-: SJC-13364, Matthew Dunn v Marie Langevin and others.
-: Okay, Attorney Rudolph.
-: Good morning, and may it please the court,
Benjamin Rudolph on behalf of appellant Matthew Dunn.
The issue in this case is not about the MCAD's authority,
or any policy or procedure of the MCAD.
In fact, the MCAD's position on this case,
as expressed in its amicus letter,
which I encourage the court to consider and read,
which was submitted a couple days ago,
and I believe is subject to a motion for late filing,
is entirely consistent with my client's position.
(Rudolph clears throat)
The MCAD relinquished jurisdiction
over my client's claims intentionally,
in response to my client's request that it do so.
And I would turn the court's attention
to pages 84 through 86 of the record appendix in this case.
Page 84 is the docket of the MCAD.
It was provided in response
to a public records request by the respondents,
and it sets forth the timeline of what happened at the MCAD.
What happened at the MCAD
is that my client filed on November 16th, 2020,
the complaint was docketed,
it was reviewed for authorization,
it was assigned to an investigator,
and nothing else happened until April 1st, 2021
when we submitted a request using the MCAD's form,
complying with the MCAD's procedure saying,
"We wish to file a Superior Court action
"under section nine of Chapter 151B."
And the MCAD said, "Okay, go ahead and do that."
And that was the end of the MCAD's jurisdiction
over my client's claims.
This case is very simply about whether the Superior Court
should have applied this court's order,
which did bind it to toll a statute of limitations,
because as this court said in-
-: Its statute of limitations.
-: Well as this court said in Cuddyer versus Stop & Shop,
there are two statutes of limitations
for purposes of Chapter 151B
and employment discrimination claims.
There's the statute of limitations at section five,
which governs the initial filing of the complaint
with the MCAD and then there's the statute
of limitations- -: Stop there.
Did the SJC order toll that statute of limitations?
-: Very clearly so, the SJC order tolled
all civil statutes of limitations.
-: How's that possible?
It's an executive branch agency.
I mean, forget what we call the COVID-19 order,
forget the name of it, forget the supervision
of the inferior courts.
How is it that we can impact
an executive agency's statue of limitations?
Where does that power come from?
I mean, not that the United States District Court
and Lesley University cases in any way dispositive,
but where's that come from?
How can we do that?
-: Because the agency doesn't own the statute of limitations.
The root of the Superior Court's error in this case
is that it didn't confront the question of,
for what purpose are we applying
the statute of limitations? -: But we don't own
the statute of limitations either,
the legislature owns the statute of limitations.
We can fool around with our own,
in the sense we can toll our own if the courts are closed,
but we don't get to change the statute of limitations.
-: Well, you have-
-: All we're doing is tolling what goes on in court,
which we have power to do 'cause the courts are shut,
but the MCAD controls what the MCAD can do, doesn't it?
-: Yeah, I quite agree, absolutely.
And I'd quote from the MCAD's amicus letter,
the MCAD's Amicus letter sets this forth very nicely.
They say, "The commission determines the timeliness
"of a section five filing for the purpose
"of whether its administrative process
"is available to a complainant.
"And the court may independently determine the timeliness
"of a section five filing for the purpose
"of whether a plaintiff may proceed with a civil action
"under section nine."
So the issue is for what purpose
are we applying Section five?
If we're at the MCAD, the MCAD controls, they're in charge.
Because the question there is,
this is for purposes of an administrative proceeding,
an investigation by the MCAD, a determination by the MCAD.
When we're in Superior Court, however, under section nine,
then it's for the Superior Court to decide
because the purpose of Section five is merely to serve
as a statute of limitations for a section nine claim.
-: Does it matter that the MCAD didn't make a determination
as to whether or not they were gonna allow it to go forward?
-: No, it does not, Your Honor.
In Christo versus Edward Boyle, this court was very clear,
the statutory scheme does not require
that we have to have an agency action
before you proceed with the section nine civil action.
After 90 days, the plaintiff has an absolute right
to withdraw a civil action
regardless of whether the MCAD's done anything.
-: But you have to file it, you have to file with the MCAD,
any complaint filed pursuant to section five
must be filed within 300 days.
You don't file anything within 300 days, right?
And then section nine's keyed it back into that, isn't it?
Any person claiming to be agreed by a practice,
blank any blank may at the expiration of 90 days
after the filing of the complaint with the commission.
