Harvey v. Brigham & Womens Hospital, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

*

REGINA HARVEY, *

*

Plaintiff, *

*

v. *

* Civil Action No. 24-cv-10652-ADB

*

BRIGHAM & WOMEN’S HOSPITAL, *

INC. *

*

Defendant. *

*

MEMORANDUM AND ORDER

BURROUGHS, D.J.

Plaintiff Regina Harvey (“Plaintiff” or “Harvey”) filed the instant action against

Defendant Brigham & Women’s Hospital (“Defendant” or “the Brigham”) alleging

discrimination under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.).

Currently pending before the Court is Defendant’s motion to dismiss the Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), for failing to file a claim with the Massachusetts

Commission Against Discrimination (“MCAD” or “Commission”) within the 300-day statute of

limitations period. For the reasons set forth below, Defendant’s motion is GRANTED.

I. BACKGROUND

As a preliminary matter, in support of its motion to dismiss, the Brigham attaches several

exhibits relevant to the Court’s analysis of the instant motion, which it contends can be judicially

noticed because they are official public records. [ECF No. 6 at 5].1 Because they are documents

of public record and because Harvey does not challenge their authenticity, the Court will

consider the exhibits in ruling on the motion to dismiss. United States v. Raytheon Co., 334 F.

Supp. 3d 519, 523-24 (D. Mass. 2018) (“Because those documents are of public record and their

authenticity is not in dispute, this Court takes judicial notice thereof.”); Rodriguez v. Putnam

Invs., No. 06-cv-10819, 2007 WL 9798216, at *2 (D. Mass. Sept. 15, 2007) (taking judicial

notice of MCAD and EEOC records on a motion to dismiss); Douglas v. Hirshon, 63 F.4th 49,

57–58 (1st Cir. 2023) (recognizing district court discretion regarding consideration of external

documents in a 12(b)(6) motion); Newman v. Lehman Brothers. Holdings Inc., 901 F.3d 19, 25

(1st Cir. 2018) (same).

A. Factual Background

Regina Harvey is a black woman who, at the time of the alleged misconduct, was sixty

years old. [ECF No. 1 (“Complaint” or “Compl.”) ¶ 6; ECF No. 7-2 at 3]. A registered nurse

1 These exhibits are: (1) a copy of Harvey’s MCAD discrimination charge served to the Brigham

on March 7, 2022, including an email correspondence between Harvey and the MCAD from

September 13–14, 2021, [ECF No. 7-1]; (2) a copy of the charge re-served on May 19, 2023,

including a copy of the notice transmitting the charge to the Equal Employment Opportunity

Commission (“EEOC”), [ECF No. 7-2]; (3) a February 28, 2022 Order of the MCAD’s

Investigating Commissioner, [ECF No. 7-3 (the “MCAD Order”)]; (4) Harvey’s February 8,

2024 withdrawal request to the MCAD, [ECF No. 7-4]; and (5) Harvey’s March 5, 2024

Emergency Motion to reinstate the case with the MCAD, [ECF No. 7-5]. Although the Court is

not persuaded that the email correspondence between Harvey and the MCAD attached to ECF

No. 7-1 constitute public official records, it will nonetheless consider them given that Harvey

does not dispute their authenticity. See Sheckley v. Lincoln Nat’l Corp. Emps.’ Ret. Plan, 366 F.

Supp. 2d 140, 147 n.2 (D. Me. 2005).

since 1997, Harvey began her career at Massachusetts General Hospital in 2003 and transferred

to the Brigham in 2006. [Compl. ¶¶ 7–8]. There, over the course of approximately thirteen

years, she received positive performance evaluations and was promoted three times. [Id. ¶¶ 9–

12].

In 2018, the Brigham underwent a change in senior leadership and as a result Harvey

“had a reporting structure” to Danika Medina (“Medina”) for her nursing leadership

responsibilities, but she otherwise continued to report directly to the Executive Director of

Community Health. [Compl. ¶¶ 14–15].

Harvey alleges that Medina “subjected [] [her] to racial animosity and racial

discrimination, both direct and indirect,” and “treated [] [her] differently from white employees

based on her race.” [Compl. ¶¶ 16–17]. This discriminatory conduct included, among other

things, “subtle” and “pervasive” “slights and insults” directed at Harvey, a “recommendation of

disparate pay for [] Harvey compared to non-black employees,” the “implementation of race

stereotypes at work,” and the devaluing of Harvey’s role “in a racially charged manner.” [Id. ¶¶

17, 24, 26–27].

