Investigative Dispositions, Complaint Dismissals and Appeal

(1) Types of Investigative Dispositions. In addition to an investigative disposition issued under 804 CMR 1.05(2), the Commission may conclude the investigation of a complaint as follows: (a) Substantial Weight Granted to Investigation by Another Forum. After deferral of an investigation pursuant to 804 CMR 1.05(7), if it appears that the Commission's requirements and standards have been met, the Commission may accord substantial weight to the findings or resolution of the other forum and close the investigation or prosecute the complaint pursuant to 804 CMR 1.08(1)(f)1. (b) Withdrawal of Complaint. The Commission shall dismiss a complaint properly withdrawn pursuant to 804 CMR 1.04(12), although it may decide to file a Commission initiated complaint based on the same allegations pursuant to 804 CMR 1.18. (c) Lack of Jurisdiction. Whenever the Commission determines that the Commission lacks jurisdiction over the parties or subject matter of the complaint, the Commission shall dismiss the complaint and shall notify the parties in writing, stating the reasons therefor. 804 CMR - 12 (d) Administrative Dismissal. The Commission may administratively dismiss a complaint for reasons including, but not limited to, bankruptcy, death of a party, inability to locate a party, adjudication by another forum, unreasonable refusal by complainant to cooperate with processing the case, failure to participate, or refusal to accept a reasonable settlement offer pursuant to the criteria of 804 CMR 1.09(11). In addition, conduct providing grounds for sanctions in 804 CMR 1.22 is an independent basis for administrative dismissal of the complaint. Administrative dismissal shall be subject to the following provisions: 1. Before dismissing a matter because of inability to locate a party, the Commission shall provide notice to the party stating that the matter shall be dismissed if a response is not received within 30 days. Such notice shall be provided to the last address reported to the Commission by the party. The Commission shall allow 30 days for response before administratively dismissing the matter. 2. Unreasonable refusal by complainant to cooperate with processing of the case may include, but is not limited to, failure to provide information, materials or responses which are necessary for investigation of the complaint, failure to cooperate with counsel for the Commission in the prosecution of the complaint, or failure to comply with an order issued by the Commission. 3. When practicable, in any matter administratively dismissed, written notice shall be provided to the complainant, including the reasons for the dismissal. 4. An administrative dismissal shall not constitute a final order for purposes of exercising rights provided under M.G.L. c. 151B, § 6 or M.G.L. c. 30A. 5. The Commission may reopen an administratively dismissed case for good cause shown. (e) Settlement. The Commission may dismiss a complaint due to settlement of the complaint under the following conditions: 1. Notification to Commission. Parties shall promptly notify the Commission in writing upon reaching a settlement. 2. Review and Availability of Settlement Terms. a. The Commission may require the parties to submit the terms of such settlement in writing to the Commission for review. b. The Commission may keep settlement terms confidential at the request of the parties unless confidentiality is precluded by law, Commission contractual agreements, or compelling public policy considerations. c. If it appears from the facts of the complaint and the terms of settlement that the public interest has been served, the Commission may dismiss the complaint without a determination as to whether probable cause existed to credit the allegations of the complaint, and shall so notify the parties in writing. (f) Determinations after Formal Investigation. 1. Probable Cause. After formal investigation, when a probable cause determination is recommended by the Commission, a Commissioner shall be assigned. A determination of probable cause shall be made when the assigned Commissioner concludes that there is sufficient evidence upon which a fact finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice or violated a statute under the Commission's jurisdiction. The assigned Commissioner shall preside over the matter post-probable cause through certification to public hearing. Right to Elect Judicial Determination. If the Commission finds probable cause to credit the allegations of anyhousing complaint, the Commission shall immediatelyserve notice upon complainant and respondent of the right to elect judicial determination of the complaint pursuant to M.G.L. c. 151B, § 5. 