FEPA Discrimination Charge and Right-to-Sue Procedure — Massachusetts

FEPA Discrimination Charge and Right-to-Sue Procedure (MASSACHUSETTS)

Quick-Reference Summary

Part A — Pre-Filing Eligibility Memo

MEMORANDUM — PRIVILEGED AND CONFIDENTIAL

TO: File — [CLIENT NAME]
FROM: [ATTORNEY NAME], BBO No. [________]
DATE: [__/__/____]
RE: Pre-Filing Eligibility Analysis — MCAD Charge under G.L. c. 151B

1. Client and Employer Identification

2. Coverage Analysis

☐ Employer has 6 or more employees in Massachusetts (G.L. c. 151B, § 1(5))
☐ Complainant was an "employee" (not bona fide independent contractor; not partner)
☐ Massachusetts employment nexus — work performed, decision made, or harm felt in MA
☐ Federal coverage analysis (Title VII: 15+; ADA: 15+; ADEA: 20+) for dual-filing strategy

3. Protected Class and Adverse Action

4. Statute of Limitations (300 Days)

☐ Continuing violation analysis applies (hostile environment / serial discrimination)
☐ Equitable tolling considered (incapacity, fraudulent concealment, agency interference)
☐ Tolling agreement explored under 804 CMR 1.10(3)
☐ Federal SOL (300 days; EEOC dual filing) also satisfied

5. Causation Evidence Summary

[NARRATIVE — Identify: direct evidence (statements, communications); comparators (similarly situated employees outside the class treated more favorably); temporal proximity (gap between protected activity and adverse action); shifting / pretextual reasons offered by employer; statistical evidence; performance history.]

6. Damages Estimate

7. Forum Strategy

☐ File at MCAD; remain at MCAD through public hearing (no filing fee; agency investigates)
☐ File at MCAD; remove to Superior Court after 90 days under § 9 (jury; broader discovery)
☐ Dual-file with EEOC for federal Title VII / ADA / ADEA claims
☐ Local ordinance — Boston Human Rights Commission / Cambridge HRC (if applicable)

8. Recommendation

[ATTORNEY'S RECOMMENDATION — file / decline / further investigation; deadline driver; client counseled on options on [__/__/____].]

Part B — Charge of Discrimination (MCAD Filing)

COMMONWEALTH OF MASSACHUSETTS
COMMISSION AGAINST DISCRIMINATION
ONE ASHBURTON PLACE, 6TH FLOOR
BOSTON, MASSACHUSETTS 02108

VERIFIED COMPLAINT OF DISCRIMINATION
MCAD Docket No. [__________] (to be assigned)
EEOC Charge No. [__________] (cross-filed)

1. Parties

2. Causes Of Discrimination (check all that apply)

☐ Race / color — G.L. c. 151B, § 4(1)
☐ Religious creed — § 4(1)
☐ National origin / ancestry — § 4(1)
☐ Sex (including pregnancy and lactation) — § 4(1), § 4(1E)
☐ Sexual orientation — § 4(1)
☐ Gender identity — § 4(1)
☐ Age (40+) — § 4(1B)
☐ Disability / handicap — § 4(16)
☐ Genetic information — § 4(19)
☐ Military / veteran status — § 4(1)
☐ Sexual harassment — § 3A and § 4(16A)
☐ Failure to provide reasonable accommodation — § 4(16) (disability) or § 4(1A) (religion)
☐ Pregnancy / lactation accommodation — § 4(1E)
☐ Retaliation — § 4(4), § 4(4A)
☐ Aiding / abetting — § 4(5)

3. Date of Most Recent Discrimination

Date of most recent discriminatory act: [__/__/____]
Date of filing: [__/__/____]
Days elapsed: [____] (must be ≤ 300 under § 5)

4. Statement of Particulars

I, [COMPLAINANT NAME], state the following facts under the pains and penalties of perjury:

1. I am a member of the following protected class(es): [LIST CLASSES — e.g., "female; over the age of 40; perceived disability"].

2. I was employed by Respondent from [__/__/____] until [__/__/____] as a [TITLE] at Respondent's [LOCATION] facility. My direct supervisor was [NAME], [TITLE]. The decision-maker for the adverse action complained of was [NAME], [TITLE].

3. Throughout my employment I met or exceeded Respondent's legitimate performance expectations, as evidenced by [PERFORMANCE REVIEWS / AWARDS / METRICS — Ex. C-1].

4. On or about [__/__/____], [DESCRIBE FIRST DISCRIMINATORY ACT — what happened, who said/did what, who was present, what was said verbatim where possible].