So these two things are tied together, right?
-: Absolutely so, and that's why
it would be very problematic.
The purpose that this court had in adopting
the emergency order in response to the pandemic
was to allow this extra time
because we knew that courts were closed.
-: But we could only mess with our own world.
Otherwise we're gonna violate eight separation of powers,
we're gonna interfere with the legislature's rights
to set statute of limitations, and we're gonna interfere
with executive branches rights to do what they can do
under the statute of limitations.
We can't do that without getting into Article 30 problems,
can we?
-: No, I quite agree.
And we have never argued,
the respondents absolutely want to make this case about,
we are trying to say that the SJC
can tell the MCAD what to do, no way.
You don't tell the the MCAD what to do
and the MCAD does not tell the Superior Court what to do.
-: Aren't you arguing about something
you don't need to argue about?
I mean, isn't this really an equitable tolling case?
You're not asking us really to extend the timeline
for an MCAD filing, you're just saying as a matter of equity
what you did in the SJC order was to toll it
for purposes of Section nine.
-: Exactly right, it's purely for a Section nine lawsuit.
I'm not at all arguing that the SJC order
applied to the agency. -: A Section nine lawsuit
is contingent on a section five filing.
And the section five filing is we can't change
the time deadline there, can we?
The equity has to be exercised by the MCAD, doesn't it?
-: No, you can change the time
for purposes of a Section nine lawsuit only.
So you can't change the time
for purposes of administrative proceeding.
That's right, the MCAD controls that.
But if the Superior Court's order in this case
is allowed to stand,
there are two extremely problematic things
that are gonna happen as a result.
Number one, you're gonna create a requirement
that a complainant at the MCAD,
if there's any possible issue
with the statute of limitations, has to first obtain
a decision from the MCAD regardless of how long that takes.
Maybe it takes 90 days, maybe it takes 120 days,
maybe it takes three years and they can't file
a Section nine lawsuit because they have to wait
for the MCAD to make that decision.
-: I don't understand that at all.
Why would that be the case?
-: Well, it certainly wouldn't, but that would be compelled
by the Superior Court's decision here.
Because the Superior Court decided, look,
the MCAD has total control
over the Section five timeliness,
even for purposes of Section nine lawsuits.
And the MCAD itself is not claiming that authority,
as it says in its amicus letter.
-: No, there's a statutory prerequisite
for the case to go forward in the Superior Court.
So I agree with Justice Wendlandt,
why don't you talk about Shaw's Supermarket
and why you've got equitable tolling here,
because we just don't have the power under Article 30
to be ordering how long the statute of limitations
is gonna be for an executive agency.
-: Right, and I agree that what the order did
was apply equitable tolling
to civil statutes of limitations.
And we know that Section five
is a civil statutes of limitations
from 35 years of precedent in this court,
in the First Circuit and in the appeals court,
it's repeatedly been called a statute of limitations.
It's subject to equitable tolling,
we know that already from several decisions of this court,
it's subject to the minority tolling statute provision.
And the analogous federal statute that applies
to EEOC filings has also been held
to be a statute of limitations.
So when this court said, "We are applying equitable tolling
"to all civil statutes of limitations,"
and then in Shaw's versus Melinda says,
"We meant, it all means all," there was absolutely no way
for Mr. Dunn to understand that,
oh no, actually there's an exception here.
And when you file a Section nine civil suit,
all doesn't actually mean all.
The equitable tolling clearly applied
to this civil statute of limitations.
We don't at all ask this court
to limit the MCAD's authority whatsoever.
I do wanna address the Graycor Construction case
because the respondents have built their argument around it.
They absolutely depend on Graycor Construction
and that case involved chapter 254, section two,
which is the mechanics lien statute.
That section describes the mechanism for creation of a lien.
It's not a statute of limitations
and has never been called a statute of limitations.
So it's entirely different from this situation.
In Graycor Construction,
they were relying mostly on the argument
about the language tolling deadlines in statutes.
And this court very correctly said,
well, we were talking about for purposes of civil actions,
not for purposes of creating a lien at the registry
or whatever you may be recording at the registry.
Here we're talking about a statute of limitations
and we're talking about applying it
for purposes of a civil action in Superior Court,
not for purposes of an administrative decision by the MCAD.
Note that the MCAD in its amicus letter to this court,
does not ask the court to affirm
the Superior Court's decision in this case.
