NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-13364

MATTHEW DUNN vs. MARIE LANGEVIN & others.1

Worcester. March 8, 2023. - July 11, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Massachusetts Commission Against Discrimination. Supreme 

Judicial Court, Superintendence of inferior courts. 

Practice, Civil, Motion to dismiss.

Civil action commenced in the Superior Court Department on 

July 29, 2020.

A motion to dismiss was heard by Janet Kenton-Walker, J.

An application for leave to prosecute an interlocutory 

appeal was allowed by Joseph M. Ditkoff, J., in the Appeals 

Court. The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Benjamin C. Rudolf for the plaintiff.

Thomas J. Conte (Alexandra N. Mansfield also present) for 

the defendants.

Patricia A. Washienko & Allison L. Williard, for 

Massachusetts Employment Lawyers Association & another, amici 

curiae, submitted a brief.

Deirdre Ann Hosler, for Massachusetts Commission Against 

Discrimination, amicus curiae, submitted a brief.

1 Mark W. Langevin and Phoenix Communications, Inc.
2

KAFKER, J. In this case, we revisit the reach of certain

emergency orders issued by this court during the early months of 

the COVID-19 pandemic. In those orders, this court, pursuant to 

its superintendence and rule-making authority, sought to reduce 

the number of people coming into Massachusetts court houses 

during the pandemic. The orders, among other measures, tolled 

"[a]ll civil statutes of limitations" between March 17, 2020, 

and June 30, 2020. The question before us is whether that 

tolling applies to the time limits established in G. L. c. 151B, 

§ 5, including those that require that claims be pursued by 

first filing a complaint with the Massachusetts Commission 

Against Discrimination (MCAD) "within 300 days after the alleged 

act of discrimination."

We answer this question in the negative. Our emergency 

orders were expressly issued pursuant to our superintendence

authority under G. L. c. 211, § 3, to oversee "the 

administration of all courts of inferior jurisdiction." The 

MCAD is an executive branch agency, not a court of inferior 

jurisdiction. We also conclude that the plaintiff is not 

entitled to benefit from equitable tolling. Not only was our

order issued pursuant to our superintendence powers over courts, 

and not independent executive branch agencies, but the MCAD also 

had its own express tolling process, which the plaintiff did not 
3

employ. We therefore affirm the dismissal of his G. L. c. 151B 

claims.2

Background. While attending a "leadership conference" run 

by his employer, Phoenix Communications, Inc., in January of 

2019, Dunn alleges that he and his girlfriend suffered sexual 

harassment at the hands of the company's president. After Dunn 

discussed the events of the conference with several other 

employees, he suffered what he claims were several acts of 

retaliation, the last of which was his termination on November 

21, 2019.

Dunn first sought relief in the Superior Court in July 2020 

via a suit that included only claims regarding unpaid wages, and 

no claims based on discrimination or retaliation. On November 

16, 2020, during the pandemic and just shy of one year after his 

termination, he filed a complaint with the MCAD alleging sexual 

harassment in violation of G. L. c. 151B, § 4 (16A), and 

retaliation in violation of G. L. c. 151B, § 4 (4). He did so 

even though such a claim must, according to G. L. c. 151B, § 5,

be filed with the MCAD within 300 days. He had also not sought 

to toll the MCAD filing deadlines even though the MCAD had its 

2 We acknowledge the amicus brief submitted by the 

Massachusetts Employment Lawyers Association and Fair Employment 

Project, Inc.; and the amicus letter submitted by the 

Massachusetts Commission Against Discrimination.
4

own COVID-related tolling process.3 Shortly thereafter he sought

to withdraw his MCAD complaint and file in the Superior Court.

The dismissal notice from the MCAD provided: "Please note that 

further administrative or judicial review of the dismissal of 

your complaint is unavailable."

After Dunn amended his existing Superior Court complaint to 

add his G. L. c. 151B claims, the defendants moved to dismiss in 

part. Those claims were barred, they argued, because Dunn's 

MCAD complaint was filed too late -- 361 days after his 

termination, the latest "alleged act of discrimination" for the 

purposes of the 300-day filing window in G. L. c. 151B, § 5. 

