Former critics pleased with MCAD turnaround

Just six months after promised changes at the Massachusetts Commission Against Discrimination, employment lawyers say the agency has noticeably improved how it handles cases.
In February, MCAD Chairman Walter J. Sullivan Jr. and Commissioner Martin S. Ebel – who both survived an attempt by Gov. Deval L. Patrick to name his own set of commissioners – issued a standing order and took steps to counter complaints the agency was slower and less effective than it had once been.
“There has been a 180-degree shift,” said Charles P. Wagner of Boston, a plaintiffs’-side employment attorney. “They have redirected their focus back to the commission’s unique law-enforcement standing.”
Wagner said that both plaintiffs’- and management-side lawyers have reported more cases receiving causal determinations. “Personally, I had gone 18 months without any causal determinations. Now I’ve had seven this year,” he noted.
The standing order issued in February revived pre-determination discovery orders on a case-by-case basis. The orders had been eliminated at the Boston office in 2004.
The causal determinations and discovery orders mean far more cases are being settled, according to Wagner.
The determinations let each side know “what parts of the case the commission found important and what parts it didn’t,” he said. And the discovery orders let “private counsel … engage in the investigation process with one another and with the parties.”
Springfield management-side attorney Jay M. Presser said he has noticed “a greater deliberative process regarding whether to allow discovery” since the start of the year.
Presser also praised a reduction in unnecessary status conferences.
“Before, we’d have one where they’d indicate that they thought a probable-cause determination was likely. It was just a repetition of what had happened before. Now they are actually making the determination and moving the cases along,” he said.

‘Radical change’
At the start of June, MCAD Chief of Enforcement John Lozada resigned. (Sullivan declined to comment further on his departure.) Sunila Thomas-George was named the acting enforcement director.
In addition, the agency’s general-counsel seat remains vacant, and former Commissioner Dorca I. Gomez’s term expired in March. Gomez was out on leave before the expiration of her term. (While the governor appointed a search committee to fill Gomez’s slot, several attorneys said they hope the appointment will be made soon. A spokeswoman for Patrick had no comment at press time.)
Earlier this year, Patrick had sought to move the agency to the Executive Office of Labor and Workforce Development and to replace all the commissioners. After a few weeks under the labor umbrella, the Legislature moved the MCAD back to the Executive Office for Administration and Finance and blocked Patrick’s ability to name all new commissioners.
Sullivan said he thinks the Patrick administration is no longer looking to replace either him or Ebel.
“When [the administration] first came in, there were all these complaints,” Sullivan said. “But they’ve seen a radical change, and they’ve been very happy. They look at us and see the people here care about what they do.”
Under the Patrick administration, added Ebel, “the climate seems more favorable to our issues and our needs.”
Springfield employment lawyer Tani E. Sapirstein said that while she has always been pleased with the agency’s staffers, funding remains an issue. “They just don’t have enough staff to process the number of charges and take whatever comes,” she remarked.
Boston management-side attorney Denise I. Murphy agreed with that assessment. “They are trying to do the right thing, but they don’t have the resources,” she said.
Sullivan and Ebel reported that the state budget for fiscal 2008 includes additional funding for MCAD, which will be designated for reopening the Worcester office.
Case management software will allow that office to actually process cases, instead of simply offering intake as it had previously, Ebel promised.
“The greater Worcester and greater Springfield regions are about the same size,” he said, “but we see far more complaints in Springfield” – something Ebel said might be reversed with the agency’s renewed central Massachusetts presence.

‘Luck of the draw’
The picture isn’t entirely rosy, however.
Boston attorney Lynn G. Weissberg, chairwoman of the Massachusetts Employment Lawyers Association’s MCAD/EEOC Committee, said she is dismayed the cases she has at MCAD “are still moving extremely slowly. They are cases that were filed in 2005, so I am concerned about the speed with which they are investigating cases.”
Ebel said the agency is now processing cases at the same rate that they are filed, but that some attorneys will not yet notice the difference.
“It is luck of the draw,” he admitted. “We put four new investigators on since the [February] standing order came in, and it has taken awhile to get them ramped up.”
More probable-cause determinations will be likely, predicted Ebel, because “as we reduce our inventory and weed out easy cases, those are cases that aren’t very good. Now, if we see that a case is likely to have probable cause, we’ll determine it. There’s no need for them to sit in the hopper.”
Murphy expressed concern that without the attorney-assisted unit, employers may still be subjected to defending potentially frivolous cases “based on some vague allegations. It expedites a resolution if we know what [the complainant] is talking about. I know employers who do the right thing but are compelled to defend frivolous claims at considerable cost, and part of that is that they don’t know and can’t gather the facts.”
Although the MCAD will now consider granting pre-determination discovery, “that’s not your right – it’s at the option and discretion of MCAD. It should be a matter of right,” said Murphy.
Ebel responded that even if the agency decides in a specific case not to grant the discovery, MCAD at least is offering the parties an opportunity to participate in the investigation by suggesting avenues, or even specific questions to ask.
“We welcome that and follow up on that,” Ebel said.
Added Sullivan: “And you’ll get that information back. Years ago that’s how it operated – attorneys would ask us to answer questions. Now that tool is back. The investigators are no longer pigeon-holed. Each case is treated separately.”