It does not ask for a particular outcome.
It does not say whether the Superior Court's decision
was correct or not.
It says very clearly, we have our sphere of decision
in authority and that governs the administrative processing
of complaints that are filed at section five
and stay at the MCAD, the courts decide what happens-
-: In connection with determining whether equitable tolling
should apply to your client, do we take into account
the fact that your client failed to ask the MCAD
through its own procedures to toll the 300 days?
-: No, I don't think so because-
-: Now, why wouldn't it be fair to consider
whether or not your client bothered to do that?
-: For several reasons, Your Honor.
First of all, it was docketed.
The MCAD didn't give any indication,
any order or anything saying, hey, this is late.
Secondly, because we know under Christo vs Edward Boyle,
we don't have to have an administrative decision of any kind
prior to filing section nine.
-: We don't have to have an administrative decision,
but it's clear that that goes first
and it's clear that it's within 300 days.
And the MCAD has now provided for a procedure,
it's own executive branch agency procedure
to file something late.
Why isn't it fair to consider whether or not your client
bothered to go through that procedure in determining
whether equity requires us to toll?
-: Well, for one thing, Your Honor,
the record does not say when that procedure was established
or when it was communicated to the public.
-: And whose burden is that?
-: It's the burden of the respondents to demonstrate that.
Because if they're the ones saying,
well, you had to comply with this procedure
that you previously didn't know about,
that none of the precedent told you had to engage in.
-: Well, now you're explaining why you didn't do it,
which may be fair.
-: Yeah, we had no indication that we had to, Your Honor,
there was absolutely no indication that we should.
We filed the MCAD complaint, we communicated with the MCAD
saying we would like to withdraw.
And this is four and a half months
after the complaint was filed.
So the MCAD in its letter expresses concern about,
we need to have the opportunity, we need to have time,
that's why we have a 90-day period in section nine.
We've got to have time to administratively decide,
do we want to investigate this complaint ourselves?
Well, there was four and a half months
for the MCAD to do that, and they didn't do anything
and they didn't dismiss the case because it was untimely
or give any indication that it was untimely.
And when we asked explicitly,
"Please relinquish your jurisdiction over this case
"so that we can proceed to Superior Court,"
the MCAD said, "Granted."
-: But you said that you didn't know
you had to do something special,
but you did know what the period of time was
within which you had to file the MCAD claim.
-: Well, we always plan to file in Superior Court
under Section nine, and we knew that the order
from this court said that those statute of limitations
are tolled equitably.
We knew from 35 years of precedent
that Section five is a statute of limitations.
So the plain language of the court's order
and the statute itself, which by the way in its title
refers to limitations, makes it very clear
that it's a statute of limitations.
And by the way-
-: But they're gonna stand up and say,
you should have known that Section five wouldn't be tolled
it's a court order, it has to do with courts.
What's your response that Shaw's really can't be interpreted
as impacting Section five.
-: Because if we know Section five
is a statute of limitations
and the plain language of the court's order says,
"All civil statutes of limitations
"are subject to equitable tolling,"
how are we supposed to infer some sort of exception
for purposes of a Superior Court case?
And the respondents will admit they have to,
that it is a statute of limitations.
And in their brief,
they cite to Charlin versus Mossy Motors, which said,
"Yes, it's a statute of limitations."
Under the plain reading of the orders
and all of the case law, how could we have known,
oh no, actually it's not a statute of limitations
or it's somehow subject to some sort of exception?
-: Dig into what Shaw's holds in the period of time
from March 17th to June 30th and what was being analyzed.
-: Well under Shaw's, it describes
what is a statute of limitations
and consistent with the description in Shaw's,
this is absolutely a statute of limitations,
just like the court has set for 35 years.
-: What weight should we give MCAD's statement
regarding extension guidelines on its website?
When did that come up
and when shouldn't that have not been a factor
in this consideration?
-: The record doesn't say,
and so I can't answer that part of it,
but I think the court should again,
look at the MCAD's amicus letter.
'Cause I think the MCAD's amicus letter eloquently explains
how there's this separation of powers.
The MCAD decides Section five deadlines for MCAD cases
that are being administratively determined.
The court decides for purposes of section nine lawsuits
and that preserves the separation of powers
and therefore the courts aren't overstepping their bounds
and the MCAD is not overstepping its authority either.
