Current through Register 1531, September 27, 2024
(1)
Preservation of Evidence. Upon notice of the complaint, parties shall preserve all manner and forms of information and documents that are or may lead to evidence relevant to the charge of discrimination. Failure to so preserve may result in a rebuttable presumption concerning the evidence against the party failing to make such preservation. The Commission may issue sanctions pursuant to 804 CMR 1.22 related to the failure to preserve evidence.
(2)
Review and Authorization. The Commission may undertake a preliminary review of a complaint to determine if further investigation would serve the public interest, and may dismiss a complaint at such stage subject to the following provisions:
(a)
Grounds for Dismissal. The Commission may determine that further investigation is unwarranted due to a lack of standing, lack of jurisdiction, untimeliness, failure to state a claim of discrimination, frivolous claims, or where allegations are facially implausible or incapable of verification.
(b)
Notice of Dismissal. If the Commission determines that further investigation would not serve the public interest, the Commission shall state the reasons for the determination in a dismissal notice served upon complainant only. Such dismissal notice shall constitute authorization to the complainant under 804 CMR 1.04(12)(b) to pursue a civil action pursuant to M.G.L. c. 151B, § 9.
(c)
Appeal of Dismissal. The complainant may appeal a dismissal issued pursuant to 804 CMR 1.05(2)(b) by filing with the Clerk's Office a written request for a preliminary hearing pursuant to 804 CMR 1.08(4)(b).
(3)
Notice of Authorized Investigation. Upon the authorization of a formal investigation, the Commission shall notify complainant and respondent of the filing of the complaint. Notice to respondent shall include a copy of the complaint and notice of their procedural rights and obligation to respond.
(4)
Manner of Investigation.
(a) Upon authorization pursuant to 804 CMR 1.05(3), the Investigating Commissioner may undertake investigation of the complaint by field visit, written or oral inquiry, review of evidence submitted, conference, or any other method deemed suitable, none of which shall be subject to 804 CMR 1.10. Such investigation may include:
1. Witness interviews;
2. Requests for production or inspection of documents, papers and other tangible things;
3. Issuance of subpoenas requiring the attendance of persons or the production for examination of documents and other tangible things in accordance with 804 CMR 1.14.
4. Service of interrogatories on either party;
5. Conducting depositions; and
6. Considering the input of the parties in developing its requests for information. Accordingly, parties may request that the Commission seek certain information or conduct an investigative conference as part of its investigation.
(5)
Prompt Investigation.
(a)
HUD Housing Complaints. The investigation of a complaint alleging discrimination in housing dual filed with HUD shall be completed in no more than 100 days after receipt of the complaint, unless it is impracticable to do so.
(b)
Complaints Other than HUD Housing Complaints. The investigation of a complaint alleging discrimination in all areas within the jurisdiction of the Commission other than housing complaints dual filed with HUD shall be completed in no more than 18 months following receipt of the complaint, unless it is impracticable to do so.
(c)
Notification of Delay. The Commission shall notify the parties if it is unable to complete the investigation within the time periods in 804 CMR 1.05(5)(a) and (b).
(6)
Commission's Right to Investigate. No waiver or other agreement signed by any individual shall affect the Commission's right to investigate any complaint filed before it or to initiate a complaint to enforce the Commonwealth's anti-discrimination statutes. The Commission may investigate information related to allegations of unlawful discrimination prior to initiating proceedings under 804 CMR 1.18.
(7)
Deferral of Investigation. Whenever the Investigating Commissioner has reason to believe that another forum, having jurisdiction over the parties and subject matter contained in a complaint filed with the Commission, is conducting a prompt and thorough investigation of such complaint in a manner consistent with the requirements and standards of the Commission, the Investigating Commissioner may defer the investigation of the complaint until such other forum has completed its investigation or resolved the complaint, subject to the following provisions:
(a) The Commission shall notify the parties in writing of any decision to defer investigation of a complaint until after investigation or resolution of such complaint by another forum.
