Zeigler v. Atrius Health, Inc. et al
Filing
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Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER DENYING 193 MOTION for Partial Summary Judgment as to Count Seven of Second Amended Complaint.(DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ALAN ZEIGLER,
Plaintiff,
v.
ATRIUS HEALTH, INC.,
CHRISTOPHER JOSEPH, and
MICHAEL RATER,
Defendants.
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Civil Action No. 15-cv-13384-IT
MEMORANDUM & ORDER
September 5, 2018
TALWANI, D.J.
Pending before this court is Defendant Atrius Health, Inc.’s (“Atrius Health”) Motion for
Partial Summary Judgment as to Count Seven of the Second Amended Complaint [#193]. Atrius
Health argues that Plaintiff Alan Zeigler’s claim of disability discrimination is barred for failing
to timely file this claim with the Massachusetts Commission Against Discrimination (“MCAD”).
For the following reasons, Atrius Health’s motion is DENIED.
I.
Background
Zeigler is a former employee of Atrius Health. In July 2015, Zeigler filed a charge of
discrimination with the MCAD, alleging that Atrius Health discriminated against him on the
basis of his age. Def. Atrius Health, Inc.’s Statement of Undisputed Facts Relevant to Count
Seven (“Def.’s SOF”) ¶ 1 [#194]; Pl.’s Statement of Disputed Facts (“Pl.’s SOF”) ¶ 1 [#200]. On
August 24, 2015, Atrius Health sent Zeigler a letter, confirming an August 20, 2015, telephone
conversation between Zeigler and Atrius Health’s human resources director, during which Atrius
Health notified Zeigler that he would be placed on a three-month unpaid leave of absence. Def.’s
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SOF ¶ 2 [#194]; Pl.’s SOF ¶ 2 [#200]; Def.’s Mot. Summ. J. (“Def.’s Mot.”) Ex. 1 [#194-1]. On
that same day, Zeigler filed another MCAD complaint, alleging that Atrius Health retaliated
against him for filing his first MCAD complaint. Def.’s SOF ¶ 3 [#194]; Pl.’s SOF ¶ 3 [#200].
In September 2015, Zeigler filed his Complaint [#1] in this action, alleging that Atrius
Health retaliated against him for asserting his rights under the Family Medical Leave Act by
placing him on unpaid leave on August 20, 2015. On October 24, 2015, Zeigler submitted his
resignation to Atrius Health. Def.’s SOF ¶ 6 [#194]; Pl.’s SOF ¶ 6 [#200]; Def.’s Mot. Ex. 3
[#194-1]. In December 2015, Zeigler filed an Amended Complaint [#30], adding claims under
the Age Discrimination in Employment Act for discrimination and retaliation based on his age,
and asserting that due to Atrius Health’s discriminatory and retaliatory acts, Zeigler was
compelled to resign from his position on October 23, 2015, constituting constructive discharge.
Am. Compl. ¶¶ 90-118 [#30].1
On June 20, 2016, Zeigler filed the MCAD complaint (“MCAD Disability Complaint”) at
issue here, alleging that Atrius Health discriminated against him on the basis of disability. Def.’s
SOF ¶ 8 [#194]; Pl.’s SOF ¶ 8 [#200]; Def.’s Mot. Ex. 4 [#194-1]. The MCAD Disability
Complaint alleged that Atrius Health constructively discharged Zeigler, but gave the date of the
constructive discharge as August 20, 2015, rather than October 23 or 24, 2015. Def.’s Mot. Ex. 4
[#194-1].
The parties are in agreement that there is a discrepancy as to the date Zeigler resigned. Def.’s
SOF ¶¶ 6-7 [#194]; Mem. in Supp. Pl.’s Opp. Mot. Summ. Judgment (“Pl.’s Opp.”) at 5 [#200].
On this resignation letter, Zeigler lists the date as October 24, 2015. Def.’s Mot. Ex. 3 [#194-1].
In the First and Second Amended Complaints in this court, Zeigler lists the day as October 23,
2015. Am. Compl. ¶ 118 [#30]; Second Am. Compl. ¶ 59 [#189]. In the Amended MCAD
Disability Complaint, discussed below, Zeigler lists the date as October 24, 2015. Def.’s Mot.
Ex. 6 [#194-1]. However, for the purposes of this motion, this one-day discrepancy is
immaterial.
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More than two months later, Atrius Health moved to dismiss the MCAD Disability
Complaint, arguing that the complaint was untimely because it was filed more than 300 days
after August 20, 2015. Def.’s SOF ¶ 11 [#194]; Pl.’s SOF ¶ 11 [#200]; Def.’s Mot. Ex. 5 [#1941]. On September 8, 2016, Zeigler opposed the motion to dismiss, arguing that his resignation on
October 24, 2015, constituted the constructive discharge, and requested leave to amend to
include this date. Def.’s SOF ¶ 12 [#194]; Pl.’s SOF ¶ 12 [#200]; Def.’s Mot. Ex. 6 [#194-1]. In
July 2017, the MCAD Investigating Committee denied Atrius Health’s motion to dismiss and
allowed the amendment of the MCAD Disability Complaint. Def.’s SOF ¶ 13 [#194]; Pl.’s SOF
¶ 13 [#200]; Def.’s Mot. Ex. 7 [#194-1]. Atrius Health subsequently filed an Interlocutory
Appeal, which the full MCAD Commission denied on February 12, 2018. Def.’s Mot. Ex. 8
[#194-1].
