BYRD v. MOTT MACDONALD GROUP INC

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

KENNETH BYRD, )

)

Plaintiff, )

)

v. ) No. 2:23-cv-00431-SDN

)

MOTT MACDONALD GROUP, INC., )

)

Defendant. )

ORDER ON MOTION TO DISMISS

Defendant Mott MacDonald Group, Inc. (“Mott MacDonald”) moves to dismiss

(ECF No. 37) all eight counts of Plaintiff Kenneth Byrd’s amended complaint (ECF No.

36). Byrd’s amended complaint alleges Mott MacDonald violated the Family Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Massachusetts Paid Family and Medical

Leave Act (“PFML”), Mass. Gen. Laws ch. 175M (2025), the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 621 et seq., and the Massachusetts Fair Employment Practices Act (“FEPA”),

Mass. Gen. Laws. ch. 151B, § 1 et seq. (2025), by discriminating and retaliating against

him for taking protected leave and because of his age and disability. See generally ECF

No. 36. For the following reasons, Mott MacDonald’s renewed motion to dismiss (ECF

No. 37) is GRANTED.

I. Factual Background

I draw the following facts from Byrd’s amended complaint (ECF No. 36), treat

those facts as true, and draw all reasonable inferences in Byrd’s favor for purposes of

resolving Mott MacDonald’s motion to dismiss. See Alston v. Spiegel, 988 F.3d 564, 571

(1st Cir. 2021).

Byrd resides in Saco, Maine, but worked out of Mott MacDonald’s Springfield,

Massachusetts office. Am. Compl. (ECF No. 36), at ¶¶ 3, 10. Mott MacDonald is a global

engineering, management, and development firm headquartered in New Jersey. Id. at ¶ 4.

Mott MacDonald has more than 500 employees. Id. at ¶ 5.

Byrd is a sixty-three-year-old man with decades of professional experience in the

oil and gas pipeline engineering field. Id. at ¶ 9. Most recently, Byrd worked as a Senior

Vice President of Field Services at Mott MacDonald. Id. at ¶ 13. Byrd worked for Mott

MacDonald in various roles for twenty-two years. Id. at ¶ 14. For seven of those years, he

worked as an independent contractor for Mott MacDonald. Id. For the other fifteen years,

Byrd worked as a regular full-time employee. Id. Byrd had a career in engineering and

consulting in the oil industry before he worked at Mott MacDonald. Id. at ¶ 15. Byrd

performed his job duties satisfactorily and received “very positive” feedback on his

performance, as well as high annual performance bonuses. Id. at ¶ 16. In 2008, Mott

MacDonald named Byrd the Project Manager of the Year for North America. Id. at ¶ 17.

In his role as senior vice president, Byrd supervised about thirty to eighty individuals

depending on project needs. Id. at ¶ 36.

Byrd was diagnosed with mouth cancer in 2020 and received treatment for it from

December 2020 “through 2021.” Id. at ¶ 19. He took a medical leave of absence during his

treatment but continued to make himself available to the company and clients while on

leave. Id. The radiation treatment left Byrd without teeth and he required a feeding tube

until early 2023. Id. at ¶ 20. Byrd’s condition impacted his ability to speak and eat. Id.

Byrd continues to receive cancer treatment. Id. at ¶ 21. Though impaired by his condition,

Byrd was “always able” to perform the essential functions of his job with accommodations.

Id. at ¶ 22. He continued to require occasional time during business hours to attend

medical appointments related to his cancer treatment. Id. at ¶ 23.

Byrd’s disability and time off from work did not prevent him from having strong

performance in sales and business development. Id. at ¶ 24. In 2020, Byrd secured a

contract with Energy Transfer worth about $48 million that would bring in revenue for

the following three years. Id. at ¶ 26. Byrd was the only Mott MacDonald employee that

made connections with Energy Transfer to secure this contract. Id. In 2022, Mott

MacDonald distributed a survey to 100 people within the company inquiring about senior

management’s likeability, knowledge, and communication. Id. at ¶ 27. Byrd scored the

highest among all members of senior management and received no negative feedback. Id.

In December 2022, Mott MacDonald notified Byrd that the field services division

would be eliminated from the company’s energy group and therefore his position as

Senior Vice President of Field Services would be eliminated as of January 1, 2023. Id. at

¶ 28. At the same time, Mott MacDonald let go another senior vice president, Randy

Spence, who was sixty-five years old at the time. Id. at ¶ 29. Spence and Byrd were the

only members of management eliminated from Mott MacDonald’s energy group. Id. at

¶ 30.

Mott MacDonald offered Byrd a position as an “In-House Consultant,” which was

not a salaried position; rather, Byrd would be compensated only for billable work. Id. at

¶ 31. Byrd believes Mott MacDonald offered him this position to avoid paying for benefits

full-time employees are entitled to and to avoid paying Byrd severance under the

company’s benefit plan of two weeks’ salary for each year of employment. Id. at ¶ 32. Byrd

was notified of the offer to continue as an in-house consultant on a Monday and was

required to provide Mott MacDonald an answer that Friday. Id. at ¶ 33.