5. On or about [__/__/____], [DESCRIBE SUBSEQUENT ACTS — escalating discipline, denial of accommodation, harassment, retaliation].

6. On or about [__/__/____], Respondent took the following adverse employment action against me: [TERMINATION / DEMOTION / FAILURE TO PROMOTE / OTHER]. The stated reason was [STATED REASON].

7. The stated reason is pretextual. The true reason was my [PROTECTED CLASS]. Evidence of pretext includes:
   a. Direct statements: [QUOTE STATEMENTS BY DECISION-MAKER];
   b. Comparators: [NAME EMPLOYEES OUTSIDE THE CLASS WHO ENGAGED IN SIMILAR CONDUCT BUT WERE NOT DISCIPLINED];
   c. Temporal proximity: The adverse action occurred [____] days after my protected activity / disclosure of [PROTECTED CHARACTERISTIC];
   d. Shifting reasons: Respondent has given the following inconsistent reasons: [LIST];
   e. Statistical pattern: [DESCRIBE WORKFORCE COMPOSITION IF KNOWN].

8. As a direct and proximate result of Respondent's unlawful conduct, I have suffered: lost wages and benefits; emotional distress, including [SYMPTOMS]; damage to professional reputation; and other harm.

5. Relief Requested

Complainant requests that the Commission:

☐ Investigate and find probable cause that Respondent violated G.L. c. 151B, §§ 4 and 3A
☐ Order Respondent to cease and desist from the unlawful practice
☐ Order reinstatement to position held or comparable position
☐ Award back pay with interest from [__/__/____] to the date of reinstatement
☐ Award front pay where reinstatement is not feasible
☐ Award compensatory damages for emotional distress
☐ Award punitive damages
☐ Order Respondent to provide anti-discrimination training to managers
☐ Order posting of MCAD's "Equal Opportunity is the Law" notice
☐ Award attorney's fees and costs under § 5

6. Verification

I, [COMPLAINANT NAME], have read the foregoing Complaint and know its contents. The factual allegations are true based on my personal knowledge, except those alleged on information and belief, which I believe to be true. Signed under the pains and penalties of perjury.

[COMPLAINANT SIGNATURE]
[PRINTED NAME]
Date: [__/__/____]

Sworn and subscribed before me this [__] day of [_____], [____].

[NOTARY PUBLIC SIGNATURE]
[NOTARY PRINTED NAME]
My commission expires: [__/__/____]

Part C — Right-to-Sue / Removal Demand Letter

[LAW FIRM LETTERHEAD]
[DATE]

VIA MCAD E-COMPLAINT PORTAL AND CERTIFIED MAIL, RRR

Investigating Commissioner
Massachusetts Commission Against Discrimination
One Ashburton Place, 6th Floor
Boston, MA 02108

Re: [COMPLAINANT] v. [RESPONDENT] — MCAD Docket No. [__________]
Notice of Removal to Superior Court Pursuant to G.L. c. 151B, § 9
(or, Alternatively, Request for Commissioner's Written Assent to Early Removal Under 804 CMR 1.10)

Dear Investigating Commissioner [NAME]:

This office represents the Complainant in the above-referenced matter. Pursuant to G.L. c. 151B, § 9 and 804 CMR 1.10, please accept this letter as Complainant's formal notice of intent to commence a civil action in the Superior Court for [COUNTY] County, Massachusetts.

1. Procedural Status

2. Removal at Expiration of 90-Day Period

☐ The 90-day period has expired. Complainant elects to remove this matter to court as of right under G.L. c. 151B, § 9. Please dismiss the MCAD complaint without prejudice within 10 days.

3. Alternatively — Request for Commissioner's Assent to Early Removal

☐ The 90-day period has not yet expired. Complainant requests the Investigating Commissioner's written assent to early removal under 804 CMR 1.10 for the following reasons:

[REASONS — e.g., (i) the parties have completed substantial discovery and further MCAD investigation is unlikely to add value; (ii) federal claims are pending in EEOC parallel proceedings; (iii) Respondent has filed for bankruptcy / sold assets; (iv) the statute of limitations for related claims is running; (v) Complainant requires jury trial relief unavailable at MCAD.]

4. Acknowledgment of Consequences

Complainant acknowledges and accepts that, upon removal:

• The MCAD complaint will be dismissed without prejudice;
• Complainant is barred from re-filing the same grievance at MCAD;
• Complainant must file the civil action no later than three years after the alleged unlawful practice (G.L. c. 151B, § 9);
• All claims arising from the same factual nucleus must be brought in the civil action.

