SAYLOR, District Judge.
This is an action for workplace discrimination. Plaintiff Dorothy Uwakwe, a Nigerian-American woman, alleges that her former employers, defendants Pelham Academy and Justice Resource Institute, Inc., discriminated against her on the basis of her race and national origin.
The principal question before the Court is whether Uwakwe's discrimination claims under Title VII, 42 U.S.C. § 2000e et seq., are time-barred. Title VII claims are subject to a fairly short limitations period: they must be filed within 90 days after the plaintiff receives a right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Here, the EEOC apparently mailed the notices on June 17, 2016. This action was not filed until April 1, 2017, 288 days later.
Defense counsel received a copy of the notices on June 20, 2016, three days after they were mailed. Plaintiff, and her counsel, have submitted affidavits saying that they did not receive the notices until January 3, 2017, and then only after an inquiry by counsel. The notices were addressed properly and were not returned as undeliverable. Plaintiff and her counsel do not proffer any reason, plausible or not, why they might not have received the notices. They simply deny that they did.
By law, such a notice is presumed to have been received within a reasonable time after mailing, which the First Circuit has suggested is anything from three to five days. The first question presented is whether plaintiff's simple denial is enough to overcome that presumption: more precisely, whether that simple denial is sufficient to delay accrual of the limitations period. Although the First Circuit has not addressed that question, the Second and Sixth Circuits have concluded that mere denial, without more, is not enough. This Court will adopt that approach, and conclude that plaintiff is deemed to have received the notice by June 22, 2016.
The question then becomes whether the doctrine of equitable tolling should apply and toll the running of the limitations period beginning on June 22, 2016 (the presumed latest date of receipt). The answer to that question depends on whether plaintiff's counsel acted diligently under the circumstances.
Because of that lack of diligence, the limitations period will not be tolled. Accordingly, and for the reasons that follow, defendants' motion for summary judgment will be granted as to Counts 1 through 4 and 7. The remaining two counts will be dismissed for failure to state a claim.
Dorothy Uwakwe alleges that she was employed by Pelham Academy and the Justice Resource Institute, Inc. ("JRI") beginning in April 2008. (Compl. ¶ 10).
Uwakwe alleges that the demotion was due to discrimination based on her race and national origin and that she was constructively discharged. (Id. ¶¶ 10-13). She also alleges that she was humiliated by defendants and her co-workers and subjected to a hostile work environment because of her accent. (Id. ¶¶ 11-12, 15).
The complaint asserts claims for (1) discrimination on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964; (2) retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), the Equal Pay Act of 1963, 29 U.S.C. § 215(a)(3), and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I; (3) hostile work environment; (4) constructive discharge; (5) intentional/reckless infliction of emotional distress; (6) breach of the implied covenant of good faith and fair dealing; and (7) wage and salary discrimination in violation of Title VII, 42 U.S.C. § 2000e-2(a), and the Massachusetts Civil Rights Act. (Id. ¶¶ 19-44).
On March 25, 2015, Uwakwe filed separate charges against JRI and Pelham with the Equal Employment Opportunity Commission ("EEOC"), EEOC Charge Nos. 846-2015-09662 and 523-2015-00382 respectively. (Def. Mot. to Dismiss Ex. 1).
On June 17, 2016, the Boston Area Office of the EEOC mailed one letter and two documents titled "Dismissal and Notice of Rights." (Compl. Ex. A; Def. Mot. to Dismiss Ex. 2).
The letter was addressed to Uwakwe "c/o" Benneth O. Amadi, her attorney.
Defense counsel received the notices on June 20, 2016, three days after mailing. (Def. Mem. in Response to Ct. Order Ex. 1 ¶ 3).
From that point, there is no evidence in the record of any activity with respect to these claims for more than half a year.
On December 30, 2016, Uwakwe's counsel Amadi e-mailed Anthony Pino, an EEOC Enforcement Supervisor. The e-mail stated as follows: "Please cause the Notices of Right to Sue to issue in relation to the above-referenced EEOC Charge Numbers.... My client wants to file federal complaints and therefore requests for the Rights to Sue." (Compl. Ex. A). Pino responded on January 3, 2017: "As you can see from the attached, this matter was closed on June 17, 2016." (Id.). According to Uwakwe, Pino's e-mail attached only the notice related to the charge against JCI. (Pl. Mot. to Strike at 2-3 & n.2).
