Removing an MCAD Complaint to Court
If you have filed a discrimination case with the Massachusetts Commission Against Discrimination ("MCAD"), you will have the choice after 90 days to remove it and file in court. Either the MCAD or a court has the authority to award damages including back wages, emotional distress, and sometimes punitive damages.
There are some differences, however. Below are some things you should consider in making a decision about removing your MCAD complaint.
Reasons to leave a claim in MCAD
There are many reasons you might choose to leave your case in MCAD. The MCAD's sole responsibility is to handle claims of discrimination and sexual harassment. This means they have lots of experience in discrimination laws.
The MCAD process is also somewhat less formal than court. You are almost always better off having a lawyer than handling your case yourself. But if you have chosen to represent yourself, the MCAD process is more user friendly and easier to manage without at attorney.
The MCAD filings are not public records unless or until there is an investigative finding. If you are concerned about future employers knowing that you filed an employment discrimination claim, staying in MCAD gives you an opportunity to pursue and resolve those claims before the information becomes public. Once there is an investigative finding your complaint will be a matter of public record. If you go to a public hearing at MCAD, that too will be a public record.
Reasons to remove a case from MCAD
There are also many reasons you might choose to withdraw your claim from MCAD.
One reason might be timing. You have to file with MCAD within 300 days of the discriminatory act, but once you meet that deadline you have a full three years to file in court. If you had to file an MCAD complaint quickly to meet the statute of limitations, withdrawal may give you more time to develop your claims before proceeding.
Another is that the discovery available in MCAD is more limited and discretionary than it is in court. In MCAD, the investigator will have discretion about whether and to what extent you can get information from your employer. In Superior or Federal Court, discovery is mandatory and broad. As the plaintiff, you usually need access to a fair amount of information from your employer to prove a discrimination or harassment claim.
A third is that the MCAD process can be very slow. We have seen MCAD cases drag on longer than the three year civil statute of limitations. That means that if you wait for an investigative decision you may be outside your time limit to file in Massachusetts court.
When to make a decision about removing a case from MCAD
The earliest time you can remove your discrimination claim is 90 days after you file the complaint with MCAD. There are certain points in the process where people consider removing the complaint.
On the 90th day. If you have filed with MCAD only to exhaust your administrative remedies and always intended to remove the complaint, this is the time to do it. You do not need to file a motion. You can fill out a simple withdrawal form and send it to the MCAD office handling your complaint. You should receive confirmation of withdrawal within a week or two, but the withdrawal is effective immediately.
After receiving your employer's position statement. Usually within the first 90 days the defendant has submitted its side of the story, called a position statement. Your response to that position statement or rebuttal typically comes due at or around the 90 day mark. This is often the point at which plaintiffs decide to remove their complaint to file in court. You have received the position statement, which means you have some insight into the employer's arguments, but you have not yet had to invest time and money in the rebuttal.
After mediation. If the MCAD offers an opportunity to mediate, you may choose to stay in MCAD at least through the mediation. Unlike most mediations once you are in court, there is no charge for the mediator. This gives you a free or low cost opportunity to see if you can reach resolution early in the case.
No matter what, you want to keep an eye on the three year statute of limitations for discrimination claims, and the two year statute for equal pay claims. If you have not reached resolution in MCAD by the time you are a few months short of that deadline, you should at least talk to a lawyer about removing and filing in court.
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