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Kern v. Income Research and Management

United States District Court, D. Massachusetts

February 15, 2017

STEPHEN F. KERN, Plaintiff,
v.
INCOME RESEARCH AND MANAGEMENT, Defendant.

          ORDER

          Leo T. Sorokin United States District Judge.

         For the reasons that follow, Defendant Income Research & Management's Motion to Dismiss counts three and four of Plaintiff Stephen F. Kern's First Amended Complaint is ALLOWED.

         I. BACKGROUND

         On December 10, 2015, Plaintiff commenced this action, and on April 1, 2016, he filed a First Amended Complaint (“FAC”). Docs. 1, 5. Plaintiff, a former executive at Income Research & Management (“IRM”), alleges Defendant discriminated against him on the basis of age. Doc. 5 at 1. More specifically, Plaintiff alleges Defendant threatened, during salary negotiations, to fire Plaintiff and replace him with someone younger, and then carried out that threat. Id. at 2. In counts one and two of the FAC, Plaintiff claims discrimination and retaliation, respectively, under the Age Discrimination in Employment Act, 29 U.S.C. § 623(a).

         Doc. 5 at 10-11. In counts three and four of the FAC, Plaintiff claims discrimination and retaliation, respectively, under the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B (hereinafter, “Chapter 151B” or “151B”). Doc. 5 at 11-12.

         On June 17, 2016, Defendant filed the instant Motion under Federal Rule of Civil Procedure 12(b)(6). Doc. 14. On July 29, 2016, Plaintiff filed an Opposition. Doc. 23. On August 12, 2016, Defendant filed a Reply. Doc. 25.

         II. COUNT THREE

         Defendant argues that count three of the FAC - that, in firing Plaintiff, Defendant committed age discrimination under Chapter 151B - is barred by 151B's statute of limitations. Doc. 16 at 1.

         “While most Rule 12(b)(6) motions are premised on a plaintiff's putative failure to state an actionable claim, such a motion may sometimes be premised on the inevitable success of an affirmative defense, ” such as a statute-of-limitations defense. Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir. 2006) (citations omitted). “Dismissing a case under Rule 12(b)(6) on the basis of an affirmative defense requires that (i) the facts establishing the defense are definitively ascertainable from the complaint and other allowable sources of information, and (ii) those facts suffice to establish the affirmative defense with certitude.” Id. (citation and internal quotation marks omitted).

         Without equitable tolling, Plaintiff's 151B discrimination claim is untimely by over a year. “[A] civil action under 151B must be filed within three years of the alleged unlawful act.” Abraham v. Woods Hole Oceanographic Institute, 553 F.3d 114, 117 (1st Cir. 2009) (citations omitted). “[I]n 151B discrimination claims, the three year statute of limitations period begins to run upon the notice of an upcoming termination of employment rather than when the termination occurs.” Id. (citations omitted). While the FAC does not state the date Plaintiff was given notice of termination, it states that Plaintiff was fired in response to a letter he wrote to IRM on August 24, 2011. Doc. 5 at 6-7. Moreover, in his Opposition, Plaintiff states that his “last day of work” at IRM was in August 2011, and that the “three-year statutory time period” expired in August 2014. Doc. 23 at 3, 8. Thus, by all indications, Plaintiff was given notice of termination by August 31, 2011, and the statute of limitations expired by August 31, 2014, more than 15 months before Plaintiff filed this action on December 10, 2015.

         The FAC suggests Plaintiff is entitled to equitable tolling because (1) he filed a timely complaint of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”) on November 18, 2011;[1] (2) the MCAD represented to Plaintiff as late as 2012, that his claim “would be meaningfully investigated”; (3) Plaintiff “relied upon” that representation in deciding not to file a civil action; and (4) the MCAD “took no meaningful action with respect to Mr. Kern's claim for approximately three years, [2] despite repeated calls from Mr. Kern and his counsel asking for information about status.”[3] Doc. 5 at 8-9. In the Opposition, Plaintiff presents two additional pieces of information: (1) that in August 2013, Plaintiff's counsel called the MCAD to check on the progress of Plaintiff's complaint and was told that the assigned investigator “had not yet turned to the case, and hoped to do so in the fall, ”; and (2) that in January 2014, Plaintiff's counsel called the MCAD and an investigator “apologized that the matter had taken so long to investigate” and appeared not to know about the progress of the case, even asking Plaintiff's counsel whether an investigative conference “had yet been conducted.” Doc. 23 at 3 (citations and internal quotation marks omitted). Nevertheless, Plaintiff claims that “[i]n the period leading up to” August 2014, he “decided not to remove his case to Superior Court in reliance upon the MCAD's promises to him concerning the manner in which it would investigate his claims.” Id. at 8.

         Plaintiff's arguments for equitable tolling are unavailing. “In Massachusetts, such an extraordinary remedy is applied sparingly in employment discrimination cases.” Shervin v. Partners Healthcare System, Inc., 804 F.3d 23, 39 (1st Cir. 2015) (citation and internal quotation marks omitted). “Invoking such a palliative is permitted when, say, the plaintiff is excusably ignorant about the statutory filing period, or where the defendant or the MCAD has affirmatively misled the plaintiff.” Id. (citation and internal quotation marks omitted). Neither of those circumstances is present in this case: Plaintiff was represented by counsel “at all times, ” see supra n.2, meaning that “[c]onstructive knowledge of all [of Chapter 151B's] procedural requirements is imputed to” Plaintiff. Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1021 (1996); see also Conroy v. Boston Edison Co., 758 F.Supp. 54, 60 (D. Mass. 1991) (“Given that [the plaintiff] retained counsel during the limitations period, this is not a situation where the filing requirements should be equitably tolled.”). Moreover, Plaintiff was not required to wait for the MCAD to investigate or decide his case before filing a civil action; he could have filed a civil action as soon as 90 days after filing the MCAD claim, see supra n.1, and the MCAD's jurisdiction would have ended. Pelletier v. Town of Somerset, 458 Mass. 504, 511 n.15 (2010) (“The MCAD's jurisdiction ends when a petitioner files a complaint in the Superior Court.”) (citation omitted). Finally, and most critically, there was simply “no affirmative misleading by the MCAD”; rather, the MCAD indicated on multiple occasions that Plaintiff's case was not a priority for the MCAD, telling Plaintiff's counsel that they “hoped” to get to the case in fall 2013, and then, in January 2014, telling Plaintiff's counsel that it had not yet gotten to the case and even asking counsel about the progress of the investigation. The Court further notes that Plaintiff does not assert that he or his counsel contacted the MCAD, let alone heard anything “misleading” from the MCAD, during the (at least) six months between January 2014 and August 2014, when Chapter 151B's statute of limitations expired.[4] For all of these reasons, Plaintiff is not entitled to equitable tolling on his 151B discrimination claim. The claim is therefore dismissed as untimely.

         III. COUNT FOUR

         In count four of the FAC, Plaintiff claims, under 151B, that Defendant has engaged in post-termination retaliatory conduct “for [his] complaint of age discrimination, ” by “encouraging witnesses not to cooperate with [Plaintiff] and actively frustrating [his] ability to re-gain employment in the industry.” Doc. 5 at 12. The FAC contains no allegations as to when - even approximately - these alleged retaliatory acts occurred, but Plaintiff claims that “[t]his will be one of the subjects of discovery in this matter.” Doc. 23 at 5 n.3. However, Plaintiff also states, without citation to any supporting evidence, that when he filed the instant action on December 10, 2015, “less than two years had ...


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