In one instance, Medina asked Harvey to complete a report, which Harvey submitted to

Medina over email and in-person. [Compl. ¶ 18]. During a subsequent in-person meeting on or

about June 18, 2020, Medina “contemptuously flung the unread [report] across her desk” and

informed Harvey that she would be placed on a performance improvement plan (“PIP”). [Id.].

The PIP came despite a promise from the Executive Director of Community Health, Harvey’s

direct supervisor, that “she would not receive a corrective action” for a separate incident that had

occurred on June 3, 2020. 2 [Id.]. Medina then read selections from the PIP “in a racially

demeaning manner” and had Harvey deliver a copy of the PIP, which falsely stated that Harvey

and Medina had “mutually agreed” on the plan, to Human Resources. [Id. ¶ 19]. Harvey alleges

that because of the PIP she did not receive her annual raise and evaluation in October 2020. [Id.

¶ 29].

Between approximately 2018 and 2021, Medina also repeatedly asked Harvey in one-on-

one meetings about her plans over the next two to three years, [Compl. ¶ 21], and at one point

mentioned to Harvey, in the presence of colleagues, about an opening at another medical center,

[id. ¶¶ 22–23]. In so doing, “Medina was publicly encouraging [] Harvey to leave [the Brigham]

and undermining her to her colleagues.” [Id. ¶ 23]

As a result of this conduct, Harvey’s mental health deteriorated, and she took a medical

leave of absence on July 2, 2020. [Compl. ¶ 30]. Prior to her leave, Medina “bombarded”

Harvey with calls and emails requesting information that “exacerbated her already intense

emotional distress” and indicated to Harvey that “the discrimination would persist upon her

return.” [Id. ¶¶ 31–32]. On approximately October 1, 2020, Harvey “was forced to resign,”

advising the Brigham that “she was unable to tolerate the continued work environment and

discrimination” perpetrated by Medina. [Id. ¶¶ 37–39]. Harvey asserts that this resignation

constitutes a constructive discharge. [Id. ¶ 40].

On February 11, 2021, Harvey mailed an unverified complaint alleging discrimination

against the Brigham to the MCAD. [MCAD Order at 1]. By letter dated May 17, 2021, the

2 Harvey references a June 3, 2020 incident in her Complaint but fails to provide any further

information. The Court assumes that Harvey refers to the June 4, 2020 incident referenced in the

MCAD complaint where medical assistants in a COVID-19 testing unit she oversaw had not

been equipped with N-95 masks. [ECF No. 7-2 at 3].

MCAD requested additional information from Harvey and “encouraged her to schedule an intake

appointment.” [Id.]. Harvey then “cured the filing defect by submitting a verification of her

complaint” and “made multiple attempts to schedule an intake, resulting in her filing again on

September 10, 2021.” [Id.]; see also [ECF No. 7-1 at 4 (email exchange between Harvey and

MCAD dated September 14, 2021, wherein Harvey verifies the charge)].

On February 28, 2022, MCAD, “[i]n in the interests of fairness and justice,” accepted

Harvey’s complaint for “being timely filed as of February 11, 2021,” and the complaint was

authorized for investigation. [MCAD Order at 2].

MCAD subsequently served the complaint on the Brigham on March 7, 2022, and again

on May 19, 2023.3 [ECF Nos. 7-1 at 1–2; 7-2 at 2–3]. The MCAD charge was transmitted to the

EEOC in mid-May 2023. [ECF No. 7-2 at 7–8].

On March 13, 2024, the EEOC issued a Dismissal and Notice of Rights letter, also known

as a Right to Sue Letter, notifying Harvey of the dismissal of her charge and her right to sue in

either federal or state court within ninety days. [ECF No. 1-1 at 1]. Just a few days later, on

March 15, 2024, Harvey filed her Complaint in this Court, alleging one count of employment

discrimination under Title VII of the Civil Rights Act.

B. Procedural History

In response to Harvey’s Complaint, the Brigham filed its motion to dismiss on April 29,

2024. [ECF Nos. 5–6]. Harvey opposed on May 13, 2024, [ECF No. 8 (“Opp’n”)], and the

Brigham replied on May 22, 2024, [ECF No. 14 (“Reply”)].