Amadi did not express surprise or make any protest to Pino. Nor did he follow up as to the absence of any notice concerning Pelham. Instead, on January 6, 2017, he sent the following e-mail to Pino: "Since the letter you enclosed in your email to me was alleged to have been mailed on or about June 17, 2016, but is being received today, January 3, 2017, I shall start counting the 90 days from today for the filing of my client's case in the Federal District Court." (Pl. Response to Ct. Order Ex. A).
Amadi filed this action on behalf of Uwakwe on April 1, 2017 — 288 days after the date the notices were mailed, and 88 days after the date of Pino's e-mail.
Defendants responded by filing a motion to dismiss Counts 1, 2, 3, 4, and 7 of the complaint as untimely; Count 5 as barred by the exclusivity provisions of the Massachusetts Workers' Compensation Act; and
In response to the motion to dismiss, Uwakwe submitted an affidavit that stated, in its entirety, as follows:
(Aff. in Opp. to Mot. to Dismiss Ex. 1 ("Uwakwe Aff.")). Attorney Amadi also submitted an affidavit that stated, among other things, as follows:
(Aff. in Opp. to Mot. to Dismiss ¶¶ 2-11 ("Amadi Aff.")). Neither Uwakwe nor attorney Amadi provided any explanation or suggestion as to any possible reason why they might not have received the letter.
On September 1, 2017, the Court entered an order converting defendants' motion to dismiss into a motion for summary judgment, because both parties had presented matters outside the pleadings with respect to whether the claims were timely, and giving the parties an opportunity to file further submissions to the Court. Both parties filed a short response with additional briefing. Defendants filed an objection to Uwakwe's response, to which Uwakwe objected in turn.
The role of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Essentially, Rule 56[] mandates the entry of summary judgment `against a party who
Plaintiff has moved to strike defendants' reply brief on the grounds that it is "inundated with knowing, deliberate and deceptive misrepresentations" and a "fraud on this Court." (Pl. Mot. to Strike at 1). Specifically, plaintiff objects to the defendants' statements that "[t]he Complaint... was silent as to when the RTS Notices were received by [plaintiff's] counsel," and that "plaintiff conveniently ignores the fact that the EEOC issued two RTS Notices to plaintiff's counsel, not one." (Id. ¶¶ 1-2).
The complaint at ¶ 5 alleges that "[p]laintiff was issued with [sic] the permission and/or right to sue. See Exhibit A. Exhibit A is dated June 17, 2016, but plaintiff received it on January 03, 2017 through his [sic] attorney." (Compl. ¶ 5). The latter sentence could be read two ways — either as saying that plaintiff actually received the notice from her attorney on January 3, 2017 (without stating when the attorney received it), or as saying that plaintiff constructively received the notice on January 3, 2017 (when the notice was received by her attorney). Because of the ambiguity, the Court will not fault defendants for stating that the complaint is silent as to when the notice was received by plaintiff's counsel. However, in light of plaintiff's subsequent clarification, the Court will construe the complaint as alleging that plaintiff and her counsel first received the notice on January 3, 2017.
As to the statement that "plaintiff conveniently ignores" the second notice, plaintiff's counsel insists that he only ever received one notice (by e-mail on January 3) and that defendants are wrong to suggest otherwise. But plaintiff seems to misunderstand defendants' point. Defendants are not suggesting that the e-mail contained two notices; they are arguing that plaintiff has not presented an explanation as to why two notices would have gone missing in the mail.
The motion to strike will therefore be denied.
To proceed under Title VII of the Civil Rights Act, a plaintiff must file her complaint within ninety days of receiving a notice of the right to sue from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114, 119 (1st Cir. 2009). The date that the notice is received starts the statutory clock. There is, however, "a presumption that, in the absence of evidence to the contrary, a notice provided by a government agency is deemed to have been placed in the mail on the date shown on the notice and received within a reasonable time thereafter." Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 143 (1st Cir. 2012). Three to five days has been held to be a reasonable time for receipt of first-class mail. Id. Furthermore, notice to a plaintiff's attorney constitutes constructive notice to the plaintiff. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see Loubriel, 694 F.3d at 144. The ninety-day deadline cannot be extended except in certain circumstances where equitable tolling applies. See Rice v. N.E. College, 676 F.2d 9, 10-11 (1st Cir. 1982).
