Current through Register 1531, September 27, 2024
(1)
Who May File. A complaint alleging violations of the statutes enforced by the Commission may be filed at the Commission by any of the following:
(a) A person claiming to be aggrieved by the alleged violation(s);
(b) The duly authorized representative of a person claiming to be aggrieved by the alleged violation(s);
(c) An organization whose purpose includes the elimination of the unlawful practice(s) which is the subject of the complaint and whose members include one or more persons claiming to be aggrieved by the alleged violations, provided that the injured person(s) shall be named if the complaint seeks victim-specific relief;
(d) The Attorney General or their authorized representative provided that the injured person shall be named if the complaint seeks victim-specific relief; or
(e) The Commission, pursuant to 804 CMR 1.18.
(2)
Manner of Filing.
(a)
By Delivery. A complaint may be filed by delivering a copy in person during regular Commission business hours or by U.S. mail to any of the Commission's offices.
(b)
By Intake. A complaint may be filed at any of the Commission's offices by participating in the intake process with a Commission representative and signing the complaint. A complainant who, because of a disability, is unable to visit a Commission office may request an accommodation to conduct the intake process by telephone and may return the signed complaint to the Commission by U.S. mail for filing.
(3)
Time of Filing. A complaint shall be filed within 300 days after the alleged unlawful conduct; provided, however, that a complaint alleging violations of M.G.L. c. 151C shall be filed within the time limits required by M.G.L. c. 151C.
(4)
Exceptions to Time of Filing. A complaint may be filed beyond the time limits within 804 CMR 1.04(3) under the following circumstances:
(a)
Collective Bargaining Agreement Grievance. When a grievance on behalf of an individual is filed pursuant to a collective bargaining agreement, the individual may file a complaint based on the same facts within 300 days of when they knew or should have known that the matters raised in the grievance would support a claim of discrimination. The Commission may stay its investigation until any such grievance proceedings have concluded.
(b)
Continuing Violation. When facts are alleged which indicate unlawful conduct is of a continuing nature and part of an ongoing pattern of discrimination, the complaint may include actions outside of the statutory filing period so long as the last discriminatory act in the pattern occurred within the statutory filing period.
(c)
Mediation Prior to Filing of Complaint. When an aggrieved person enters into an agreement to voluntarily mediate the alleged discriminatory acts prior to filing a complaint at the Commission but within the statutory filing period, the time for filing may be tolled subject to the following conditions:
1. The parties are represented by counsel;
2. The parties execute an agreement, signed by the parties, their attorneys, and the mediator, which states the nature of the dispute, the intent to mediate the dispute, a request to toll the statutory filing deadline to pursue mediation, a commitment by the attorneys and mediator to conduct the mediation within 90 days, and an agreement to promptly report the outcome of the mediation to the Clerk's Office;
3. The parties submit the agreement executed pursuant to 804 CMR 1.04(4)(c)2. to the Clerk's Office within the statutory filing deadlines provided for in 804 CMR 1.04(3);
4. The Commission shall toll the statutory filing deadline for 90 days from the date the agreement is submitted to the Clerk's Office, or until the mediator and parties have reported that they are unable to resolve the matter through mediation, whichever date is sooner; and
5. If the parties are unable to resolve the matter through mediation the person claiming to be aggrieved by the alleged violation shall file a complaint within 21 days of reporting that the mediation was unsuccessful. The filing date shall be deemed to be the date the agreement to mediate was filed with the Commission.
(d)
Equitable Tolling. The statute of limitations for filing a complaint may be equitably tolled in those cases where the complainant is excusably ignorant of the statutory filing period, or where respondent, the Commission, or a third-party has affirmatively misled the complainant, or otherwise prevented the complainant from filing, as determined by the Investigating Commissioner.
(e)
Discovery Rule. The deadline for filing a complaint begins at time the complainant knew or should have known about the allegedly unlawful conduct.