3 The MCAD docket and EEOC/HUD numbers are identical on each charge.

II. LEGAL STANDARD

In a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded

facts, analyze those facts in the light most favorable to the plaintiff, and draw all reasonable

factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st

Cir. 2019). “[A] complaint must provide ‘a short and plain statement of the claim showing that

the pleader is entitled to relief[,]’” Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st

Cir. 2015) (quoting Fed. R. Civ. P. 8(a)(2)), and set forth “factual allegations, either direct or

inferential, respecting each material element necessary to sustain recovery under some actionable

legal theory,” Pitta v. Medeiros, 90 F.4th 11, 17 (1st Cir. 2024) (quoting Gagliardi v. Sullivan,

513 F.3d 301, 305 (1st Cir. 2008)). Although detailed factual allegations are not required, a

complaint must set forth “more than labels and conclusions,” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007), and “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

III. DISCUSSION

Under Title VII, employees are required to “exhaust the administrative process before

filing a civil suit in court[,] and failure to do so normally precludes the filing of that claim.”

Posada v. ACP Facility Servs., Inc., 389 F. Supp. 3d 149, 158 (D. Mass. 2019) (first citing Jorge

v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005); then citing Everett v. 357 Corp., 904 N.E.2d

733, 746–47 (Mass. 2009)). “[T]he failure to exhaust this administrative process ‘bars the

courthouse door.’” Franceschi v. U.S. Dep’t of Veterans Affs., 514 F.3d 81, 85 (1st Cir. 2008)

(quoting Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999)). Specifically,

“an employee must first file a [verified] ‘charge’ with either: (1) the Equal Employment

Opportunity Commission (EEOC) within 180 days of the alleged unlawful employment practice;

or (2) a parallel state agency—in this case, MCAD—within 300 days of said practice,” and

receive a right to sue letter. Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 41 (1st

Cir. 2013) (citing 42 U.S.C. § 2000e–5(e)(1); Mass. Gen. Laws ch. 151B, § 5; Jorge, 404 F.3d at

564); Maillet v. TD Bank U.S. Holding Co., 981 F. Supp. 2d 97, 99 (D. Mass. 2013); see also

Savage v. City of Springfield, No. 18-cv-30164, 2021 WL 858409, at *5 (D. Mass. Mar. 8, 2021)

(discussing administrative exhaustion pursuant to Title VII and noting that there are two distinct

components, “the timely filing of a charge with the EEOC [or MCAD] and the receipt of a right-

to-sue-letter” (citation omitted)). Notably, the two commissions have a “worksharing

agreement” whereby “claims filed with either the MCAD or the EEOC are effectively filed with

both agencies.” Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n.1 (1st Cir. 2001); accord

Goldstein v. Brigham & Women’s Faulkner Hosp., Inc., 80 F. Supp. 3d 317, 321 n.5 (D. Mass.

2015).

The MCAD Rules of Procedure define its procedural guidelines for filing administrative

charges. They require, among other things, that a charge identify the complainant and the

employer, the dates on which the alleged unlawful discriminatory act occurred, and a concise

statement of the alleged misconduct. 804 CMR § 1.04(6)(a)–(e). A charge must also be signed

and verified under the pains and penalties of perjury by the complainant. Id. § 1.04(5). MCAD

procedure additionally requires that a complaint is either filed “by delivering a copy in person[,] .

. . by U.S. mail” or “by intake” at any of the Commission’s offices. Id. § 1.04(2)(a)–(b).

Here, the parties disagree about whether Harvey filed the MCAD complaint within the

300-day statute of limitations which began to run on October 1, 2020, the day she resigned, and

would have expired on July 28, 2021.4 See [ECF No. 6 at 3 n.4; Opp’n at 3]. Whereas Harvey

claims that she filed a timely claim on February 11, 2021, [Compl. ¶ 42], the Brigham argues

that Harvey’s charge of discrimination was filed on or about September 10, 2021, when she

verified her complaint, and that her charge is therefore untimely. [ECF No. 6 at 2–3, 7 (citing

804 CMR § 1.04(5))]; see also [ECF No. 7-1 at 4 (email dated September 14, 2021 wherein

Harvey verifies the complaint “under the pains and penalties of perjury” in lieu of a handwritten

signature due to COVID-19 restrictions); id. at 5 (in the same email exchange, MCAD wrote,

“Please be advised that until you reply to this email agreeing to the [verification] language, you

have not filed a complaint with the [MCAD].”).5 Further, because the filing date of September

10, 2021 is also reflected on the charge itself, which was served on the Brigham on March 7,

2022 and May 19, 2023, respectively, “[t]here can be no actual dispute” that Harvey filed her

charge on that date. [ECF No. 6 at 6]. Finally, the Brigham argues that although MCAD elected

to use February 11, 2021, as the filing date, that timeliness determination is not binding on the

Court. [ECF No. 6 at 1, 3, 12].