Defendants have produced evidence that the Notices of Rights are dated June 17, 2016, and are properly addressed to plaintiff's attorney. The presumption of receipt — that is, that the notices were placed in the mail on June 17, 2016, and received within a reasonable time thereafter — has therefore been triggered. See Loubriel, 694 F.3d at 143. To rebut that presumption, plaintiff has submitted affidavits from herself and her counsel denying that they received the notices.
The first question is whether those affidavits are sufficient to rebut the presumption and create a genuine issue of material fact. The First Circuit has not faced this question directly. In Loubriel, the right-to-sue notice was mailed on May 8, 2009, and the plaintiff filed suit on September 29, 2009. Loubriel, 694 F.3d at 142. The plaintiff, in an unsworn statement of "contested material facts," stated that she received the notice "on or about September of 2009"; then, in her affidavit, she attested that the facts set forth in that statement were true to the best of her knowledge. Id. The First Circuit held that it "need not decide [the] vexing issue" of whether that "combination of oblique references" was sufficient to create a genuine issue of material fact, because it was undisputed that the notice was also mailed to the plaintiff's attorney and there was no evidence to rebut the presumption that the attorney had received it in a timely fashion. Id. at 143.
Other circuits, however, have held that "[t]he mere denial of receipt does not rebut [the] presumption" at the summary judgment stage. Isaacson v. N.Y. Organ Donor Network, 405 Fed.Appx. 552, 553 (2d Cir. 2011) (first alteration in original) (quoting Meckel v. Continental Resources
Id. (quoting Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)) (citation omitted).
The Sixth Circuit adopted a similar approach in Cook v. Providence Hospital, 820 F.2d 176 (6th Cir. 1987). There, the plaintiff contended that she had not received a notice mailed in May 1983; that she had called the EEOC in June 1984 and was told that the case was closed; and that she first received the notice in July 1985. Id. at 177-78. The court held:
Id. at 179. The statement that the plaintiff's denial alone was not enough to avoid summary judgment appears to be dicta, because plaintiff admitted that she had actual notice from speaking to the EEOC in June 1984, which made her 1985 action untimely. But Cook has subsequently been followed by the Sixth Circuit and district courts in that circuit. Anderson v. Tenn. Valley Auth., 1993 WL 113730, at *4-5, 991 F.2d 794 (6th Cir. 1993) ("As in Cook, no genuine issue of material fact sufficient to defeat summary judgment is raised by Anderson's bald and unsupported denial of receipt of the notice of final decision on his individual discrimination complaint."); Ellington v. Consolidated Biscuit Co., 2008 WL 3914982 (E.D. Ky. Aug. 21, 2008); see also Hunter v. Stephenson Roofing, Inc., 790 F.2d 472 (6th Cir.1986) (holding that, due to the presumption of receipt, the ninety-day clock started five days after the date EEOC mailed the notice even though plaintiff submitted evidence that he had moved because it was plaintiff's responsibility to notify EEOC of change of address).
Plaintiff points to Hawkins v. Frank Gillman Pontiac, 102 Fed.Appx. 394 (5th Cir. 2004), as supporting her position that affidavits are sufficient to establish, for summary-judgment purposes, that a notice was not received. But in that case, there was additional evidence tending to show lack of receipt. First, "[t]he record [was] unclear as to the address that the EEOC intended the right-to-sue letter to be delivered because the right-to-sue letter was addressed to [plaintiff] but a hand written note on the certified mail receipt indicates that the EEOC actually attempted to mail the letter to [plaintiff's attorney]." Id. at 398. Furthermore, there was evidence that the notice had been returned as undeliverable and that plaintiff's attorney had changed her mailing address during the pendency of the EEOC charge. Id. at 396-97.
Other cases denying summary judgment similarly involved additional evidence that a notice had not been received. For example, in Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d Cir. 1996), the court held that evidence showing that the defendant received the notice unusually late was sufficient to create a genuine issue of material fact as to whether plaintiff also may have received the notice unusually late. Id. at 526. The court also noted, however, that plaintiff's affidavit stating "that she had no recollection of when she received the letter" alone was "not sufficient to rebut the presumption" that the letter had been received within three days of having been mailed. Id.