On January 1, 2023, Byrd began working for Mott MacDonald as an in-house

consultant, but he continued to perform many of the same duties as he had when he was

a senior vice president. Id. at ¶ 34. Much of the work was not billable and Byrd was not

compensated for it. Id. Byrd received minimal billable assignments. Id. at ¶ 35. After Mott

MacDonald terminated Byrd from his senior vice president position, some of Byrd’s

former supervisees began to be supervised by Michael Wilcox, who is ten to twenty years

younger than Byrd. Id. at ¶ 40.

In February 2023, Byrd took a medical leave of absence and short-term disability.

Id. at ¶ 41. Under Mott MacDonald’s short-term disability benefit plan, Mott MacDonald

pays two-thirds of the benefit and insurance pays the remaining one third. Id. Mott

MacDonald did not pay Byrd the two-thirds short-term disability “top off” benefit because

he was no longer a full-time employee. Id. Byrd was also no longer entitled to employer

contributions to his retirement plan because he was no longer a full-time employee. Id.

Mott MacDonald never eliminated the field services division. Id. at ¶ 37. Some time

around late October or early November 2023, Mott MacDonald hired Rick Walker to be

the new Senior Vice President of Field Services. Id. at ¶ 38.

II. Procedural History

This case has a rather long and tortured procedural history for a case that has not,

until now, been ripe for decision on the merits of Mott MacDonald’s motion to dismiss.

Byrd brought a five-count complaint against Mott MacDonald asserting several violations

of fair employment statutes on November 20, 2023 (ECF No. 1). After ninety days had

expired since Byrd filed his complaint and service of process still had not been

accomplished, the Court issued an Order to Show Cause why service was not timely made

on February 23, 2024 (ECF No. 4). Byrd responded on March 8, 2024 (ECF No. 5), and

the Court terminated the Order to Show Cause on March 11, 2024 (ECF No.6), extending

the time for Byrd to complete and file proof of service to April 12, 2024 (ECF No. 7). Byrd

submitted Mott MacDonald’s executed waiver of service on April 10, 2024 (ECF No. 8).

Mott MacDonald moved to dismiss Byrd’s complaint on May 15, 2024 (ECF No.

14). After seeking and being granted two extensions to respond (see ECF Nos. 16–20),

Byrd responded in opposition to Mott MacDonald’s motion to dismiss on July 10, 2024

(ECF No. 21). On July 31, 2024, Byrd submitted an Unopposed Motion to Amend

Opposition to Defendant’s Motion to Dismiss after “Defendant’s counsel reached out to

Plaintiff’s counsel regarding what [Defendant’s counsel] believed to be inaccuracies in the

opposition.” ECF No. 24 at 1. “After Plaintiff’s counsel conferred with Plaintiff, [Plaintiff’s

counsel was] in agreement that there [were] some inaccuracies that need[ed] to be

corrected.” Id. Byrd’s request to amend his opposition was granted on August 1, 2024,

and Byrd was directed to file the amended opposition by August 2, 2024 (ECF No. 25).

Byrd filed his amended opposition on August 9, 2024 (ECF No. 26). Mott MacDonald

replied on August 23, 2024 (ECF No. 27). The motion to dismiss (ECF No. 14) was taken

under advisement on August 26, 2024.

While the motion to dismiss was under advisement, Byrd moved to amend his

complaint to add three more claims against Mott MacDonald on October 25, 2024 (ECF

No. 28). Mott MacDonald responded in opposition on November 15, 2024, arguing

amendment would be futile (see ECF No. 30 at 1). Byrd replied on December 2, 2024 (ECF

No. 31). Thereafter, Mott MacDonald sought (ECF No. 32) and was granted (ECF No. 33)

leave to file a sur-reply “in order to address issues raised in Plaintiff’s Reply” (ECF No. 32

at 1). Mott MacDonald filed its sur-reply on December 26, 2024 (ECF No. 34).

On January 28, 2025, Magistrate Judge Nivison granted Byrd’s motion to amend

his complaint (ECF No. 35). Byrd filed his amended complaint on January 28, 2025 (ECF

No. 36). On February 11, 2025, Mott MacDonald filed its renewed motion to dismiss (ECF

No. 37). Byrd responded in opposition on March 4, 2025 (ECF No. 38), and Mott

MacDonald replied on March 18, 2025 (ECF No. 39). After briefing on the renewed

motion to dismiss was complete and the motion had been under advisement for

approximately ten days, on March 28, 2025, Mott MacDonald moved for oral argument

and an evidentiary hearing at the invitation of the Court (see ECF No. 35 at 9) on the

applicability of equitable tolling (ECF No. 41). The Court granted this request and

scheduled an evidentiary hearing before Byrd’s response was due (see ECF Nos. 41–43).

On May 5, 2025, Byrd moved to reconsider the Court’s order granting Mott

MacDonald’s request for an evidentiary hearing, arguing he had not raised and did not

plan on raising an equitable tolling theory to support his claims and therefore an

evidentiary hearing before any discovery began in the case was not necessary (see

generally ECF No. 44). Mott MacDonald responded in opposition on May 13, 2025 (ECF

No. 45), and Byrd replied on May 14, 2025 (ECF No. 46). The Court granted Byrd’s motion

for reconsideration on May 19, 2025, vacating its prior order granting Mott MacDonald’s

motion for an evidentiary hearing and the order scheduling the evidentiary hearing (ECF

No. 47).

