Preston v. Second Wind, Inc.
Preston v. Second Wind, Inc.
Opinion of the Court
MEMORANDUM
I. Introduction
The chain of events underlying this action originated in November, 2008 when Plaintiff Roger Preston’s employment with Defendant Second Wind, Inc. (“Second Wind”) was terminated. In March 2009, Plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”), and in February 2011, Plaintiff brought this civil action. Presently at issue is Defendants’ Motion to Dismiss Plaintiffs Claims Against the Individual Defendants Arising Under G.L. c. 151B (Counts III and TV), Motion to Dismiss His State and Federal “Retaliation” Claims Against All Defendants (Counts II and TV), and Request for Oral Argument [# 11]. For the following reasons, Defendants’ Motion is ALLOWED IN PART and DENIED IN PART.
II. Background
Plaintiff Roger Preston was hired by Defendant Second Wind as a software de
In the fall of 2008, however, Plaintiff was moved to a database administrative position, which had little or no .NET-related responsibility. Plaintiff alleges that his change in position was a pretext for providing Mr. Lee with more .NET-related work, even though Plaintiff outperformed Mr. Lee while using the .NET framework.
In November 2008, Defendant Sass held a private meeting with Plaintiff during which Defendant Sass stated that he favored younger employees to older ones.
On November 14, 2008, Defendant Lee called Plaintiff and terminated his employment at Defendant Second Wind.
In March 2009, Plaintiff filed a complaint with the MCAD alleging age discrimination by Defendant Second Wind.
On February 2, 2011, Plaintiff filed his Complaint in the United States District Court for the District of Massachusetts. He asserted the following five counts: (1) violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 by Defendant Second Wind; (2) unlawful retaliation in violation of ADEA by Defendant Second Wind; (3) age discrimination in violation of M.G.L. c. 151B § 4 by Defendants Second Wind, Sass, and Lee; (4) unlawful retaliation in violation of M.G.L. c. 151B § 4 by Defendants Second Wind, Sass, and Lee; and (5) tortious interference with contractual or advantageous business relationship by Defendant Lee.
On June 8, 2011, Defendants brought a partial motion to dismiss (1) Plaintiffs claims against Defendants Lee and Sass arising under M.G.L. c. 151B § 4 and (2) Plaintiffs state and federal retaliation claims against all Defendants.
III. Discussion
A. Claims Against Defendants Lee and Sass Arising Under M.G.L. c. 151B § J
Under Massachusetts law, a plaintiff alleging employment discrimination must file a complaint with the MCAD prior to bringing a civil action.
Failure to name an individual as a respondent in the MCAD complaint does not necessarily bar a plaintiff from naming that individual as a defendant in the civil action.
In determining whether an individual had notice and an opportunity to conciliate, other courts have focused on whether the plaintiff attempted to amend the MCAD complaint to include a respondent the plaintiff did not originally name as a respondent.
In the present case, even though Defendants Lee and Sass are mentioned in the MCAD complaint, they are not named as respondents. Plaintiff makes no attempt in his civil complaint to demonstrate that these individual Defendants had the ability to participate in the MCAD proceeding
Additionally, there is no indication in the MCAD record that Plaintiff ever attempted to amend the MCAD complaint to include these individual defendants as respondents. Plaintiff knew Defendants Sass and Lee’s identities and their role in the alleged discrimination at the time he filed his MCAD complaint.
B. Plaintiff’s State and Federal Retaliation Claims Against All Defendants
Although a plaintiff must file an MCAD complaint prior to bringing a civil action alleging employment discrimination, the scope of the civil action is not strictly limited to the claims listed in the MCAD complaint.
The factual allegations stated in the plaintiffs MCAD complaint create the basis for determining what properly fits within the scope of the investigation, even if the MCAD did not investigate such alternative bases of discrimination.
Here, Plaintiff did not include a claim of discrimination based on retaliation in his MCAD complaint and he seeks to bring a cause of action based on retaliation in this suit. When similar circumstances have arisen in other cases, the retaliation claim brought in the civil suit is typically a claim of retaliation for bringing the MCAD complaint.
Even if MCAD failed to actually investigate retaliation against Plaintiff, a reasonable investigation by MCAD would have uncovered this basis for the alleged discrimination.
Accordingly, Plaintiff may proceed with his retaliation claim against Defendant Second Wind. But, for the reasons stated above,
IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [# 11] is ALLOWED IN PART and DENIED IN PART as follows: Defendant’s Motion to Dismiss Plaintiffs Claims Against the Individual Defendants Arising under M.G.L. c. 151B (Counts III and IV) is ALLOWED; Defendants’ Motion to Dismiss [Plaintiff’s] State and Federal “Retaliation Claims Against All Defendants (Counts II and IV) is DENIED with regard to Defendant
IT IS SO ORDERED.
ORDER
For the reasons set forth in the accompanying memorandum, Defendants’ Motion to Dismiss Plaintiff’s Claims Against the Individual Defendants Arising Under G.L. c. 151B (Counts III and IV), Motion to Dismiss His State and Federal Retaliation” Claims Against All Defendants (Counts II and IV), and Request for Oral Argument [# 11] is ALLOWED IN PART and DENIED IN PART as follows: Defendant’s Motion to Dismiss Plaintiff’s Claims Against the Individual Defendants Arising under M.G.L. c. 151B (Counts III and IV) is ALLOWED; Defendants’ Motion to Dismiss [Plaintiff’s] State and Federal “Retaliation” Claims Against All Defendants (Counts II and IV) is DENIED as to Defendant Second Wind and ALLOWED as to Defendants Sass and Lee. Defendants’ Request for Oral Argument .is DENIED AS MOOT.
