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18-P-762                                               Appeals Court
18-P-1493


    GERARD D. GRANDOIT vs. MASSACHUSETTS COMMISSION AGAINST
                     DISCRIMINATION & others1
                 (and three consolidated cases2).

  GERARD D. GRANDOIT      vs.   BOSTON HOUSING AUTHORITY & another.3


                        Nos. 18-P-762 & 18-P-1493.

             Suffolk.       May 14, 2019. - July 12, 2019.

               Present:    Agnes, Shin, & Wendlandt, JJ.


Massachusetts Commission Against Discrimination. Jurisdiction,
     Judicial review of administrative action. Administrative
     Law, Adjudicatory proceeding, Administrative Procedure Act,
     Judicial review. Practice, Civil, Action in nature of
     certiorari, Dismissal, Review of administrative action.


     Civil actions commenced in the Superior Court Department on
September 22, 2017.




     1 Executive Office of Health and Human Services and Mark
Cowell.

     2 Gerard D. Grandoit vs. Massachusetts Commission Against
Discrimination & others; Gerard D. Grandoit vs. Massachusetts
Rehabilitation Commission & others; Gerard D. Grandoit vs.
Massachusetts Office on Disability & others.

     3   Massachusetts Commission Against Discrimination.
                                                                   2


     Motions to dismiss were considered by Robert L. Ullman and
Hélène Kazanjian, JJ.

     Civil action commenced in the Superior Court Department on
October 3, 2017.

    A motion to dismiss was heard by Linda E. Giles, J.


     Gerard D. Grandoit, pro se.
     Simone R. Liebman for Massachusetts Commission Against
Discrimination.
     Gabriel S. Gladstone for Operation A.B.L.E. & another.
     Kimberly A. Parr, Assistant Attorney General, for Executive
Office of Health and Human Services & others, was present but
did not argue.
     Michael J. Louis, for Boston Housing Authority, was present
but did not argue.


    SHIN, J.   The plaintiff filed five complaints with the

Massachusetts Commission Against Discrimination (commission or

MCAD), alleging discrimination in housing and various

discriminatory acts relating to his efforts to obtain job-

training services.   All of the complaints were dismissed after

MCAD investigating commissioners conducted preliminary hearings

and found a lack of probable cause to support the allegations.

The question we address in these appeals is whether the Superior

Court had jurisdiction under the Administrative Procedure Act,

G. L. c. 30A, or the certiorari statute, G. L. c. 249, § 4, to

review the investigating commissioners' lack of probable cause
                                                                     3


determinations.4   We conclude that the court had no jurisdiction

and thus affirm the judgments of dismissal.

     Statutory and regulatory framework.    "There are two largely

independent avenues for redress of violations of the

antidiscrimination laws of the Commonwealth, one through the

MCAD (G. L. c. 151B, §§ 5-6) and the other in the courts (G. L.

c. 151B, § 9)."    Christo v. Edward G. Boyle Ins. Agency, Inc.,

402 Mass. 815, 817 (1988).    For claims of discrimination

relating to housing, complainants may elect at the outset to

commence a civil action in court within one year of the

allegedly discriminatory act, or file a complaint with the

commission within 300 days.   See G. L. c. 151B, §§ 5, 9.5   For

all other claims, complainants must first file a complaint with

the commission within 300 days.   See G. L. c. 151B, § 5.

     Once a complaint is filed, the commission has exclusive

jurisdiction over it for a period of ninety days.    See G. L.

c. 151B, § 9; Depianti v. Jan-Pro Franchising Int'l, Inc., 465

Mass. 607, 613 (2013).   At the expiration of the ninety days,




     4 The cases were paired for consideration and oral argument
in this court.

     5 "General Laws c. 151B, § 9, was amended by St. 1991, c.
323, to permit a plaintiff alleging housing discrimination to
commence a civil action . . . within one year after the unlawful
discrimination occurred without first filing a complaint with
the MCAD." King v. First, 46 Mass. App. Ct. 372, 373 n.2
(1999).
                                                                        4


"or sooner if a commissioner assents in writing," the

complainant may, "not later than three years after the alleged

unlawful practice occurred, bring a civil action for damages or

injunctive relief or both."   G. L. c. 151B, § 9.     The civil

action and the commission proceeding may not occur

simultaneously.   Thus, if a complainant brings a civil action,

the commission must dismiss any pending complaint, and the

complainant "shall be barred from subsequently bringing a

complaint on the same matter before the commission."      Id.     See

Christo, 402 Mass. at 817.

    Upon the filing of a complaint, the commission will assign

an individual commissioner to investigate the allegations and

make a determination whether probable cause exists for crediting

them.   See G. L. c. 151B, § 5.    If the investigating

commissioner finds that there is probable cause (and the

complainant has not elected to bring a court action), the

commission will issue a complaint against the respondent and

hold an adjudicatory hearing.     See id.6   Pursuant to G. L.




