Summary
affirming dismissal of complaint on statute of limitations grounds
Summary of this case from In re MyrickOpinion
15-P-466
03-02-2017
Kyl V. MYRICK v. HARVARD UNIVERSITY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, pro se, appeals from a judgment of the Superior Court dismissing his complaint for employment discrimination on the ground that it was barred by the statute of limitations. We affirm.
We accept the factual allegations of the complaint as true, as well as any favorable inferences drawn from them. See Goodwin v. Lee Pub. Schs ., 475 Mass. 280, 284 (2016). In February of 2011, the plaintiff, who identifies himself as African-American, filed a charge with the Massachusetts Commission Against Discrimination (MCAD), alleging that he had been working as a "Research Associate ... at Harvard University [Harvard] for about ten years" and "was wrongfully terminated on January 31st, 2011 because of [his] race." He further alleged that his supervisor informed him of the termination and "refused to renegotiate as of [their] last discussion on [sic ] November 2010." In April of 2013, the MCAD dismissed the plaintiff's case for lack of probable cause and, three months later, upheld the dismissal after a hearing.
The MCAD charge was attached to Harvard's motion to dismiss, but the judge could consider it without "convert[ing] the motion to one for summary judgment" because "the plaintiff had notice of the[ ] document [ ] and relied on [it] in framing the complaint." Marram v. Kobrick Offshore Fund, Ltd ., 442 Mass. 43, 45 n.4 (2004).
On January 30, 2014, the plaintiff initiated this action pursuant to G. L. c. 151B. Like the MCAD charge, the complaint alleges an "employment termination date" of January 31, 2011. Based on that date, the plaintiff asserted that "this Complaint must be within the relevant time limit for filing." The judge disagreed, however, concluding that the statute of limitations began running when the termination decision was communicated to the plaintiff, which, according to his MCAD charge, occurred no later than November of 2010. Because the plaintiff did not bring suit within three years of that date, the judge ruled that the complaint was untimely and ordered the entry of a judgment dismissing it under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974).
"Giving [the p]laintiff the benefit of every possible doubt," the judge construed the complaint to also be raising a claim of wrongful failure to hire. The judge dismissed the claim, however, on the ground that the plaintiff did not raise it in his MCAD charge. To the extent the plaintiff is challenging that ruling on appeal, we agree with the judge's conclusion that the MCAD charge did not fairly raise any claim of wrongful failure to hire. See Butner v. Department of State Police , 60 Mass. App. Ct. 461, 467 (2004) ("[A] complainant may not bring a civil action against defendants ... without first complaining to the MCAD").
We review the judge's decision de novo. See Goodwin , 475 Mass. at 284. Under G. L. c. 151B, § 9, as amended by St. 1991, c. 323, § 2, a complaint alleging employment discrimination must be filed "not later than three years after the alleged unlawful practice occurred." See Everett v. 357 Corp ., 453 Mass. 585, 594 (2009). In determining the date that triggers the limitations period, the focus must be "upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." School Comm. of Brockton v. Massachusetts Commn. Against Discrimination , 423 Mass. 7, 11 n.8 (1996), quoting from Delaware State College v. Ricks , 449 U.S. 250, 258 (1980). Applying that test, the United States Supreme Court held in Ricks , a Title VII case, that the limitations period began running when the adverse employment decision (denial of tenure) "was made and communicated to" the plaintiff, even though the "effects" of that decision (termination) did not occur until one year later. 449 U.S. at 258. In Adamczyk v. Augat, Inc ., 52 Mass. App. Ct. 717, 722 (2001), we applied the rationale of Ricks to G. L. c. 151B and concluded that the limitations period commenced on the date that the plaintiffs were notified that their employment would be terminated, not on their actual termination date.
The plaintiff asserts that the limitations period is five years, but he provides no authority to support that proposition.
Here, as stated in the plaintiff's MCAD charge, Harvard's decision to terminate his "associateship" was communicated to him by his supervisor no later than November of 2010—the date of their "last discussion," during which his supervisor "refused to renegotiate." The three-year statute of limitations began running on that date, even accepting that the plaintiff's position was not actually terminated until January 31, 2011. See ibid ., quoting from Ricks , 449 U.S. at 257 ("Mere continuity of employment, without more is insufficient to prolong the life of a cause of action for employment discrimination"). To be within the limitations period, therefore, the plaintiff had to have brought this action by November of 2013. His complaint, filed on January 30, 2014, was at least two months too late and was properly dismissed.
Harvard argues that the termination did not constitute an adverse employment action because an "associateship" is merely a "courtesy academic appointment" and the plaintiff was "not perform[ing] any services at the request or direction of Harvard." These assertions find no support in the pleadings and thus cannot be the basis for a dismissal under Mass.R.Civ.P. 12(b)(6). We will therefore assume, as did the judge, that the termination constituted an adverse employment action.
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We discern no abuse of discretion in the judge's denial of the plaintiff's motion to vacate the judgment of dismissal under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). The plaintiff acknowledged in the motion that Harvard informed him in "late 2010" that his last "Associate appointment" would not be renewed. The motion therefore furnished no reason for the judge to reverse his prior conclusion that the statute of limitations barred the plaintiff's claim.
Finally, the plaintiff argues that remand is required because the judge was biased and should have recused himself, but the plaintiff has failed to preserve that issue for appeal. Months after the judgment of dismissal entered, the plaintiff filed an "emergency" motion for recusal, but a different judge denied the motion for failure to comply with Superior Court Rule 9A. The plaintiff never refiled the motion in compliance with the rule, and he did not appeal from the order denying the motion. Thus, neither the validity of the order nor the merits of the recusal issue are properly before us. See Robinson v. Boston , 71 Mass. App. Ct. 765, 771 (2008).
Judgment affirmed .
Order denying motion to vacate judgment affirmed .