Mirabel v. Herb Chambers of Auburn, Inc. et al

Filing 23

Judge Joseph L. Tauro: ORDER entered. MEMORANDUM AND ORDER. For the Foregoing Reasons, Defendant's Beneelkour's Motion to Dismiss Plaintiff's Claim Against him Arising Under M.G.L. c. 151B (Count II) 9 is ALLOWED. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ELIAS MIRABAL,

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Plaintiff,
v.
HERB CHAMBERS OF AUBURN, INC., and
IMAD BENEELKOUR,
Defendants.

Civil Action No. 11-11047-JLT

MEMORANDUM
March 12, 2012

TAURO, J.
I.

Introduction
The chain of events underlying this action began in April 2008 when Plaintiff Elias Mirabal

began working for Defendant Herb Chambers of Auburn, Inc. (“Herb Chambers”). In March
2009, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”), and the EEOC notified the Massachusetts Commission Against
Discrimination (“MCAD”) of the charge. Presently at issue is Defendant Imad Beneelkour’s
Motion to Dismiss Plaintiff’s Claim Against Him Arising Under M.G.L c. 151B (Count II) [#9].
For the following reasons, Defendant’s Motion is ALLOWED.

1

II.

Background1
In April 2008, Defendant Herb Chambers hired Plaintiff.2 Plaintiff is a Jehovah’s Witness.

Plaintiff alleges that during his employment his superior, Defendant Beneelkour, harassed him
with homophobic slurs because Plaintiff’s religion does not approve of premarital sex.3 Around
August 8, 2008, Defendant Beneelkour approached Plaintiff from behind and placed him in a
chokehold, resulting in temporary asphyxiation and serious injury.4
In March 2009, Plaintiff filed a Charge of Discrimination with the EEOC alleging religious
discrimination by Defendant Herb Chambers.5 The EEOC cross-filed the discrimination charge
with the MCAD pursuant to its statutory obligations.6 Plaintiff only named Defendant Herb
Chambers as a respondent in the administrative complaint.7 Plaintiff did, however, include in the
charge numerous factual allegations regarding how Defendant Beneelkour treated him.8
Plaintiff asserts that on January 31, 2009, Defendant Herb Chambers terminated Plaintiff’s

1

Because the issue analyzed here arises in the context of a motion to dismiss, this court
presents the facts as they are related in Plaintiff’s Complaint, Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008), and construes those facts in the light most
favorable to Plaintiff, see Pettengill v. Curtis, 584 F. Supp. 2d 348, 362 (D. Mass. 2008) (quoting
Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 96 (1st Cir. 2007)).
2

See Am. Compl. ¶ 17 [#3].

3

See Am. Compl. ¶ 21 [#3].

4

See Am. Compl. ¶ 24 [#3].

5

See EEOC Compl. [#10-1].

6

See EEOC Letter [#10-2].

7

See EEOC Compl. [#10-1].

8

See EEOC Compl. [#10-1].
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employment in retaliation for his discrimination complaint.9 On August 29, 2011, Plaintiff filed
his Amended Complaint in the United States District Court for the District of Massachusetts,
asserting the following counts: (1) violation of Title VII, the Civil Rights Act, by Defendant Herb
Chambers; (2) religious discrimination in violation of M.G.L. c. 151B § 4 by Defendants Herb
Chambers and Beneelkour; and (3) assault and battery by Defendant Beneelkour.10
On October 27, 2011, Defendant Beneelkour brought a Motion to Dismiss Plaintiff’s
Claim Against Him Arising Under M.G.L c. 151B (Count II) [#9].

III.

Discussion
A plaintiff alleging employment discrimination under M.G.L. 151B § 4 must file a

complaint with the MCAD prior to bringing a civil action.11 The purpose of bringing a claim
before the MCAD is to provide notice and the opportunity for conciliation, resolution outside the
courtroom.12 Failure to name an individual as a respondent in the administrative charge does not
automatically prohibit a plaintiff from bringing a civil claim against that individual.13 A plaintiff
may bring a civil action against an individual not named in the administrative charge, “[i]f the
charge put[s] that party’s conduct at issue and if the party was on notice of the charge and had an

9

See Am. Compl. ¶ 26 [#3].

10

See Am. Compl. ¶ ¶ 31-44 [#3].

11

Singleton v. Sinclair Broad. Grp., Inc., 660 F. Supp. 2d 136, 146 (D. Mass. 2009).

12

Preston v. Second Wind, Inc., No. 11-10193-JLT, 2011 WL 5592840, at *2 (D. Mass.
Nov. 17, 2011).
13

Id.
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opportunity to participate in the MCAD proceeding . . . .”14
For an individual to have received proper notice, it is not enough for that individual to
have had knowledge of the plaintiff’s MCAD complaint.15 The individual needs to have received
notice that the “[p]laintiff intended to name him as a defendant in an eventual civil suit.”16 To
determine whether an individual received notice or had an opportunity to conciliate the claim,
courts have focused on whether the plaintiff attempted to amend the MCAD complaint to include
the individual.17 An attempt to amend the MCAD complaint puts an individual on notice that the
Plaintiff will eventually bring a lawsuit against him.
Here, Plaintiff did not name Defendant Beneelkour as a respondent in the administrative
complaint. Plaintiff also made no attempt in his civil complaint to demonstrate that Defendant
Beneelkour had the ability to participate in the MCAD proceeding or an opportunity to conciliate
the claim prior to a civil suit.18 There is, additionally, no indication in the MCAD record that
Plaintiff ever attempted to amend the administrative complaint to include Defendant Beneelkour.
Thus, Defendant Beneelkour did not have notice that plaintiff intended to name him as a
defendant in this civil suit.

14

Chatman v. Gentle Dental Ctr. of Waltham, 973 F. Supp. 228, 234 (D. Mass. 1997).

15

Singleton, 660 F. Supp. 2d at 147.

16

Id.

17

See Preston, 2011 WL 5592840, at *3-5 (allowing the motion to dismiss where the
plaintiff did not attempt to amend); Singleton, 660 F. Supp. 2d at 147 (allowing the motion to
dismiss where the plaintiff did not attempt to amend); Horney v. Westfield Gage Co., 95 F. Supp.
2d 29, 36 (D. Mass. 2000) (denying the motion to dismiss where the plaintiff did attempt to
amend the charge, thus providing notice and an opportunity to conciliate).
18

See generally Am. Compl. [#3].
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IV.

Conclusion
For the foregoing reasons, Defendant’s Beneelkour’s Motion to Dismiss Plaintiff’s Claim

Against him Arising Under M.G.L c. 151B (Count II) [#9] is ALLOWED.

IT IS SO ORDERED.

/s/ Joseph L. Tauro
United States District Judge

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