    6  If the investigating commissioner finds probable cause in
the context of housing discrimination, the commission must also
serve notice on both "the complainant and respondent of their
right to elect judicial determination of the complaint as an
alternative to determination in a hearing before the
commission." G. L. c. 151B, § 5. If a party elects a judicial
determination, "the commission shall authorize, and not later
than thirty days after the election is made the attorney general
shall commence and maintain, a civil action on behalf of the
                                                                    5


c. 151B, § 6, a party aggrieved by the commission's decision

after the adjudicatory hearing may seek judicial review in

Superior Court in accordance with the standards for review set

out in G. L. c. 30A, § 14.    See East Chop Tennis Club v.

Massachusetts Comm'n Against Discrimination, 364 Mass. 444, 447

(1973).

    If the investigating commissioner instead finds no probable

cause to support the allegations, complainants may request a

"preliminary hearing" within ten days of service of written

notice of the finding.    G. L. c. 151B, § 5.   A preliminary

hearing is an informal proceeding held before the investigating

commissioner who made the initial finding (or his or her

designee), at which complainants may "present orally or in

writing reasons why the [l]ack of [p]robable [c]ause

determination is in error and to present such evidence in

support of their argument as the [i]nvestigating [c]ommissioner

or his/her designee deems appropriate."     804 Code Mass. Regs.

§ 1.15(7)(d) (2008).     After the preliminary hearing, the

investigating commissioner may affirm, modify, or reverse the

lack of probable cause determination, reopen the matter for

further investigation, or "[t]ake such other action as he/she

deems necessary in the interest of justice."     Id.   Even where



complainant." Id. The "complainant may intervene as of right"
in any such action. Id.
                                                                    6


the investigating commissioner affirms the finding of no

probable cause, nothing in the statute precludes the complainant

from filing a civil action under G. L. c. 151B, § 9, so long as

it is initiated within the limitations period.

    Discussion.   The plaintiff brought separate actions in

Superior Court seeking judicial review of the five lack of

probable cause determinations issued by the investigating

commissioners after preliminary hearings.     In each action one or

more of the defendants moved to dismiss under Mass. R. Civ. P.

12 (b) (1), 365 Mass. 754 (1974), on grounds that the lack of

probable cause determinations were not reviewable under G. L.

c. 30A or G. L. c. 249, § 4.     We review the decisions allowing

those motions de novo.   See 311 W. Broadway LLC v. Board of

Appeal of Boston, 90 Mass. App. Ct. 68, 73 (2016).

    Judicial review under G. L. c. 30A, § 14, is available to

persons "aggrieved by a final decision of any agency in an

adjudicatory proceeding."   An "adjudicatory proceeding" is

defined as "a proceeding before an agency in which the legal

rights, duties or privileges of specifically named persons are

required by constitutional right or by any provisions of the

General Laws to be determined after opportunity for an agency

hearing."   G. L. c. 30A, § 1.   Agencies must conduct

adjudicatory proceedings in compliance with certain statutory

requirements, including giving the parties the right to call,
                                                                     7


examine, and cross-examine witnesses and issuing "a statement of

reasons for the decision, including determination of each issue

of fact or law necessary to the decision."     G. L. c. 30A, § 11.

    As the Supreme Judicial Court concluded in Christo, 402

Mass. at 818, a preliminary hearing before an investigating

commissioner is not an "adjudicatory proceeding" within the

meaning of G. L. c. 30A, "and no statutory right of appeal for

judicial review applies to . . . a determination [by the

investigating commissioner]."   Indeed, G. L. c. 151B, § 5,

expressly provides that "a preliminary hearing shall not be

subject to the provisions of chapter [30A]."    Moreover, while

G. L. c. 151B, § 6, provides for judicial review of "such

order[s] of the commission," G. L. c. 151B, § 5, does not refer

to determinations of no probable cause, issued before or after a

preliminary hearing, as "order[s]."   It is thus clear that the

judicial review provision applies only to "order[s]" issued

after the full adjudicatory hearing that the commission will

hold upon an investigating commissioner's affirmative

determination that probable cause exists.    See G. L. c. 151B,

§ 5 (after adjudicatory hearing, commission shall issue either

"an order requiring [the] respondent to cease and desist" or "an

order dismissing the . . . complaint as to such respondent").

    Consistent with the statutory scheme, the commission's

implementing regulations state that a "[f]inal" decision is one
                                                                    8


that is issued by the "[f]ull [c]ommission."   804 Code Mass.

