Harvey v. Brigham & Womens Hospital, Inc.
Filing
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Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER GRANTING Defendant's motion to dismiss, [ECF No. 5 ].(CAM)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
REGINA HARVEY,
Plaintiff,
v.
BRIGHAM & WOMEN’S HOSPITAL,
INC.
Defendant.
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Civil Action No. 24-cv-10652-ADB
MEMORANDUM AND ORDER
BURROUGHS, D.J.
Plaintiff Regina Harvey (“Plaintiff” or “Harvey”) filed the instant action against
Defendant Brigham & Women’s Hospital (“Defendant” or “the Brigham”) alleging
discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.).
Currently pending before the Court is Defendant’s motion to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), for failing to file a claim with the Massachusetts
Commission Against Discrimination (“MCAD” or “Commission”) within the 300-day statute of
limitations period. For the reasons set forth below, Defendant’s motion is GRANTED.
1
I.
BACKGROUND
As a preliminary matter, in support of its motion to dismiss, the Brigham attaches several
exhibits relevant to the Court’s analysis of the instant motion, which it contends can be judicially
noticed because they are official public records. [ECF No. 6 at 5]. 1 Because they are documents
of public record and because Harvey does not challenge their authenticity, the Court will
consider the exhibits in ruling on the motion to dismiss. United States v. Raytheon Co., 334 F.
Supp. 3d 519, 523-24 (D. Mass. 2018) (“Because those documents are of public record and their
authenticity is not in dispute, this Court takes judicial notice thereof.”); Rodriguez v. Putnam
Invs., No. 06-cv-10819, 2007 WL 9798216, at *2 (D. Mass. Sept. 15, 2007) (taking judicial
notice of MCAD and EEOC records on a motion to dismiss); Douglas v. Hirshon, 63 F.4th 49,
57–58 (1st Cir. 2023) (recognizing district court discretion regarding consideration of external
documents in a 12(b)(6) motion); Newman v. Lehman Brothers. Holdings Inc., 901 F.3d 19, 25
(1st Cir. 2018) (same).
A. Factual Background
Regina Harvey is a black woman who, at the time of the alleged misconduct, was sixty
years old. [ECF No. 1 (“Complaint” or “Compl.”) ¶ 6; ECF No. 7-2 at 3]. A registered nurse
1
These exhibits are: (1) a copy of Harvey’s MCAD discrimination charge served to the Brigham
on March 7, 2022, including an email correspondence between Harvey and the MCAD from
September 13–14, 2021, [ECF No. 7-1]; (2) a copy of the charge re-served on May 19, 2023,
including a copy of the notice transmitting the charge to the Equal Employment Opportunity
Commission (“EEOC”), [ECF No. 7-2]; (3) a February 28, 2022 Order of the MCAD’s
Investigating Commissioner, [ECF No. 7-3 (the “MCAD Order”)]; (4) Harvey’s February 8,
2024 withdrawal request to the MCAD, [ECF No. 7-4]; and (5) Harvey’s March 5, 2024
Emergency Motion to reinstate the case with the MCAD, [ECF No. 7-5]. Although the Court is
not persuaded that the email correspondence between Harvey and the MCAD attached to ECF
No. 7-1 constitute public official records, it will nonetheless consider them given that Harvey
does not dispute their authenticity. See Sheckley v. Lincoln Nat’l Corp. Emps.’ Ret. Plan, 366 F.
Supp. 2d 140, 147 n.2 (D. Me. 2005).
2
since 1997, Harvey began her career at Massachusetts General Hospital in 2003 and transferred
to the Brigham in 2006. [Compl. ¶¶ 7–8]. There, over the course of approximately thirteen
years, she received positive performance evaluations and was promoted three times. [Id. ¶¶ 9–
12].
In 2018, the Brigham underwent a change in senior leadership and as a result Harvey
“had a reporting structure” to Danika Medina (“Medina”) for her nursing leadership
responsibilities, but she otherwise continued to report directly to the Executive Director of
Community Health. [Compl. ¶¶ 14–15].
Harvey alleges that Medina “subjected [] [her] to racial animosity and racial
discrimination, both direct and indirect,” and “treated [] [her] differently from white employees
based on her race.” [Compl. ¶¶ 16–17]. This discriminatory conduct included, among other
things, “subtle” and “pervasive” “slights and insults” directed at Harvey, a “recommendation of
disparate pay for [] Harvey compared to non-black employees,” the “implementation of race
stereotypes at work,” and the devaluing of Harvey’s role “in a racially charged manner.” [Id. ¶¶
17, 24, 26–27].
