United States District Court, D. Massachusetts
ARTHUR J. PACE, Plaintiff
TOWN OF ERVING, BOARD OF SELECTMEN EUGENE M. KLEPADLO, CHAIRMAN, ANDREW N. GOODWIN AND JAMIE HACKETT, IN THEIR CAPACITY AS MEMBERS OF THE BOARD, Defendants.
MEMORANDUM OF DECISION AND ORDER
TIMOTHY S. HILLMAN, DISTRICT JUDGE.
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.
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)).
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.
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
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.
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.
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
had elected to file in the MCAD, rather than the
EEOC. 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 ...