Regs. § 1.24 (1999).    See Massachusetts Teachers' Retirement

Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 297

(2013), quoting Borden, Inc. v. Commissioner of Pub. Health, 388

Mass. 707, 723, cert. denied sub nom. Formaldehyde Inst., Inc.

v. Frechette, 464 U.S. 936 (1983) ("[A] properly promulgated

regulation has the force of law . . . and must be accorded all

the deference due to a statute").   An investigating

commissioner's determination to uphold an initial finding of

lack of probable cause is not a decision by the full commission

because only the investigating commissioner (or his or her

designee) presides at a preliminary hearing.   See 804 Code Mass.

Regs. § 1.15(7)(d).    The investigating commissioner's

determination is therefore not a "final" agency decision subject

to judicial review under G. L. c. 30A or, by extension, G. L.

c. 151B, § 6.

    Nor is judicial review available under the certiorari

statute, G. L. c. 249, § 4.   "Certiorari is a limited procedure

reserved for correction of substantial errors of law apparent on

the record created before a judicial or quasi-judicial

tribunal."   School Comm. of Hudson v. Board of Educ., 448 Mass.

565, 575-576 (2007).   To be entitled to certiorari review, a

plaintiff must demonstrate three elements:   "(1) a judicial or

quasi judicial proceeding, (2) from which there is no other
                                                                   9


reasonably adequate remedy, and (3) a substantial injury or

injustice arising from the proceeding under review."   Indeck v.

Clients' Sec. Bd., 450 Mass. 379, 385 (2008).

     Here, even assuming that a preliminary hearing is a quasi

judicial proceeding,7 certiorari review is unavailable because

the plaintiff has an adequate alternative remedy and has not

suffered a substantial injury or injustice from the

investigating commissioners' lack of probable cause

determinations.   The purpose of the preliminary hearing is to

determine what formal action, if any, the commission will take

on the complaint pursuant to G. L. c. 151B, § 5.   See Stonehill

College v. Massachusetts Comm'n Against Discrimination, 441

Mass. 549, 563 (2004) ("The complainant . . . may be a party to

a § 5 proceeding and may present testimony at the public

hearing, but it is the MCAD, and not the complainant, that


     7 Whether a proceeding qualifies as quasi judicial is
governed by a flexible, multifactor test. See Revere v.
Massachusetts Gaming Comm'n, 476 Mass. 591, 600-601 (2017).
Factors indicating that the preliminary hearing is not quasi
judicial include that it is not "preceded by specific charges,"
and the investigating commissioner is not required to take
"sworn testimony by witnesses" or issue "formal findings of
fact." Id. On the other hand, complainants are given the
"opportunity to respond" to the initial finding of no probable
cause, the investigating commissioner is "required to conduct
[an] investigation[] into the" allegations of the complaint, and
the investigating commissioner will then issue an
"individualized determination" that does "not concern a new rule
of general applicability." Id. at 601. Given that the
plaintiff cannot satisfy the other requirements for certiorari
review, we need not resolve this issue.
                                                                   10


prosecutes the discrimination claim").    An investigating

commissioner's determination of no probable cause will end the

administrative process but will not preclude the complainant

from bringing a civil action under G. L. c. 151B, § 9, against

the person or entity that committed the alleged discrimination.

Chapter 151B thus provides for a reasonably adequate remedy,

barring review under the certiorari statute.    See Cumberland

Farms, Inc. v. Planning Bd. of Bourne, 56 Mass. App. Ct. 605,

608 (2002) (certiorari review unavailable because "zoning appeal

pursuant to G. L. c. 40A, § 17, provided a reasonably adequate

remedy").

    For related reasons the plaintiff cannot show that he

suffered a substantial injury or injustice from the commission's

decision not to institute formal proceedings.    Chapter 151B does

not compel the commission to prosecute each one of the many

complaints that it receives.   Rather, the statute leaves that

decision wholly within the discretionary authority of the

commission, see G. L. c. 151B, § 5, while providing complainants

with an adequate alternative remedy in the event the commission

declines to take formal action.   Certiorari is not available to

the plaintiff in these circumstances.    See State Bd. of

Retirement v. Bulger, 446 Mass. 169, 173 (2006), quoting

Massachusetts Bay Transp. Auth. v. Auditor of the Commonwealth,

430 Mass. 783, 790 (2000) (certiorari can be used to "rectify
                                                                  11


only those errors of law which have resulted in manifest

injustice to the plaintiff or which have adversely affected the

real interests of the general public"); Stonehill College, 441

Mass. at 563 ("primary purpose of an administrative proceeding

before the MCAD is to vindicate the public's interest in

reducing discrimination in the workplace by deterring, and

punishing, instances of discrimination by employers against

employees").8

                                   Judgments affirmed.




     8 Given our decision we do not reach the remaining issues
raised by the parties.