3 The MCAD's website included guidance under the heading

"How to Submit a Request for Tolling and Extensions." It 

provided:

"The MCAD Commissioners are keenly aware that not everyone 

may have the ability to file a Complaint during this 

crisis, and employers and businesses may not be fully 

functioning and may need additional time to respond to 

complaints.

"Please note that extending a filing deadline (tolling) and 

granting a motion requesting an extension will be 

determined on a case-by-case basis through each individual 

Investigating Commissioner.

"To submit a motion, please email a PDF of your motion to 

the investigator or staff member assigned to your case. If 

you do not know the person assigned to your investigation, 

please email mcad@mass.gov."

MCAD COVID-19 Information & Resource Center, https://web.archive

.org/web/20201103110905/https://www.mass.gov/guides/mcad-covid19-information-resource-center [https://perma.cc/KQ72-ECDU].
5

Dunn did not contest the timing calculation, but argued that the 

300-day time limit was tolled by this court's emergency orders, 

or in the alternative by equitable tolling. The motion judge 

dismissed the claims, reasoning that our emergency orders

applied only to courts, not the MCAD, and that equitable tolling 

did not apply because Dunn had failed to show that he was 

excusably ignorant of the deadline. Dunn received leave to 

pursue an interlocutory appeal from a single justice of the 

Appeals Court, and we transferred the case to this court sua 

sponte.

Discussion. "We review the grant of a motion to dismiss de 

novo, accepting as true all well-pleaded facts alleged in the 

complaint, drawing all reasonable inferences therefrom in the

plaintiff's favor, and determining whether the allegations 

plausibly suggest that the plaintiff is entitled to relief." 

Lanier v. President & Fellows of Harvard College, 490 Mass. 37, 

43 (2022).

1. MCAD requirements. "The MCAD has been charged by the 

Legislature with addressing certain types of discrimination in 

the Commonwealth . . . ." Everett v. 357 Corp., 453 Mass. 585, 

599 (2009). Those alleging claims under G. L. c. 151B cannot 

bring a civil suit to court directly; they must first file a 

verified complaint with the MCAD. See G. L. c. 151B, §§ 5-6, 9; 

Christo v. Edward G. Boyle Ins. Agency, Inc., 402 Mass. 815, 817 
6

(1988) ("It is true that, before initiating a § 9 action, the 

plaintiff must have filed a timely complaint" with MCAD); Flint

v. Boston, 94 Mass. App. Ct. 298, 303 (2018) ("Absent a timely 

MCAD complaint, a plaintiff is barred from filing a Superior 

Court action under G. L. c. 151, § 9"). Cf. Charland v. Muzi 

Motors, Inc., 417 Mass. 580, 585 (1994) ("the election to pursue 

a claim of discrimination in court applies only after the first 

step of filing with the MCAD").

Such a complaint must be filed within 300 days. G. L. 

c. 151B, § 5. However, "at the expiration of ninety days after 

the filing of a complaint with the [MCAD], or sooner if a 

commissioner assents in writing," a plaintiff may file suit in 

the Superior Court if he or she so chooses, triggering dismissal 

of the MCAD case. G. L. c. 151B, § 9. "The purpose of the 

administrative filing is '(1) to provide the MCAD with an 

opportunity to investigate and conciliate the claim of 

discrimination; and (2) to provide notice to the defendant of 

potential liability.'" Everett, 453 Mass. at 600, quoting 

Cuddyer v. Stop & Shop Supermkt. Co., 434 Mass. 521, 531 (2001).

In the instant case, the 300-day filing deadline was 

missed. There was also no attempt to toll the filing deadline 

at the MCAD, even though the MCAD had provided instructions for 

doing so on its website. The plaintiff relies instead on our 
7

emergency orders, or on equitable tolling exceptions, to excuse 

his failure to meet the MCAD filing deadline.