In one instance, Medina asked Harvey to complete a report, which Harvey submitted to
Medina over email and in-person. [Compl. ¶ 18]. During a subsequent in-person meeting on or
about June 18, 2020, Medina “contemptuously flung the unread [report] across her desk” and
informed Harvey that she would be placed on a performance improvement plan (“PIP”). [Id.].
The PIP came despite a promise from the Executive Director of Community Health, Harvey’s
direct supervisor, that “she would not receive a corrective action” for a separate incident that had
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occurred on June 3, 2020. 2 [Id.]. Medina then read selections from the PIP “in a racially
demeaning manner” and had Harvey deliver a copy of the PIP, which falsely stated that Harvey
and Medina had “mutually agreed” on the plan, to Human Resources. [Id. ¶ 19]. Harvey alleges
that because of the PIP she did not receive her annual raise and evaluation in October 2020. [Id.
¶ 29].
Between approximately 2018 and 2021, Medina also repeatedly asked Harvey in one-onone meetings about her plans over the next two to three years, [Compl. ¶ 21], and at one point
mentioned to Harvey, in the presence of colleagues, about an opening at another medical center,
[id. ¶¶ 22–23]. In so doing, “Medina was publicly encouraging [] Harvey to leave [the Brigham]
and undermining her to her colleagues.” [Id. ¶ 23]
As a result of this conduct, Harvey’s mental health deteriorated, and she took a medical
leave of absence on July 2, 2020. [Compl. ¶ 30]. Prior to her leave, Medina “bombarded”
Harvey with calls and emails requesting information that “exacerbated her already intense
emotional distress” and indicated to Harvey that “the discrimination would persist upon her
return.” [Id. ¶¶ 31–32]. On approximately October 1, 2020, Harvey “was forced to resign,”
advising the Brigham that “she was unable to tolerate the continued work environment and
discrimination” perpetrated by Medina. [Id. ¶¶ 37–39]. Harvey asserts that this resignation
constitutes a constructive discharge. [Id. ¶ 40].
On February 11, 2021, Harvey mailed an unverified complaint alleging discrimination
against the Brigham to the MCAD. [MCAD Order at 1]. By letter dated May 17, 2021, the
2
Harvey references a June 3, 2020 incident in her Complaint but fails to provide any further
information. The Court assumes that Harvey refers to the June 4, 2020 incident referenced in the
MCAD complaint where medical assistants in a COVID-19 testing unit she oversaw had not
been equipped with N-95 masks. [ECF No. 7-2 at 3].
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MCAD requested additional information from Harvey and “encouraged her to schedule an intake
appointment.” [Id.]. Harvey then “cured the filing defect by submitting a verification of her
complaint” and “made multiple attempts to schedule an intake, resulting in her filing again on
September 10, 2021.” [Id.]; see also [ECF No. 7-1 at 4 (email exchange between Harvey and
MCAD dated September 14, 2021, wherein Harvey verifies the charge)].
On February 28, 2022, MCAD, “[i]n in the interests of fairness and justice,” accepted
Harvey’s complaint for “being timely filed as of February 11, 2021,” and the complaint was
authorized for investigation. [MCAD Order at 2].
MCAD subsequently served the complaint on the Brigham on March 7, 2022, and again
on May 19, 2023. 3 [ECF Nos. 7-1 at 1–2; 7-2 at 2–3]. The MCAD charge was transmitted to the
EEOC in mid-May 2023. [ECF No. 7-2 at 7–8].
On March 13, 2024, the EEOC issued a Dismissal and Notice of Rights letter, also known
as a Right to Sue Letter, notifying Harvey of the dismissal of her charge and her right to sue in
either federal or state court within ninety days. [ECF No. 1-1 at 1]. Just a few days later, on
March 15, 2024, Harvey filed her Complaint in this Court, alleging one count of employment
discrimination under Title VII of the Civil Rights Act.
B. Procedural History
In response to Harvey’s Complaint, the Brigham filed its motion to dismiss on April 29,
2024. [ECF Nos. 5–6]. Harvey opposed on May 13, 2024, [ECF No. 8 (“Opp’n”)], and the
Brigham replied on May 22, 2024, [ECF No. 14 (“Reply”)].
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The MCAD docket and EEOC/HUD numbers are identical on each charge.
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II.