On May 23, 2025, Mott MacDonald filed a motion for leave to file supplemental

briefing based on Byrd’s representation that he would not be pursuing an equitable tolling

theory and would instead be pursuing a continuing violation theory (see generally ECF

No. 49). Byrd responded in opposition to the motion for leave to file supplemental

briefing on June 6, 2025 (ECF No. 50), and Mott MacDonald did not reply (see Dkt. No.

2:23-cv-00431-SDN). The Court granted Mott MacDonald’s motion for leave to file

supplemental briefing on June 16, 2025 (ECF No. 51). Mott MacDonald filed its

supplemental brief on June 17, 2025 (ECF No. 52), Byrd responded in opposition on July

8, 2025 (ECF No. 53), and Mott MacDonald replied on July 23, 2025 (ECF No. 54).

Finally, the merits question of whether Byrd has stated claims upon which relief can be

granted is ripe for decision.

III. Legal Standard

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint and

requires a court to determine whether the facts alleged in the complaint are sufficient to

show that the plaintiff has pled a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. When

ruling on a Rule 12(b)(6) motion, a court must accept the factual allegations set forth in

the complaint as true and draw all reasonable inferences in favor of the plaintiff. See

Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). A

complaint that offers only “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Further, if the

plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [those

claims] must be dismissed.” Id. at 570.

IV. Discussion

Mott MacDonald moves to dismiss all eight of Byrd’s counts in his amended

complaint. I consider each count in turn to determine whether Byrd’s factual allegations

narrate a plausible claim for relief.

A. FMLA Interference

Mott MacDonald argues Byrd’s claim of FMLA interference should be dismissed

for two reasons: (1) Mott MacDonald did not deny Byrd a benefit he was entitled to under

FMLA; and (2) even if it did deny him a FMLA entitlement, Mott MacDonald did not have

notice of Byrd’s intent to take protected leave at the time Mott MacDonald eliminated the

benefit. ECF No. 37-1 at 4–8. Byrd argues he has stated a claim for FMLA interference

because his loss of eligibility for “the additional company-funded supplemental paid

leave”1 discouraged him from taking leave he was entitled to under FMLA. ECF No. 38 at

3.

“The FMLA was enacted to help working women and men balance the competing

demands of work and personal life.” Carrero-Ojeda v. Autoridad de Energía Eléctrica,

755 F.3d 711, 718 (1st Cir. 2014). Under FMLA, eligible employees are entitled to a total of

twelve workweeks of leave (which may be unpaid) in a twelve-month period for a

qualifying personal or family medical event. 29 U.S.C. § 2612(a)(1). During FMLA leave,

the employee is entitled to maintain their group health benefits. Id. § 2614(c)(1). Upon

return from FMLA leave, the employee is entitled to be restored to the position they held

1 It appears from Byrd’s opposition brief—but is not stated specifically—that the FMLA benefit he claims

Mott MacDonald interfered with is “top off” short-term disability benefits. See ECF No. 38 at 3 (“Defendant

interfered with his rights by removing him from his full time position and thus denying him from the

additional company-funded supplemental paid leave.”). Even if that is not the benefit to which Byrd refers,

Byrd has not clearly alleged any entitlement with which Mott MacDonald interfered. Where the Court is left

to guess what exactly the plaintiff is claiming, the complaint has not stated a plausible claim for relief. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

prior to the leave period or an equivalent position. Id. § 2614(a)(1). It is unlawful for an

employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise,

any right provided” by the FMLA. Id. § 2615(a)(1).

The elements of a prima facie case of FMLA interference are as follows: “(1)

[plaintiff] was eligible for the FMLA’s protections; (2) [his] employer was covered by the

FMLA; (3) [he] was entitled to leave under the FMLA; (4) [he] gave [his] employer notice

of [his] intention to take leave; and (5) [his] employer denied [him] FMLA benefits to

which [he] was entitled.” Waterman v. Paul G. White Interior Sols., No. 2:19-cv-00032,

2019 WL 5764661, at *2 (D. Me. Nov. 5, 2019) (quoting Chacon v. Brigham & Women’s

Hosp., 99 F. Supp. 3d 207, 213 (D. Mass. 2015)). “The key issue is simply whether the

employer provided its employee the benefits to which [he] was entitled per the FMLA.”

Carrero-Ojeda, 755 F.3d at 722.

Resisting dismissal of his FMLA interference claim, Byrd points to case law stating

that the employer’s intent to interfere is not a required showing and interference can

include discouraging an employee from taking FMLA leave. ECF No. 38 at 4. Under Byrd’s

theory of FMLA interference, Mott MacDonald discouraged him from taking further

FMLA leave by changing his position to an hourly position that did not include

entitlement to “additional company-funded supplemental paid leave.” Id. at 3. It is

unclear from Byrd’s opposition brief whether “additional company-funded supplemental

paid leave” refers to the short-term disability “top off” benefit or some other company-

funded benefit. See id. However, Byrd himself acknowledges that a prima facie case of

FMLA interference requires that the benefits denied by the employer constitute

entitlements under FMLA. See id. (“To make out an interference claim, Plaintiff must

establish that . . . his employer denied [him] benefits to which he was entitled by FMLA.”