5. Cooperation and Records

Complainant requests that MCAD transfer its investigative file to Complainant's counsel within 30 days under the public-records provisions, and that the agency reserve the right to intervene as amicus where the public interest is implicated.

Respectfully,

[ATTORNEY SIGNATURE]
[ATTORNEY NAME], BBO No. [________]
[FIRM NAME]
[ADDRESS]
[(___) ___-____] / [EMAIL]

cc: [RESPONDENT'S COUNSEL]
[CLIENT]
EEOC Boston Area Office (cross-filed Charge No. [__________])

Part D — Pre-Suit Civil Complaint (Superior Court Template)

COMMONWEALTH OF MASSACHUSETTS
[COUNTY] COUNTY, ss.
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. [__________]

COMPLAINT AND DEMAND FOR JURY TRIAL

I. INTRODUCTION

1. This is a civil action for employment discrimination, retaliation, and related claims brought pursuant to G.L. c. 151B, §§ 4 and 9, following exhaustion of administrative remedies before the Massachusetts Commission Against Discrimination (MCAD Docket No. [__________]) and removal to this Court under § 9.

II. PARTIES, JURISDICTION, AND VENUE

2. Plaintiff [NAME] is a natural person residing at [ADDRESS], [CITY], Massachusetts.

3. Defendant [LEGAL ENTITY] is a [STATE OF INCORPORATION] [corporation/LLC] with its principal place of business at [ADDRESS], registered to do business in Massachusetts, and is an "employer" within the meaning of G.L. c. 151B, § 1(5) (six or more employees).

4. This Court has subject-matter jurisdiction under G.L. c. 212, § 4 and G.L. c. 151B, § 9. Venue is proper in [COUNTY] County under G.L. c. 223, § 1 because the unlawful practice occurred at Defendant's facility located at [ADDRESS].

III. ADMINISTRATIVE EXHAUSTION

5. Plaintiff filed a verified Charge of Discrimination with MCAD on [__/__/____], within 300 days of the most recent discriminatory act.

6. More than 90 days have elapsed since the MCAD filing. Plaintiff served notice of removal on [__/__/____], and MCAD dismissed its proceeding without prejudice on [__/__/____].

7. Plaintiff timely received a Notice of Right to Sue from the EEOC on [__/__/____] and files this action within 90 days of receipt.

IV. FACTUAL ALLEGATIONS

[Numbered paragraphs 8 through [__], tracking the Statement of Particulars from Part B, expanded with additional discovery facts and decision-maker statements.]

V. CAUSES OF ACTION

COUNT I — Discrimination on the Basis of [PROTECTED CLASS] (G.L. c. 151B, § 4(1))

COUNT II — Retaliation (G.L. c. 151B, § 4(4), § 4(4A))

COUNT III — Sexual Harassment (G.L. c. 151B, § 3A and § 4(16A)) (if applicable)

COUNT IV — Failure to Provide Reasonable Accommodation (G.L. c. 151B, § 4(16)) (if applicable)

COUNT V — Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (if dual-filed)

COUNT VI — Age Discrimination in Employment Act (29 U.S.C. § 621 et seq.) (if applicable; jury trial of right)

COUNT VII — Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) (if applicable)

COUNT VIII — Wrongful Termination in Violation of Public Policy (if applicable)

COUNT IX — Intentional Infliction of Emotional Distress (if pleaded; high bar)

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

a. Enter judgment in favor of Plaintiff on each Count;
b. Award back pay with prejudgment interest at 12% per annum (G.L. c. 231, § 6B);
c. Award front pay in lieu of reinstatement;
d. Award compensatory damages for emotional distress, mental anguish, and damage to reputation;
e. Award punitive damages;
f. In the case of age discrimination, award treble damages under G.L. c. 151B, § 9 upon a finding that the violation was committed with knowledge;
g. Award attorney's fees and costs under G.L. c. 151B, § 9;
h. Enter injunctive relief requiring Defendant to (i) cease and desist; (ii) reinstate Plaintiff; (iii) provide anti-discrimination training; (iv) post notice;
i. Grant such other and further relief as the Court deems just and proper.