-: So is the equitable tolling done
on an individual case by case basis in your estimation
or is it that the SJC order
created this wide swath of MCAD stalls?
-: Both, Your Honor, we argue that the equitable tolling
set forth in the court's order definitely applied
to section five for purposes of section nine lawsuits.
-: All right, let's say we disagree with you.
-: Well, then we have our argument
that under the circumstances
where Mr. Dunn could not possibly have known,
could not have anticipated the outcome of this case, saying,
not withstanding the plain language of the court's order,
not withstanding all of the precedent saying
Section five is a statute of limitations,
not withstanding the MCAD voluntarily
relinquishing jurisdiction
and saying nothing about the timeliness,
you should have at the MCAD said, I'm filing a motion,
I want this to be determined at the MCAD.
Wait however long it takes, maybe months,
maybe years for a decision on the timeliness
and only then file in the Superior Court.
That couldn't have been anticipated.
-: Well, what about about 254-2B.
Why isn't that a statute of limitations in the Graycor case?
The deadline for recording the notice of contract
is the earliest of 60 days after the filing
or recording of the notice of substantial completion
or 90 days.
We don't, under your theory,
every statute of limitations is extended.
Why wouldn't we decide Graycor the opposite way?
-: No, that's not a statute of limitations, Your Honor.
-: Why is this exactly it, says it's a time deadline
for filing something in the-
-: In the Registry of Deeds to create a mechanics lien,
but it doesn't have any direct connection to a lawsuit.
-: Yes it does.
-: It's only a prerequisite to filing lawsuits.
-: The same way that the Section five filing
is a prerequisite to the section nine filing, isn't it?
-: I respectfully disagree, Your Honor.
-: Why not, tell me why that isn't a time deadline
in a statute and under your theory
that every time deadline is extended by our order.
-: No, your honor, I'm not saying every time deadline,
I'm saying every statute of limitations.
And that's a separate language in the order.
-: That's a statute of limitations,
the same way Section five is a statute of limitations.
-: It has never been held
to be a statute of limitations, Your Honor.
-: But Section five doesn't refer to itself
as a statute of limitations.
-: It does in the title, it says limitations in the title.
And this court has repeatedly said
it is a statute of limitations,
unlike with chapter 254, section two.
I would add-
-: But even past the labeling, we said in Graycor
that the orders only apply to court operations.
That was the crux of where we came out on Graycor.
So how does this, how does the, if it's again,
aside from the labeling issue,
you still have the prerequisite and the prerequisite
has to do with an executive agency that we do not control?
-: Well, as Your Honor wrote in Graycor,
it applies to deadlines that apply
to matters pending in court or to be filed in court.
Section two of chapter 254 does not anticipate necessarily
that there's gonna be any filing in court.
It's a prerequisite to the enforcement action
only in the same way that having a valid contract
is a prerequisite to filing a breach of contract claim.
If you don't have a valid lien,
then you can't file to enforce it.
And that's what happened in Graycor,
they didn't have a valid lien.
But that's entirely different from a statute of limitations.
-: But you don't have a valid lien
within a certain period of, you have to comply
with these time deadlines in 254-2, right?
-: Right, and if you don't, then you don't have a valid lien.
But that's not the same thing
as a deadline for filing a civil action.
-: You don't file a Section five claim,
you don't have a Section nine claim because for 90 days
we want the MCAD to have exclusive jurisdiction
over these things, right?
I mean, I'm having trouble just understanding
why it's different.
-: Well, for one thing, Your Honor,
and maybe this is helpful, in chapter 254, section two,
when you record the notice of contract,
the registry's got to record it,
it's got to docket it, essentially.
And then there's this actually a second step
that you have to take,
you have to record a statement of account after that.
And those two things happen before there's any consideration
of whether you're gonna file a complaint.
-: But in section nine in your world,
you can't bring your Section nine claim until you've shown,
you've brought a Section five claim.
And we've thrown out a bunch of,
you don't just get to skip the MCAD,
we want you to go there 'cause things go away there.
-: And we did not skip the MCAD, we filed a complaint,
it was docketed, and then we complied
with the MCAD's procedure to request withdrawal.
-: Not within the time deadlines.
-: Well, within the time deadlines, if we were at the MCAD,
and I don't know if I, I know I'm well over my time.
-: I think you're being signaled, I'm to stop.
-: All right, well, I thank you very much
for your consideration of this important case
and I will rest on my briefs.