LEGAL STANDARD
In a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable
factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st
Cir. 2019). “[A] complaint must provide ‘a short and plain statement of the claim showing that
the pleader is entitled to relief[,]’” Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st
Cir. 2015) (quoting Fed. R. Civ. P. 8(a)(2)), and set forth “factual allegations, either direct or
inferential, respecting each material element necessary to sustain recovery under some actionable
legal theory,” Pitta v. Medeiros, 90 F.4th 11, 17 (1st Cir. 2024) (quoting Gagliardi v. Sullivan,
513 F.3d 301, 305 (1st Cir. 2008)). Although detailed factual allegations are not required, a
complaint must set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), and “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
III.
DISCUSSION
Under Title VII, employees are required to “exhaust the administrative process before
filing a civil suit in court[,] and failure to do so normally precludes the filing of that claim.”
Posada v. ACP Facility Servs., Inc., 389 F. Supp. 3d 149, 158 (D. Mass. 2019) (first citing Jorge
v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005); then citing Everett v. 357 Corp., 904 N.E.2d
733, 746–47 (Mass. 2009)). “[T]he failure to exhaust this administrative process ‘bars the
courthouse door.’” Franceschi v. U.S. Dep’t of Veterans Affs., 514 F.3d 81, 85 (1st Cir. 2008)
(quoting Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)). Specifically,
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“an employee must first file a [verified] ‘charge’ with either: (1) the Equal Employment
Opportunity Commission (EEOC) within 180 days of the alleged unlawful employment practice;
or (2) a parallel state agency—in this case, MCAD—within 300 days of said practice,” and
receive a right to sue letter. Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 41 (1st
Cir. 2013) (citing 42 U.S.C. § 2000e–5(e)(1); Mass. Gen. Laws ch. 151B, § 5; Jorge, 404 F.3d at
564); Maillet v. TD Bank U.S. Holding Co., 981 F. Supp. 2d 97, 99 (D. Mass. 2013); see also
Savage v. City of Springfield, No. 18-cv-30164, 2021 WL 858409, at *5 (D. Mass. Mar. 8, 2021)
(discussing administrative exhaustion pursuant to Title VII and noting that there are two distinct
components, “the timely filing of a charge with the EEOC [or MCAD] and the receipt of a rightto-sue-letter” (citation omitted)). Notably, the two commissions have a “worksharing
agreement” whereby “claims filed with either the MCAD or the EEOC are effectively filed with
both agencies.” Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n.1 (1st Cir. 2001); accord
Goldstein v. Brigham & Women’s Faulkner Hosp., Inc., 80 F. Supp. 3d 317, 321 n.5 (D. Mass.
2015).
The MCAD Rules of Procedure define its procedural guidelines for filing administrative
charges. They require, among other things, that a charge identify the complainant and the
employer, the dates on which the alleged unlawful discriminatory act occurred, and a concise
statement of the alleged misconduct. 804 CMR § 1.04(6)(a)–(e). A charge must also be signed
and verified under the pains and penalties of perjury by the complainant. Id. § 1.04(5). MCAD
procedure additionally requires that a complaint is either filed “by delivering a copy in person[,] .
. . by U.S. mail” or “by intake” at any of the Commission’s offices. Id. § 1.04(2)(a)–(b).
Here, the parties disagree about whether Harvey filed the MCAD complaint within the
300-day statute of limitations which began to run on October 1, 2020, the day she resigned, and
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would have expired on July 28, 2021. 4 See [ECF No. 6 at 3 n.4; Opp’n at 3]. Whereas Harvey
claims that she filed a timely claim on February 11, 2021, [Compl. ¶ 42], the Brigham argues
that Harvey’s charge of discrimination was filed on or about September 10, 2021, when she
verified her complaint, and that her charge is therefore untimely. [ECF No. 6 at 2–3, 7 (citing
804 CMR § 1.04(5))]; see also [ECF No. 7-1 at 4 (email dated September 14, 2021 wherein
Harvey verifies the complaint “under the pains and penalties of perjury” in lieu of a handwritten
signature due to COVID-19 restrictions); id. at 5 (in the same email exchange, MCAD wrote,
“Please be advised that until you reply to this email agreeing to the [verification] language, you
have not filed a complaint with the [MCAD].”). 5 Further, because the filing date of September
10, 2021 is also reflected on the charge itself, which was served on the Brigham on March 7,
2022 and May 19, 2023, respectively, “[t]here can be no actual dispute” that Harvey filed her
charge on that date. [ECF No. 6 at 6]. Finally, the Brigham argues that although MCAD elected
to use February 11, 2021, as the filing date, that timeliness determination is not binding on the
Court. [ECF No. 6 at 1, 3, 12].