IT IS .SO ORDERED.
. Because the issues analyzed here arise in the context of a motion to dismiss, this court presents the facts as they are related in Plant-tiff's Complaint, Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008), and construes those facts in the
. See Compl. ¶ 10[# 1],
. See Compl. ¶ 10[# 1],
. See Compl. ¶ 24.
. See Compl. ¶ 11.
. See Compl. ¶¶ 13-14.
. See Compl. ¶¶ 12, 15.
. See Compl. ¶ 17[# 1],
. See Compl. ¶ 17[# 1],
. See Compl. ¶ 17[# 1],
. See Compl. ¶ 18[# 1],
. See Compl. ¶¶ 17, 22[# 1].
. See Compl. ¶ 19[# 1],
. See Compl. ¶ 22[# 1],
. See Compl. ¶ 24[# 1],
. See Compl. ¶ 25[# 1],
. See Compl. ¶ 26[# 1]; MCAD Compl. [# 12-1].
. See MCAD Compl. ¶ 11 [# 12-1],
. See Compl. ¶¶ 28-60.
. See Singleton v. Sinclair Broadcast Group, Inc., 660 F.Supp.2d 136, 146 (D.Mass. 2009).
. See Fant v. New England Power Serv. Co., 239 F.3d 8, 11 (1st Cir. 2001) ("A party who wants to file a civil action charging discrimination in employment under Chapter 15IB must first file the charge with the MCAD.”); see also Singleton, 660 F.Supp.2d at 146; Everett v. 357 Corp., 453 Mass. 585, 904 N.E.2d 733, 746 (2009).
. See Fant, 239 F.3d at 11; Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996) ("The purpose of [the exhaustion] requirement is to provide the employer with prompt notice of the claim and to create an opportunity for early conciliation.”); Everett, 904 N.E.2d at 746 ("The purpose of the administrative filing 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.’ ” (quoting Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 750 N.E.2d 928, 936 (2001))).
. Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990) (internal quotation omitted).
. See Singleton, 660 F.Supp.2d at 146-47.
. 973 F.Supp. 228, 234 (D.Mass. 1997).
. Id.
. See Singleton, 660 F.Supp.2d at 147; Horney v. Westfield Gage Co., 95 F.Supp.2d 29, 36 (D.Mass. 2000).
. Singleton, 660 F.Supp.2d at 147.
. Id.
. Id.
. Id.
. Powers v. H.B. Smith Co., Inc., 42 Mass. App.Ct. 657, 679 N.E.2d 252, 258-59 (1997).
. Id.
. See Chatman, 973 F.Supp. at 236; see also Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990).
. See Chatman, 973 F.Supp. at 236
. Pl.’s Opp’n to Def.’s Mot. to Dismiss.
. See Singleton v. Sinclair Broadcast Group, Inc., 660 F.Supp.2d 136, 147 (D.Mass. 2009); Horney v. Westfield Gage Co., 95 F.Supp.2d 29, 36 (D.Mass. 2000); see also Powers, 679 N.E.2d at 258-59.
. See Singleton, 660 F.Supp.2d at 147; Powers, 679 N.E.2d at 258-59.
. See Fant v. New England Power Service Co. 239 F.3d 8, 11 (1st Cir. 2001) ("The purpose of mandatory submission to the MCAD process is to provide notice to the prospective defendant and to encourage conciliation and settlement of disputes.”).
. See Thornton v. United Parcel Service, Inc., 587 F.3d 27, 31-32 (1st Cir. 2009) (quoting Davis v. Lucent Technologies, Inc., 251 F.3d 227, 233 (1st Cir. 2001)); Conroy v. Boston Edison Co., 758 F.Supp. 54, 58 (D.Mass. 1991).
. Thornton, 587 F.3d at 31-32 (quoting Davis, 251 F.3d at 233); see Everett v. 357 Corp., 453 Mass. 585, 904 N.E.2d 733, 748 (2009) ("[A] claim that is not explicitly stated in the administrative complaint may be asserted in the subsequent Superior Court action so long as it is based on the acts of discrimination that the MCAD investigation could reasonably be expected to uncover.”) (internal quotation omitted).
. See Conroy, 758 F.Supp. at 58 ("[W]here the factual statement in a plaintiff’s written charge should have alerted the agency to an alternative basis of discrimination, and should have been investigated, the plaintiff will be allowed to allege this claim in his or her complaint regardless of whether it was actually investigated.”); see also Lattimore v. Polaroid Corp., 99 F.3d 456, 464-65 (1st Cir. 1996) ("When [an investigation] is launched in response to a charge of employment discrimination, the direction and scope of the investigation are guided by the allegations contained in the charge.”); Ianetta v. Putnam Invs., Inc., 142 F.Supp.2d 131, 134 (D.Mass. 2001) ("It is irrelevant whether the agency actually investigates the claim.”).
. Lattimore, 99 F.3d at 464.
. Id. at 465.
. Thornton, 587 F.3d at 32.
. See, e.g., Clifton v. Massachusetts Bay Transportation Authority, 445 Mass. 611, 839 N.E.2d 314, 319 (2005).
. See Conroy, 758 F.Supp. at 58
. MCAD Compl. ¶¶ 8, 11 [# 12-1],
. Id. at ¶ 11.
. See id. at ¶¶ 6-7.
. See Compl. ¶ 55[# 1].
. See supra Part III.A.
Reference
- Full Case Name
- Roger M. PRESTON v. SECOND WIND, INC.
- Cited By
- 6 cases
- Status
- Published