Martins v. Boston Public Health Commission

Not for Publication in West's Federal Reporter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

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(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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