Karimpour v. Stanley Black & Decker, Inc.

United States District Court

District of Massachusetts

)

Amin Karimpour, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 21-11498-NMG

Stanley Black & Decker, Inc. )

et al., )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from the claims of age-based employment

discrimination brought by Amin Karimpour (“Karimpour” or

“plaintiff”), a former employee of defendant corporation Stanley

Black & Decker, Inc. (“Stanley”). Karimpour has also named

Rhonda Gass (“Gass”) and Joseph Pereira (“Pereira”)

(collectively, with Stanley, “defendants”), both corporate

officers at Stanley, as parties to this case and he brings state

law claims for a hostile work environment, retaliation and

discrimination under M.G.L. c. 151B (“Chapter 151B”).

Plaintiff commenced this action in Massachusetts Superior

Court for Suffolk County in August, 2021. Defendants removed

the case on diversity grounds pursuant to 28 U.S.C. § 1332(a).

Pending before this Court are defendants’ motion to dismiss all

but one of the causes of action for failure to state a claim

(Docket No. 7), as well as Karimpour’s motion to remand (Docket

No 15). Although the motion to remand was filed later, this

Court will consider it first to resolve whether it has subject

matter jurisdiction over the instant litigation, a prerequisite

to considering the motion to dismiss.

I. Background

As set forth in the complaint, Karimpour is a resident of

Belmont, Massachusetts who began working at Stanley as a

Business Systems Lead in 2017 when he was 53 years old.

Stanley, headquartered in Connecticut, is a tool manufacturer

with approximately 61,000 employees. Pereira is the chief

information officer of the division in which Karimpour worked;

he reports to Gass, who is the chief information officer of the

entire company.

Karimpour alleges that, during the summer of 2018, he

proposed the creation of a new position of Business Relationship

Manager (“BRM”), to his manager, Brian Furtak (“Furtak”).

Furtak subsequently discussed the proposal with Pereira and

ultimately informed Karimpour in October, 2018 that the company

would create such a position to be filled by Tim Schuch

(“Schuch”), who is younger than Karimpour.

Thereafter, Karimpour wrote to Furtak, explaining that

Schuch was unqualified for the role and that Karimpour himself

would be a better choice. In that communication, Karimpour

stated that the only qualification Schuch possessed was

“youthful energy”. Furtak later told Karimpour that Pereira had

sought someone with “youthful enthusiasm” for the new position.

In his new role Schuch directly supervised Karimpour.

In February, 2019, Karimpour filed a formal complaint with

Convercent, a third-party administrator of internal complaints

for Stanley, alleging that Pereira had discriminated against him

on the basis of his age by failing to select him for the BRM

position. Karimpour also asserted that Schuch, a graduate of a

company-wide young leadership program, was given preferential

treatment in the selection process and that Stanley had diverted

from its own protocol in filling the new position. Karimpour

contends that he subsequently faced pressure to withdraw that

complaint. No action arose from it and it was ultimately

closed, although Karimpour contends that the investigation into

his allegations was insufficient.

During the spring of 2019, Karimpour submits that his team

at Stanley underwent significant restructuring. An additional

management position was created as part of that process and

Stephen Mascola was purportedly selected for it by Pereira and

Gass. In October, 2019, Karimpour lost his job during a

company-wide reduction in force and he filed a complaint for

discrimination with the Massachusetts Commission Against

Discrimination (“MCAD”) shortly thereafter. More than two and a

half years later, Karimpour brought this action seeking

$2,400,000 in damages.

II. Motion to Remand

A. Legal Standard

A defendant may remove a civil lawsuit initiated in state

court to the United States District Court for the district where

the state case was filed, so long as that court has “original

jurisdiction” over the relevant case. 28 U.S.C. § 1441(a).

Pursuant to 28 U.S.C. § 1332(a), this Court has original

jurisdiction of all civil actions where there is complete

diversity of citizenship and the amount in controversy exceeds

$75,000. The party invoking federal jurisdiction must file a

notice of removal within 30 days of being served with the

initial pleading. 28 U.S.C. § 1446(b)(1).

That party also bears the burden of persuasion, see Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992), and must

support the alleged bases of federal jurisdiction with

“competent proof,” Hertz Corp. v. Friend, 559 U.S. 77, 96-97

(2010). In assessing those bases, the Court is not constrained

by the allegations in the complaint and may consider all

relevant evidence in the notice of removal and other case

materials. See Egan, Flanagan & Cohen, P.C. v. Twin City Fire

Ins. Co., No. CV 21-30041-NMG, 2021 WL 5207139, at *1 (D. Mass.