(emphasis added)). Indeed, the “key issue” is whether the employee received “the benefits

to which [he] was entitled per the FMLA.” Carrero-Ojeda, 755 F.3d at 722 (emphasis

added). Byrd does not and cannot claim he was entitled to the “top off” payments or any

other company-funded supplemental paid leave under the FMLA because the FMLA does

not require the employer to provide for paid leave, see 29 U.S.C. § 2601 et seq., therefore

his claim is fundamentally flawed. Because Byrd was never entitled to the “top off”

payments or any other company-funded paid leave under FMLA, his later ineligibility for

such benefits cannot give rise to a FMLA interference claim. See Davidson v.

Tyco/Healthcare, 416 F. Supp. 2d 690, 709 (E.D. Mo. 2005), aff’d sub. nom. Davidson v.

Tyco/Healthcare Mallinckrodt, Inc., 205 F. App’x 469 (8th Cir. 2006) (“Plaintiff’s claim

regarding her short-term disability benefits and vacation pay are not actionable under

FMLA. . . . Plaintiff’s receipt of disability benefits and vacation pay were governed by

defendant’s employee welfare plan(s) and corporate policy alone. Any alleged problems

regarding [plaintiff’s] short-term disability benefits and vacation pay are independent of

any rights [plaintiff] may be entitled to protect under FMLA.”).

In addition to the paid leave theory of FMLA interference, Byrd also devotes two

sentences to an alternative theory of FMLA interference, referencing his allegation that

during his 2020–21 medical leave of absence, he “continued to make himself available to

the company and clients while on leave.” ECF No. 36 at ¶ 19; see ECF No. 38 at 4. He does

not allege that Mott MacDonald required or encouraged him to do so, therefore I do not

conclude that his allegations plausibly show “[his] employer denied [him] FMLA

benefits.” Waterman, 2019 WL 5764661, at *2 (quoting Chacon, 99 F. Supp. 3d at 213).

This under-developed line of argument is not sufficient to save Byrd’s FMLA interference

claim. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to

in a perfunctory manner, unaccompanied by some effort at developed argumentation, are

deemed waived.”). Accordingly, Byrd’s Count I for FMLA Interference is DISMISSED.2

B. FMLA Retaliation

Mott MacDonald argues Byrd’s claim for FMLA retaliation should be dismissed

because Byrd took his 2023 medical leave after the adverse employment action—his

demotion to in-house consultant—therefore Mott MacDonald did not have the requisite

knowledge to support a finding of retaliatory intent. ECF No. 37-1 at 11–12. In response,

Byrd clarifies that he is also advancing a retaliation theory that arises from his 2020–21

medical leave of absence. See ECF No. 38 at 6–7. Under this theory, Byrd argues his late

2022 demotion was retaliatory in response to his 2020–21 leave of absence. Id. He further

argues Mott MacDonald’s knowledge of his continued cancer treatment led Mott

MacDonald to retaliate in anticipation of his need for further FMLA leave when it

demoted him in late 2022.3 Id. at 7. Mott MacDonald replies that the demotion is too

remote in time to support an inference of retaliatory intent. ECF No. 39 at 4–5.

Under the FMLA, it is unlawful for an employer to retaliate against an employee

for exercising their FMLA rights. Pagán-Colón v. Walgreens of San Patricio, Inc.,

697 F.3d 1, 8 (1st Cir. 2012) (noting it is “universally recognized” that the FMLA prohibits

2 In his opposition to Mott MacDonald’s renewed motion to dismiss, Byrd references facts that do not

appear in his amended complaint. See ECF No. 36; ECF No. 38 at 5. I do not consider those facts in my

analysis. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (“Ordinarily,

a court may not consider any documents that are outside of the complaint, or not expressly incorporated

therein, unless the motion is converted into one for summary judgment.”).

3 Byrd refers at pages 5–6 of his opposition brief to facts that do not appear in the amended complaint to

support his retaliation claim. See ECF No. 36; ECF No. 38 at 5-6. As discussed above at footnote 2, I do not

consider factual material outside of those allegations in the amended complaint. See supra n.2. Further,

Byrd moved to amend his complaint on October 25, 2024 (see ECF Nos. 28, 29), which was granted on

January 28, 2025 (ECF No. 35), and could have included the January 2024 allegations in his amended

complaint but did not. I do not consider the January 2024 facts recited in his opposition to Mott

MacDonald’s renewed motion to dismiss because they are not included in his amended complaint. See Alt.

Energy, Inc., 267 F.3d at 33.

retaliation); see 29 U.S.C. § 2615(b). To make out a prima facie case of FMLA retaliation,

Byrd must show: “1) [he] availed [himself] of a protected FMLA right; (2) [he] was

adversely affected by an employment decision; and (3) there was a causal connection

between [his] protected conduct and the adverse employment action.” Carrero-Ojeda,

755 F.3d at 719 (quotation modified). The parties dispute the third element, whether

Byrd’s amended complaint contains sufficient factual allegations to plausibly support a

finding that his demotion was causally connected to the exercise of his rights under the

FMLA. See ECF No. 37-1 at 8–12; ECF No. 38 at 5–7.

