years old and had been in Aetna’s employ for thirteen years. In a complaint filed with the Superior Court, he claimed age discrimination in violation of G. L. c. 15 IB,
1. Jurisdictional question. Before the Superior Court judge, the question was argued whether Tardanico had established a jurisdictional prerequisite for maintaining an unlawful discrimination action, and whether the MCAD had acted within its authority by docketing Tardanico’s complaint nunc pro tunc. The judge awarded summary judgment for Aetna on a substantive ground, and the jurisdictional issue was not discussed by either party on appeal. We are obliged to consider the question, nonetheless, because the parties may not waive a jurisdictional flaw. Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981). Tate, petitioner, 417 Mass. 226, 230 (1994). Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55, 59 n.7 (1992), S.C., 415 Mass. 329 (1993).
Resort to judicial process is not available to a party claiming age discrimination (or other discrimination claims within the adjudicatory sphere of the MCAD) unless that party has first lodged a complaint of unlawful discrimination with the MCAD within six months of the occurrence of the discriminatory event (here Tardanico’s discharge). G. L. c. 151B, § 5, second par., thirty-sixth sentence.
The date of Tardanico’s discharge by Aetna, it may be recalled, was April 29, 1991. Tardanico’s lawyer claimed to have filed a complaint with the MCAD on August 27, 1991, within the six months limitation period. When, on December 27, 1991, Tardanico filed his age discrimination action in Superior Court (the MCAD not having acted),
To establish the jurisdictional foundation for maintaining the court action, Tardanico’s counsel brought before the MCAD a motion to assign a docket number nunc pro tunc and to close the MCAD action nunc pro tunc. To that motion, counsel attached an affidavit attesting that he had mailed a charge of discrimination to the MCAD on August 27, 1991, postage prepaid; adding as exhibits to that affidavit, a photocopy of Tardanico’s charge of discrimination and a photocopy of a letter of transmittal to the MCAD from counsel dated August 27, 1991. In Aetna’s written opposition to that motion and in the MCAD’s order allowing the motion, there is discussion of the aptness of applying the doctrine of equitable tolling of a statute of limitations. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393-398 (1982); Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988); Cherella v. Phoenix Technologies Ltd.,
Equitable tolling is, however, not pertinent to Tardanico’s case. Aetna did nothing to cause him to delay acting nor was he unaware of his statutory rights. Tardanico’s point is that he in fact acted timely, and that the MCAD’s record should so reflect. The MCAD’s regulations do not require filing in hand; they expressly authorized filing by ordinary mail. 804 Code Mass. Regs. § 1.03(2) (1991). Compare Mass.R.Civ.P. 3, as amended, 385 Mass. 1215 (1982), which requires that, if an action is commenced by mail, the mail be certified or registered so as to verify receipt. Compare, also, Tilcon Mass., Inc. v. Commissioner of Rev., 30 Mass. App. Ct. 264, 265 (1991) (timely filing of an application for tax abatement requires that it be placed in the hands of the deciding authority before expiration of the deadline for filing).
When the docket of a court fails to reflect an action taken, it is within the power of the court to direct that the docket be corrected so that it states what has actually occurred, such as a filing by a party or an order of the court. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 542-543 (1914). Compare Jordan Marsh Co. v. Barry, 295 Mass. 210, 212-213 (1936), and Hackney v. Butler, 339 Mass. 605, 607-608 (1959). There is no reason that an administrative agency does not have the same power to correct a docket that is incorrect. The chairman of the MCAD, who considered Tardanico’s motion, credited the sworn statement of counsel about the mailing of the complaint to the MCAD, the genuineness of the photocopies of the documents of transmission and that of the correspondence between counsel and client. On that evidence, the chairman reasonably ordered that the docket reflect the filing of the complaint as of the date when that had apparently been done. The corrected docket, in turn, satisfies the jurisdictional condition for this action.
The appeal is up on summary judgment and our task is to consider whether there is evidence which generates a genuine dispute of fact on the pretext point. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Flesnery. Technical Communications Corp., 410 Mass. 805, 808-809 (1991). Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 136 (1994). Our reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 438. Harrison, supra at 136. Because the ultimate question is the employer’s state of mind, requiring a finding much dependent on circumstantial evidence, summary judgment is contraindicated. Blare, supra at 439. That is not to say, however, that summary judgment is never appropriate in unlawful discrimination cases. Id. at 440. See as examples McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 437-438 (1989) (racial discrimination); Brunner v. Stone & Webster Engr. Corp., 413 Mass, at 705 (gender discrimination).
We state pertinent facts which the materials on summary judgment, viewed most favorably to Tardanico, support. When fired, Tardanico was fifty-seven years old; his replacement was thirty-one years old and received a salary that was about $6,000 less per year. Aetna subjected Tardanico to conditions of labor that were undignified so far as office space and office equipment were concerned. For example, he had no air conditioning, shelving was inadequate, the camera issued by Aetna to photograph damaged cars did not work properly, and the company did not provide film development service. A few other field representatives worked under equally spartan conditions, although most had the benefit of better offices and functioning equipment. There was no other evidence that the facilities afforded field representatives varied on the basis of age.
Tardanico argues that his submission allows inferences that Aetna was embarked upon a reduction in force in Massachusetts and that his discharge was responsive to an inquiry about early retirement benefits. Those circumstances, he argues, disclose the true basis for the termination of his employment at Aetna. The argument that Aetna intended to reduce its work force (Aetna ultimately did withdraw from the business of writing automobile insurance in Massachusetts) does not square with Aetna’s hiring of a replacement for Tardanico. As to the early retirement inquiry, the evidence is that the investigation of Tardanico had begun before he made an inquiry about the terms of early retirement. The evidence establishes no links among the senior security auditor (Peter Ter Bush) who conducted the field investigation and recommended Tardanico’s discharge, the claims manager of Aetna’s New England branch office (Guy Crosby), who made the discharge decision, and the in-house adviser on retirement questions with whom Tardanico had conferred.
When Tardanico’s submission on summary judgment is distilled, nothing beyond the comments discussed and his own age suggest that the reasons given by Aetna for discharging him are a pretext. The Superior Court judge correctly concluded that, on the basis of what Tardanico hád submitted in opposition to Aetna’s motion for summary judgment, it was unlikely that evidence would be forthcoming at trial tending to prove that Aetna’s reason for firing Tardanico was a pretext. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715-716 (1991).
Judgment affirmed.
Tardanico’s complaint included a second count based on G. L. c. 93, § 103, but he has not appealed from an adverse judgment on that count, which entered on the authority of Agin v. Federal White Cement, Inc., 417 Mass. 669, 672 (1994).
Section 5 runs in excess of four printed pages and the second paragraph alone runs over three pages of unbroken text. The statute would benefit from editorial reorganization.
Tardanico’s counsel wrote to the MCAD on December 26,1991, informing it that he had filed an action in Superior Court and asking that the MCAD action be dismissed.
The interior elements of stage one would be that Tardanico was: (a) in the protected class, over age forty; (b) doing his job acceptably; (c) fired; and (d) replaced by a younger person. See White v. University of Mass, at Boston, 410 Mass. 553, 557 (1991); Duke v. Uniroyal Inc., 928 F.2d 1413, 1417 (4th Cir. 1991).
Tardanico has argued that the Superior Court judge mistakenly employed the “pretext plus” standard rejected in Blare, supra at 444. The judge’s memorandum of decision does not bear out that contention.