(b) Upon the conclusion of the investigation or resolution of the complaint by another forum, the Investigating Commissioner shall make a determination in accordance with 804 CMR 1.08(1)(a).
(8)
Answer to the Complaint: Position Statement
(a)
Form and Timing. Each respondent shall file an answer to the complaint in the form of a position statement as follows:
1.
Complaints Other than HUD Housing Complaints. The position statement shall be filed either within 21 days of receipt of the notice of authorized investigation or within 21 days of receipt of an amended complaint filed pursuant to 804 CMR 1.04(9)(d) if the amended complaint is received before the filing of the position statement. Upon written request by the respondent, and for good cause shown, the Commission may grant an extension in which to file the position statement not to exceed 21 days absent exceptional circumstances.
2.
HUD Housing Complaints.
a. A respondent in a housing discrimination case dual filed with HUD shall file a position statement within 14 days of receipt of the notice of authorized investigation.
b. Due to the 100-day period in which to investigate HUD housing complaints under 804 CMR 1.05(5)(a), respondents to HUD housing complaints are strongly discouraged from requesting extensions of time in which to file position statements. Upon written request by the respondent, and for good cause shown, the Commission may grant an extension of not more than seven days in which to file the position statement.
c. A respondent who fails to file a position statement in accordance with 804 CMR 1.05(8)(a)2.a. or within an extension of time granted pursuant to 1.05(8)(a)2.b. remains obligated to file the position statement.
(b)
Failure to File. Upon failure to provide a position statement, the Commission may issue a notice of consequences in accordance with 804 CMR 1.07(1).
(c)
Service. Each respondent shall serve the position statement upon the Commission, the complainant, and any attorney of record for a complainant.
(d)
Content. The position statement shall assert all jurisdictional and other defenses which the respondent wishes to raise and shall also contain a full and complete description of the respondent's positions in response to all allegations of the complaint. The position statement shall be signed and affirmed by the respondent. Signature and affirmation shall include:
1. A signature under the pains and penalties of perjury by each respondent, which in the case of a corporate respondent shall be a principal of respondent, or a person, other than its attorney, authorized to act for the respondent; and
2. If a respondent is represented by an attorney, the position statement shall also be signed by respondent's attorney.
(e)
Amendments. A position statement may only be amended in accordance with 804 CMR 1.04(9)(e).
(9)
Rebuttal to the Position Statement.
(a)
Rebuttal Encouraged. Rebuttals to the position statement are not required, but are strongly encouraged and may be requested by the Commission to assist in the investigation of the complaint.
(b)
Form and Timing.
1.
Rebuttals to Position Statements for Complaints Other than HUD Housing Complaints. Within 21 days of service of a position statement or a request for rebuttal from the Commission, a complainant may file a rebuttal to the respondent's position statement. Rebuttals shall be in writing, except that pro se complainants may be permitted by the Investigating Commissioner to provide a verbal rebuttal. Upon written request of the complainant, and for good cause shown, the Commission may grant an extension of not more than 21 days to file the rebuttal absent exceptional circumstances.
2.
Rebuttals to Position Statement for HUD Housing Complaints. Rebuttals to the position statement may be made in writing or verbally, but shall be made within ten days of service of the position statement or request by the Commission. Upon request of the complainant, and for good cause shown, the Commission may grant an extension of not more than five days to file the rebuttal absent exceptional circumstances.
(c)
Service. A complainant shall serve a copy of the written rebuttal on respondent or respondent's attorney, unless the rebuttal is subject to a protective order pursuant to 804 CMR 1.05(12).
(10)
Investigative Conference.
(a)
Notice. The Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement. Notice of the investigative conference shall be provided to all parties at least 14 days prior thereto and may identify the individuals requested to attend on behalf of a party.
(b)
Rescheduling. Parties may request to reschedule the investigative conference for good cause by submitting a written request to the Investigating Commissioner, which shall be granted at the discretion of the Investigating Commissioner.
(c)
Participants. A party may be accompanied at an investigative conference by an attorney or other duly authorized representative. An attorney for a party not previously having entered an appearance shall do so at the beginning of the investigative conference. Participation by any other person shall be at the discretion of the Investigating Commissioner.
