Employment – Contractual limitations period – Chapter 151B

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Where a plaintiff has alleged racial discrimination in violation of G.L.c. 151B, a motion to dismiss the complaint based on a 180-day limitations period in the plaintiff’s employment contract should be denied, as that contractual provision does not specifically mention claims of discrimination and, thus, does not clearly and unmistakably apply to Chapter 151B claims.

“Plaintiff Cayse Llorens, a Black male, is the former Chief Executive Officer (‘CEO’) of Defendant LexShares, Inc. (‘LexShares’). Llorens’s relationship with the board of directors of LexShares (‘Board’) soured throughout 2022, and the Board decided to replace him at the end of the year. Llorens resigned rather than be terminated. He then sued LexShares and Defendants David Rosner and Frank van Lint — the chairman of the Board and a Board member, respectively — alleging racial discrimination in violation of Massachusetts General Laws Chapter 151B (‘Chapter 151B’). …

“Defendants first argue that Llorens’s claim is time-barred because he failed to file his MCAD charge and lawsuit within the 180-day limitations period set forth in his employment contract. …

“Defendants claim that Llorens’s employment contract shortened these statutory deadlines to 180 days. … The Massachusetts Supreme Judicial Court (‘SJC’) has held, however, that ‘an employment contract containing an agreement by the employee to limit or waive any of the rights or remedies conferred by [Chapter] 151B is enforceable only if such an agreement is stated in clear and unmistakable terms.’ … Thus, the 180-day limitations period in Llorens’s employment contract is enforceable with regard to his Chapter 151B claim only if the shortened period clearly and unmistakably applies to such claims.

“To clearly and unmistakably apply to Chapter 151B claims, a contract must, at minimum, state that the relevant waiver or limitation applies to discrimination claims. … A contractual provision does not clearly and unmistakably apply to Chapter 151B claims if it merely references disputes relating to ‘employment’ or the ‘termination of employment’ without any further specificity. …

“The language in Llorens’s employment contract does not satisfy this standard. The contract imposes a 180-day limitations period for ‘any claim against the Company [LexShares] relating to the employment relationship between the Company and Employee [Llorens] (including the termination of the employment relationship).’ … This provision does not specifically mention claims of discrimination and, thus, does not clearly and unmistakably apply to Chapter 151B claims. Llorens’s Chapter 151B claim is not time-barred. …

“Defendants next argue that Llorens has not plausibly alleged a claim of racial discrimination against LexShares under Chapter 151B. …

“Llorens has plausibly alleged the elements of a prima facie case of discrimination. …

“The Court therefore denies the motion to dismiss with regard to LexShares.”

Individual liability

“Finally, Defendants contend that Llorens has failed to adequately allege that Rosner and van Lint violated Chapter 151B. …

“Llorens does not specify which provision of Chapter 151B he alleges Rosner and van Lint violated, but his complaint does not state a plausible claim under either theory of individual liability. Most of the allegations in the complaint regard decisions made by the Board as a whole. As to the individual defendants specifically, the complaint alleges that Rosner admitted on multiple occasions to disregarding Llorens’s emails and proposals; that Rosner and van Lint informed Llorens of various Board decisions and delivered his performance evaluation; that Rosner excluded Llorens from compensations conversations; and that Rosner and van Lint threatened to cancel a meeting with a prospective buyer because Llorens planned to bring a scribe. These allegations do not support a plausible inference that Rosner and van Lint personally acted with intent to discriminate on the basis of race, which is a necessary element for liability under either §4(4A) or §4(5).

“The Court therefore allows the motion to dismiss with regard to Rosner and van Lint. This decision is without prejudice to the filing of an amended complaint with additional factual allegations to establish a plausible claim against Rosner and van Lint under Chapter 151B.”

Llorens v. LexShares, Inc., et al. (Lawyers Weekly No. 02-563-24) (15 pages) (Saris, J.) (Civil Action No. 24-cv-12452-PBS) (Dec. 3, 2024).

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