Opinion
No.: 97-02182-D
August 12, 1997
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
Plaintiff Lori Constantine ("Constantine") brings this action in tort alleging that the defendant Piantedosi Baking Co., Inc. ("Piantedosi") sexually discriminated against her by allowing her to be sexually harassed. Piantedosi now moves to dismiss the complaint, pursuant to Mass.R.Civ.P. 12(b)(6), as time-barred by the applicable statutes of limitation in G.L.c. 151B, § 9 and G.L.c. 151B, § 5. For the reasons set forth below, the defendant's motion is ALLOWED.
BACKGROUND
Constantine was employed by Piantedosi from October 1989 until March 1991. Constantine alleges that during the course of her employment, she was sexually harassed by the owners and the employees of Piantedosi. She also alleges in her memorandum in opposition to Piantedosi's motion that certain owners and employees threatened her with physical harm if she were to speak about the harassment with anyone. In March 1991, Constantine left her employment at Piantedosi. Constantine also alleges that on or about October 7, 1995, an owner of Piantedosi contacted her and offered her compensation for the sexual harassment she endured while employed at Piantedosi.
The allegations of threats do not appear in Constantine's complaint.
Constantine filed a complaint against Piantedosi with the Massachusetts Commission Against Discrimination ("MCAD") on February 28, 1996. On October 18, 1996, Constantine filed a motion to remove the case from the MCAD to Superior Court. On April 28, 1997, Constantine filed a complaint against Piantedosi in this court.
DISCUSSION
A court deciding a motion to dismiss must take as true all allegations contained in the complaint and must make all inferences favorable to the plaintiff. General Motors Acceptance Corp. v. Abington Casualty Ins. Co., 413 Mass. 583, 584 (1992). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief. Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Piantedosi first urges that the complaint should be dismissed because Constantine failed to file her complaint in this court within three years of the occurrence of the alleged unlawful practice, as required by G.L.c. 151B, § 9. Second, Piantedosi argues that Constantine failed to comply with G.L.c. 151B, § 5 because she did not file her complaint with the MCAD within six months of the alleged unlawful acts. Finally, Piantedosi argues that the alleged acts of its owner in 1995 do not constitute sexual harassment within the meaning of G.L.c. 151B because Constantine was not an employee of Piantedosi at that time. Constantine takes the position that the complaint is timely because of an MCAD "tolling" regulation and because of the doctrine of equitable tolling.
The alleged acts of Piantedosi's owner in 1995 do not constitute a violation of G.L.c. 151B because the statute regulates the employer-employee relationship. G.L.c. 151B, § 4. Constantine was not an employee of Piantedosi in 1995, and therefore does not have standing under the statute to complain of any acts of sexual harassment or sexual discrimination committed in 1995 by Piantedosi or any of its agents. It follows that any sexual harassment which occurred in 1995 does not constitute a continuing violation under 804 CMR 1.03(2). That regulation was promulgated under G.L.c. 151B and applies only to situations which fall under G.L.c. 151B. The regulation was intended to allow a plaintiff to toll the statute of limitations under G.L.c. 151B, § 5 such that a complaint with the MCAD would be timely if filed within six months of the last in a continuous series of violations. Rock v. MCAD, 385 Mass. 198, 207 (1981) (Court rejected employer's interpretation that the six-month period must be computed from the employer's earliest violation, and held that the "tolling" rule is consistent with the § 5 limitation); Lynn Teachers Union, Local 1037 v. MCAD, 406 Mass. 515, 520 (1990). The regulation does not to transform acts which do not constitute violations of G.L.c. 151B into violations.
At oral argument, Constantine sought to address these statutory obstacles by urging that because agents of Piantedosi threatened her with physical harm if she filed her claim, the six-month period for filing with the MCAD and three-year period for filing with this court should be tolled until the time when she was no longer in fear of physical harm. Equitable tolling is sometimes allowed under G.L.c. 151B, § 5. See Christo v. Edward C. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 (1988); Taradanico v. Aetna Life Cas. Co., 41 Mass. App. Ct. 443, 445-46 (1996) (Holding that a statute of limitations may be tolled in discrimination cases "by reason of the employer having caused the employee to delay acting, i.e., an equitable estoppel, or because the plaintiff was understandably ignorant of his statutory rights.") Equitable tolling may also be available under § 9, as is the case under other statutes of limitation. Cf. M.G.L.c. 260, § 12; Frank Cooke, Inc. v. Hurwitz, 10 Mass. App. Ct. 99, 106 (1980) (Holding statute of limitations on cause of action in contract or tort may be tolled if the wrongdoer, either through actual fraud or in breach of a fiduciary duty of full disclosure, keeps from the person injured knowledge of facts giving rise to a cause of action and the means of acquiring knowledge of such facts.) Because Constantine has not alleged any threats in her complaint, however, the court is unable to determine this issue. In order to give the plaintiff a full opportunity to allege these claims, Constantine is granted leave to amend her complaint.
ORDER
It is therefore ORDERED that defendant Piantedosi's motion to dismiss the complaint be ALLOWED, without prejudice to plaintiff filing and serving an amended complaint no later than September 5, 1997. If an amended complaint is not filed by that date, the clerk will enter judgment for the defendant. The defendant may renew its motion to dismiss with respect to any amended complaint.
Raymond J. Brassard Justice of the Superior Court
DATED: August, 1997