Harvey does not dispute that her initial complaint was unverified, but she attributes this
to the COVID-19 pandemic, which prevented her from going to the MCAD office and signing
the complaint. 6 [Opp’n at 3]. Once she had cured the verification in response to the MCAD’s
4
The parties agree that the statute of limitations period commenced on October 1, 2020 when
Harvey resigned. [ECF No. 6 at 3 n.4]; [Opp’n at 3].
5
Although the email exchange indicates that Harvey signed and acknowledged the complaint on
September 14, 2021, [ECF No. 7-1], the Brigham, “for purposes of this [m]otion,” sees no
material difference as to whether the charge was filed on September 10 or 14, 2021, “as both
dates fall outside the limitations period,” [ECF No. 6 at 2 n.2]. Accordingly, the Court adopts
September 10, 2021 as the date when Harvey submitted a verified complaint to the MCAD. See
[MCAD Order].
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The Court takes judicial notice of the fact that in response to the COVID-19 pandemic, and
during the time period at issue, MCAD suspended in-person services. (Opp’n at 3). See
Mass.gov, MCAD Annual Report Fiscal Year 2021, https://www.mass.gov/doc/mcad-fy21-
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request made on May 17, 2021, the commission “accept[ed] the complaint for being timely filed
as of February 11, 2021.” [Opp’n at 3 (quoting MCAD Order at 2)]. Harvey asserts that because
the MCAD adopted February 11, 2021 as the effective filing date, the Court should follow suit.
[Opp’n at 3–5]. This Court disagrees.
“Affirmative defenses, such as the statute of limitations, may be raised in a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that ‘the facts establishing the
defense [are] clear on the face of the plaintiff’s pleadings.’” Trans-Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008) (alteration in original) (quoting Blackstone
Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001) (additional citation and punctuation
omitted)). Dismissal is only appropriate if, upon “review of the complaint, together with any
other documents appropriately considered under Fed. R. Civ. P. 12(b)(6),” Blackstone, 244 F.3d
at 197, “the pleader’s allegations ‘leave no doubt that an asserted claim is time-barred,’” Gorelik
v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (quoting LaChapelle v. Berkshire Life Ins., 142 F.3d
507, 509 (1st Cir. 1998)), and “the complaint fails to ‘sketch a factual predicate’ that would
warrant the application of either a different statute of limitations period or equitable estoppel,”
Trans-Spec, 524 F.3d at 320 (quoting LaChapelle, 142 F.3d at 509–10).
As an initial matter, the Court observes that Harvey’s primary argument that “the
February 11, 2021 filing with the MCAD acts as the filing date with the EEOC as a matter of
law” misconstrues the issue at hand. [Opp’n at 1, 4–6]. The Brigham does not dispute that the
MCAD and EEOC have a worksharing agreement and that a discrimination claim can therefore
be filed with either commission. See generally [ECF No. 6; Reply]; see Davis, 251 F.3d at 230
annual-report/download (last visited Jan. 17, 2025). As such, the Court takes into account that
Harvey was unable to file her MCAD complaint in-person.
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n.1. The question, rather, is whether this Court is required to adopt the MCAD’s February 11,
2021 filing date.
Courts in this district are “empowered to make an independent finding on timeliness” and
are not bound by the MCAD’s or the EEOC’s “findings in this regard.” Poirier v. Mass. Dep’t of
Corr., 186 F. Supp. 3d 66, 68 (D. Mass. 2016), aff’d, No. 16-1587, 2018 WL 11337451 (1st Cir.
Feb. 22, 2018) (citing Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir. 1979)
(“the courts have generally made an independent review of the timeliness of the agency
filing.”)); see also Jahour v. Mass. Bay Transp. Auth., No. 23-cv-10993, 2024 WL 519562, at *4
(D. Mass. Feb. 9, 2024), appeal dismissed, No. 24-1243, 2024 WL 4110905 (1st Cir. July 8,
2024) (although EEOC did not dismiss plaintiff’s complaint for untimeliness and issued a right
to sue letter, the court dismissed plaintiff’s complaint in part as untimely). As such, the Court
need not adopt the MCAD’s February 11, 2021 filing date, as Harvey suggests it must. 7
“There are two related doctrines by which a plaintiff’s failure to make a timely filing
with the necessary agency may be excused: equitable estoppel and equitable tolling.” Conroy v.