Put simply, a statute of limitations that can be defeated so easily provides little limitations protection at all. Moreover, any genuine issue of unfairness can be addressed by the doctrine of equitable tolling, which permits the court to toll the limitations period when necessary to avoid injustice.
The approach of the Second and Sixth Circuits is sensible, but it is not without its problems. An affidavit — even a bare-bones denial — is a form of evidence. An affidavit denying receipt is therefore evidence disputing a material fact; normally, such evidence is sufficient to defeat summary judgment. Furthermore, to the extent that such a denial is inherently implausible or incredible, it presents a question of credibility that would normally be reserved for the jury.
It is true that a defendant is put in a difficult position if a plaintiff and her counsel deny receipt, and the presumption disappears: it is almost impossible to prove that it did receive it, and therefore the simple denial effectively becomes conclusive proof. But the reverse is also true. If the EEOC incompetently fails to mail the notice — or if the post office incompetently fails to deliver it — the plaintiff can do little more than deny receipt. See Cook, 820 F.2d at 179 n.3 ("We recognize the difficult situation in which an addressee is placed: what evidence, other than her denial of receipt, is available to rebut the presumption that a letter is received? Nonetheless, on these facts, we believe Cook's denials are not sufficient to support a reasonable conclusion that the letter was not received."). A plaintiff with a meritorious case could thus be barred through no fault of her own.
There is no perfect way to reconcile those competing considerations. On the one hand, the approach of the Second and Sixth Circuits — that the mere denial of receipt, without more, is insufficient to overcome the presumption — is both sensible and practical. The purpose of the presumption is to resolve disputes of this very nature, where neither party can prove or disprove mailing or receipt. And to hold otherwise is to invite abuse: it is tantamount to permitting a plaintiff to select the date the limitations period begins to run by the single expedient of a barebones denial. At a minimum, it would tend to encourage factual disputes as to when a notice was received. See Irwin, 498 U.S. at
In any event, this Court will follow the approach of the Second and Sixth Circuits. It accordingly concludes that plaintiff here is deemed to have received the notices no later than June 22, 2016.
The doctrine of equitable tolling is available "`in exceptional circumstances' to extend the statute of limitations." Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 71 (1st Cir. 2005) (quoting Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir. 2004)). Equitable tolling is generally applicable where "circumstances beyond the plaintiff's control precluded timely filing," Monrouzeau v. Asociación Del Hosp. Del Maestro., Inc., 153 Fed.Appx. 7, 8 n.1 (1st Cir. 2005), or plaintiff was "materially misled into missing the deadline," Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675, 680 (1st Cir. 2011). "It is a `sparingly invoked doctrine' that is `used to excuse a party's failure to take an action in a timely manner, where such failure was caused by circumstances that are out of his hands.'" Ortega Candelaria, 661 F.3d at 679 (quoting Dawoud v. Holder, 561 F.3d 31, 36 (1st Cir. 2009)). "[E]quitable tolling is reserved for exceptional cases," and "[f]ederal courts should not apply equitable tolling liberally to extend time limitations in discrimination cases." Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 58-59 (1st Cir. 1998). Importantly, "equitable tolling is unavailable where a party fails to exercise reasonable diligence." Benitez-Pons v. Puerto Rico, 136 F.3d 54, 61 (1st Cir. 1998); see also Abraham, 553 F.3d at 119.
The issue of diligence here has two components. The first concerns the period between June 22, 2016 (when plaintiff is deemed to have received the notices), and December 30, 2016 (when plaintiff's counsel e-mailed the EEOC asking for issuance of the notices to right to sue). By December 30, 2016, more than 21 months had elapsed since the time the original charges were filed with the EEOC. Counsel for plaintiff contends that he "enquired [sic] constantly" about the status of the case, and that the "EEOC Investigator ... informed [him] that they were still investigating the case." (Amadi Aff. ¶¶ 6-7). There is no evidence that any investigatory activity was actually occurring during that period. And counsel has produced no corroborating evidence of any inquiry at all, such as an e-mail or a letter, or an affidavit from the investigator (whom he does not
The second component of the diligence question concerns the period beginning on January 3, 2017, once plaintiff's counsel was informed that the case had been closed. Again, plaintiff's counsel expressed no surprise to the EEOC that he had not received any notice. Nor did he diligently attempt to get a complaint on file as quickly as he could under the circumstances. Instead, he simply announced to the EEOC that he would "start counting the 90 days from today for the filing of my client's case in the Federal District Court." (Pl. Response to Ct. Order Ex. A). He then waited 88 days, until April 1, 2017, to file the complaint. In all, 288 days elapsed between the date of the notice (June 17, 2016) and the date of the filing of the complaint (April 1, 2017). More than two years in total elapsed between the filing of the charges with the EEOC (March 25, 2015) and the filing of the complaint (April 1, 2017).
