Kern v. Income Research & Management
District Judge Leo T. Sorokin: ORDER entered granting 14 Motion to Dismiss counts three and four of the First Amended Complaint ("FAC"). (See attached Order) (Montes, Mariliz)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STEPHEN F. KERN,
Civil Action No. 15-14114-LTS
INCOME RESEARCH AND
February 15, 2017
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
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.
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
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
Under Chapter 151B, a plaintiff must file an administrative complaint with the MCAD “within 300 days of the
date of the occurrence of the alleged unlawful employment practice.” Goldstein v. Brigham and Women’s Faulkner
Hosp., Inc., 80 F. Supp. 3d 317, 323 (D. Mass. 2015) (citations and footnote omitted). Pursuant to the statute’s
administrative exhaustion requirement, a plaintiff may file a 151B “claim in court no sooner than 90 days after the
filing of [the] MCAD complaint, absent written permission from a commissioner, but not later than three years after
the alleged unlawful practice occurred.” Id. at 324 (citations and internal quotation marks omitted). “[A] plaintiff
need not wait for the resolution of the MCAD investigation; the filing of a lawsuit triggers the dismissal of the
MCAD complaint if it has not already been resolved by MCAD.” Id. (citation and footnote omitted).
On November 30, 2014, after “thoroughly investigat[ing],” the MCAD recommended a “finding of Lack of
Probable Cause” for Plaintiff’s claim of “discrimination based on age . . . and retaliation.” Doc. 15-11 at 6 n.1, 9.
Plaintiff appealed, and the MCAD affirmed its decision on April 16, 2015. Doc. 15-16 at 2.
In his Opposition, Plaintiff states that he “was at all times represented by counsel.” Doc. 23 at 3 n.2. Plaintiff
further states that, at least in his Opposition, “[t]he reference to actions taken by ‘Kern’ with respect to the MCAD
here refers to Kern’s counsel, although Mr. Kern himself also contacted the MCAD to inquire about status.” Id.
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.
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,
Mr. Kern argues that his “situation is not unlike the plaintiff’s in” Washington v. Milton Bradley Co., 340 F. Supp.
2d 69 (D. Mass. 2004), in which the Court found equitable tolling was appropriate. Doc. 23 at 10. The Court
disagrees. Unlike the plaintiff in Washington, who missed the statutory filing period at issue in that case by about a
month, see 340 F. Supp. 2d at 72, Mr. Kern missed the filing period in this case by more than 15 months. Doc. 23 at
8. Moreover, unlike the plaintiff in Washington, who “was without assistance of counsel during” the relevant
period, 340 F. Supp. 2d at 74, Mr. Kern “was at all times represented by counsel.” Doc. 23 at 3 n.2.
without citation to any supporting evidence, that when he filed the instant action on December
10, 2015, “less than two years had elapsed since the retaliatory acts had occurred.” Id. Thus, for
purposes of this Order, the Court will assume that the retaliatory acts occurred after December
10, 2013, and are therefore timely.
Defendant argues that Plaintiff’s Chapter 151B retaliation claim is not properly before the
Court because Plaintiff has not fulfilled the statute’s administrative exhaustion requirement by
filing a complaint concerning the allegations with the MCAD. Doc. 14 at 2. Plaintiff counters
that the retaliation claim was “properly before the MCAD,” and offers two reasons. Doc. 23 at
5. First, because he “alleged retaliation in his initial Complaint filed with the MCAD in
November 2011.” Doc. 23 at 5 (citing Doc. 15-2 at 12). 5 Second, because “[e]vidence of
[Defendant’s] continuing, post-termination retaliatory conduct was . . . specifically brought to the
MCAD’s attention, in writing, in late 2014, shortly after Mr. Kern became aware of it.” Id.
(citing Doc. 15-12 at 5); contra Doc. 15-12 at 2 (showing that the submission Plaintiff cites is
from February 25, 2015, not “late 2014”). Plaintiff also suggests the instant retaliation claim is
exhausted because it was within the scope of the MCAD’s investigation of his complaint. Doc.
23 at 6. Finally, in the alternative, assuming the instant claim is unexhausted, Plaintiff argues it
can be “bootstrapped” to his exhausted discrimination claims. Id. at 7. The Court will address
each of these arguments in turn.
Plaintiff cites “Def. Ex. 2, p. 5,” but for the sake of consistency, the Court has converted exhibit citations to the
format it uses elsewhere in this Order for documents in the record. The Court may consider the parties’ MCAD
filings because the MCAD proceedings are referenced in the FAC and neither party questions the documents’
authenticity. See Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998).