“In the retaliation claim context, a causal connection can be shown by a temporal

proximity between the protected conduct and the adverse action: ‘temporal proximity

alone can suffice to meet the relatively light burden of establishing a prima facie case of

retaliation.’” Kempton v. Delhaize Am. Shared Servs. Grp. LLC, No. 2:14-cv-0494,

2016 WL 1069647, at *7 (D. Me. Mar. 17, 2016) (quoting DeCaire v. Mukasey, 530 F.3d

1, 19 (1st Cir. 2008)). However, “the inference of a causal connection becomes tenuous

with the passage of time.” Dressler v. Daniel, 315 F.3d 75, 80 (1st Cir. 2003). The parties

dispute the length of time that elapsed between Byrd’s FMLA leave and his demotion.

Byrd asserts his medical leave of absence lasted through December 2021, see ECF No. 36

at ¶ 19, and he was notified of his demotion on November 30, 2022,4 resulting in a time

span of “less than one year,” ECF No. 38 at 7, between Byrd’s protected FMLA leave and

his demotion. Mott MacDonald argues the time span is closer to two years because,

4 In his amended complaint, Byrd alleges he was notified of his demotion in December 2022. ECF No. 36 at

¶ 28. However, as Magistrate Judge Nivison identified in his Order on Motion for Leave to Amend

Complaint, the parties agree on November 30, 2022, as the relevant notification date. See ECF No. 35 at 2

n.2. Because the parties agree on the November 30, 2022, date and Judge Nivison applied that date in his

analysis on the motion for leave to amend the complaint, I use the November 30, 2022, date as the date

Byrd received notification of his demotion.

although Byrd began his FMLA leave in December 2020 and was on medical leave until

December 2021, he had actually exhausted the twelve weeks of FMLA leave by March

2021 (twelve weeks after he began taking leave in December 2020). ECF No. 39 at 5; see

29 U.S.C. § 2612(a)(1) (establishing entitlement to twelve workweeks of leave in a twelve-

month period for qualifying employees). Accordingly, under Mott MacDonald’s view, the

time span between Byrd’s protected FMLA leave and notification of his demotion is

“nearly two years.” ECF No. 39 at 5.

I need not determine the exact length of the time span between Byrd’s protected

leave and his demotion because, even under Byrd’s theory, the temporal proximity of

almost one full year, considered in context with the complaint’s lack of any allegations

probative of retaliatory motive, does not “nudge[] [his] claim[] across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570. As noted above, “the inference of a

causal connection becomes tenuous with the passage of time,” Dressler, 315 F.3d at 80,

and Byrd has not identified any case law showing that a temporal proximity of almost a

year, standing alone, is enough to plausibly support a finding of retaliation. Temporal

proximity of no more than a few months could support a finding of retaliation. See, e.g.,

Mariani-Colón v. Dep’t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir.

2007) (temporal proximity of two months held sufficient to establish causation);

Kempton, 2016 WL 1069647, at *7 (temporal proximity of less than one month sufficient

to establish prima facie case of retaliation). Beyond a period of a few months, the temporal

proximity becomes too tenuous to infer retaliatory intent. See, e.g., Calero-Cerezo v. U.S.

Dep’t of Just., 355 F.3d 6, 25 (1st Cir. 2004) (“Three and four month periods have been

held insufficient to establish a causal connection based on temporal proximity.”); Morón-

Barradas v. Dep’t of Educ. of Commw. of P.R., 488 F.3d 472, 481 (1st Cir. 2007)

(temporal proximity of approximately eight months held insufficient to establish causal

connection); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (temporal

proximity of nine months negated inference of retaliation); O’Rourke v. Tiffany & Co.,

988 F.3d 23, 25 (temporal proximity of more than one year is not sufficient to support

retaliation claim).

Here, even crediting Byrd’s calculation of a period of just under one year between

the protected conduct (his protected leave) and the adverse employment action (his

demotion), the inference of a causal connection is too tenuous for me to conclude his

demotion was plausibly retaliatory. When cases rely solely on “mere temporal proximity”

to establish retaliation, the temporal proximity must be “very close.” Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quotation modified). Where Byrd has not

made any allegations of “negative comments, complaints, or expressions of reluctance by

[his] superiors or co-workers about [his] FMLA leave-taking, no discussion of

[his] FMLA leave status in performance reviews, etc.,” I cannot conclude a period of

almost one year between the protected conduct and the adverse employment action

plausibly raises a causal connection between the two events. Carrero-Ojeda, 755 F.3d at

720–21 (concluding synchronicity alone without further allegations of retaliatory intent

insufficient to support a FMLA retaliation claim at the Rule 12(b)(6) stage).

Additionally, Byrd’s FMLA retaliation claim cannot rest on the FMLA leave he took

in February 2023 after he was demoted. “Because the employer’s intent in FMLA

retaliation claims is highly relevant, an employer cannot be found to have retaliated

against an employee for invoking his rights under the FMLA or taking FMLA leave unless

the decisionmaker knew or should have known that the employee had invoked those

rights.” Chase v. U.S. Postal Serv., 843 F.3d 553, 558 (1st Cir. 2016). Byrd’s amended

complaint does not allege he provided notice to Mott MacDonald of his February 2023

medical leave before he was notified of the demotion on November 30, 2022. See

generally ECF No. 36. Byrd speculates that Mott MacDonald “may have concluded that

Byrd was unhealthy and likely to need additional FMLA time,” ECF No. 38 at 7, but

speculation is not sufficient to survive a motion to dismiss, see Twombly, 550 U.S. at 555

(“Factual allegations must be enough to raise a right to relief above the speculative

level . . . .”); Chase, 843 F.3d at 558 (finding that an employer cannot retaliate if it did not

know the employee invoked their FMLA rights). Byrd’s Count II for FMLA Retaliation is

DISMISSED.