2. Scope of the emergency orders. In the spring of 2020,

we issued a series of emergency orders in response to the COVID19 pandemic.4 See Graycor Constr. Co. v. Pacific Theatres 

Exhibition Corp., 490 Mass. 636, 642-643 (2022) (Graycor); 

Shaw's Supermkts., Inc. v. Melendez, 488 Mass. 338, 340-341

(2021). Whether the orders operated to toll the G. L. c. 151B, 

§ 5, deadline for filing a complaint with the MCAD is a question 

of interpretation. "In interpreting rules and orders adopted by 

this court, we rely upon basic principles of statutory 

construction. Thus, we begin with the plain language of the 

4 See Order Regarding Court Operations Under the Exigent 

Circumstances Created by the COVID-19 (Coronavirus) Pandemic, 

No. OE-144 (Apr. 1, 2020), https://www.mass.gov/doc/repealedsjc-order-regarding-court-operations-under-the-exigentcircumstances-created-by-the/download [https://perma.cc/F5V5-

TPPB]; Updated Order Regarding Court Operations Under the 

Exigent Circumstances Created by the COVID-19 (Coronavirus) 

Pandemic, No. OE-144 (Apr. 27, 2020), https://www.mass.gov/doc

/repealed-sjc-updated-order-regarding-court-operations-underthe-exigent-circumstances-created/download [https://perma.cc

/JPU4-KUG3]; Second Updated Order Regarding Court Operations 

Under the Exigent Circumstances Created by the COVID-19 

(Coronavirus) Pandemic, No. OE-144 (May 26, 2020), https://www

.mass.gov/doc/repealed-sjc-second-updated-order-regarding-courtoperations-under-the-exigent-circumstances/download 

[https://perma.cc/UYT3-U4KP]; Third Updated Order Regarding 

Court Operations Under the Exigent Circumstances Created by the 

COVID-19 (Coronavirus) Pandemic, No. OE-144 (June 24, 2020), 

https://www.mass.gov/doc/repealed-sjc-third-updated-orderregarding-court-operations-under-the-exigent-circumstances

/download [https://perma.cc/5K7R-27AT].
8

order. We do not read any particular provision in isolation 

but, rather examine its meaning in the context of the order as a 

whole" (quotation and citations omitted). Graycor, supra at

643-644.

This interpretive exercise echoes the one we undertook in 

Graycor. There, we considered whether the same orders tolled 

the statutory deadline for recording a notice of contract in the 

registry of deeds pursuant to G. L. c. 254, § 2. Graycor, 490 

Mass. at 638-639, 643. As we explained, "[t]he opening 

paragraphs of the orders clearly stated that they were issued 

pursuant to our supervisory authority under G. L. c. 211, § 3, 

to oversee 'the administration of all courts of inferior 

jurisdiction.'" Id. at 644. Also, the purpose of the orders 

was to "safeguard the health and safety of the public and court 

personnel" (citation omitted). Id. Additionally, the topics 

they discussed were limited to court operations under the 

exigent circumstances created by the COVID-19 pandemic, 

including electronic filing, remote proceedings, and controlling 

physical access to court houses. Id. at 644-645. Considering 

these factors altogether, we concluded that the orders had a 

"limited reach" that did not extend to the statutory deadline at 

issue:

"In issuing the orders, we did not purport to supervise 

executive agencies such as the registry of deeds. Rather, 

we provided guidance to lower courts as to how to conduct 
9

court operations safely amid the ongoing public health 

crisis, so that the courts remained accessible to the 

public, while abiding by public health restrictions to 

protect litigants, attorneys, and court employees. The 

orders correspondingly tolled only those statutory 

deadlines that pertained to court proceedings."

Id. at 646.

This analysis is directly applicable to the filing 

deadlines related to the MCAD, another executive agency. "Given 

the narrow focus of the orders on court operations, it is clear 

that the provision in each order that tolled statutory deadlines 

was designed to encompass only those statutory deadlines that 

affect court operations, i.e., deadlines in cases pending in 

court or to be filed in a court." Id. at 645.