Harvey does not dispute that her initial complaint was unverified, but she attributes this

to the COVID-19 pandemic, which prevented her from going to the MCAD office and signing

the complaint.6 [Opp’n at 3]. Once she had cured the verification in response to the MCAD’s

4 The parties agree that the statute of limitations period commenced on October 1, 2020 when

Harvey resigned. [ECF No. 6 at 3 n.4]; [Opp’n at 3].

5 Although the email exchange indicates that Harvey signed and acknowledged the complaint on

September 14, 2021, [ECF No. 7-1], the Brigham, “for purposes of this [m]otion,” sees no

material difference as to whether the charge was filed on September 10 or 14, 2021, “as both

dates fall outside the limitations period,” [ECF No. 6 at 2 n.2]. Accordingly, the Court adopts

September 10, 2021 as the date when Harvey submitted a verified complaint to the MCAD. See

[MCAD Order].

6 The Court takes judicial notice of the fact that in response to the COVID-19 pandemic, and

during the time period at issue, MCAD suspended in-person services. (Opp’n at 3). See

Mass.gov, MCAD Annual Report Fiscal Year 2021, https://www.mass.gov/doc/mcad-fy21-

request made on May 17, 2021, the commission “accept[ed] the complaint for being timely filed

as of February 11, 2021.” [Opp’n at 3 (quoting MCAD Order at 2)]. Harvey asserts that because

the MCAD adopted February 11, 2021 as the effective filing date, the Court should follow suit.

[Opp’n at 3–5]. This Court disagrees.

“Affirmative defenses, such as the statute of limitations, may be raised in a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), provided that ‘the facts establishing the

defense [are] clear on the face of the plaintiff’s pleadings.’” Trans-Spec Truck Serv., Inc. v.

Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008) (alteration in original) (quoting Blackstone

Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001) (additional citation and punctuation

omitted)). Dismissal is only appropriate if, upon “review of the complaint, together with any

other documents appropriately considered under Fed. R. Civ. P. 12(b)(6),” Blackstone, 244 F.3d

at 197, “the pleader’s allegations ‘leave no doubt that an asserted claim is time-barred,’” Gorelik

v. Costin, 605 F.3d 118, 121 (1st Cir. 2010) (quoting LaChapelle v. Berkshire Life Ins., 142 F.3d

507, 509 (1st Cir. 1998)), and “the complaint fails to ‘sketch a factual predicate’ that would

warrant the application of either a different statute of limitations period or equitable estoppel,”

Trans-Spec, 524 F.3d at 320 (quoting LaChapelle, 142 F.3d at 509–10).

As an initial matter, the Court observes that Harvey’s primary argument that “the

February 11, 2021 filing with the MCAD acts as the filing date with the EEOC as a matter of

law” misconstrues the issue at hand. [Opp’n at 1, 4–6]. The Brigham does not dispute that the

MCAD and EEOC have a worksharing agreement and that a discrimination claim can therefore

be filed with either commission. See generally [ECF No. 6; Reply]; see Davis, 251 F.3d at 230

annual-report/download (last visited Jan. 17, 2025). As such, the Court takes into account that

Harvey was unable to file her MCAD complaint in-person.

n.1. The question, rather, is whether this Court is required to adopt the MCAD’s February 11,

2021 filing date.

Courts in this district are “empowered to make an independent finding on timeliness” and

are not bound by the MCAD’s or the EEOC’s “findings in this regard.” Poirier v. Mass. Dep’t of

Corr., 186 F. Supp. 3d 66, 68 (D. Mass. 2016), aff’d, No. 16-1587, 2018 WL 11337451 (1st Cir.

Feb. 22, 2018) (citing Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir. 1979)

(“the courts have generally made an independent review of the timeliness of the agency

filing.”)); see also Jahour v. Mass. Bay Transp. Auth., No. 23-cv-10993, 2024 WL 519562, at *4

(D. Mass. Feb. 9, 2024), appeal dismissed, No. 24-1243, 2024 WL 4110905 (1st Cir. July 8,

2024) (although EEOC did not dismiss plaintiff’s complaint for untimeliness and issued a right

to sue letter, the court dismissed plaintiff’s complaint in part as untimely). As such, the Court

need not adopt the MCAD’s February 11, 2021 filing date, as Harvey suggests it must.7

“There are two related doctrines by which a plaintiff’s failure to make a timely filing

with the necessary agency may be excused: equitable estoppel and equitable tolling.” Conroy v.

