Complaint Filing, Amendment, and Withdrawal

(1) Who May File. A complaint alleging violations of the statutes enforced by the Commission may be filed at the Commission by any of the following: (a) A person claiming to be aggrieved by the alleged violation(s) or a parent or guardian filing on behalf of an aggrieved minor child; (b) Counsel representing a person claiming to be aggrieved by the alleged violation(s); (c) An organization whose purpose includes the elimination of the unlawful practice(s) which is the subject of the complaint and whose members include one or more persons claiming to be aggrieved by the alleged violations, provided that the injured person(s) shall be named if the complaint seeks victim specific relief; (d) The Attorney General or their authorized representative provided that the injured person shall be named if the complaint seeks victim specific relief; or (e) The Commission, pursuant to 804 CMR 1.18. (2) Manner of Filing. (a) A complaint filed by a pro se person or by the Commission, pursuant to 804 CMR 1.18, shall be filed in one of the following manners: 1. A complaint may be filed directly through the MCAD Case Portal. 2. A complaint may be filed by visiting any of the Commission's offices during regular business hours and receiving assistance in filing the complaint in the MCAD Case Portal. 3. A complaint may be filed with the Clerk's Office by U.S. Mail. (b) A complaint filed by counsel or an organization shall be filed directly through the MCAD Case Portal. (c) Pseudonym complaints filed by any person shall conform with the procedures outlined in 804 CMR 1.04(7) and shall only be filed with the Clerk's Office by U.S. Mail or by visiting any of the Commission's offices during regular business hours. Pseudonym complaints filed through the MCAD Case Portal shall be administratively dismissed without prejudice. 804 CMR - 5 (3) Time of Filing. A complaint shall be filed within 300 days after the alleged unlawful conduct; provided, however, that a complaint alleging violations of M.G.L. c. 151C shall be filed within the time limits required by M.G.L. c. 151C. The period in which to file a complaint under any statute within the Commission's jurisdiction commences on the date that the Complainant knew or should have known of the claim of discrimination. (4) Exceptions to Time of Filing. A complaint may be filed beyond the time limits within 804 CMR 1.04(3) under the following circumstances: (a) Collective Bargaining Agreement Grievance. When a grievance on behalf of an individual is filed pursuant to a collective bargaining agreement, the individual may file a complaint based on the same facts within 300 days of when they knew or should have known that the matters raised in the grievance would support a claim of discrimination. The Commission maystayits investigation until anysuch grievance proceedings have concluded. (b) Continuing Violation. When facts are alleged which indicate unlawful conduct is of a continuing nature and part of an ongoing pattern of discrimination, the complaint may include actions outside of the statutory filing period so long as the last discriminatory act in the pattern occurred within the statutory filing period. (c) Mediation Prior to Filing of Complaint. When an aggrieved person enters into an agreement to voluntarily mediate the alleged discriminatory acts prior to filing a complaint at the Commission but within the statutory filing period, the time for filing may be tolled subject to the following conditions: 1. Every party is represented by an attorney; 2. The parties execute an agreement, signed by the parties, their attorneys, and the mediator, which states the nature of the dispute, the intent to mediate the dispute, a request to toll the statutory filing deadline to pursue mediation, a commitment by the attorneys and mediator to conduct the mediation within 90 days, and an agreement to promptly report the outcome of the mediation to the Clerk's Office; 3. The parties submit the agreement executed pursuant to 804 CMR 1.04(4)(c)2. to the Clerk's Office via email or U.S. Mail within the statutory filing deadlines provided for in 804 CMR 1.04(3). The agreement shall only be available to the parties and not the public consistent with all mediation documents on file with the Commission per the confidentiality outlined in 804 CMR 1.06; and 4. If the parties are unable to resolve the matter through mediation, the complainant shall file a complaint pursuant to 804 CMR 1.04(2) within 120 days of filing the agreement to mediate with the Clerk's Office, and the complaint will be deemed filed on the date the agreement to mediate was filed with the Commission. The complainant shall notify the Commission of the previous filing of the agreement to mediate in