Investigation and Answer of Complaint

(1) Preservation of Evidence. Upon notice of the complaint, parties shall preserve all manner and forms of information and documents that are or may lead to evidence relevant to the complaint of discrimination. Failure to so preserve may result in a rebuttable presumption concerning the evidence against the party failing to make such preservation. The Commission may issue sanctions pursuant to 804 CMR 1.22 related to the failure to preserve evidence. For purposes of the duty to preserve evidence, notice of the complaint may occur during preliminary investigation pursuant to 804 CMR 1.05(2)(a) or after formal service of the complaint pursuant to 804 CMR 1.05(3). (2) Preliminary Investigation. The Commission shall undertake a preliminary investigation of a complaint to determine if further investigation utilizing the process within 804 CMR 1.05(4) through (10) would serve the public interest and may dismiss a complaint after preliminary investigation subject to the following provisions: (a) Manner of Investigation. A preliminary investigation shall be undertaken to decide whether to authorize a complaint for formal investigation or to dismiss the complaint pursuant to 804 CMR 1.05(2)(b). The Commission shall have discretion to investigate complaint details in any manner necessary to achieve these purposes, which may include outreach to the parties, witnesses, and other persons, reviewing documents and gathering additional information. (b) Grounds for Dismissal. The Commission may dismiss a complaint after preliminary investigation for any of the following reasons: 1. lack of standing; 2. lack of jurisdiction; 3. untimeliness; 4. failure to state a claim of discrimination; 5. frivolous claims; 6. allegations are implausible or incapable of verification; 7. the alleged discriminatory conduct has been sufficiently remediated or resolved; 8. insufficient nexus between protected class and allegedly discriminatory conduct; or 9. the public interest requires focusing Commission resources on complaints with greater impact on the mission to eradicate discrimination. (c) Notice of Dismissal. If the Commission determines that authorization of a formal investigation would not serve the public interest pursuant to 804 CMR 1.05(2), the Commission shall state the reasons for the determination in a dismissal notice served upon complainant and any respondent notified of the complaint. Such dismissal notice, whether issued within the first 90 days of the filing of the complaint or later, shall constitute authorization for the complainant to pursue a civil action pursuant to M.G.L. c. 151B, § 9. (d) Appeal of Dismissal. The complainant may appeal a dismissal issued pursuant to 804 CMR 1.05(2)(b) by filing a notice of appeal pursuant to 804 CMR 1.08(4)(b). (3) Notice of Authorization of Formal Investigation. Upon the authorization of a formal investigation, the Commission shall serve respondent with the complaint. Service to respondent shall include notice of their procedural rights and obligation to respond. (4) Manner of Formal Investigation. Upon authorization pursuant to 804 CMR 1.05(3), the Commission may undertake investigation of the complaint by field visit, written or oral inquiry, review of evidence submitted, conference, or any other method deemed suitable within the discretion of the Commission, none of which shall be subject to 804 CMR 1.10. Such investigation may include, but is not limited to: (a) Interviews of parties, witnesses, or other persons; (b) Requests for production or inspection of documents and other tangible things; (c) Issuance of subpoenas requiring the attendance of persons or the production for examination of documents and other tangible things in accordance with 804 CMR 1.14; (d) Requests for information from any party; (e) Conducting depositions; and (f) Seeking input from parties in preparing formal information requests or conducting investigative conferences. 804 CMR - 9 (5) Prompt Investigation. (a) Housing Complaints. The investigation of a complaint alleging discrimination in housing cases shall be completed in no more than 100 days after receipt of the complaint, unless it is impracticable to do so. (b) Complaints Other than Housing Complaints. The investigation of a complaint alleging discrimination in all areas within the jurisdiction of the Commission other than housing complaints shall be completed in no more than 18 months following receipt of the complaint, unless it is impracticable to do so. (c) Notification of Delay. The Commission shall notify the parties if it is unable to complete the investigation within the time periods in 804 CMR 1.05(5)(a) and (b). (6) Commission's Right to Investigate. No waiver or other agreement signed by any individual shall affect the Commission's right to investigate any complaint filed before it or to initiate a complaint to enforce the Commonwealth's anti discrimination statutes. The Commission may investigate information related to allegations of unlawful discrimination prior to initiating proceedings under 804 CMR 1.18. (7) Deferral of Investigation. Whenever the Commission has reason to believe that another forum, having jurisdiction over the parties and subject matter contained in a complaint filed with the Commission, is conducting a prompt and thorough investigation of such complaint in a manner consistent with the requirements and standards of the Commission, the Commission may defer the investigation of the complaint until such other forum has completed its investigation or resolved the complaint, subject to the following provisions: (a) The Commission shall notify the parties in writing of any decision to defer investigation of a complaint until after investigation or resolution of such complaint by another forum. (b) Upon the conclusion