(5)
Form. The complaint shall be in writing, and shall be signed and verified by the complainant. Verification consists of a signed statement, under the pains and penalties of perjury, by the complainant that they have read the complaint and that the allegations contained therein are true to the best of their knowledge.
(6)
Content. The complaint shall contain:
(a) The date(s) on which the unlawful discriminatory acts occurred; or, when the acts are of a continuing nature, the period of time during which acts occurred and the specific date of the last discriminatory act;
(b) A concise statement of the alleged discriminatory acts; sufficient to enable the Commission to investigate the claims, and provide notice to the respondent of potential liability;
(c) If appropriate, a statement indicating that the complaint is on behalf of a proposed class based on the criteria provided in 804 CMR 1.15(4)(a).
(d) Appropriate identification of the complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts, unless proceeding by use of pseudonym pursuant to 804 CMR 1.04(7); and
(e) Factual allegations sufficient to support the claim.
(7)
Use of Pseudonym. In exceptional circumstances, the Investigating Commissioner may determine that the public interest requires allowing a complainant, including a parent or legal guardian filing on behalf of a minor child, to proceed before the Commission under a pseudonym, which shall not impact the Commission's ability to issue protective orders. The use of a pseudonym is not permitted after certification of the complaint to public hearing, except where noted otherwise. The use of a pseudonym may be permitted when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated. The following requirements apply to pseudonym complaints:
(a) A complainant who wishes to proceed by pseudonym shall simultaneously file with the Commission a pseudonym complaint along with a motion to allow the use of a pseudonym;
(b) The pseudonym complaint shall conform to 804 CMR 1.04(1) through (6), except that it shall not include the identity of the complainant, and the pseudonym complaint shall be docketed and submitted for review and authorization in accordance with 804 CMR 1.05(2);
(c) The motion to allow the use of a pseudonym shall be filed under a protective order by the Investigating Commissioner and shall thereafter be unavailable to the public pursuant to 804 CMR 1.21(3);
(d) The motion to allow the use of a pseudonym shall contain the complainant's full name and conform to 804 CMR 1.13(1), and shall articulate with specificity the reasons why the use of a pseudonym should be allowed;
(e) The motion to allow the use of a pseudonym shall conform to 804 CMR 1.13(9)(b) except that the motion may be filed ex parte;
(f) If the Investigating Commissioner issues an order granting the motion to allow the use of a pseudonym:
1. The complaint and order allowing the use of a pseudonym shall be served accordingly;
2. If the respondent is unable to identify with sufficient assurance the identity of the complainant, the respondent shall notify the Commission in writing within ten days of its receipt of the order, and the Commission shall determine and provide the information it deems necessary to permit the respondent to file a position statement;
3. The parties shall omit the identity of the complainant in documents filed with the Commission or move for a protective order to prevent public disclosure of the filing.
(g) If the Investigating Commissioner issues an order denying the motion to allow the use of a pseudonym, the complainant shall have 30 days from receipt of the order to amend the complaint to include the identity of the complainant and the original docket number assigned to the pseudonym complaint; failure to amend the complaint within 30 days shall result in the dismissal of the complaint pursuant to 804 CMR 1.08(1)(d);
(h) An Investigating Commissioner may sua sponte require the use of a pseudonym in any complaint, including those initiated pursuant to 804 CMR 1.18, and may issue protective orders and amendments to the complaint as necessary to accomplish that purpose.
(8)
Amendments to the Complaint in General.
(a)
How Made. A complaint may be amended at any time, either by motion from the complainant, sua sponte by the Commission or in response to an order for a more definite statement in accordance with 804 CMR 1.05(11).
(b)
Amended Content. A complaint or any part thereof may be amended to cure technical defects or omissions, including failure to swear to the complaint, to clarify and amplify allegations made therein, to add respondents, to allege additional acts constituting unlawful discriminatory practices or claims related to or arising out of the subject matter of the original complaint, including claims previously dismissed pursuant to 804 CMR 1.08(1)(f)3. if supported by evidence discovered during the prosecution of the remaining claims. Regardless of how made, amendments shall relate back to the original filing date of the complaint.
