United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS MOTION TO DISMISS
(DOC. NO. 23)
TIMOTHY S. HILLMAN DISTRICT JUDGE
MacDonald (“Plaintiff”) brought the instant
action after he was terminated from employment with the Town
of Upton in 2014. Plaintiff seeks damages for discrimination
on the basis of his disability in violation of the Americans
with Disabilities Act and Mass. Gen. Laws, ch. 151B,
discrimination on the basis of his age in violation of the
Age Discrimination in Employment Act and Mass. Gen. Laws, ch.
151B, and hostile work environment in violation of Mass. Gen.
Laws, ch. 151B against former Upton town manager, Blythe
Robinson, Plaintiff's former supervisor, James Gardner,
and the town of Upton (the “Town”). The Town
brings the instant motion to dismiss the state law claims.
worked for the Town as a maintenance worker and driver for
the Upton Council on Aging (“COA”) from 2006 to
2014, when he was terminated. He alleges that, beginning in
2010, Gardner discriminated against him because of his age
and disability. For example, Plaintiff alleges that on a
handful of times between February 2010 and March 2013,
Gardner “docked” Plaintiff's pay resulting in
a decrease of benefits and told Plaintiff that he would never
be able to get another job because of his age. (Amended
Complaint, ¶ 32). Gardner's discriminatory conduct
against Plaintiff continued until March 1, 2013, when Gardner
stopped working for the Town. While Gardner was still
employed by the Town, Plaintiff informed Robinson about
Gardener's discriminatory conduct towards him but
Robinson “dismissed [Plaintiff's] complaints
without discussion.” (Id. at ¶ 30).
20, 2013, Plaintiff filed a charge of discrimination in the
Massachusetts Commission Against Discrimination
(“MCAD”). In July 2013, Plaintiff's hours
were further reduced to 19 hours per week, resulting in a
loss of benefits. “While the MCAD's investigation
proceeded, Plaintiff became increasingly concerned that Upton
would terminate his employment based upon pretext” and
in September 2014, “Plaintiff requested a leave of
absence pending the resolution of the MCAD process. Robinson
refused this request, and either Robinson or Upton
misrepresented the nature of the leave requested by
Plaintiff, claiming it to be health or mental health
issues.” (Id. at ¶ 47).
September 30, 2015, the MCAD issued a finding of lack of
probable cause. Plaintiff appealed, which was denied and the
finding of lack of probable cause was affirmed. The Plaintiff
subsequently filed this action in the U.S. District Court for
the District of Massachusetts on December 9,
2016. After an Amended Complaint was filed, the
Town of Upton filed the instant motion to dismiss
Plaintiff's allegations brought under Mass. Gen. Laws ch.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559
(2007). Although detailed factual allegations are not
necessary to survive a motion to dismiss, the standard
“requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Id. at 555. In evaluating a
motion to dismiss, the court must accept all factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiff's favor. Langadinos v.
American Airlines, Inc., 199 F.3d 68, 68 (1st Cir.
2000). When a plaintiff is proceeding pro se, the
plaintiff's complaint and other filings are
“liberally construed.” Erikson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation
omitted) (“a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers”). However,
“pro se status does not insulate a party from complying
with procedural and substantive law.” Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
plaintiff must file his state law claims for discrimination
“not later than three years after the alleged unlawful
practice occurred.” Mass. Gen. Laws ch. 151B, § 9.
Therefore, in order for the Plaintiff's action to be
timely the alleged unlawful act must have occurred on or
after December 9, 2013. The Amended Complaint alleges that
Robinson and the Town are liable for discrimination because
they failed to stop Gardner from discriminating against
Plaintiff.Assuming, for purposes of this motion, that
Robinson and the Town are liable for failing to intervene in
Gardner's discriminatory conduct, that claim is time
barred since all of the alleged discriminatory conduct
committed by Gardner occurred while he was still employed by
the Town, more than eight months before December 2013.
extent that Plaintiff argues that the continuing violation
doctrine applies, the Court disagrees. In order for the
continuing violation doctrine to apply, the plaintiff must
show that “(1) at least one discriminatory act occurred
within the . . . limitations period; (2) the alleged timely
discriminatory acts have a substantial relationship to the
alleged untimely discriminatory acts [and] (3) earlier
violations outside the . . . limitations period did not
trigger [the plaintiff's] ‘awareness and duty'
to assert his rights.” Ocean Spray Cranberries,
Inc. v. Massachusetts. Comm. Against Discrimination, 441
Mass. 632, 642 (2004). The purpose of the continuing
violation doctrine is to permit conduct to be actionable in
certain circumstances where “the improper conduct
continues or evolves over a course of time” making it
difficult for the plaintiff to determine their
“discriminatory nature and impact.” Id.
at 641-42. (citing Cuddyer v. Stop & Shop Supermarket
Co., 434 Mass. 521, 531 (2001)).
Plaintiff has failed to allege at least one discriminatory
act that occurred within the statute of limitations period to
act as the “anchor” for the pattern of
discriminatory conduct. He points to the allegation that
after he “requested a leave of absence pending the
resolution of the MCAD process[, ] Robinson refused and
either Robinson or Upton misrepresented the nature of the
leave requested…claiming it related to health or
mental health issues…” (Amended Complaint,
¶ 47). To the extent that this allegation
suggests an inference of discrimination, it does not
adequately act as the anchor to the earlier discrimination
because, even assuming that this misrepresentation was
substantially related to the previous discriminatory conduct,
Plaintiff's awareness and duty to assert a claim was
triggered prior to the misrepresentation.
statute of limitations begins to accrue at the time the
Plaintiff knows or should have known of the harm suffered as
a result of the employer's discriminatory conduct.
Ocean Spray Cranberries, Inc., 441 Mass. at 643.
Here, it is unequivocal that the Plaintiff knew that he was
being discriminated against, at the latest by June 2013. The
Amended Complaint states that Gardner made direct
discriminatory threats and comments to him, that Plaintiff
expressed these concerns to Robinson, and that after
Plaintiff's hours were reduced, and after speaking with
an attorney, he filed a complaint with MCAD. See Ching v.
Mitre Corp., 921 F.2d 11, 14 (1st Cir. 1990) (the
statute of limitations began to accrue upon the informal
notice to plaintiff's lawyer of plaintiff's
termination because it was clear he was on notice of the
harm, evidence by the fact that he filed an MCAD complaint
four days later); See Carter v. Commissioner of
Correction, 43 Mass.App.Ct. 212, 222 (1997) (applying
the continuing violations doctrine to Mass. Gen. Laws ch.
151B section 9 statute of limitations). There can be no
question that Plaintiff understood that he was being
discriminated against months prior to December 2013. To
permit the Plaintiff to rely on the misrepresentation of his
request for leave in order to restart the statute of