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Pace v. Town of Erving

United States District Court, D. Massachusetts

March 12, 2018

ARTHUR J. PACE, Plaintiff




         Arthur J. Pace (“Pace” or “Plaintiff”) has brought an action against the Town of Erving (“Erving”), and Eugene M. Klepadlo, Chairman, Andrew N. Goodwin and Jamie Hackett, in their capacities as members of the Erving Board of Selectmen alleging claims for violation of the Age Discrimination in Employment Act (“AEDA”), 29 U.S.C. §621 et seq. and violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§12101 et seq. More specifically, Pace alleges that he was terminated from his position as Environmental Supervisor/Pretreatment Coordinator for the Town of Erving because of his age and/or disability. This Memorandum of Decision and Order addresses the Motion To Dismiss By The Defendants, Town Of Erving And Board Of Selectmen Eugene M. Klepadlo And Andrew N. Goodwin (Docket No. 8). For the reasons set forth below, that motion is allowed, in part, and denied, in part.

         Standard of Review

         To overcome a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955 (2007). The plausibility of a claim is evaluated in a two-step process. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). First, the court must separate the complaint's factual allegations, which must be accepted as true, from its conclusory legal allegations, which are not entitled to the presumption of truth. A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013); Manning, 725 F.3d at 43. Second, the court must accept the remaining factual allegations as true and decide if, drawing all reasonable inferences in the plaintiff's favor, they are sufficient to show an entitlement to relief. Manning, 725 F.3d at 43 The court draws on judicial experience and common sense in evaluating a complaint, but may not disregard factual allegations even if it seems that actual proof of any particular fact is improbable. Iqbal, 556 U.S. at 667, 129 S.Ct. 1949; Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A motion to dismiss must focus not on whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Mitchell v. Mass. Dep't of Corr., 190 F.Supp.2d 204, 208 (D. Mass. 2002) (quoting Scheur v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)).


         Defendants hired Plaintiff Pace for the newly created position of Environmental Supervisor/Pretreatment Coordinator in October 2007. On or about March 27, 2012, the Defendant Selectmen voted to eliminate the title of Environmental Supervisor, and to fire Pace's from his job as Chief Operator. Pace was 57 at the time and was suffering from a rotator cuff injury to his shoulder which he had suffered at work.

         On December 28, 2012 Pace filed a complaint (“MCAD Complaint”) with the Massachusetts Commission Against Discrimination (“MCAD”), alleging that the Erving had terminated his employment based upon age discrimination, handicap discrimination and in retaliation for exercising his rights under Mass.Gen.L. ch. 152, the Massachusetts Workers Compensation Act. Pace's factual allegations were all against Erving and did not mention any member of the Board of Selectmen. The MCAD failed to conduct any investigation into Pace's claims until December 2015. On January 19, 2016, after reviewing documentation provided by Pace's attorney and conducting no further discovery, the MCAD issued it Investigative Disposition recommending a finding of lack of probable cause. The MCAD denied Pace's claim on the grounds that the Defendants had a valid reason for terminating him, i.e., “budgetary restraints.”

         On or about February 1, 2016, the MCAD sent the parties a Dismissal and Notification of Rights, which advised Pace of his right to appeal its finding. Pace exercised his statutory right to appeal the dismissal of his MCAD Complaint, and requested a preliminary hearing. On June 14, 2016, a preliminary hearing was held at the offices of the MCAD, and on July 19, 2016, the Investigating Commissioner affirmed the dismissal of Pace's MCAD. On or about August 17, 2016, Pace filed a Petition for Judicial Review (the “Superior Court Complaint”) in the Franklin (Mass.) Superior Court (the “Franklin Action”). Pace sought all of the damages alleged in the MCAD Complaint. He also expressly asked that the court “order that summary judgment enter for [him] as to all counts in his Complaint to the MCAD that Respondent Town of Erving did unlawfully discriminate against [him] on the basis of age, handicap and retaliation when it terminated him on March 27, 2012, ” and asked for an evidentiary hearing as to damages. Thus, the claims in the Franklin Action included all of the claims in the MCAD Complaint, which included ADEA and the ADA.

         On September 21, 2016, the Erving filed a Motion to Dismiss the Franklin Action. After a hearing on December 9, 2016, the Court allowed the Motion to Dismiss and entered judgment in favor of Erving. The action was essentially dismissed for lack of subject matter jurisdiction because the Pace was not appealing a “final decision” within the meaning of the statutory scheme.

         On February 23, 2017, the United States Equal Employment Opportunity Commission issued and mailed to Pace a Notice of Dismissal of its companion case, together with A Notification of Right To Sue, Pace informing Pace of its action and providing him with a 90 day period in which to file suit based upon federal law in a court of competent jurisdiction. Pace never requested a right-to-sue letter from the EEOC or the MCAD at any time during the nearly four years this matter was pending before the MCAD, or after it was dismissed by the MCAD.

         Pace had elected to file in the MCAD, rather than the EEOC.[1] In so doing, Plaintiff checked the box indicating the following:

As a party to the charge, you may request that EEOC review the final decision and order of the above named Agency. For such a request to be honored, you must notify the Commission in writing within 15 days of your receipt of the Agency's issuing a final finding and order. If the agency terminates its proceedings without ...

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