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King v. Tim First2/23/1999
Suffolk
November 12, 1998
Anti-Discrimination Law, Housing. Landlord and Tenant, Discrimination. Practice, Civil, Parties. Notice, Administrative hearing. Civil Rights, Availability of remedy.
Civil action commenced in the City of Boston Division of the Housing Court Department on January 31, 1990.
The case was heard by Jeffrey M. Winik, J., on a motion for summary judgment.
The case was submitted on briefs.
Upon the refusal of the defendant to rent an apartment to the plaintiff, the plaintiff filed a multi-count complaint in the Housing Court claiming that the defendant's refusal was based upon the fact that the plaintiff was black and a recipient of public assistance. In his complaint, he alleged the following claims: a violation of G. L. c. 151B, Sect. 4, sixth par., as in effect prior to St. 1989, c. 516, Sect. 9, based on the asserted discriminatory conduct (count one); a violation of 940 Code Mass. Regs. Sect. 3.17 (1986) based on the asserted discriminatory conduct and alleged defective conditions in the apartment (count two); a violation of G. L. c. 93A (count three); breach of the warranty of habitability (count four); infliction of emotional distress (count five); constructive eviction (count six); interference with quiet enjoyment (count seven); and violation of the security deposit laws (count eight). The defendant moved for summary judgment on the grounds that the plaintiff's claims were barred either because of the failure of the plaintiff to name him as a party in the complaint filed by the plaintiff with the Massachusetts Commission Against Discrimination (MCAD) concerning this matter as required by the provisions of G. L. c. 151B, Sect. 5, or because of the inadequacy of evidence to support his claims. A Housing Court Judge allowed the motion. The plaintiff appeals from the ensuing judgment, claiming that the Judge erred in ruling that the complaint he filed with the MCAD against the defendant's real estate agent did not constitute compliance with the prerequisites of G. L. c. 151B, Sect. 5, and in ruling that, as a consequence thereof, all of the plaintiff's claims were barred because his exclusive remedy for the alleged discriminatory conduct is provided by G. L. c. 151B. We affirm for the reasons stated.
At the time that the plaintiff initiated this action in March, 1990, a civil action could not be brought in the Housing Court under G. L. c. 151B, Sect. 9, unless it was preceded by the filing of a complaint of unlawful discrimination with the MCAD within six months of the occurrence of the discriminatory event. G. L. c. 151B, Sect. 5, second par., thirty-sixth sentence & Sect. 9. The complaint must contain identification of the person(s) alleged to have committed the unlawful discriminatory act. G. L. c. 151B, Sect. 5, first par. 804 Code Mass. Regs. Sect. 1.03(4)(a) (1986). The failure to name a party in the complaint filed with the MCAD has been ruled to bar a plaintiff from later maintaining a G. L. c. 151B claim in court against the party. Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 667 (1997). No Massachusetts appellate decision has yet wrestled with the question whether the failure to name a party in the complaint filed with the MCAD precludes a later court action against the unnamed party without exception. See Chatman v. Gentle Dental Center of Waltham, 973 F. Supp. 228, 233 (D. Mass. 1997).
The plaintiff argues that he is not precluded from maintaining his G. L. c. 151B claim and his related claims in the circumstances of this case. He bases his argument on the grounds that the complaint filed by him with the MCAD constituted constructive notice to the defendant becaus
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