Bos. Edison Co., 758 F. Supp. 54, 60 (D. Mass. 1991) (citing Kale v. Combined Ins. Co. of Am.,

861 F.2d 746, 752 (1st Cir. 1988)). Whereas “[e]quitable estoppel is invoked where the plaintiff

reasonably relies on the misleading representations of his or her employer,” equitable tolling

comes into play “when the plaintiff relies on misrepresentations by the EEOC or the [MCAD].”

Id. (citing Kale, 861 F.2d at 752).

Here, by adopting the February 11, 2021 submission as the operative charge “in the

interest of fairness and justice,” the MCAD seemingly concedes that the September 10, 2021

7 Neither is the fact that the EEOC issued a right to sue letter dispositive of a timeliness finding.

See Jahour, 2024 WL 519562, at *4.

filing of the verified complaint was untimely. This Court, however, finds no reason to invoke

equitable tolling given the circumstances of the case.8 The First Circuit has held that “equitable

tolling is reserved for exceptional cases,” Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st

Cir. 1998), and is to be used sparingly, see Aresty Int’l Law Firm, P.C. v. Citibank, N.A., 677

F.3d 54, 58 (1st Cir. 2012). Specifically, courts must consider the following factors when

deciding whether to apply the doctrine of equitable tolling: “(1) lack of actual notice of the filing

requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in

pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) a plaintiff’s

reasonableness in remaining ignorant of the filing requirement.” Ogiemwonyi v. United States,

No. 14-cv-12329, 2014 WL 3925502, at *2 (D. Mass. Aug. 12, 2014) (quoting Mercado v. Ritz-

Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48 (1st Cir. 2005)). Additionally, courts

must also consider whether the plaintiff retained an attorney. Conroy, 758 F. Supp. at 61.

Although there is no indication that Harvey retained counsel during the relevant

limitations period, the Court notes that nothing in Harvey’s Complaint or her Opposition

suggests that Harvey was unaware of the filing requirements or that she lacked constructive

knowledge of the requirements. Beyond stating that she was unable to visit the MCAD office in

person due to the COVID-19 pandemic, Harvey remains silent on what actions, if any, she took

after May 17, 2021, when the MCAD followed up on her initial submission, and why she did not

schedule a remote intake interview or verify the complaint prior to July 29, 2021. [Opp’n at 3;

see generally id.]; see Benitez-Pons v. Commonwealth of P.R., 136 F.3d 54, 61 (1st Cir. 1998)

8 Because neither doctrine is invoked by Harvey and Brigham only discusses equitable tolling,

the Court does not consider equitable estoppel. In any event, there are no facts in the Complaint

from which the Court could infer that Harvey was misled by her employer. See generally

[Compl.].

(“Equitable tolling is unavailable where a party fails to exercise reasonable diligence.”). As

such, this Court, although sympathetic to Harvey’s plight, cannot find exceptional circumstances

justifying equitable tolling. Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990) (“The Court has

taught that ‘[p]rocedural requirements established by Congress for gaining access to the federal

courts are not to be disregarded’ even in sympathetic circumstances.” (quoting Baldwin Cnty.

Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (alteration in original))); see also Harrington

v. Lesley Univ., 554 F. Supp. 3d 211, 225 (D. Mass. 2021) (rejecting plaintiff’s argument that

the Massachusetts Supreme Judicial Court’s order to toll all civil statute of limitations periods in

response to COVID-19 also tolled the Title VII limitations period because the MCAD had initial

jurisdiction over the federal claims). While an amendment to the February 2021 complaint could

have cured the defect in Harvey’s submission, based on the facts before it, the Court cannot

conclude that either she or the MCAD ever amended the unverified complaint.9 Accordingly,

the Court finds that Harvey’s filing of the MCAD complaint was untimely.

IV. CONCLUSION

For the above reasons, the Defendant’s motion to dismiss, [ECF No. 5], is GRANTED.

SO ORDERED.

January 28, 2025 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE

9 Although neither party references the provision, 804 CMR § 1.04(8)(b) of the MCAD

procedural rules provides that “[w]here a filing within the statutory period is inadequate,” a

complaint . . . may be amended to cure technical defects or omissions, including

failure to swear to the complaint, or to clarify and amplify allegations made therein.

. . . Amendments shall relate back to the original filing date.

Mohegan Council, 711 F.3d at 41 (quoting 804 CMR § 1.04(8)(b) (formerly cited

§ 1.10(6)(a)).