order for the Commission to adjust the filing date of the complaint. (d) Equitable Tolling. The deadline for filing a complaint with the Commission may be equitably extended in those cases where the complainant is excusably ignorant of the statutory filing period, or where respondent, the Commission, or a third-party has affirmatively misled the complainant, or otherwise prevented the complainant from filing, as determined by the Commission. (5) Form. All complaints shall be in writing. Complaints filed under 804 CMR 1.04(1)(a) shall be signed and verified by the complainant. Verification consists of a signed statement, under the pains and penalties of perjury, by the complainant that they have read the complaint and that the allegations contained therein are true to the best of their knowledge. Complaints filed pursuant to 804 CMR 1.04(1)(b), (c), and (d) may be signed by counsel without verification by the complainant. (6) Content. The complaint shall contain: (a) The date(s) on which the unlawful discriminatory acts occurred; or, when the acts are of a continuing nature, the period of time during which acts occurred and the specific date of the last discriminatory act; (b) A concise statement of the alleged discriminatory acts committed by specific persons, if known to the complainant, sufficient to enable the Commission to investigate the claims, and provide notice to the respondent(s) of potential liability; 804 CMR - 6 (c) If appropriate, a statement indicating that the complaint is on behalf of a proposed class based on the criteria provided in 804 CMR 1.15(5); (d) Appropriate identification of the complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts, unless proceeding by use of pseudonym pursuant to 804 CMR 1.04(7); and (e) Factual allegations sufficient to support each claim. (7) Pseudonym Complaints. In exceptionalcircumstances, the Commission maydetermine that the public interest supports allowing a complainant to proceed under a pseudonym. The use of a pseudonym shall not impact the ability to issue protective orders. Any complainant may request to proceed under a pseudonym, including a parent or legal guardian filing on behalf of a minor child, or an individual who was a minor child at the time of the alleged discrimination. The use of a pseudonym may be permitted where the complainant demonstrates a specific overriding need for confidentiality based on substantial safety or privacy interests. (a) Filing Requirements. A complainant who wishes to proceed by pseudonym shall: 1. File with the Commission a pseudonym complaint along with an ex parte motion to allow the use of a pseudonym, and 2. Submit both documents by U.S. Mail to the Clerk's Office or by visiting a Commission office only; (b) Form of the Complaint. The pseudonym complaint shall comply with 804 CMR 1.04(1) through (6), except that it shall not include the identity of the complainant; (c) Ex parte Motion for Use of a Pseudonym. 1. The motion shall be automatically placed under protective order and shall not be disclosed to the public or the respondent pursuant to 804 CMR 1.21(3); 2. The motion shall contain the complainant's full name, and set forth, with specificity, the reasons for supporting the request; 3. If the Commission grants the motion: a. The complaint shall be processed in accordance with 804 CMR 1.05(2), and, if authorized for formal investigation under 804 CMR 1.05(3), the Commission shall serve the respondent with the pseudonym complaint and the order allowing pseudonym use; b. If the respondent cannot reasonablyidentifythe complainant, the respondent shall notify the Commission in writing within ten days of receipt of the order. The Commission shall then provide such information it deems necessary to permit the respondent to respond; c. The parties shall not include the complainant's identity in filings with the Commission. If excluding the complainant's identity from a filing is not possible, the parties shall move for a protective order to prevent public disclosure of the filing. 4. If the Commission denies the motion, the complainant shall have 30 days from the receipt of the denial to consent to the filing of the complaint using their real name. The Commission shall deem the filing date of the complaint to be the date the pseudonym motion was filed. (8) Amendments to the Complaint in General (a) Method. A complaint may be amended at any time, either by motion from the complainant, sua sponte by the Commission, or in response to an order for a more definite statement in accordance with 804 CMR 1.05(11). (b) Amended Content. A complaint or any part thereof may be amended to cure technical defects or omissions, including failure to swear to the complaint, to clarify and amplify allegations made therein, to add or remove respondents, to allege additional acts constituting unlawful discriminatory practices or claims related to or arising out of the subject matter of the original complaint. Previously dismissed claims or respondents may be reinstated by amendment sua sponte or when supported by a motion for reconsideration of probable cause under 804 CMR 1.08(4)(a). Regardless of how the amendment was made, amendments shall relate back to the original filing date of the complaint. 