Whether Plaintiff’s Allegation of Retaliation in the November 2011 MCAD
Complaint Administratively Exhausted the Instant Retaliation Claim
As explained earlier, to pursue a Chapter 151B claim in a civil action, a plaintiff must
first file a complaint with the MCAD. See supra n.1. The purposes of the administrative filing
are “(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) (citations omitted). These purposes “would be frustrated if the
claimant were permitted to allege one thing in the MCAD complaint only to allege something
entirely different in the ensuing civil action.” Id. at 602 (citations omitted); see also Lattimore v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
Pursuant to these principles, Plaintiff is wrong that the instant retaliation claim was
“properly before the MCAD” because he “alleged retaliation” in his November 2011 complaint
to the agency. The only retaliation Plaintiff alleged in that complaint was “retaliatory dismissal.”
Doc. 15-2 at 9; see also id. at 12 (stating that Defendant’s “conduct in firing him . . . was
retaliatory”). He did not allege any post-termination retaliation, as he does here. Indeed, given
that any retaliatory acts at issue in this case occurred on or after December 10, 2013, Doc. 23 at 5
n.3, Plaintiff could not have alleged them in November 2011. Thus, the allegations supporting
Plaintiff’s claim of retaliation in the November 2011 MCAD complaint are “entirely different”
from those supporting the claim of retaliation here, and did not administratively exhaust the
instant claim. Everett, 453 Mass. at 602.
Whether Plaintiff’s Allegations of Retaliation in His February 2015 Submission to
the MCAD Administratively Exhausted the Instant Claim
On November 30, 2014, after “thoroughly investigat[ing]” Plaintiff’s claims of age
discrimination and retaliatory dismissal, the MCAD recommended a finding of Lack of Probable
Cause (“LOPC”). 6 Doc. 15-11 at 6 n.1, 9. On February 25, 2015, Plaintiff appealed the
MCAD’s LOPC finding. Doc. 15-12 at 2. In his appellate submission, Plaintiff stated “[t]here is
circumstantial evidence that [Defendant has] retaliated . . . post-termination,” and alleged
specific acts similar to the ones he alleges in this action. Id. at 5, 33-34. Plaintiff requested the
MCAD’s “aid in investigating” those retaliatory actions, arguing that the agency should “not
close its investigation without investigating [Defendant’s] post-termination actions against him.”
Id. at 5, 34; see also id. at 34 (asking the MCAD to “[r]eopen the case for further investigation”).
In its opposition to Plaintiff’s administrative appeal, Defendant argued that the MCAD should
reject Plaintiff’s post-termination retaliation allegations because Plaintiff did not raise them
previously. Doc. 15-14 at 13. In his reply to the opposition, Plaintiff did not dispute that he
raised the allegations for the first time on appeal. See Doc. 15-15. On April 16, 2015, the
MCAD affirmed its LOPC finding. Doc. 15-16 at 2.
Plaintiff argues that his February 25, 2015, submission to the MCAD administratively
exhausted the instant retaliation claim. Doc. 23 at 5. This argument is unavailing. The
MCAD’s appeals process permits a complainant to explain “why the Lack of Probable Cause
determination is in error,” but does not “permit the introduction of new allegations based on
new facts not encompassed in the already completed administrative investigation being
appealed.” Everett, 453 Mass. at 602 (citation and internal quotation marks omitted), 604
(footnote omitted). In his February 2015 submission, Plaintiff acknowledged that the MCAD
had not “investigat[ed] [Defendant’s] post-termination actions against him” before issuing the
LOPC determination. Doc. 15-12 at 34. Thus, his allegations of post-termination retaliatory acts
in that submission constituted an impermissible “introduction of new allegations based on new
An investigation is “completed” once an “LOPC determination [is] issued.” Everett, 453 Mass. at 603.
facts not encompassed in the already completed administrative investigation being appealed,”
and, as a result, did not serve to administratively exhaust the instant retaliation claim. Everett,
453 Mass. at 604.
Whether the Instant Claim Is Administratively Exhausted Because It Was Within
the Scope of the MCAD’s Investigation
Plaintiff suggests that his instant retaliation claim was within the scope of the MCAD’s
investigation, and is therefore exhausted. See Doc. 23 at 6. The Court finds otherwise.