-: Thank you.
-: Okay, Attorney Conte.
-: Good morning.
I'd like to start with the mechanics lien statute.
Counsel said it has no direct connection to a lawsuit.
It absolutely does.
The mechanics lien process is you record
a notice of contract at the Registry of Deeds,
an executive agency.
Thereafter, you have to record a statement of account.
-: So let's say we agree with you that Article 30
would preclude us in the judicial branch
from tolling a statute of limitations
that applies to the executive branch.
Let's assume that for purposes of this question,
why doesn't Christo allow us to independently,
equitably toll that 300 days?
Because under Christo, as I understand it, it said,
Hey, there's two roots here, they're largely independent.
And so, dear Superior Court justices
doing discrimination cases, you decide independently
whether this particular case should be equitably tolled
regardless of whether or not the MCAD did so.
-: Your Honor, so in the Graycor case,
a lawsuit was eventually filed to perfect
the mechanic's lien.
And what the court found is that the notice of contract
was not timely because the COVID rules did not apply.
And as such, it was the mechanic's lien for $3.4 million
was not timely.
Here what you have is you have the plaintiff,
now you're asserting equitable tolling
or potentially under Christo,
but this is a very different situation.
They never sought relief from the MCAD.
The MCAD for the first 90 days
has exclusive jurisdiction over the matter.
There's no case or controversy at the MCAD
when the plaintiff dismisses his complaint
and goes to the Superior Court.
In Christo, the issue was the investigator
had made a determination
and there was no review process in place.
And that's where the court found that the Superior Court
should have the opportunity to review
the underlying decision, that was the basis.
-: Was it review or was it make an independent assessment
of whether or not it should be equitably tolled?
-: The point is in this case, the plaintiff never asked.
-: Yeah, so we don't actually have a conflict
between what the executive branch has decided
and what the Superior Court might decide.
Instead, we have an executive branch not deciding anything
and the Superior Court can decide whether or not
to equitably toll.
It seems to me that that presents
less of an Article 30 problem than Christo did,
where there could be directly opposite conclusions.
-: I think you have two problems with that.
One is you don't have a case or controversy
because they dismissed the case from the MCAD.
-: I mean, the case or controversy rises or falls
on whether or not there's discrimination.
I don't know what you're talking about
in terms of case or controversy.
-: Well, so the MCAD, the issue is they never exhausted
the administrative remedy.
They never went to the MCAD
and asked for an extension of time.
-: And doesn't Christo tell us that you don't have to exhaust
administrative remedies?
-: They absolutely had an obligation to go to the MCAD
and ask for an extension of time
with respect to the filing because the SJC COVID order
did not apply to the executive agency.
They didn't do that.
When they didn't do that, there's no case.
They didn't exhaust their, that's distinguishable
from the facts in Christo.
-: And so I guess going back to the facts, in the record,
what is supporting the proposition that the MCAD's process
for extending the 300-day deadline was in place
at the time that this particular plaintiff filed
its MCAD complaint?
-: I can get you the citation, Your Honor,
but there's a case that's been cited that was in the MCAD
that we've cited that includes the MCAD granting
an extension of time.
And my understanding is, is that the extension process
has been on their website all along, that has been the case
and it's case by case.
-: What do you mean all along?
I mean, it's important I think-
-: From the inception of the COVID orders.
-: March 17th?
And just soften the record,
I don't want anything that's not on record.
-: This is record, Your Honor,
we're gonna get you the citation.
It's in the case of Anthony Toto v Lowe's Home Centers,
and it's dated 15 October, 2020.
-: Also, Christo is from it, there's some issue
about whether the agency affirmatively misread, right?
That's one of the reasons-
-: Yes, sure. -: The court
sort of fools around with the equitable tolling
of the agency in Christo
because there's sort of affirmative misconduct
on the part of the investigating commissioner.
-: Well, yes, your honor.
And not only that, as distinguished from our case,
Mr. Dunn was represented by competent counsel
throughout this matter.
There's been no allegation of misrepresentation
or being misled.
In fact, at the lower court level,
in the Superior Court before Judge Kenton Walker,
plaintiff didn't even argue for equitable tolling.
Judge Kenton Walker raised its Sua sponte
and took those issues on and found that the plaintiff
had not been excusable ignorant, which is the standard.