Nov. 8, 2021); see also Sierminski v. Transouth Fin. Corp., 216

F.3d 945, 949 (11th Cir. 2000).

B. Application

Here, defendants assert that removal is appropriate because

there is complete diversity of citizenship and the amount in

controversy exceeds $75,000. Defendants filed the notice of

removal with this Court on September 13, 2021, after they were

served with Karimpour’s complaint on August 24, 2021.

The parties agree and the Court concurs that the amount in

controversy requirement has been satisfied by the plaintiff’s

good faith claim for over $2 million in damages. Spielman v.

Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001). Karimpour

contends, however, that the case should proceed in state court

because: (1) Stanley is a “citizen of Massachusetts”, (2)

removal is untimely (3) the claims arise from state law, (4) the

related proceedings before the MCAD bar removal and (5)

defendants are represented by local counsel. The three latter

assertions are irrelevant to the jurisdictional analysis at

issue on a motion to remand and the Court need not consider them

further. See 28 U.S.C. § 1332(a); Theidon v. Harvard Univ., 948

F.3d 477, 505 (1st Cir. 2020) (federal court assessing state

claims arising under M.G.L. c. 151B after MCAD proceedings).

The Court assesses only the first and second grounds on which

Karimpour seeks remand in greater detail.

For jurisdictional purposes, a domestic corporation such as

Stanley is deemed to be a citizen of both the state where it is

incorporated and the state in which it maintains its principal

place of business, 28 U.S.C. § 1332(c)(1), as of the date of the

lawsuit’s commencement, see ConnectU LLC v. Zuckerberg, 522 F.3d

82, 91 (1st Cir. 2008). A corporation maintains its principal

place of business at its “nerve center,” the location from which

the corporation’s “officers direct, control, and coordinate the

corporation’s activities.” Hertz Corp., 559 U.S. at 92-93. The

nerve center will not necessarily be where “the bulk of a

company’s business activities visible to the public take place”

but rather where the “top officers [who] direct those

activities” are employed. Id. at 96.

Karimpour asserts that Stanley is a citizen of

Massachusetts because the corporation pays taxes in the

Commonwealth, as well as employs people and maintains offices in

the state. While those factors may be relevant to determine a

corporation’s principal place of business under certain

circumstances, they are irrelevant here because parties agree

that Stanley is incorporated in Connecticut and its corporate

headquarters, i.e. “the place where the buck stops”, Harrison v.

Granite Bay Care, Inc., 811 F.3d 36, 41 (1st Cir. 2016), is

there. The presence of employees and offices in Massachusetts

is insignificant because Stanley is a very large, national

corporation. Stanley is therefore a citizen of Connecticut but

not of Massachusetts.

Parties do not dispute that Karimpour resides in

Massachusetts, Pereira in Indiana and Gass in Connecticut.

Therefore, because the plaintiff is not a citizen of the state

of any defendant, see Alvarez-Torres v. Ryder Mem'l Hosp., Inc.,

582 F.3d 47, 53 (1st Cir. 2009), the requirement of complete

diversity is satisfied.

Defendant also timely filed their notice of removal with

this Court. For purpose of removal, timeliness is based upon

Karimpour’s state court action rather than his MCAD proceeding

because a MCAD complaint cannot be removed directly to this

Court. See Whelchel v. Regus Mgmt. Grp., LLC, 914 F. Supp. 2d

83, 88 (D. Mass. 2012). Therefore, because less than 30 days

elapsed between the defendants being served in the state court

action and their filing, the notice was timely. 28 U.S.C. §

1446(b)(1).

The substantive and procedural requirements of removal have

been satisfied and the plaintiff’s motion to remand will

therefore be denied.

III. Motion to Dismiss

A. Legal Standard

To survive a motion to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6), a complaint must contain

“sufficient factual matter” to state a claim for relief that is

actionable as a matter of law and “plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible if, after accepting as true all non-

conclusory factual allegations, the court can draw the

reasonable inference that the defendant is liable for the

misconduct alleged. Ocasio Hernandez v. Fortuno Burset, 640 F.3d

1, 12 (1st Cir. 2011). A court may not disregard properly pled

factual allegations even if actual proof of those facts is

improbable. Id. Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff

is asking the court to draw. Id. at 13.

When rendering that determination, a court may not look

beyond the facts put forth in the complaint, documents

incorporated by reference therein and facts susceptible to

judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011).

