Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against Discrimination

by Heather E. Hall

Practice Tips

Introduction

Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.

COVID-19

At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.

In early June 2020, the MCAD began the process of phasing staff back into the offices.  At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.

Investigations Division Overview

The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.

Complaints  

Manner of Filing

The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: mcad@mass.gov.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.

Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”

Statute of Limitations

Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.

Information in Complaints 

When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.

Key Tip:  Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.

Pseudonym Complaints

An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).

Withdrawal of a Complaint

Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.

Answers/Position Statements

Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8).   The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.

Position Statement Contents

Full and complete position statements are essential to the MCAD’s investigative process.  Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.

Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”

Rebuttals

“Rebuttals to the position statement are not required, but are strongly encouraged…”   804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.

Key Tip:  Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments.  Do not simply reiterate the facts in the complaint.

Mediation 

The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.

Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.

Investigative Conferences

Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory.  804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.

Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).

Investigative Dispositions

Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.

The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).

Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.

Appeals and Motions to Reconsider 

If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.

In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.

The MCAD is currently conducting hearings on appeals telephonically.

Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.

Conciliation

If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.

Conclusion

We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served.  Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.

Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.