In a Superior Court action, a security officer for the Fall River Public Schools brought a charge of discrimination to the Massachusetts Commission Against Discrimination and, prior to any substantive developments before that agency, removed the matter to the Bristol County Superior Court. Named as defendants in the action were the City of Fall River as well as various past or present school officials, including a security supervisor represented by VGA.
As to VGA’s client, the plaintiff’s complaint alleged that the supervisor violated the Commonwealth’s anti-discrimination laws by engaging in harassing, retaliatory or otherwise improper conduct in the workplace and also that the supervisor intentionally inflicted emotional distress upon the plaintiff.
At the motion to dismiss stage of litigation, the factual allegations made by a plaintiff must be accepted as accurate, even if they are untrue. Although that is a forgiving initial standard, VGA’s Andy Gambaccini filed a motion to dismiss all of the claims against the supervisor, arguing that that the plaintiff had waited too long to file her charge of discrimination against the supervisor with the Massachusetts Commission Against Discrimination and, because she had not satisfied the administrative prerequisite of a timely agency charge, the Superior Court action was subject to dismissal. VGA’s motion additionally made the point that, according to the plaintiff’s complaint, she not only was aware of the allegations later made against the supervisor in their own time, but she in fact had complained about them then, indicating a subjective awareness that could have led to a timely filing. While the claim of the intentional infliction of emotional distress does not have the same administrative requirement of first being brought to the Massachusetts Commission Against Discrimination, VGA argued that the emotional distress claim simply was a reconstructed claim of harassment that also should be dismissed as time-barred.
Counsel for the plaintiff opposed the motion, arguing that the plaintiff’s claims were saved by a doctrine known as a continuing violation, in which a timely-made allegation can resuscitate stale allegations as part of one common theme of harassment. The plaintiff also claimed that the emotional distress claim could stand on its own and must be allowed to proceed.
In a reply memorandum, VGA argued that the law should not recognize a notion in which a timely allegation against one defendant saves stale allegations made against a separate defendant, at least without some evidence of coordination between the two defendants.
After an oral argument, the Superior Court issued a memorandum of decision that granted VGA’s motion to dismiss the supervisor. The Court concluded that the complaint did not establish any substantial relationship between the timely allegations against a separate defendant and the untimely allegations against the supervisor, meaning the continuing violation doctrine could not apply to salvage the allegations against the supervisor. Further, the Court agreed with VGA that the plaintiff subjectively was aware of the issues she claimed with the supervisor as they were said by her to have occurred and that awareness was enough to trigger a duty to file a charge in a timely fashion. Lastly, the Court approved of VGA’s argument that the emotional distress claim simply was a discrimination claim dressed in different garb and, therefore, it also was untimely. As a consequence of the ruling, the supervisor no longer is a defendant in the case.