To safeguard the rights of pro se litigants, Courts should

“construe liberally a pro se complaint”. Ahmed v. Rosenblatt,

118 F.3d 886, 890 (1st Cir. 1997). That said, pro se plaintiffs

are not insulated “from complying with procedural and

substantive law.” Id. The leeway afforded to pro se plaintiffs

shields them when the Court “may intuit the correct cause of

action, even if it was imperfectly pled” but it does not shield

a litigant when the claim lacks the requisite factual support.

Id.

B. Application

Pursuant to M.G.L. c. 151B, § 4, it is illegal to

discriminate based on age. In his complaint, Karimpour

enumerates three claims based upon that statute, although he

does not clearly differentiate among the causes of action he

seeks to assert. Liberally construing the complaint, however,

the Court perceives Karimpour to allege that each of the

defendants discriminated him by: (1) conditioning severance

payment on a release of legal claims, (2) failing to promote him

due to age, (3) retaliating against him after he filed his

internal complaint of discrimination and (4) creating a hostile

work environment based on age. Defendants move to dismiss the

first, second and third of those causes of action, as well as

all claims against Gass.

As a preliminary matter, it is well-settled law that an

employer may condition receipt of a severance payment upon the

release of claims, including those for age discrimination

pursuant to M.G.L. c. 151B. See Duval v. Callaway Golf Ball

Operations, Inc., 501 F. Supp. 2d 254, 263 (D. Mass. 2007).

While such agreements may not be enforceable under all

circumstances, see Runyon v. Wellington Mgmt. Co., LLP, No. 13-

CV-11236-DJC, 2015 WL 1276825, at *1 (D. Mass. Mar. 20, 2015),

no liability attaches to the proposal of such conditions. See

id.; see also Stonkus v. City of Brockton Sch. Dep't, 322 F.3d

97, 102 (1st Cir. 2003). Karimpour’s first allegation therefore

does not give rise to a cause of action.

Furthermore, a plaintiff alleging employment discrimination

is required to file a complaint with the MCAD prior to

initiating a civil action. See Preston v. Second Wind, Inc., 824

F. Supp. 2d 247, 250 (D. Mass. 2011). The exhaustion of that

administrative remedy is required:

(1) to provide the MCAD with an opportunity to

investigate and conciliate the claim of

discrimination, and (2) to provide notice to the

defendant of potential liability.

Pelletier v. Town of Somerset, 458 Mass. 504, 939 N.E.2d 717,

727 (2010) (quoting Cuddyer v. Stop & Shop Supermarket Co., 434

Mass. 521, 531 (2001)). To ensure satisfaction of those

prerequisites, plaintiffs are generally prohibited from

introducing new claims or parties in a civil action arising from

a MCAD complaint. However,

a claim that is not explicitly stated in the

administrative complaint may be asserted in the

subsequent [civil] action so long as it is based on

the acts of discrimination that the MCAD investigation

could reasonably be expected to uncover

Pelletier, 458 Mass. at 514 (quotation omitted). Similarly,

failure to name an individual as a respondent in a MCAD

complaint need not bar a plaintiff from naming that individual

as a defendant “if the charge puts that party's conduct at issue

and if the party was on notice of the charge and had an

opportunity to participate in the MCAD proceeding.” Preston v.

Second Wind, Inc., 824 F. Supp. 2d 247, 251 (D. Mass. 2011); see

Cagle v. Estes, 531 F. Supp. 3d 419, 436 (D. Mass. 2021).

Where, as here, the plaintiff is pro se, “the administrative

charge is liberally construed in order to afford the complainant

the benefit of any reasonable doubt.” Lattimore v. Polaroid

Corp., 99 F.3d 456, 464 (1st Cir. 1996).

The original complaint Karimpour filed with the MCAD set

forth allegations of age-based discrimination perpetrated by

Periera and named Stanley as Karimpour’s employer, thereby

putting those parties on notice of the charge. Gass, however,

was entirely missing from the complaint and there is no

reference to her position within the company. Even “read as a

whole,” the complaint does not identify Ms. Gass such that she

had “notice of [her] potential liability.” Cagle, 531 F. Supp.

3d at 437. Karimpour made no attempt to amend his complaint to

identify her nor is there any evidence that Karimpour learned of

her alleged involvement after the time he filed his original

complaint, which might provide justification for his initial

omission. See Preston, 824 F. Supp. 2d at 251-252. The claims

against Ms. Gass are therefore barred and will be dismissed.

There are two remaining claims upon which the two remaining

defendants seek dismissal. Each will be addressed in turn.