(d)
Conduct. The Investigating Commissioner shall conduct the investigative conference and control the proceedings. Parties or their representatives may be questioned by the Investigating Commissioner about the issues under investigation, and may be permitted to make a brief statement. No audio, visual, digital, or other verbatim recording of the conference may be made. The Investigating Commissioner shall decide who shall be heard and the order in which they are heard. The Investigating Commissioner may exclude witnesses and other persons from the investigative conference.
(e)
Failure to Attend. The failure of a complainant to attend the investigative conference after due notice may result in an adverse disposition in accordance with 804 CMR 1.08. The failure of a respondent to attend the investigative conference after due notice may result in investigative default in accordance with 804 CMR 1.07. The Commission may sanction any party failing to attend or requesting more than one continuance without good cause as provided for in 804 CMR 1.22.
(11)
Motion for More Definite Statement. If a complaint is so vague or ambiguous that the respondent cannot reasonably be expected to take an informed legal position concerning the relevance of evidence sought, the Investigating Commissioner may sua sponte, or upon motion, order a more definite statement. A motion for a more definite statement is subject to 804 CMR 1.13 and shall be filed within ten days of receipt of the complaint. Such motion shall describe the defects complained of and details desired. The complainant's response to an order for a more definite statement is governed by 804 CMR 1.04(9)(d).
(12)
Motion for Protective Order. A party may move for a protective order to prevent the disclosure of information provided during the investigation for good cause shown, and the Investigating Commissioner may allow such motion if the public interest and other circumstances warrant such order. The Investigating Commissioner may seek a response from the non-moving party. Information that is subject to a protective order shall not be disclosed during the investigation of the matter, but, unless otherwise provided, may be subject to discovery by the parties after an investigative disposition.
(13)
Predetermination Discovery Conducted by the Parties. The parties do not have a right to conduct discovery during the investigation of the complaint. If both parties are represented by counsel, they may be permitted to conduct discovery by sua sponte order of the Investigating Commissioner or upon motion by a party. Any such discovery shall focus solely on the allegations of the complaint and any defenses thereto, and shall be conducted in accordance with 804 CMR 1.10, subject to the following limitations and additional provisions:
(a)
Limited Discovery.
1. Absent a specific contrary order of the Investigating Commissioner, discovery by each party shall be limited to 15 interrogatories, including subparts, 15 requests for production of documents, and six hours of deposition by each side;
2. Parties shall respond to interrogatories and requests for production of documents within 30 days of service;
3. Notice of depositions shall be served at least 14 days prior to the date of deposition;
4. Unless a different time frame is granted, discovery shall be completed within six months of issuance of discovery order; and
5. The parties may not alter the limitations in 804 CMR 1.05(13)(a) by agreement under 804 CMR 1.10(9).
(b)
Failure to Conduct Discovery. Failure to conduct predetermination discovery in good faith, when ordered by the Investigating Commissioner, may be deemed cause for:
1. Administrative dismissal of the matter pursuant to 804 CMR 1.08(1)(d) for unreasonable refusal by complainant to cooperate with the processing of the matter;
2. Investigative default pursuant to 804 CMR 1.07 for unreasonable refusal by respondent to appear and cooperate with the processing of the matter; and
3. The Investigating Commissioner may order the party failing to conduct discovery in good faith, or the attorney advising him or her, or both, to pay the requesting party's reasonable expenses, including attorney's fees and costs, and the Commission's expenses caused by the failure.
(c)
Discovery Submission. Parties permitted to conduct predetermination discovery shall file with the Commission and serve each other party with a memorandum describing facts relevant to a causal determination, including any agreed upon facts. The memorandum shall not exceed 15 double-spaced pages, and shall be filed within 30 days of the end of the discovery period. Upon request by the Investigating Commissioner, the party shall provide copies of answers to interrogatories, relevant documents produced and deposition transcript testimony which support the facts relevant to the determination.