“Under what is often termed the scope of the investigation rule, a claim that is not
explicitly stated in the administrative complaint may be asserted in the subsequent [civil] action
so long as it is based on the acts of discrimination that the MCAD investigation could reasonably
be expected to uncover.” Everett, 453 Mass. at 603 (citations and internal quotation marks
omitted). “Retaliation claims typically fall within the scope of investigation rule.” Id. (citations
omitted). The instant retaliation claim, however, does not. Plaintiff’s November 2011 MCAD
complaint did not allege any post-termination retaliatory acts, or any facts that would call for the
MCAD to investigate whether such acts occurred. See Doc. 15-2. Any acts supporting the
instant retaliation claim occurred on or after December 10, 2013, more than two years after
Plaintiff filed the November 2011 MCAD complaint. Plaintiff does not allege, much less show,
he told the MCAD about any post-termination retaliatory acts until February 25, 2015, when he
was no longer permitted to allege new facts. See supra Section III.B. Thus, the MCAD’s
investigation could not reasonably have been expected to uncover the alleged acts that support
the instant retaliation claim, and the claim is unexhausted. See Everett, 453 Mass. at 603.
Whether the Instant Claim May Be Bootstrapped to Plaintiff’s Discrimination
Even if his instant 151B retaliation claim is unexhausted, Plaintiff argues that the Court
should permit him to “bootstrap” it “to his underlying discrimination claims, regardless of
whether those claims are asserted under state or federal law.” Doc. 23 at 7. The Court rejects
“A claim of retaliation for filing an administrative charge . . . may ordinarily be
bootstrapped onto [another 151B] claim or claims arising out of the administrative charge and
considered by the district court, even [if the retaliation claim] has not been put through the
administrative process.” Franceschi v. United States Dep’t of Veterans Affairs, 514 F.3d 81, 86
(1st Cir. 2008) (citation omitted). 7 However, if no other 151B claim is “properly before the
court,” then there is no claim “to which [an unexhausted] retaliation claim may be bootstrapped.”
Id. at 87. Thus, in Franceschi, the First Circuit affirmed the dismissal of various Title VII claims
because they were unexhausted, then explained that the plaintiff’s unexhausted retaliation claim
– which “ordinarily” may have been “bootstrapped” – was also subject to dismissal because the
“claims to which [it] relate[d] ha[d] been rightly dismissed.” Id. at 86-87.
Here, there is no exhausted 151B discrimination claim “properly before the court,” i.e.,
being “considered by the . . . court.” Id. at 86-87. That claim is untimely and “ha[s] been rightly
dismissed.” Id. at 87. Thus, there is no claim to which Plaintiff’s unexhausted 151B retaliation
claim “may be bootstrapped.” Id. As a result, that claim must be dismissed as well. Id.
Franceschi is a Title VII case, not a Chapter 151B case. However, the Supreme Judicial Court of Massachusetts
(SJC) “often look[s] to” federal anti-discrimination law when interpreting Chapter 151B, unless the case before it
concerns a 151B provision that differs from federal law. Bain v. City of Springfield, 424 Mass. 758, 765 n.4 (1997).
The elements of a retaliation claim under Title VII and 151B are the same, and “neither party has identified
meaningful distinctions between [the statutes] that would affect the outcome here.” Xiaoyan Tang v. Citizens Bank,
N.A., 821 F.3d 206, 215 n.9, 218-19 (1st Cir. 2016). Thus, the Court looks to Title VII cases to help resolve this
Kern points out that Franceschi considered a case in which the plaintiff advanced a timely
but unexhausted discrimination claim, while here Kern has advanced an untimely exhausted
discrimination claim. Kern argues that his 151B retaliation claim should survive because
Franceschi merely prohibits bootstrapping to an unexhausted discrimination claim, but not to an
untimely discrimination claim. Doc. 23 at 5-6. The Court disagrees. The Circuit’s language
described a rule requiring a live discrimination claim in order to support the bootstrapping
exception to the exhaustion requirement. The Court rejected the plaintiff’s retaliation claim
precisely because there was “nothing properly before the court to which the retaliation claim may
be bootstrapped.” 514 F.3d at 87. The Court also explained that its holding in Franceschi was in
“accord with” Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473 (5th Cir. 1991), which held
that “where ADEA age-discrimination claims had been dismissed as untimely and therefore were
not properly before the district court, [the] bootstrapped retaliation claim likewise had to be
dismissed, as it had no charge on which to attach itself.” Franceschi, 514 F.3d at 87 (citing 932
F.2d at 479) (emphasis added; internal quotation marks omitted). Thus, the Court rejects
Plaintiff argues, in the alternative, that his Chapter 151B claim may bootstrapped to his
ADEA discrimination claim. Doc. 23 at 6-7. However, he cites no authority, and the Court
cannot find any, that allows an unexhausted 151B retaliation claim to be bootstrapped to a
federal discrimination claim.
For the foregoing reasons, Defendant’s Motion to Dismiss counts three and four of the
FAC (Doc. 14) is ALLOWED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge
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