-: Would that change though,
if even with a reasonably prudent lawyer,
they just misread our order and thought that, you know,
for all of these years, we looked at section five
and said that they were statutes of limitations
and interpreted that way and that the council just assumed
that this was a statute of limitations
that was tolled by our orders.
-: Yes, Your Honor,
and it goes to your superintendent's powers as well.
And it would also to reach in now would violate the doctrine
of constitutional avoidance in this instance
by interfering with the rulemaking authority
of an executive agency such as the MCAD.
-: But the MCAD, they didn't rule on this at all.
So why should we assume that they wouldn't have given them
extra time if they had asked.
And the fact they sort of just said,
"Okay, we're gonna let this go on,"
instead of saying, "No, no, no, you didn't do it right."
Can't we assume that that means that,
okay, we're gonna let this go ahead.
-: Your Honor, I don't think you can
because the process is the MCAD,
you have a 300-day deadline.
It's a prerequisite to the filing.
It's a prerequisite to the filing,
but also a prerequisite to after 90 days dismissing
and moving to Superior Court.
-: But because of the pandemic, they've instituted a rule
saying that we'd look at it on a case by case basis.
-: Yes, and the problem is, would the MC...
I think your question is, would the MCAD have granted
the extension of time?
I don't know the answer to that,
but based on other matters I've looked at,
they probably would have in all candor.
-: And do they implicitly do that by,
they don't say you missed our statute of limitations,
they just dismiss it.
Is that sort of an implicit grant of the extension?
-: Unfortunately for the plaintiff, no, it's not.
And the reason it's not- -: And why not?
Because-
-: Well, it's just like, Your Honor, analogous to,
if you had filed in a court
and you missed the statute of limitation, the plaintiff,
what's not analogous is in this instance, so the MCAD-
-: Well, but their letter says they have the power,
they have control.
I assume they have a standard letter saying,
you missed our 300 days or whatever.
Or do they not have such a thing?
-: Not to my knowledge, Your Honor.
And the issue here is after 90 days,
it was the plaintiff that decided to dismiss the action.
If the plaintiff had left the matter in the MCAD
and later sought relief, he may have been granted it,
but they didn't do that, the plaintiff terminated this.
The MCAD terminated the action
at the request of the plaintiff after 90 days.
But the MCAD had exclusive jurisdiction for that 90 days.
So it could have reached, it could have decided
to take the matter in 90 days and decide it,
which doesn't usually happen. -: But he waits like 130 days.
He leaves it with you longer than 90 days, right?
The plaintiff leaves this with you for more than 90 days.
-: He did, Your Honor, I believe.
-: He leaves it with the MCAD for more than 90 days.
The MCAD, then he does what they always do,
which is go to court 'cause that's where the money is
and they dismiss it.
It's just hard to figure out
what the MCAD actually did here.
-: If I may, Your Honor, I don't know for certain,
but it appears they docketed the matter
like they normally do.
But the MC-
-: Do you have a standard practice
when they say you missed the deadline?
-: Not to my knowledge, Your Honor.
-: But your point is that the section five
is a prerequisite to filing and as far as Article 30 goes,
there's issues there.
But on the equitable tolling,
isn't it reasonable for an attorney to read
all statute of limitations means all statute of limitations.
And there's a footnote three
that goes through all the different implications
that come into that.
And so, assuming you're a hundred percent right
on the first issue, why isn't all means all
enough for equitable tolling?
-: Yeah, I mean first but for the grace of God go I.
(all laughing)
The issue is, the problem with that
is that I don't think it's analogous
to the mechanics lien situation.
The notice of contract was a statutory prerequisite,
without it, you're out.
And the equitable-
-: But without it, you don't create a new right.
I mean, that's the problem I think you have
with the Graycor analogy is that in Graycor
there was this lien and a perfection of the lien
that all happens and then that gets enforced in court.
Whereas here, you know, you talk about case or controversy,
the case existed at the time the discrimination happened
or the alleged discrimination happened.
The 300-day period is just for the MCAD
to go through its process and then you wait 90 days.
You're not creating a new right at the MCAD.
-: But Your Honor, you have to consider
the Superior Court lawsuit was filed
within the 300-day period.
And when the Superior Court lawsuit was filed,
they still had an additional 45 days at least,
in which to file timely in the MCAD and did not.
That's not indicative of a case for equitable tolling,
it's just not.
Your Honor, to answer your question,
Addendum 50 is the record citation.
-: Thank you.