C. PFML Claims

Byrd also asserts claims under Massachusetts’s PFML, Mass. Gen. Laws ch. 175M,

one count for interference and one count for retaliation. ECF No. 36 at 9–11. The PFML

is Massachusetts’s analogue to the FMLA. Among other differences, the PFML provides

employees with paid leave whereas FMLA leave may be unpaid. Compare Mass. Gen.

Laws ch. 175M, § 1 et seq., with 29 U.S.C. § 2601 et seq. The PFML makes it unlawful for

an employer to “retaliate by . . . in any [] manner discriminating against an employee for

exercising any right to which such employee is entitled under this chapter or with the

purpose of interfering with the exercise of any right to which such employee is entitled

under this chapter.” Mass. Gen. Laws ch. 175M, § 9(a). Because the PFML has similar

language and objectives as FMLA and Byrd makes no argument for any independent

methods of evaluating his claims under PFML, see ECF No. 38 at 7–8, my analysis of

Byrd’s FMLA claims and his PFML claims is the same. See Tardiff v. Laborers Int’l Union

of N. Am. Loc. Union 609, No. 4:23-cv-40115, 2025 WL 2374000, at *12 (D. Mass. Aug.

15, 2025) (using First Circuit FMLA precedent to analyze PFML claims). Accordingly,

Byrd’s PFML claims, Counts III and IV, are DISMISSED.

D. ERISA Interference

Count V of Byrd’s amended complaint alleges Mott MacDonald interfered with

Byrd’s ability to collect benefits under an ERISA plan in violation of Section 510 of ERISA,

29 U.S.C. § 1140. ECF No. 36 at 11–12. Mott MacDonald argues Byrd’s ERISA claim should

be dismissed because the short-term disability “top off” benefit is not an ERISA plan and

because Byrd has not brought forth sufficient facts to plausibly allege Mott MacDonald

had specific intent to interfere with his ERISA rights. ECF No. 37-1 at 15–19. As to whether

Byrd alleges the existence of an ERISA plan, he argues there is no evidence the benefits

are not part of an ERISA plan and that discovery is appropriate to determine the existence

of an ERISA plan. ECF No. 38 at 8–9. He further argues Mott MacDonald intentionally

gave Byrd the in-house consultant position to avoid paying him severance and the “top

off” benefit.5 Id. at 9. Mott MacDonald replies that Byrd’s ERISA claim is based solely on

legal conclusions and therefore must be dismissed. ECF No. 39 at 5–7.

It is unlawful for an employer to “discharge, fine, suspend, expel, discipline, or

discriminate against a participant . . . for the purpose of interfering with the attainment

of any right to which such participant may become entitled” under an ERISA plan.

29 U.S.C. § 1140. To establish a prima facie case of ERISA interference, Byrd must show

5 Byrd refers to employer contributions to his retirement plan in his amended complaint but makes no

argument in his opposition to Mott MacDonald’s motion to dismiss that his ERISA claim is based on the

loss of employer contributions to his retirement plan. See ECF No. 36 at ¶¶ 41, 72; see generally ECF No.

38. Under D. Me. Local R. 7(b), “[f]ailure to respond [to an argument in a] motion to dismiss means that

opposition to the motion is waived . . . and the motion may be granted for that reason alone.” Andrews v.

Am. Red Cross Blood Servs., New Eng. Region, 251 F. Supp. 2d 976, 979 (D. Me. 2003); see D. Me. Local

R. 7(b). Byrd has waived any argument that losing employer contributions to his retirement plan constitutes

ERISA interference.

“that he was prospectively entitled to ERISA benefits, was qualified for his position, and

was [demoted] ‘under circumstances that give rise to an inference of discrimination.’”

Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012) (quoting Lehman v.

Prudential Ins. Co. of Am., 74 F.3d 323, 330 (1st Cir.1996)). In order for Byrd to move

forward with his claim of ERISA interference, he must allege facts that plausibly narrate

the existence of an ERISA plan. See White v. Bell Atl. Yellow Pages, No. Civ.A. 01–10157,

2004 WL 594957, at *7 (D. Mass. Mar. 23, 2004) (“If there is no ERISA ‘plan,’ there is no

ERISA claim.”); Díaz-O’Neill v. P.R. Aqueduct & Sewer Auth., No. 22-1024, 2022 WL

18635600, at *5 (D.P.R. Dec. 27, 2022) (dismissing an ERISA claim on Rule 12(b)(6)

grounds where the complaint did not allege enough facts for the court to infer the

existence of an ERISA plan).

“The precise coverage of ERISA is not clearly set forth in the Act.” Massachusetts

v. Morash, 490 U.S. 107, 113 (1989). The statutory definition of a covered “plan” “merely

constructs a tautology, defining an employee benefit plan as ‘any plan, program or fund’

established or maintained by an employer that provides certain benefits to employees.”

Belanger v. Wyman-Gordon Co., 71 F.3d 451, 454 (1st Cir. 1995) (quoting 29 U.S.C.