VII. JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.

Respectfully submitted,
[PLAINTIFF NAME], by his/her attorneys,

[ATTORNEY SIGNATURE]
[ATTORNEY NAME], BBO No. [________]
[FIRM NAME]
[ADDRESS]
[(___) ___-____] / [EMAIL]

Date: [__/__/____]

Part E — Pre-Filing Checklist

1. Intake and Eligibility

☐ Confirm employer has 6+ employees (G.L. c. 151B, § 1(5))
☐ Confirm complainant is an "employee" (not independent contractor)
☐ Identify each protected class basis under § 4
☐ Confirm Massachusetts work nexus
☐ Calculate 300-day SOL from last discriminatory act
☐ Calendar 3-year § 9 civil action SOL
☐ Verify SOL has not expired; if borderline, file as soon as possible
☐ Analyze continuing-violations doctrine for hostile environment claims
☐ Consider equitable tolling / fraudulent concealment
☐ Explore tolling agreement under 804 CMR 1.10(3) only with sophisticated counterparty

2. Evidence Preservation

☐ Send litigation hold letter to Respondent before charge is filed
☐ Preserve personal copies of: offer letter, employment agreement, employee handbook, performance reviews, pay stubs, W-2s, benefit statements
☐ Preserve emails, text messages, voicemails (download from personal devices)
☐ Identify witnesses: co-workers, comparators, HR personnel, supervisors
☐ Obtain witness contact information (personal email / phone — not work)
☐ Document chronology of events in writing while memory is fresh
☐ Preserve social media (Defendant's and complainant's)
☐ Identify and preserve medical / mental health records supporting damages

3. MCAD Filing

☐ Draft Verified Complaint with detailed Statement of Particulars
☐ Have client review for accuracy; explain perjury verification
☐ Notarize complaint (or use MCAD's electronic verification process for COVID-era filings)
☐ File via MCAD e-complaint portal (attorneys) or phone intake (pro se)
☐ Confirm cross-filing with EEOC (work-sharing agreement)
☐ Obtain MCAD docket number and EEOC charge number
☐ Calendar 90-day removal date under § 9
☐ Calendar MCAD investigation milestones (position statement due in ~21 days from Respondent)

4. Post-Filing

☐ Respond promptly to MCAD investigator requests
☐ Submit rebuttal to Respondent's position statement (typically due within 30 days)
☐ Attend MCAD-scheduled mediation if offered
☐ Decide whether to remain at MCAD or remove to court after 90 days
☐ Preserve continuing-violation evidence (post-charge retaliation must be amended)
☐ Amend charge to add new acts within 300 days of each new act
☐ If removing to court, file civil action well before 3-year § 9 SOL
☐ If federal claims, file civil action within 90 days of EEOC Right-to-Sue

5. Damages Documentation

☐ Compile gross earnings history (W-2s, pay stubs)
☐ Document mitigation efforts (job applications, interviews, offers)
☐ Document mitigation income at successor employer
☐ Calculate benefit losses (health, dental, 401(k) match, ESPP, equity)
☐ Document out-of-pocket expenses (COBRA premiums, medical, therapy)
☐ Document emotional distress evidence (therapy notes if waived; family testimony)

6. Ethical and Strategic

☐ Confirm no conflict (firm has not represented Respondent or affiliates)
☐ Issue engagement letter with contingency / hybrid fee terms (Mass. R. Prof. C. 1.5)
☐ Counsel client on settlement value and litigation timeline
☐ Counsel client on tax treatment of settlements (IRC § 104(a)(2); see physical injury exception)
☐ Counsel client on impact of social-media posting during litigation
☐ Counsel client on duty not to contact represented Respondent personnel

Sources and References

• M.G.L. c. 151B (Fair Employment Practices Act): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151B
• M.G.L. c. 151B, § 4 (Unlawful practices): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151B/Section4
• M.G.L. c. 151B, § 5 (Complaints; 300-day filing): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b/Section5
• M.G.L. c. 151B, § 9 (Civil action; 3-year SOL; treble damages in age cases): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b/Section9
• M.G.L. c. 151B, § 3A (Sexual harassment): https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter151b/Section3a
• 804 CMR 1.00 (MCAD Rules of Procedure, eff. Jan. 24, 2020): https://www.mass.gov/regulations/804-CMR-100-rules-of-procedure
• MCAD — How to File: https://www.mass.gov/info-details/filing-a-discrimination-complaint-at-the-mcad
• MCAD — Filing Deadline (300 days): https://www.mass.gov/info-details/deadline-for-filing-a-complaint-of-discrimination-at-the-mcad
• MCAD e-Complaint Portal: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal
• EEOC Boston Area Office: https://www.eeoc.gov/field-office/boston/location
• EEOC / MCAD Work-Sharing Agreement: https://www.eeoc.gov/field-office/boston
• Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001) (continuing violations doctrine)
• College-Town v. MCAD, 400 Mass. 156 (1987) (employer liability for sexual harassment)
• Greater Boston Legal Services — Employment Unit: https://www.gbls.org/our-work/employment
• Volunteer Lawyers Project of the Boston Bar Association: https://www.vlpnet.org/