The court subsequently allowed Zeigler’s unopposed motion for leave to file his Second
Amended Complaint [#189] which added the claim that Atrius Health constructively discharged
him because it perceived him to be disabled, in violation of Massachusetts General Laws Chapter
151B. Second Am. Compl. ¶¶ 119-122 [#189]. Atrius Health’s motion for partial summary
judgment followed.
II.
Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “A ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material
fact’ is one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S.
Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-50 (1986)). To the extent facts are disputed, they are considered in the light most
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favorable to the non-movant and reasonable inferences will be drawn in favor of the non-movant.
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam) (quoting Adickes v. S.H. Kress Co.,
398 U.S. 144, 157 (1970)) (“[A] court must view the evidence ‘in the light most favorable to the
opposing party.’”). The moving party must first show “an absence of evidence to support the
non-moving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving
party meets this burden, the non-moving party must then “adduce specific facts showing that a
trier of fact reasonably could find in his favor.” Murray v. Warren Pumps, LLC, 821 F.3d 77, 83
(1st Cir. 2016) (citing Anderson, 477 U.S. at 249-50). “[T]he evidence offered by the adverse
party cannot be ‘merely colorable’ or speculative.” Thompson v. Coca-Cola Co., 522 F.3d 168,
175 (1st Cir. 2008) (quoting Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1990)).
III.
Discussion
Pursuant to M.G.L. c. 151 § 5, a plaintiff pursuing a state employment discrimination
claim must file a complaint with the MCAD “within 300 days after the alleged act of
discrimination.” Atrius Health argues that over 300 days passed between the date listed for the
constructive discharge (August 20, 2015) in the MCAD Disability Complaint and the date the
MCAD Disability Complaint was filed (June 20, 2016). Def.’s Mot. at 5 [#194]. Second, Atrius
Health argues that over 300 days passed between the date listed in the Amended MCAD
Disability Complaint for the constructive discharge (October 24, 2015) and the date Zeigler
requested leave to amend his complaint (September 8, 2016). Id. Atrius Health further argues
that this court should not apply the Massachusetts “relation-back” doctrine to the amended
MCAD Disability Complaint. Id.
In opposition, Plaintiff cites to Green v. Brennan, 136 S. Ct. 1769, 1776 (2016), to argue
that the statute of limitations does not begin to accrue for a constructive discharge claim until a
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plaintiff resigns. Pl.’s Opp. at 4-5 [#200]. In Green, the Supreme Court held that a constructive
discharge claim necessarily includes an employee’s resignation. 136 S. Ct. at 1776; see also
Vélez–Ramírez v. P.R. through Sec'y of Justice, 827 F.3d 154, 158 (1st Cir. 2016) (quoting
Green, 136 S. Ct. at 1777) (In order to prevail on a constructive discharge claim, a plaintiff
“must show that (1) ‘a reasonable person in [her] position would have felt compelled to resign’
and (2) ‘[she] actually resigned.’”).2 Green held further that the statute of limitations on the claim
does not commence until after the “complete and present cause of action” – that is, upon the
employee’s notice of resignation. 136 S. Ct. at 1776 (holding that the 45-day period in which a
federal employee must file initiate contact with the equal employment opportunity counselor at
his agency does not being to run for a constructive discharge claim until the employee give
notice of his resignation). “At that point – and not before – [a plaintiff] can file a suit for
constructive discharge. So only after he has a complete and present cause of action does a
limitations period begin to run.” Id. at 1777.
Here, Zeigler’s MCAD Disability Complaint asserted that Atrius Health engaged in
discriminatory conduct based on Zeigler’s perceived disability when Atrius Health placed him on
unpaid leave. Def.’s Mot. Ex. 4, Introduction (“The Complainant, Alan Zeigler, believes that he
was discriminated against by Respondents . . . when they ‘regarded him as disabled’”); ¶ 63
(“[Defendant] discriminated against [Plaintiff] when they ‘regarded’ him as having a mental
impairment and . . . forced him to take unpaid administrative leave”) [#194-1]. Zeigler asserted
further that his “placement . . . on indefinite unpaid leave constitutes constructive discharge.” Id.
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Although the constructive discharge claim in Green was brought by a federal employee
pursuant to Title VII, “Massachusetts and federal law are in accord in defining a constructive
discharge.” Luciano v. Coca-Cola Enter., 307 F. Supp. 2d. 308, 320 (D. Mass. 2004); see also
Cherkaoui v. City of Quincy, 877 F.3d 14, 29 (1st Cir. 2017) (analyzing constructive discharge
under M.G.L. c. 151B and Title VII together).
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¶ 60. But despite Zeigler’s erroneous legal conclusion that the constructive discharge claim was
complete when he was placed on leave, under Green, that claim did not accrue until he resigned.