Bos. Edison Co., 758 F. Supp. 54, 60 (D. Mass. 1991) (citing Kale v. Combined Ins. Co. of Am.,
861 F.2d 746, 752 (1st Cir. 1988)). Whereas “[e]quitable estoppel is invoked where the plaintiff
reasonably relies on the misleading representations of his or her employer,” equitable tolling
comes into play “when the plaintiff relies on misrepresentations by the EEOC or the [MCAD].”
Id. (citing Kale, 861 F.2d at 752).
Here, by adopting the February 11, 2021 submission as the operative charge “in the
interest of fairness and justice,” the MCAD seemingly concedes that the September 10, 2021
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Neither is the fact that the EEOC issued a right to sue letter dispositive of a timeliness finding.
See Jahour, 2024 WL 519562, at *4.
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filing of the verified complaint was untimely. This Court, however, finds no reason to invoke
equitable tolling given the circumstances of the case. 8 The First Circuit has held that “equitable
tolling is reserved for exceptional cases,” Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st
Cir. 1998), and is to be used sparingly, see Aresty Int’l Law Firm, P.C. v. Citibank, N.A., 677
F.3d 54, 58 (1st Cir. 2012). Specifically, courts must consider the following factors when
deciding whether to apply the doctrine of equitable tolling: “(1) lack of actual notice of the filing
requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in
pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff’s
reasonableness in remaining ignorant of the filing requirement.” Ogiemwonyi v. United States,
No. 14-cv-12329, 2014 WL 3925502, at *2 (D. Mass. Aug. 12, 2014) (quoting Mercado v. RitzCarlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir. 2005)). Additionally, courts
must also consider whether the plaintiff retained an attorney. Conroy, 758 F. Supp. at 61.
Although there is no indication that Harvey retained counsel during the relevant
limitations period, the Court notes that nothing in Harvey’s Complaint or her Opposition
suggests that Harvey was unaware of the filing requirements or that she lacked constructive
knowledge of the requirements. Beyond stating that she was unable to visit the MCAD office in
person due to the COVID-19 pandemic, Harvey remains silent on what actions, if any, she took
after May 17, 2021, when the MCAD followed up on her initial submission, and why she did not
schedule a remote intake interview or verify the complaint prior to July 29, 2021. [Opp’n at 3;
see generally id.]; see Benitez-Pons v. Commonwealth of P.R., 136 F.3d 54, 61 (1st Cir. 1998)
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Because neither doctrine is invoked by Harvey and Brigham only discusses equitable tolling,
the Court does not consider equitable estoppel. In any event, there are no facts in the Complaint
from which the Court could infer that Harvey was misled by her employer. See generally
[Compl.].
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(“Equitable tolling is unavailable where a party fails to exercise reasonable diligence.”). As
such, this Court, although sympathetic to Harvey’s plight, cannot find exceptional circumstances
justifying equitable tolling. Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990) (“The Court has
taught that ‘[p]rocedural requirements established by Congress for gaining access to the federal
courts are not to be disregarded’ even in sympathetic circumstances.” (quoting Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (alteration in original))); see also Harrington
v. Lesley Univ., 554 F. Supp. 3d 211, 225 (D. Mass. 2021) (rejecting plaintiff’s argument that
the Massachusetts Supreme Judicial Court’s order to toll all civil statute of limitations periods in
response to COVID-19 also tolled the Title VII limitations period because the MCAD had initial
jurisdiction over the federal claims). While an amendment to the February 2021 complaint could
have cured the defect in Harvey’s submission, based on the facts before it, the Court cannot
conclude that either she or the MCAD ever amended the unverified complaint. 9 Accordingly,
the Court finds that Harvey’s filing of the MCAD complaint was untimely.
IV.
CONCLUSION
For the above reasons, the Defendant’s motion to dismiss, [ECF No. 5], is GRANTED.
SO ORDERED.
January 28, 2025
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE
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Although neither party references the provision, 804 CMR § 1.04(8)(b) of the MCAD
procedural rules provides that “[w]here a filing within the statutory period is inadequate,” a
complaint . . . may be amended to cure technical defects or omissions, including
failure to swear to the complaint, or to clarify and amplify allegations made therein.
. . . Amendments shall relate back to the original filing date.
Mohegan Council, 711 F.3d at 41 (quoting 804 CMR § 1.04(8)(b) (formerly cited
§ 1.10(6)(a)).
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