804 CMR - 7 (9) Procedure for Amending Complaint. (a) Sua Sponte Amendments by the Commission. Amendments shall be made in writing by the Commission and may be made at any time after the filing of the complaint and before the issuance of a public hearing decision issued pursuant to 804 CMR 1.12. The Commission shall serve each party with an amended complaint or certification order whenever sua sponte amendments are made. (b) Amendments by Motion from Complainant. Motions to amend the complaint are governed by 804 CMR 1.13. (c) Amendments to Housing Complaints. Amendments to housing complaints shall be filed within 45 days of the initial filing of the complaint or no later than five days after service of the position statement, whichever is later, unless good cause is shown to enlarge the time. Housing complaints may be amended at the discretion of the Commission. Events occurring after amending a housing complaint may be the subject of a new complaint. (d) Response to Order for a More Definite Statement. A complainant shall respond to an order issued pursuant to 804 CMR 1.05(11) with the information required by the order. The response must be filed within ten days of receipt of the order. An amended complaint incorporating the response shall be served by the Commission upon each party. (e) Response to Amendments. 1. Pre-probable Cause Amendments. If a position statement has already been filed, the respondent may amend the position statement within 14 days of receipt of amendments to the complaint. Where no position statement has yet been filed, respondent shall file a position statement in response to amendments in accordance with 804 CMR 1.05(8). 2. Post-probable Cause Amendments. The respondent may not amend the position statement post-probable cause, although they may oppose a post-probable cause motion to amend the complaint in accordance with 804 CMR 1.13 or in response to an order by the Commission. (10) Standard for Allowance of Amendments after Certification to Public Hearing. Motions to amend a complaint after certification to public hearing maybe granted if the amendment arises out of the subject matter of the initial complaint and there is no undue prejudice to a party. Nothing in 804 CMR 1.04(1) limits the discretion of the Commission to amend the complaint to conform to the evidence adduced at hearing. (11) Notice to the Parties. The Commission shall serve a copy of the original complaint and any amended complaints upon complainant and respondent except where the Commission dismisses the complaint pursuant to 804 CMR 1.05(2). (12) Withdrawal of Complaint. Withdrawal of a complaint for any reason is subject to the following provisions: (a) Within the first 90 days of filing a complaint, the complainant may request withdrawal of the complaint for the purpose of removing it to court pursuant to M.G.L. c. 151B, § 9 or for other reason, including settlement, and such request shall be in writing and shall set forth the reasons therefor. (b) The Commission may grant or deny a request to withdraw within the first 90 days of filing a complaint as the public interest requires. (c) After 90 days of filing the complaint, the complainant may withdraw the complaint as of right for any reason, including removal to court pursuant to M.G.L. c. 151B, § 9 or settlement, upon written notice to the Commission. (d) If a complainant files a complaint in court pursuant to M.G.L. c. 151B, § 9 without first withdrawing the complaint pursuant to 804 CMR 1.04(12)(a) or (c), the Commission may consider the complaint withdrawn as of the court filing date. (e) Withdrawal of a complaint at any time shall not affect the Commission's right to initiate a complaint based upon the same allegations, and such Commission initiated complaint shall relate back to the date of filing of the individual complaint. (13) Additional Requirement for Withdrawal of Complaint by Removal to Court. Any person who has withdrawn a complaint before the Commission to file an action in any court of the Commonwealth or in any federal court, which includes a claim under M.G.L. c. 151B, M.G.L. c. 151C, M.G.L c. 272, §§ 92A, 98, or 98A, or any other statutes under the jurisdiction of the Commission, shall promptly provide the Commission with a copyof the complaint filed in court. 804 CMR - 8