136 S. Ct. at 1777. Instead, Zeigler’s constructive discharge claim accrued and the limitation
period for filing this claim began when he notified his employer of his resignation on October
24, 2015. Id.
Zeigler’s MCAD Disability Complaint asserting a constructive discharge (albeit with the
wrong accrual date), filed on June 20, 2016, was filed well within 300 days of that accrual date.
And even with the incorrect date of accrual, the June 20, 2016, filing certainly met the purpose of
the administrative filing which is “‘(1) to provide the MCAD with an opportunity to investigate
and conciliate the claim of discrimination; and (2) to provide notice to the defendant of potential
liability.” Everett v. 357 Corp., 453 Mass. 585, 600 (2009) (quoting Cuddyer v. Stop & Shop
Supermarket Co., 434 Mass. 521, 531 (2001)). Indeed, had Atrius Health raised the timeliness
issue in the response due within 21 days of the filing of the complaint, as directed by the MCAD,
see Def.’s Mot. Ex. 4 [#194-1], the date of the alleged constructive discharge could have been
clarified within the 300 days.
In any event, when Atrius Health raised the issue two months after the MCAD Disability
Complaint was filed, Zeigler promptly requested leave to amend the MCAD Disability
Complaint to add his date of resignation. Pursuant to Section 1.10(6) of the Rules of MCAD:
A complaint or any part thereof may be amended . . . to clarify and amplify
allegations made herein. An amendment alleging additional acts constituting
unlawful discriminatory practices related to or arising out of the subject matter of
the original complaint may be made by Order of the Commissioner.
Amendments shall relate back to the original filing date.
(Emphasis added). Here, the amendment to Zeigler’s MCAD Disability Complaint
clarified the constructive discharge claim by adding the date of resignation when, as a
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matter of law, the claim accrued. And although the amendment did not alleged additional
acts on the part of the employer (but rather, added the date of Zeigler’s resignation),
Zeigler secured the permission of the Commissioner for the amendment. Under both the
MCAD rules and the MCAD order denying the motion to dismiss and allowing the
amendment, see Def. Mot. Ex. 7 [#194-1], the amendment was proper and related back to
the original filing date.
Atrius Health argues that the relation-back doctrine does not apply because
Zeigler knew at the time of his June 2016 filing that he had resigned in October 2015, and
that “‘[w]hile the rules of ‘relation back’ are liberal . . . they are not so broad as to
encompass any claim that was known to the complainant that could have been brought in
a timely fashion.’” Def. Mot. at 6 [#194] (quoting Wynn & Wynn, P.C. v. Massachusetts
Comm’n Against Discrimination, 431 Mass. 655, 672 (2000), overruled in part on other
grounds by Stonehill Coll. v. Massachusetts Comm’n Against Discrimination, 441 Mass.
549 (2004)). Wynn & Wynn, P.C., however, concerned “additional claims” and
additional allegations of wrongful actions. 441 Mass. at 672-73. Here, in contrast,
Zeigler’s MCAD Disability Complaint attempted to assert a constructive discharge claim
and spelled out all of the alleged wrongful actions by the employer at issue; he sought by
amendment not to assert a new claim or new wrongful acts of the employer, but to bring
in a clarifying fact – the date of his resignation – from which, by operation of law, the
constructive discharge claim accrued. This clarification falls squarely within the MCAD
Rules for amending complaints in that forum, as well as both Massachusetts and Federal
rules for amending complaints in court. See Mass. R. Civ. P. 15(c) (“Whenever the claim
or defense asserted in the amended pleading arose out of the conduct, transaction, or
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occurrence set forth or attempted to be set forth in the original pleading, the
amendment . . . relates back to the original pleading” (emphasis added); Fed. R. Civ. P.
15(c)(1) (“An amendment to a pleading relates back to the date of the original pleading
when . . . the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out – or attempted to be set out – in the original pleading .
. .”) (emphasis added).3
Accordingly, this court finds that Zeigler’s MCAD Disability Complaint alleging
a constructive discharge was filed within 300 days of the resignation triggering the start
of the limitations period for filing that complaint, that the amendment adding the date of
his resignation relates back to the original filing date, and that Count Seven of the Second
Amended Complaint [#189] is not barred by the statute of limitations.
IV.
Conclusion
For the foregoing reasons, Defendant Atrius Health, Inc.’s Motion for Partial Summary
Judgment as to Count Seven of the Second Amended Complaint [#193] is DENIED.
IT IS SO ORDERED.
Date: September 5, 2018
/s/ Indira Talwani
United States District Judge
Massachusetts law provides further that “[i]n all civil proceedings, the court may at any time,
allow amendments adding a party, discontinuing as to a party or changing the form of the action,
and may allow any other amendment in matter of form or substance in any process, pleading or
proceeding, which may enable the plaintiff to sustain the action for the cause or for recovery for
the injury for which the action was intended to be brought, or enable the defendant to make a
legal defense. Any amendment allowed pursuant to this section or pursuant to the Massachusetts
Rules of Civil Procedure shall relate to the original pleading.” M.G.L. ch. 231, § 51.
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