§ 1002(2)(A)). “[T]he Supreme Court has made it very clear that an employee benefit may

be considered a plan for purposes of ERISA only if it involves the undertaking of

continuing administrative and financial obligations by the employer to the behoof of

employees or their beneficiaries.” Id. In other words, ERISA is not implicated when the

employer makes a “one-time, lump-sum payment [that is] triggered by a single event

[and] requires no administrative scheme whatsoever to meet the employer’s obligation.”

Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 12 (1987). Put simply, “the existence

of a plan turns on the nature and extent of an employer’s benefit obligations.” Belanger,

71 F.3d at 454.

Here, the only facts Byrd alleges regarding the two benefits he asserts are covered

ERISA plans are as follows: Mott MacDonald pays severance to full-time employees of

two weeks’ salary for each year of employment, ECF No. 36 at ¶ 32, and Mott MacDonald

pays a short-term disability “top off” benefit of two thirds of a full-time employee’s salary

while that employee is on short-term disability, id. at ¶ 41. The remainder of Byrd’s ERISA

allegations are legal conclusions unsupported by factual allegations. See id. at ¶¶ 65–75.

As Byrd argues in his opposition to the motion to dismiss, Mott MacDonald did not

provide any evidence that the “top off” benefit is an exempted payroll practice6 or that

severance is a one-time, lump sum payment. See ECF No. 38 at 8–9. Moreover, I may not

consider Mott MacDonald’s factual assertions in its motion to dismiss that do not appear

in Byrd’s amended complaint. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267

F.3d 30, 33 (1st Cir. 2001). Nonetheless, it does not follow that Byrd’s ERISA claim

therefore survives the motion to dismiss and proceeds to discovery. See ECF No. 38 at 8–

9. To properly state a claim, a plaintiff must allege enough facts to narrate a plausible

claim for relief. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 544). A complaint that

offers only “labels and conclusions” or a “formulaic recitation of the elements of a cause

of action will not do.” Twombly, 550 U.S. at 555. Byrd has not alleged enough facts for me

to infer that Mott MacDonald’s provision of either the “top off” benefit or severance

“involves the undertaking of continuing administrative and financial obligations by the

6 Regulation promulgated by the Department of Labor provides that “[p]ayment of an employee’s normal

compensation, out of the employer’s general assets, on account of periods of time during which the

employee is physically or mentally unable to perform his or her duties, or is otherwise absent for medical

reasons” is not an “employee welfare benefit plan” within the meaning of ERISA. 29 C.F.R. § 2510.3-1(b)(2)

(2025).

employer to the behoof of employees or their beneficiaries” as required for the benefits to

be considered ERISA “plans.” Belanger, 71 F.3d at 454. Because Byrd’s complaint does

not contain enough factual allegations to “plausibly show that his [amended c]omplaint

involves an ERISA covered plan,” Díaz-O’Neill, 2022 WL 18635600, at *5, Byrd’s Count

V for ERISA interference is DISMISSED.

E. Counts VI–VIII

In his amended complaint, Byrd brings forth three further claims against Mott

MacDonald that he did not allege in his initial complaint. Compare ECF No. 1, with ECF

No. 36. The three new claims include disability discrimination in violation of the ADA,

age discrimination in violation of the ADEA, and violation of the Massachusetts FEPA.

ECF No. 36 at 12–15. Mott MacDonald moves to dismiss these claims, arguing Byrd failed

to timely exhaust his administrative remedies. See ECF No. 52 at 1. Byrd argues his claims

are timely because he began receiving minimal billable assignments within the 300-day

statutory period before he made his administrative complaint. ECF No. 53 at 1–2. He

further argues his claims are timely under the continuing violation doctrine. Id. at 2–5.

Mott MacDonald replies that the billable assignments are simply consequences of the

adverse employment action, it is insufficient to make his claims timely, and the

continuing violation doctrine does not apply. ECF No. 54 at 1–2.

Byrd’s claims of disability discrimination and age discrimination are subject to

administrative exhaustion requirements under state and federal law. See 42 U.S.C.

§ 2000e-5(e)(1) (ADA); 29 U.S.C. § 626(d)(1) (ADEA); Mass. Gen. Laws ch. 151B, § 5

(FEPA). The administrative complaint for each claim must be filed with the state or local

agency that enforces anti-discrimination laws, which for Massachusetts is the

Massachusetts Commission Against Discrimination (MCAD), within 300 days after the

date of the alleged unlawful employment practice.7 See Kahriman v. Wal-Mart Stores,

Inc., 115 F. Supp. 3d 153, 160 (D. Mass. 2015) (ADA and FEPA); 29 U.S.C. § 626(d)(1)(B)

(ADEA). The parties agree that Mott MacDonald notified Byrd of his demotion on

November 30, 2022. See supra n.4. Byrd filed his complaint of discrimination for his

ADA, ADEA, and FEPA claims with the MCAD and the Equal Employment Opportunity

Commission (EEOC) on October 23, 2023—327 days after he received notification of his

demotion. ECF No. 36 at ¶ 12. Accordingly, Byrd failed to timely exhaust his

administrative remedies unless he establishes another basis for timeliness.8 Byrd argues

his claims are timely because Mott MacDonald assigned him “de minimus [sic]” billable

assignments within the 300-day statutory period before he made his administrative

complaint and the claims are timely under the continuing violation doctrine. ECF No. 53

at 1–2.