2. Lack of Probable Cause. If the Commission determines after formal investigation of the complaint that there is insufficient evidence to support a determination of probable cause to credit the allegations of the complaint, a lack of probable cause determination shall be issued and the complaint shall be dismissed. Notice of a lack of probable cause determination shall be issued within ten days from such determination. (2) Complaint Dismissals after a Probable Cause Determination. The Commission maydismiss a complaint utilizing the procedures within 804 CMR 1.08(1)(b), (c), (d), or (e) at any time after the issuance of a probable cause determination pursuant to 804 CMR 1.08(1)(f)1., including that the Commission shall dismiss the complaint upon referral to the Attorney General after a party's election of judicial determination of a housing practice pursuant to M.G.L. c. 151B, § 5. 804 CMR - 13 (3) Notice of Investigative Disposition. The Commission shall provide written notice of the investigative disposition to the parties, including whether the complaint has been dismissed or remains open and subject to further process. (4) Reconsideration or Appeal of Investigative Disposition. (a) Motion for Reconsideration of Probable Cause Determination. Any party may move for reconsideration of a probable cause determination for good cause at any time prior to the issuance of a certification order pursuant to 804 CMR 1.11(4), subject to the following requirements: 1. Grounds for a motion for reconsideration of a probable cause determination filed by a complainant shall be limited to argument that the pre-probable cause removal of claims or respondents from the complaint was in error or based on evidence obtained in discovery that supports reinstatement of a previously dismissed claim or respondent. 2. A motion for reconsideration from a respondent which is based on the absence of a genuine issue of material fact shall be filed after the close of discovery and before the issuance of a certification order. 3. Motions for reconsideration shall be served in accordance with 804 CMR 1.13. 4. The Commission shall render a decision on the motion for reconsideration, as soon as reasonably practicable. 5. The Commission may issue an order reversing the probable cause determination, reopening the matter for further investigation, modifying the probable cause determination, amending the complaint, or taking such other action as is deemed necessary in the interests of justice. 6. Upon reversal or modification of a probable cause determination, complainant does not have a right to a preliminary appeal pursuant to 804 CMR 1.08(4)(b) or a right to review under M.G.L. c. 151B, § 6 or M.G.L. c. 30A. (b) Preliminary Appeal. The complainant may appeal an investigative disposition entered under 804 CMR 1.08(1)(c) and (f)2. as well as a dismissal pursuant to 804 CMR 1.05(2) by filing a notice of appeal within ten days after receipt of the notice of investigative disposition or dismissal. Notices of appeal filed beyond ten days after the receipt of the notice of investigative disposition shall not be allowed. The Commission shall notify all parties of the appeal, provided they received notice of the dismissal of the investigation under 804 CMR 1.05(2)(c). The following provisions apply to all preliminary appeals: 1. All appeals shall be made in writing. 2. The Commission may hold a live hearing at its discretion. No audio, visual, digital, or other verbatim recording of the live hearing may be made. The hearing may be held in person, telephonically, virtually, or in writing at the discretion of the Commission. 3. Written appeals are due within 14 days of the filing of the notice of appeal. Extensions of time to file written appeals will not be granted without a showing of good cause. The Commission shall allow no more than one extension. 4. The Commission shall not consider written appeals filed after the original or extended deadline. 5. Appeals shall include reasons why the determination was made in error and supporting evidence. 6. The preliminary appeal shall not be subject to the requirements of M.G.L. c. 30A and the determination shall not be subject to Full Commission or judicial review under M.G.L. c. 151B, § 6 or M.G.L. c. 30A. 7. If notified of the appeal pursuant to 804 CMR 1.08(4)(b), the respondent may also be permitted to present reasons why the determination should be sustained along with supporting evidence as appropriate. 8. In assessing the appeal, the Commission may request additional information and evidence. 9. The Commission may, upon review of evidence presented: a. affirm the disposition; b. reverse the disposition and issue a probable cause determination; c. reverse the disposition and authorize or continue a formal investigation; d. modify the disposition; or e. take such other action as deemed necessary in the interest of justice. 804 CMR - 14