of the investigation or resolution of the complaint by another forum, the Commission shall make a determination in accordance with 804 CMR 1.08(1)(a). (8) Answer to the Complaint: Position Statement. (a) Form and Timing. Each respondent shall file an answer to the complaint in the form of a position statement as follows: The position statement shall be filed either within 21 days of receipt of the notice of authorized formal investigation or within 21 days of receipt of an amended complaint filed pursuant to 804 CMR 1.04(9)(d) if the amended complaint is received before the filing of the position statement. Upon written request by the respondent, and for good cause shown, the Commission may grant an extension in which to file the position statement not to exceed 21 days absent exceptional circumstances. (b) Failure to File. Upon failure to provide a position statement, the Commission may issue a notice of consequences in accordance with 804 CMR 1.07(1). (c) Service. Each respondent shall serve the position statement upon the Commission, the complainant, and counsel. (d) Content. The position statement shall assert all jurisdictional and other defenses which the respondent wishes to raise and shall also contain a full and complete description of the respondent's positions in response to all allegations of the complaint. The position statement shall be signed and affirmed by the respondent. Signature and affirmation shall include: 1. A signature under the pains and penalties of perjury by each respondent, which in the case of a corporate respondent shall be a principal of respondent, or a person, other than counsel, authorized to act for the respondent; and 2. If a respondent is represented by an attorney, the position statement shall also be signed by counsel. (e) Amendments. A position statement may only be amended in accordance with 804 CMR 1.04(9)(e). (9) Rebuttal to the Position Statement. (a) Rebuttal Encouraged. Rebuttals to the position statement are not required, but are strongly encouraged and may be requested by the Commission to assist in the investigation of the complaint. (b) Form and Timing. Within 21 days of service of a position statement or a request for rebuttal from the Commission, a complainant may file a rebuttal to the respondent's position statement. Rebuttals shall be in writing, except that pro se complainants may be permitted 804 CMR - 10 by the Commission to provide a verbal rebuttal. Upon written request of the complainant, and for good cause shown, the Commission may grant an extension of not more than 21 days to file the rebuttal absent exceptional circumstances. (c) Service. A complainant shall serve a copy of the written rebuttal on a pro se respondent or on respondent's representative, unless the rebuttal is subject to a protective order pursuant to 804 CMR 1.05(12). (10) Investigative Conference. (a) Notice. The Commission may convene one or more investigative conferences for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement. Notice of the investigative conference shall be provided to all parties at least 14 days prior thereto and may identify the individuals requested to attend on behalf of a party. (b) Rescheduling. Parties may request to reschedule the investigative conference for good cause by submitting a written request to the Commission, which shall be granted at the discretion of the Commission. (c) Participants. A party may be accompanied at an investigative conference by their representative. An attorney for a party not previously having entered an appearance shall do so at the beginning of the investigative conference. Participation by any other person other than a representative shall be at the discretion of the Commission. (d) Conduct. The Commission shall conduct the investigative conference and control the proceedings. Parties and their representatives may be questioned by the Commission about the issues under investigation, and may be permitted to make a brief statement. No audio, visual, digital, or other verbatim recordingof the conference maybe made. The Commission shall decide who shall be heard and the order in which they are heard. The Commission may exclude witnesses and other persons from the investigative conference. (e) Failure to Attend. The failure of a complainant to attend the investigative conference after due notice may result in an adverse disposition in accordance with 804 CMR 1.08. The failure of a respondent to attend the investigative conference after due notice may result in investigative default in accordance with 804 CMR 1.07. The Commission may sanction any party failing to attend or requesting more than one continuance without good cause as provided for in 804 CMR 1.22. (11) Motion for More Definite Statement. If a complaint is so vague or ambiguous that the respondent cannot reasonably be expected to take an informed legal position concerning the relevance of evidence sought, the Commission may sua sponte, or upon motion, order a more definite statement. A motion for a more definite statement is subject to 804 CMR 1.13 and shall be filed within ten days of receipt of the complaint. Such motion shall describe the defects complained about and details desired. The complainant's response to an order for a more definite statement is governed by 804 CMR 1.04(9)(d). (12) Protective Orders. A party may request a protective order to prevent the disclosure of informationprovided duringthe investigation for good cause shown. The Commission mayseek a response from the non-requesting party. Information that is subject to a protective order as requested by a party or issued sua sponte by the Commission shall not be disclosed during the investigation of the matter, but, unless otherwise provided, may be subject to discovery by the parties after an investigative disposition.