1. Failure to Promote

Karimpour asserts that defendants discriminated against him

by failing to promote him based on his age. Even before

assessing the merits of that assertion, Chapter 151B imposes a

limitation period on such claims, requiring that any complaint

arising thereunder must be filed with the MCAD within 300 days

of the alleged act of discrimination. See M.G.L. c. 151B, § 5.

Karimpour filed his MCAD complaint in December, 2019, well

beyond that deadline to the extent the allegation is based upon

Schuch’s promotion which occurred in October, 2018. The claim

is, therefore, time barred relative to that promotion. See Ocean

Spray Cranberries, Inc. v. Mass. Comm'n Against Discrimination,

441 Mass. 632, 641, 808 N.E.2d 257, 265—66 (2004) (statute of

limitations for act of discrimination based upon failure to

promote began to run on date plaintiff denied promotion);

Franchina v. City of Providence, 881 F.3d 32, 46–47 (1st Cir.

2018) (quotations and citations omitted) (“Discrete acts such as

termination, failure to promote, denial of transfer, or refusal

to hire are easy to identify, and, consequently, those acts are

not actionable if time barred, even when they are related to

acts alleged in timely filed charges.”).

Karimpour also vaguely refers to discriminatory conduct

with respect to the promotion of Mascola, which occurred in

March, 2019, within that 300-day period. Even liberally

construing Karimpour’s pro se complaint, however, does not save

his claim from dismissal because he has failed to satisfy the

initial burden of demonstrating a prima facie case. See Ray v.

Ropes & Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015).

To do so, he must offer evidence that: (1) he is a

member of a protected class; (2) he was qualified for

[the subject] job; (3) defendants failed to promote

him to [the subject] job; and (4) defendants either

kept the position opened or filled it with a

similarly-qualified individual not in the protected

class.

El-Sayed v. Carda CL New England, Inc., No. 14-14724-LTS,

2016 WL 3814808, at *2–3 (D. Mass. July 13, 2016); see

Savage v. City of Springfield, No. 3:18-CV-30164-KAR, 2021

WL 858409, at *9 (D. Mass. Mar. 8, 2021). Setting aside

the first three factors, Karimpour has failed to provide

the Court with any allegation that Mr. Mascola is not a

member of the protected class, i.e. under forty years of

age. See Knight v. Avon Prods., 438 Mass. 413, 420-21

(2003) (the class protected by Chapter 151B consists of

those over forty years of age). For that reason alone, the

claim for failure to promote based upon Mascola’s promotion

cannot stand.

2. Hostile Work Environment

Chapter 151B may also be violated by subjecting an employee

to an abusive or hostile work environment. Valentin-Almeyda v.

Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006). To

establish such a claim, the evidence alleged must support a

claim that the workplace was “permeated with discrimination,

intimidation, ridicule, and insults that [are] sufficiently

severe or pervasive to alter the conditions of [plaintiff's]

employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Because there is

no precise formula to assess such a claim, a court must consider

the totality of circumstances, which includes:

the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's

work performance.

Id. at 23. The First Circuit Court of Appeals has emphasized

that the standard for establishing such a claim “must be kept

sufficiently demanding”. O'Rourke v. City of Providence, 235

F.3d 713, 729 (1st Cir. 2001) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)).

In attempting to satisfy that standard, the incidents upon

which Karimpour relies are Furtak’s report that Pereira said he

was looking for someone with “youthful enthusiasm” to fill the

BRM position and the alleged failure of Stanley to investigate

adequately or act based upon allegations of age-based

discrimination. Even accepting as true all of the facts alleged

in the complaint, the first incident is a prime example of

“offhand comments” that courts have uniformly found insufficient

to establish a hostile workplace. Sepulveda-Vargas v. Caribbean

Restaurants, LLC, 888 F.3d 549, 556 (1st Cir. 2018). Regarding

the second, “the failure to investigate...does not itself

constitute retaliation or a hostile work environment.” Payne-

Callender v. Gavin, No. CV 19-11286-RGS, 2021 WL 495079, at *5

(D. Mass. Feb. 10, 2021) (citing Thurston v. Henderson, 230 F.3d

1347 (1st Cir. 2000)). Karimpour has therefore failed to set

forth a plausible claim for relief based upon a hostile work

environment or other conditions from which this Court could

reasonably infer liability. Even in the context of Karimpour’s

impassioned complaint, the discriminatory conduct alleged lacks

the prerequisite severity or pervasiveness,

ORDER

For the foregoing reasons, the motion of plaintiff

Karimpour to remand (Docket No. 15) is DENIED and the

defendants’ motion to dismiss (Docket No. 7) is ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated May 2, 2022