Opinion
19-P-393
03-05-2020
John MANSIR v. BJ'S WHOLESALE CLUB, INC., & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff John Mansir, proceeding pro se, appeals from a judgment dismissing his complaint against BJ's Wholesale Club, Inc. (BJ's), and the Massachusetts Commission Against Discrimination (MCAD). We affirm.
Mansir worked at the delicatessen department at one of BJ's stores, until BJ's terminated Mansir's employment on December 12, 2015. Mansir alleges that he was fired after one of his coworkers informed BJ's that he was a registered sex offender. In January of 2017, Mansir filed an administrative complaint at MCAD, alleging that BJ's actions amounted to unlawful discrimination. MCAD dismissed that complaint as untimely, because it fell outside the 300-day limitations period set forth in G. L. c. 15lB, § 5. Mansir then filed the current action in the Superior Court seeking to appeal from MCAD's decision not to pursue enforcement against BJ's and to bring a direct action against BJ's for discrimination. Specifically, Mansir alleged that BJ's asked improper questions during his online inquiry and his interview, harbored the employee who unlawfully disclosed Mansir's criminal record, and unlawfully terminated him because of his criminal record. Mansir based his action on G. L. c. 151B, § 4, and G. L. c. 274, § 4 (which makes it a criminal act to harbor felons).
MCAD filed a motion to dismiss Mansir's claims against it based on the grounds that its investigatory decision is not subject to judicial review and that Mansir failed to state a claim on which relief could be granted. A Superior Court judge allowed that motion, a ruling that plainly was correct. See Grandoit v. Massachusetts Comm'n Against Discrimination, 95 Mass. App. Ct. 603 (2019) (Superior Court had no jurisdiction to consider civil actions seeking review of determinations by MCAD's investigating commissioners after preliminary hearings, where preliminary hearings were not adjudicatory proceedings under G. L. c. 30A and such review would be inconsistent with MCAD's enabling statute, G. L. c. 151B); Mass. R. Civ. P. 12, 365 Mass. 754 (1974). A different Superior Court judge dismissed Mansir's claim against BJ's based on an alleged violation of G. L. c. 274, § 4, on the ground that this criminal statute did not create a private right of action. See Mass. R. Civ. P. 12 (b) (1) and (6). The second judge also dismissed the remainder of Mansir's case against BJ's based on his failure to file an administrative complaint within the statutory limitations period. It is this ruling that is the primary focus of Mansir's appeal.
The Legislature has required that someone seeking to bring a discrimination claim pursuant to G. L. c. 15lB, § 5, first file an administrative complaint within 300 days after the alleged act of discrimination. We agree with BJ's argument that the statutory period began to run at least by December 12, 2015, the date that Mansir was notified of his firing and thus, the date he knew or should have known that he had been injured. See Riley v. Presnell, 409 Mass. 239, 243 (1991) ("One need not apprehend the full extent or nature of an injury in order for a cause of action to accrue"). We are unpersuaded by Mansir's various arguments that the statutory limitations period should be tolled, or ignored because of the "public significance" of his case. See Adamczyk v. Augat, Inc., 52 Mass. App. Ct. 717, 724 (2001) ("Courts apply the principle of equitable tolling sparingly in employment discrimination cases"). There was no error in the judge's ruling that Mansir's discrimination claims against BJ's were time barred. See Flint v. Boston, 94 Mass. App. Ct. 298, 303 (2018).
For example, Mansir unconvincingly argues that the limitations period should be tolled while he was pursuing unemployment benefits. Moreover, the unemployment benefits proceeding concluded in his favor on June 3, 2016, which left ample time for him to file his MCAD complaint.
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Judgment affirmed.