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Appeals Court of Massachusetts.



Decided: October 29, 2021

By the Court (Desmond, Sacks & Grant, JJ.2)


The plaintiff, Amin Karimpour, filed this action against the defendant, Bose Corporation (Bose), alleging two counts of employment discrimination and one count of a hostile work environment, each on the basis of age, pursuant to G. L. c. 151B, § 4. Bose filed a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), contending the complaint was untimely. Following a telephonic hearing, a Superior Court judge concluded that the plaintiff's claims were barred by the three-year statute of limitations, pursuant to G. L. c. 151B, § 9, and dismissed the plaintiff's complaint. We affirm.

Background. We recite the facts asserted in the plaintiff's complaint, “accepting them as true” for purposes of evaluating the motion to dismiss. Harrington v. Costello, 467 Mass. 720, 721 (2014).

The plaintiff began working at Bose as a business system analyst on June 6, 2011. He reported to Ramesh Sagavanam, who previously held the plaintiff's position but was promoted to a managerial role when the plaintiff was hired. The plaintiff aspired to eventually be promoted to Sagavanam's management position, and Sagavanam advised him to pursue the position once he had worked for three to five years at the company. In both 2012 and 2013, the plaintiff received positive performance reviews from Sagavanam.

Sometime between May and July 2013, Sagavanam left his management position for another position within the company. The plaintiff sought to apply for Sagavanam's vacant management position, but was informed that it had already been filled by David Santos. According to the plaintiff, Santos did not have experience in engineering or information technology (IT) management which was needed for the position. Santos's lack of experience was apparently “evident,” and the plaintiff raised concerns about Santos's performance in his new management position.3 In 2014, Santos gave the plaintiff a negative performance review, wherein he critiqued the plaintiff's lack of aggressiveness in solving an issue that the company had faced.

In December 2014, Santos was hired for a different role at Bose and the management position again became vacant. Without interviewing the plaintiff for the position, the company gave the job to John De Raismes. De Raismes also allegedly lacked relevant experience for the post. As he had with Santos, the plaintiff raised concerns about De Raismes's management methods and the manner in which he handled certain issues. In January 2016, De Raismes met with the plaintiff for a performance review and informed the plaintiff that he was not meeting De Raismes's expectations. The plaintiff contends that the negative reviews he received were made as retaliation for his complaints and “whistleblowing” about the incompetency of Bose management.

On February 9, 2016, the plaintiff met with an executive at Bose and learned about a “Domino” transition plan that the company had put in place. The plan was designed to focus on the career development of younger employees, and was intended to promote those employees to mid- and high-level management positions, at the expense of older, more experienced employees. On November 8, 2016, Bose informed the plaintiff that the company was reorganizing and that his position would be eliminated. The plaintiff's last day of employment at Bose was December 31, 2016.

On January 17, 2017, the plaintiff filed an age discrimination complaint against Bose with the Massachusetts Commission Against Discrimination (MCAD). After one and one-half years evaluating the plaintiff's complaint, the MCAD found no probable cause. On December 23, 2019, the plaintiff filed this action in the Superior Court, contending that Bose discriminated against him on the basis of age and created a hostile work environment, in violation of G. L. c. 151B, § 4. As stated supra, on Bose's motion to dismiss, a Superior Court judge concluded that the plaintiff's claims were untimely and dismissed the complaint. The plaintiff appealed.

Discussion. “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Harrington, 467 Mass. at 724. To survive a motion to dismiss for the failure to state a claim upon which relief can be granted, Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), the allegations in the plaintiff's complaint must “plausibly suggest an entitlement to relief.” Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011).

1. Adequacy of hearing. We first briefly address the plaintiff's claim that he was not provided an adequate hearing on Bose's motion to dismiss. Due to the COVID-19 pandemic, the hearing was held telephonically rather than in person.4 The plaintiff contends that the nature of the hearing prevented him from presenting certain details of his claims. The argument is unavailing.

To begin, the plaintiff did not object to the hearing being held via telephone. Nor did he request that the hearing be conducted via Zoom,5 or that the matter be continued until the hearing could safely be held in person. It should be noted that we ordinarily do not consider arguments raised for the first time on appeal. See Knott v. Racicot, 442 Mass. 314, 323 n.12 (2004). Nevertheless, the transcript makes clear that the plaintiff was given a full opportunity to present the details of his claims, and indeed, he did just that. Importantly, any additional factual details that the plaintiff wished to present, beyond the allegations contained in the complaint, could not be considered by the judge on the motion to dismiss. See Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985) (“Pleadings must stand or fall on their own. Oral representations and extraneous materials not incorporated by reference can neither add to nor detract from them”). Contrast White v. Peabody Constr. Co., 386 Mass. 121, 126-127 (1982) (where judge relies on materials outside pleadings, dismissal motion converted to one for summary judgment and parties must be given opportunity to present further materials). There was no error.