That G. L. c. 151B, § 9, provides a path for a claimant to 

resolve his or her claims in court is not enough to bring the 

MCAD filing deadline within the limited scope of our orders. 

Cf. Graycor, 490 Mass. at 646-647 (statutory deadline for filing 

notice of contract not tolled notwithstanding that "an entity 

seeking to perfect a mechanic's lien might eventually turn to 

the courts to enforce that lien"). The requirement that a 

claimant file at the MCAD before pursuing judicial remedies is 

absolute. "Without the predicate filing in MCAD, the Superior 

Court has no jurisdiction to entertain the claim of 

discrimination." Everett, 453 Mass. at 600. Thus, regardless 

of which path a claimant ultimately chooses -- continuing with 
10

the MCAD or commencing a civil action -- his or her claim must

begin at the MCAD. And the MCAD, as an independent agency of 

the executive branch, see G. L. c. 6, § 56, is not subject to 

our superintendence powers. Just as our emergency orders did 

not extend deadlines at the registry of deeds, so too do they 

not affect the 300-day deadline for filing at the MCAD.5,6 See

Graycor, supra at 646 ("In issuing the orders, we did not 

purport to supervise executive agencies . . .").

3. Equitable tolling. Dunn also contends that even if 

this court's COVID-19 orders did not expressly toll his filing 

deadline with the MCAD, equitable tolling principles did. We 

have said that "[e]quitable tolling is to be 'used sparingly,' 

and the circumstances where tolling is available are extremely 

5 Dunn's reliance on Christo, 402 Mass. 815, is misplaced. 

In Christo, we concluded that a Superior Court judge could 

"perhaps" apply equitable tolling to the MCAD filing deadline if 

the plaintiff "was misled by agency employees who discouraged 

her from filing a timely complaint with the MCAD." See id. at 

817. That such case-specific equitable relief may be available 

in certain situations has little bearing on the tolling enacted 

by our emergency orders, for all the reasons discussed supra.

6 Because our interpretation of the text of the orders is 

that they do not extend the MCAD filing deadline, we need not 

address the question whether they could do so without violating 

art. 30 of the Massachusetts Declaration of Rights. See 

Commonwealth v. Cole, 468 Mass. 294, 301 (2014) ("Article 30 

specifically prohibits the legislative, executive, and judicial 

branches from 'exercis[ing] the . . . powers' of the other 

branches"). See also Beeler v. Downey, 387 Mass. 609, 613 n.4 

(1982) (recognizing "duty to avoid unnecessary decisions of 

serious constitutional issues").
11

limited." Halstrom v. Dube, 481 Mass. 480, 485 (2019), quoting 

Shafnacker v. Raymond James & Assocs., Inc., 425 Mass. 724, 728

(1997). In the context of G. L. c. 151B claims, we have 

recognized that equitable tolling could potentially apply if the 

MCAD misled a plaintiff, causing the plaintiff to miss the 

deadline, see Christo, 402 Mass. at 817, or if a "plaintiff is 

excusably ignorant about the [300-day] statutory filing period,"

Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996).

In the instant case, there is no suggestion of misconduct 

by the MCAD or even excusable neglect by the plaintiff. To 

address the problems created by COVID-19, the MCAD's website 

contained instructions for requesting tolling of its filing 

deadlines. The plaintiff never sought to toll the filing 

deadline. See Protective Life Ins. Co. v. Sullivan, 425 Mass. 

615, 631 (1997) ("[a] party attempting to invoke [equitable 

tolling] will be held to a duty of reasonable inquiry").

Instead, he chose to rely on our orders, which, as explained 

supra, applied to court filings, not agency filings. In these 

circumstances, we discern no inequity and therefore no basis for 

equitable tolling of the 300-day filing requirement with the 

MCAD. See Halstrom, 481 Mass. at 485; Andrews, 423 Mass. at 

1022; Christo, 402 Mass. at 817.

Conclusion. The order dismissing the plaintiff's G. L. 

c. 151B claims is affirmed, and the case is remanded to the 
12

Superior Court for further proceedings regarding the remaining 

claims.

So ordered.