As to Byrd’s first argument that discriminatory acts happened within the statutory

period when he started receiving insufficient billable assignments in January 2023, it is

“well established that, in employment discrimination actions, limitations periods

normally start to run when the employer’s decision is made and communicated to the

affected employee.” Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 750 (1st Cir. 1994).

This is true even if the plaintiff does “not know all the facts that support his claim” at the

time the countdown begins to run. Id.; see also Meléndez-Arroyo v. Cutler-Hammer of

P.R. Co., Inc., 273 F.3d 30, 36–37 (1st Cir. 2001) (rejecting plaintiff’s argument that the

7 Claims under the ADA and ADEA normally are subject to a 180-day filing period before the Equal

Employment Opportunity Commission, but the filing period is extended to 300 days when the

administrative complaint is filed with a parallel state agency, here, the MCAD. See 29 U.S.C. §§

626(d)(1)(B), 633(b); 42 U.S.C. § 2000e-5(e)(1).

8 Byrd is not seeking to invoke the doctrine of equitable tolling, see ECF No. 44 at 5, therefore I do not

address whether equitable tolling applies.

limitations period did not begin to run until plaintiff became aware of the full impact of

the demotion). The fact that Byrd may not have realized the severity of the consequences

of his demotion does not save his claims from dismissal for failure to timely exhaust his

administrative remedies.

That leaves the continuing violation doctrine. The continuing violation doctrine is

“an equitable exception to [employment discrimination laws’] statute of limitations,

[that] ‘allows an employee to seek damages for otherwise time-barred allegations if they

are deemed part of an ongoing series of discriminatory acts and there is “‘some violation

within the statute of limitations period that anchors the earlier claims.’” Lockridge v.

Univ. of Me. Sys., 597 F.3d 464, 474 (1st Cir. 2010) (quoting O’Rourke v. City of

Providence, 235 F.3d 713, 730 (1st Cir. 2001)); see also Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 117 (2002) (holding a plaintiff may seek damages for hostile work

environment claims under Title VII that fall outside of the limitations period if “an act

contributing to the claim occurs within the filing period”). The First Circuit has recognized

two types of continuing violations: systemic violations and serial violations. Thornton v.

United Parcel Serv., Inc., 587 F.3d 27, 33 (1st Cir. 2009).

To state a claim under the systemic violation theory, Byrd must identify the specific

discriminatory policy or practice he was subjected to. See id. at 33 (“[G]eneral references

to some vague, undefined policy of discrimination are not . . . sufficient to make out

a . . . showing that a discernible discriminatory policy was in effect.” (quoting Mack v.

Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 184 (1st Cir. 1989) (alterations in Thornton)).

Byrd has identified no discriminatory practice or policy he was subjected to, let alone with

particularity. He has not stated a claim of a systemic violation.

The “classic example” of a continuing serial violation is a hostile work environment

claim. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009). Hostile work

environment claims arise out of the cumulative effects of individual acts of harassment,

each of which on its own may not be actionable. Morgan, 536 U.S. at 115. The unlawful

employment practice “cannot be said to occur on any particular day”; rather, the series of

individual acts combine to constitute the unlawful employment practice. Id. at 115–17.

For a hostile work environment claim to be timely, the claim must be filed within the

statutory period for a claim arising from any act that is part of the hostile work

environment. Id. at 118. Importantly, the continuing violation doctrine is a narrow

exception to the limitations period, involving hostile work environment claims that are

different in kind from discrete acts of discrimination. See Ayala v. Shinseki, 780 F.3d 52,

57 (1st Cir. 2015). Discrete acts of discrimination—such as a demotion—are distinct from

hostile work environment claims, and the continuing violation doctrine does not apply to

extend the limitations period for a claim based on a discrete act. See id. “It is well-

established that the statute is triggered upon the initial occurrence of the discrete adverse

employment action, even if ‘the effect of the employer’s [actions] continues to be felt

by the employee for as long as he remains employed.’” Id. at 57–58 (quoting Tobin,

533 F.3d at 132).

Byrd’s claims of disability and age discrimination arise from the discrete act of his

demotion to a non-salaried position where he was compensated only for billable work.

See ECF No. 36 at ¶ 31. This discrete act occurred on the day Mott MacDonald notified

him of his demotion, which the parties agree was November 30, 2022. Although Byrd did

not know at the time how much billable work he ultimately would be assigned, the

demotion itself was enough to put him on notice that he may have a claim because

demotions are “easy to identify and immediately actionable.” Ayala, 780 F.3d at 58. If I

were to hold otherwise and allow Byrd’s claims to move forward on a continuing violation

theory despite the adverse employment action having occurred on a particular day, the

“narrow exception” for continuing violations would swallow the limitations period rule.

Accordingly, Byrd failed to timely exhaust his administrative remedies by filing his

complaint of discrimination with the EEOC and the MCAD 327 days after he learned of

his demotion, and his Counts VI, VII, and VIII are DISMISSED.

V. Conclusion

For the reasons discussed above, Mott MacDonald’s renewed motion to dismiss

(ECF No. 37) is GRANTED and all of Byrd’s claims against it are DISMISSED (ECF No.

36).

SO ORDERED.

Dated this 10th day of September, 2025.

/s/ Stacey D. Neumann

UNITED STATES DISTRICT JUDGE