Filed: Oct. 07, 2003
Latest Update: Feb. 21, 2020
Summary: Farouk Martins on brief pro se.MCAD proceeding.record rest with Martins.Mass. 551, 557 n.8, 664 N.E.2d 808, 812 n.8 (1996);a Title VII claim.an EEOC complaint.was filed).resolved by the state superior court until June 1999.claim into his state court civil rights action);retaliation claim.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1414
FAROUK O. MARTINS,
Plaintiff, Appellant,
v.
BOSTON PUBLIC HEALTH COMMISSION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.
Farouk Martins on brief pro se.
John M. Townsend and Eileen A. Roach on brief for appellee.
October 7, 2003
Per Curiam. Farouk Martins has appealed a district court
order dismissing his complaint for failure to state a claim. See
Fed. R. Civ. P. 12(b)(6). We affirm.
We review, de novo, the district court's grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim. Martin v.
Applied Cellular Technology, Inc., 284 F.3d 1, 5 (1st Cir. 2002).
The district court here granted the Rule 12(b)(6) motion on res
judicata (claim preclusion) grounds. We look to state law in
deciding the res judicata effect of a state court judgment in
federal court. Kremer v. Chemical Construction Corp.,
456 U.S.
461, 481-82 (1982); Cruz v. Melecio,
204 F.3d 14, 18 (1st Cir.
2000). In Massachusetts, "[t]hree elements are essential for
invocation of claim preclusion: (1) the identity or privity of the
parties to the present and prior actions, (2) identity of the cause
of action, and (3) prior final judgment on the merits." DaLuz v.
Dept. of Correction,
434 Mass. 40, 45,
746 N.E.2d 501, 505 (2001).
The second element -- that of "the identity of the cause of action"
-- is the only one potentially at issue here. As to that element,
Massachusetts law provides that "[c]laim preclusion makes a valid,
final judgment conclusive on the parties and their privies, and
prevents relitigation of all matters that were or could have been
adjudicated in the action." Blanchette v. School Committee of
Westwood,
427 Mass. 176, 179 n.3,
692 N.E.2d 21, 24 n.3 (1998)
(emphasis added).
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In responding to the appellee's motion to dismiss,
Martins informed the district court that he had filed a complaint
with the Massachusetts Commission Against Discrimination (MCAD) in
September 1997 against his former employer, the Boston Public
Health Commission (BPHC), alleging retaliation after reporting
sexual harassment to BPHC. Martins argued that, because his
retaliation claim remained pending before the MCAD at the time of
his state court common law action for defamation and because the
state court would not adjudicate any such retaliation claim until
the administrative process was completed, he did not have a full
and fair opportunity to litigate that retaliation claim in his
state court case.
Martins did not attach any documents from his MCAD
filing. Nor did he inform the district court of the outcome of any
MCAD proceeding. He did provide a copy of a right-to-sue letter
issued by the Equal Employment Opportunity Commission (EEOC), dated
September 19, 2002, and a copy of an October 1998 ruling by the
state court in his defamation suit that denied a motion apparently
filed by BPHC seeking to dismiss. The responsibility and, thus,
consequences for having presented an incomplete and fragmented
record rest with Martins. In any event, we are able to conclude
that res judicata appropriately lies here to bar the most recent
complaint.
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Contrary to Martins's contention, he was not deprived of
a full and fair opportunity to litigate his retaliation claim in
the state court. See O'Neill v. City Manager of Cambridge, 428
Mass. 257, 259,
700 N.E.2d 530, 533 (1998) (reciting that claim
preclusion does not apply in a case where a party did not have an
opportunity to raise the claim at the earlier proceeding).
Although Martins was required by state law to first present a
timely complaint of discrimination to the MCAD -- here, Martins's
claim was for termination (allegedly) in retaliation for his
allegations of sexual harassment against a fellow employee whom
Martins supervised -- he had the right to withdraw that claim from
the MCAD and bring suit in court at any time with permission of the
MCAD or as of right after ninety days if the MCAD had not
adjudicated the case by that time. Green v. Wyman-Gordon Co.,
422
Mass. 551, 557 n.8,
664 N.E.2d 808, 812 n.8 (1996); Charland v.
Muzi Motors, Inc.,
417 Mass. 580, 583-84,
631 N.E.2d 555, 557
(1994); see also Lavelle v. MCAD,
426 Mass. 332, 335,
688 N.E.2d
1331, 1334 (1997) (reciting that "a complainant has the right under
G.L. c. 151B, § 9, to terminate agency proceedings and obtain a
judicial determination of her claim") (emphasis added).
If Martins had withdrawn his MCAD complaint, he could
have pursued the retaliation claim in conjunction with his common
law defamation claim. This is so whether the statutory basis for
Martins's retaliation claim is Mass. Gen. Laws ch. 151B, § 9 or
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Title VII. A state court has concurrent jurisdiction to adjudicate
a Title VII claim. Yellow Freight System, Inc. v. Donnelly, 494
U.S. 820, 821 (1990). Although Martins did not have an EEOC right-
to-sue letter at the time of his state court defamation action, he
could have sought such a letter from the EEOC 180 days after filing
an EEOC complaint. See Occidental Life Ins. Co. v. EEOC,
432 U.S.
355, 361 (1977); see also Kremer v. Chemical Construction Corp.,
456 U.S. 461, 465 n.3 (1982) (reciting that "[w]here the Commission
has not filed a civil action against the employer, it must, if
requested, issue a right-to-sue letter 180 days after the charge
was filed"). Martins does not inform us of the date that he filed
his EEOC complaint but, pursuant to the worksharing agreement by
which a claim filed with the MCAD is effectively filed with the
EEOC, see Davis v. Lucent Technologies, Inc.,
251 F.3d 227, 230 n.1
(1st Cir. 2001), we can assume, as operative for the EEOC
complaint, the purported filing date of September 1997 for his MCAD
complaint. Thus, Martins could have requested a right-to-sue
letter from the EEOC in March 1998. Martins's state court
defamation action was still pending at this time and was not
resolved by the state superior court until June 1999. There is
nothing to suggest that Martins could not have notified the state
court of his Title VII claim and sought a stay of that action until
he asked for and obtained the letter from the EEOC. Cf. Heyliger
v. State U. & Comm. Coll. System of Tenn.,
126 F.3d 849, 855-56
-5-
(6th Cir. 1997) (holding that claim preclusion, under Tennessee
law, applied to bar Title VII claim because plaintiff could have
timely sought EEOC right-to-sue letter and folded the Title VII
claim into his state court civil rights action); Woods v. Dunlop
Tire Corp., 972 F.2d 36, 41 (2d Cir. 1992) (holding that claim
preclusion applied to bar Title VII claim because plaintiff could
have filed her claim under the Labor Management Relations Act and
then either sought a stay of that action pending the outcome of the
Title VII proceeding or sought a right-to-sue letter from the
EEOC).
From aught that appears, however, Martins chose not to
withdraw his MCAD complaint. He was certainly within his rights to
opt for an administrative, rather than judicial, decision of his
retaliation claim. See Charland v. Muzi Motors, Inc., 417 Mass. at
583-85, 631 N.E.2d at 557-58. That Martins chose not withdraw his
MCAD complaint and to pursue this retaliation claim in his state
court defamation suit, however, does not mean that he did not have
a full and fair opportunity to present this retaliation claim in
state court. It only means that he failed to take advantage of the
opportunity that was available to him. That failure on Martins's
part does not prevent the application of claim preclusion here.
Affirmed.
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