Even where equitable tolling is available, there is a split among the courts as to how the doctrine ought to be applied. Some courts have held that once a party discovers the relevant fact that otherwise would have triggered the running of the limitations period, equitable tolling provides a reasonable period of time in which to take action. Others, however, have held that such a discovery simply triggers the running of an entirely new limitations period.
Thus, the Seventh and Third Circuits have explicitly held that equitable tolling only provides a party with a reasonable period of time to act after the relevant fact is discovered, but does not simply restart the limitations period. See Kren v. City of Springfield, 1998 WL 152974, at *2, 142 F.3d 440 (7th Cir. Mar. 27, 1998) ("Further, under equitable tolling a court does not grant a claimant `a fresh 300 days to file his charge once he obtains enough information to suspect discrimination; he must file his charge with the EEOC within a reasonable time.'" (quoting Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 268 (7th Cir. 1995))); Yuan Gao v. Mukasey, 519 F.3d 376, 378-79 (7th Cir. 2008); see also McPherson v. United States, 392 Fed. Appx. 938, 945 (3d Cir. 2010) (following the Seventh Circuit). The Ninth and Eleventh Circuits have rejected that approach, holding that if a party is entitled to equitable tolling, the limitations period is stayed and begins to run again from the date on which the impediment to filing is removed. See Cabello v. Fernandez-Larios, 402 F.3d 1148, 1155-56 (11th Cir. 2005) (holding that the "when a statute is equitably tolled, the statutory period does not begin to run until the impediment to filing a cause of action is removed"); Socop-Gonzalez v. Immigration & Naturalization Serv., 272 F.3d 1176, 1193-96 (9th Cir. 2001) (en banc) (also rejecting the Seventh Circuit's approach).
All the courts to have considered the issue seem to agree that a party's behavior following the removal of an impediment to suit can factor into the analysis of whether a party was sufficiently diligent to merit equitable tolling in the first place. In re Milby, 875 F.3d 1229, 2017 WL 5586044, at *4 (9th Cir. Nov. 21, 2017) ("Socop-Gonzalez's `stop-clock' holding remains the law in our circuit and applies here. That rule prohibits courts from constraining litigants to a judicially imposed filing window, and warns against imposing
Here, the diligence of plaintiff's counsel in the period from June 22 to December 30, 2016, is certainly doubtful. Surely diligent counsel would have questioned the long delay and lack of activity, and made inquiries with the EEOC.
If the only delay were the period from June 22, 2016 (the date of presumed receipt of the notice) to January 3, 2017 (the date plaintiff's counsel contends he actually received the notice), the question of whether to toll the limitations period would be a much closer call. But once counsel became aware that the case had been closed six months earlier, he did not diligently attempt to get a complaint on file at the earliest reasonable opportunity. Instead, counsel simply declared that plaintiff was entitled to a new limitations period, beginning on January 3, 2017. He then took nearly the entire limitations period — 88 of 90 days — to get the complaint on file.
There appears to have been no practical reason or need for the extra delay. Plaintiff's counsel presumably had already marshalled the evidence in plaintiff's case, at least sufficiently to present it to the EEOC. He had already decided to pursue the case in federal court. (See Compl. Ex. A ("My client wants to file federal complaints and therefore requests for the Rights to Sue.")). Thus, once he became aware that the notices had issued, there was nothing left to do but prepare and file a complaint.
This Court is inclined to agree with the approach of the Seventh and Third Circuits, that even if the matter had been equitably tolled up to January 3, 2017, at most plaintiff was entitled to a reasonable period of time to get the complaint on file, not a wholly new limitations period.
As neither party has presented documents outside the pleadings related to Counts 5 and 6, the Court will continue to treat these claims under the motion-to-dismiss standard.