(9)
Procedure for Amending Complaint.
(a)
Sua Sponte
Amendments by the Commission. Amendments may be made by the Investigating Commissioner at any time prior to certification to public hearing and by a Hearing Commissioner at any time after certification to public hearing. In each instance prior to public hearing, the amendment(s) or order permitting the amendments shall be served by the Commission upon each party.
(b)
Amendments by Motion from Complainant. Motions to amend the complaint are governed by 804 CMR 1.13, and shall include a copy of a proposed amended complaint for filing and service.
(c)
Amendments to HUD Housing Complaints. An amended HUD housing complaint shall be filed within 45 days of the initial filing of the complaint or no later than five days after service of the position statement, whichever is later, unless good cause is shown to enlarge the time. HUD housing complaints may be amended at the discretion of the Investigating Commissioner. Events occurring after amending a HUD housing complaint may be the subject of a new complaint.
(d)
Response to Order for a More Definite Statement. A complainant shall amend the complaint in accordance with an order by the Investigating Commissioner issued pursuant to 804 CMR 1.05(11) within ten days of receipt of the order.
(e)
Response to Amendments. The Investigating Commissioner or Hearing Commissioner may request a response to an amendment from any named or proposed party.
1.
Pre-determination amendments. If a position statement has already been filed, the respondent may amend the position statement within 14 days of receipt of amendments to the complaint. Where no position statement has yet been filed, respondent shall file a position statement in response to amendments in accordance with 804 CMR 1.05(8).
2.
Post-determination amendments. Unless otherwise ordered by the Commission, the respondent may not amend the position statement post-determination, although they may oppose a post-determination motion to amend the complaint in accordance with 804 CMR 1.13 or by request from the Commission.
(10)
Standard for Allowance of Amendments after Certification to Public Hearing. Motions to amend a complaint after certification to public hearing may be granted if the amendment arises out of the subject matter of the initial complaint and there is no undue prejudice to a party or individual. Nothing in 804 CMR 1.04(1) limits the discretion of the Hearing Commissioner to amend the complaint to conform to the evidence adduced at hearing.
(11)
Notice to the Parties. The Commission shall serve a copy of the original complaint upon complainant and respondent except where the Investigating Commissioner dismisses the complaint pursuant to 804 CMR 1.05(2).
(12)
Withdrawal of Complaint. Withdrawal of a complaint for any reason is subject to the following provisions:
(a) The complainant may request withdrawal of the complaint for the purpose of removing it to court pursuant to M.G.L. c. 151B, § 9 or for other reason within the first 90 days of filing a complaint, and such request shall be in writing and shall set forth the reasons therefor.
(b) The Investigating Commissioner may grant or deny in writing a request to withdraw within the first 90 days of filing a complaint as the public interest requires.
(c) After 90 days of filing the complaint, the complainant may withdraw the complaint as of right for any reason, including removal to court pursuant to M.G.L. c. 151B, § 9 upon written notice to the Commission.
(d) If a complainant files a complaint in court pursuant to M.G.L. c. 151B, § 9 without first withdrawing the complaint pursuant to 804 CMR 1.04(12)(a) or (c), the Commission may consider the complaint withdrawn as of the court filing date.
(e) Withdrawal of a complaint at any time shall not affect the Commission's right to initiate a complaint based upon the same allegations, and such Commission initiated complaint shall relate back to the date of filing of the individual complaint.
(13)
Additional Requirement for Withdrawal of Complaint by Removal to Court. Any person who has withdrawn a complaint before the Commission to file an action in any court of the Commonwealth or in any federal court, which includes a claim under M.G.L. c. 151B, M.G.L. 151C, or M.G.L c. 272, §§ 92A, 98, or 98A, or any other statutes under the jurisdiction of the Commission, shall promptly provide the General Counsel of the Commission with a copy of the complaint filed in court.