2. Timeliness of claims. We turn next to the timeliness of the plaintiff's claims. Claims of employment discrimination, including claims of a hostile work environment, must be filed “not later than three years after the alleged unlawful practice occurred.” G. L. c. 151B, § 9. “[T]he proper focus [for determining when a statute of limitations period commences] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 721 (2001), quoting School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 423 Mass. 7, 11 n.8 (1996). Accordingly, in circumstances not unlike this case, where it is alleged that an employer has made a discrimination-based decision to terminate an employee, the statute of limitations period has been held to commence on the date the decision was made and unequivocally communicated to the employee, rather than on the date of the employee's actual termination. See, e.g., Adamczyk, supra at 721-722 (statute of limitations commenced when employees sufficiently notified of prospective termination dates, not on termination dates). See also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). Cf. Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 396-398 (1994) (termination notice offering possibility of other employment deemed equivocal and did not trigger commencement of limitations period). “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Adamczyk, supra at 722, quoting Ricks, supra at 257.

Here, the plaintiff was notified on November 8, 2016, of the company's decision to eliminate his position. He was therefore required to file an employment discrimination claim based on that decision no later than November 8, 2019, and any employment discrimination claim based on earlier conduct even sooner. See G. L. c. 151B, § 9. This is true even though the plaintiff continued working for Bose until December 31, 2016. See Adamczyk, 52 Mass. App. Ct. at 721. It is undisputed that the plaintiff did not commence this action until December 23, 2019 -- more than three years after he was notified that his position at Bose was being eliminated. As a result, the plaintiff's employment discrimination claims, whether based on the elimination of his position or conduct preceding that decision, are barred by the three-year statute of limitations under G. L. c. 151B, § 9.6

The plaintiff contends that, under the continuing violation doctrine, his employment discrimination claims are not time barred. We are not persuaded. “That doctrine permits a person to seek damages for alleged discrimination occurring outside the usual statute of limitations period if the alleged events are part of an ongoing pattern of discrimination, and there is a discrete violation within the statute of limitations period to anchor the earlier claims.” Pelletier v. Somerset, 458 Mass. 504, 520 (2010). Because the plaintiff's complaint makes no allegation of discriminatory acts occurring within the limitations period, see note 5, supra, the doctrine is inapplicable. See Ocean Spray Cranberries, Inc. v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 643 (2004).

The plaintiff also argues that the filing of his MCAD complaint, or alternatively his negotiations with the defendant, tolled the three-year statute of limitations. “Equitable tolling is to be ‘used sparingly,’ and the circumstances where tolling is available are exceedingly limited.” Halstrom v. Dube, 481 Mass. 480, 485 (2019), quoting Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 725-726, 728-729 (1997). Equitable tolling is available where “the plaintiff is excusably ignorant about the ․ statutory filing period, or where the defendant or the MCAD has affirmatively misled the plaintiff” (citation omitted). Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996). Those circumstances are not present here.

The filing of a complaint with the MCAD is not sufficient to toll the statute of limitations. Compare Shafnacker, 425 Mass. at 728 (statutes not tolled by the filing of an arbitration claim or “possibility of an administrative settlement” [citation omitted]). The statute is clear; a plaintiff must file an action pursuant to G. L. c. 151B, § 4, “not later than three years after the alleged unlawful practice occurred.” G. L. c. 151B, § 9. The plaintiff's obligation to first file a complaint with the MCAD does not alter this requirement. See Everett v. 357 Corp., 453 Mass. 585, 601 (2009) (“mandatory administrative filing does not require a plaintiff to await a determination by the MCAD prior to filing a civil suit”). Further, the fact that Bose engaged in settlement negotiations with the plaintiff prior to his filing suit does not by itself demonstrate that the company affirmatively “misled ․ or otherwise lulled [the plaintiff] into delaying action on his claim.” Halstrom, 481 Mass. at 485. Absent an allegation that Bose engaged in misconduct to dissuade the plaintiff from filing his complaint, the statute of limitations will not be equitably tolled. See Andrews, 423 Mass. at 1022.

Finally, the plaintiff contends that he made timely claims of retaliatory termination in violation of the Massachusetts Whistleblower Act, G. L. c. 149, § 185, and public policy. Because the plaintiff did not assert those claims in his complaint, the Superior Court declined to address them. We follow suit, but note that the statute of limitations for a claim of retaliation under the Whistleblower Act is two years -- shorter than that for a claim for employment discrimination. See Tryon v. Massachusetts Bay Transp. Auth., 98 Mass. App. Ct. 673, 678 (2020). In any event, the Whistleblower Act does not apply to private employers such as Bose. See G. L. c. 149, § 185 (a) (2) (defining “Employer” as any of various governmental entities).

Judgment of dismissal affirmed.


3.   The complaint does not clearly indicate when and to whom these concerns were raised.

4.   This was consistent with Superior Court Standing Order 7-20 in effect on the date of the hearing. The standing order required nonemergency civil matters, including motions submitted under Rule 9A of the Rules of the Superior Court (2018), to presumptively be held virtually. See Superior Court Standing Order 7-20 (2020).

5.   Zoom refers to the “Internet-based video conferencing platform, Zoom Video Communications, Inc.” Vazquez Diaz v. Commonwealth, 487 Mass. 336, 336 (2021).

6.   The plaintiff argues in his brief that the last act of discrimination was not the decision to eliminate his position, but rather was Bose's refusal to rehire him for one of the fifteen positions that he applied to after learning that his position was going to be eliminated. These allegations do not appear in the plaintiff's complaint, and thus may not be considered in evaluating the motion to dismiss. See Mmoe, 393 Mass. at 620.

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