Count 5 alleges "intentional/reckless infliction of emotional distress." (Compl. ¶¶ 34-36). It alleges that "defendants conducts against plaintiff were extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community" and that "[d]efendants' conducts caused plaintiff sleepless nights; headache; loss of appetite; [and] loss of weight." (Id. ¶ 36).
Defendants contend that this claim must be dismissed because the Massachusetts Workers' Compensation Act ("MWCA") is the sole remedy for common-law personal injury claims arising out of employment. The MWCA provides that "[a]n employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right." Mass. Gen. Laws ch. 152, § 24. Compensable injuries include "personal injury arising out of and in the course of [the employee's] employment." Id. § 26. "[E]motional distress arising out of employment [is] a personal injury under the [MWCA]," even where such distress arises out of the employer's willful conduct. Foley v. Polaroid Corp., 381 Mass. 545, 550, 413 N.E.2d 711 (1980).
Defendants are correct that this claim is barred by the exclusivity provisions of the MWCA. Foley, 381 Mass. at 550, 413 N.E.2d 711 (dismissing a claim by an employee against his employer for intentional infliction of emotional distress arising out of the employer's investigation into employee's
Plaintiff argues that the Massachusetts Workers Compensation Act does not apply to bar her claim, citing O'Connell v. Chasdi, 400 Mass. 686, 511 N.E.2d 349 (1987). In O'Connell, however, the plaintiff sought recovery from a co-worker, not her employer, and the court determined that the co-worker had not been acting in the course of his employment. The court ruled that the MWCA did not bar actions "against a fellow employee who commits an intentional tort which was in no way within the scope of employment furthering the interests of the employer." Id. at 689-91, 511 N.E.2d 349; see also Anzalone v. Mass. Bay Transp. Auth., 403 Mass. 119, 124-25, 526 N.E.2d 246 (1988) (discussing O'Connell and holding that "suit for an intentional tort in the course of the employment relationship is barred by the exclusivity provision of the Workmen's Compensation Act"). That is not the situation here. Although plaintiff makes no express allegations about whether the harassing statements made by her co-workers were within the scope of their employment, the claim must be dismissed regardless: either they were acting within the scope of their employment, in which case the MWCA is plaintiff's only recourse, or they were not acting within the scope of their employment, in which case plaintiff has alleged no theory by which defendants should be responsible for their conduct.
Plaintiff's claim for intentional/reckless infliction of emotional distress will therefore be dismissed.
Count 6 alleges "breach of implied covenant of good faith and fair dealing and discharge against public policy." (Compl. ¶¶ 37-40). It alleges that "implied in plaintiff's employment relationship with defendants... is the covenant of good faith and fair dealing." (Id. ¶ 38). It also alleges that "based on the promises made to plaintiff by the defendants at the time of her hiring and employment ... plaintiff intended to work for a long time and up-to her retirement age in her employment with the defendants." (Id. ¶ 39). It further alleges that "discrimination is against public policy." (Id. ¶ 40).
As an initial matter, the complaint alleges no specific promises made to plaintiff that might lead her to believe she was promised work until retirement. As to the implied covenant of good faith and fair dealing, "[i]n the context of employment, employers ... have been held liable for breach of the implied covenant of good faith and fair dealing only in circumstances when an at-will employee has been terminated in bad faith." Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367, 386, 822 N.E.2d 667 (2005); see also Siles v. Travenol Labs., Inc., 13 Mass.App.Ct. 354, 433 N.E.2d 103, 106 (1982). Here, plaintiff alleges that the reason for her demotion and constructive discharge was pretextual, that in fact she was discriminated against on the basis of her race and national origin, and that that discrimination is contrary to public policy. But even if a pretextual termination is bad faith, the comprehensive statutory scheme providing remedies for
Plaintiff's claim for violation of the covenant of good faith and fair dealing will therefore also be dismissed.
For the foregoing reasons, plaintiff's motion to strike defendants' reply is DENIED. Defendants' motion for summary judgment on counts 1, 2, 3, 4, and 7 is GRANTED, and defendants' motion to dismiss counts 5 and 6 is GRANTED.
Sanders v. Venture Stores, Inc., 56 F.3d 771, 775 (7th Cir. 1995).
