1:25-cv-10564•Delva v. Needham Residential, LLC et al
Full text
United States District Court
District of Massachusetts
)
Kendy Delva, )
)
Plaintiff, )
)
v. )
)
Needham Residential, LLC et al, )
)
Civil Action No .
25-10564-NMG
Defendant. )
)
)
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MEMORANDUM & ORDER
GORTON, J.
In this case plaintiff Kendy Delva (" plaintiff " or " Delva")
claims employment discrimination against defendants Needham
Residential , LLC , Needham Residential Member , LLC , Toll Brothers
Apartment Living and Toll Brothers , Inc . (collectively ,
" defendants " ) . Pending before the Court is defendants ' motion
to dismiss all except one count of the complaint (Docket No .
14) . Because the identified counts are time barred or otherwise
fail t o state claims upon which relief can be granted , the
motion will be allowed .
I. Background
A. Facts
Delva is a Black man of Haitian descent . He was hired by
defendants as an Assistant Property Manager in June , 2020 , and
oversaw operations at the Kendrick , a multi - unit apartment
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Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 1 of 8building where he was also a tenant . Erin O'D onnell was the
building ' s Property Manager and plaintiff's direct supervisor.
Delva ' s complaint alleges that he was subject to racially
discriminatory treatment on several occa si ons . He avers that
vendors employed by defendants would often comment on the color
of his skin and that O' Donnell took no actions in his defense .
He also claims that O' Donnell wo ul d often make remarks about how
she was surprised by his intelligence and his ability to
interact with " market" residents rather than just " affordable "
residents . He alleges that he was refused overtime when a
colleague , not of Haitian descent , was paid overtime .
Delva 's complaint also conta ins allegations of generally
hostile working conditions . He alleges that O' Donnell
frequently accused him of slacking off and brought meritless
complaints about him to human resources . In May , 2021 , Delva
was admitted to the hospital because his blood sugar had spiked
to pre - diabetic levels , a condition he attributes to his hostile
work environment .
Delva voluntarily resigned in June , 2022 , but remained a
resident of the Kendrick . He was given an offer to renew his
lease in August, 2022 , with a stated expiration date of October
10 , 2022 .
After receiving the offer to renew his lease , Delva learned
of a Trichloroethylene (" TCE " ) contamination at the Kendrick and
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Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 2 of 8requested that his unit be tested. 1 A sample was taken from his
unit but before he was informed of the results , Delva received a
letter revoking the offer to renew his lease.
Delva was eventually told that his apartment contained high
levels of TCE and other harmful chemicals . Despite being denied
renewal of his lease , Delva remained at the Kendrick until
January , 2023 , when he vacated due to concerns of the chemical
contamination .
Delva filed a complaint with the Massachusetts Commission
Again st Discrimination ("MCAD " ) in February , 2024 , asserting
discrimination and retaliation claims.
dismissed as untimely.
B. Procedural History
His complaint was
Delva filed a complaint in Massachusetts Superior Court in
December , 2024 . It contained nine counts : 1) disparate impac t
treat ment , 2) hostile work environment in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII") and M. G. L. c. 151B
( "Chapter 151B"), 3) retaliatory action by an employer in
violation of Title VII and M.G . L. c 149 §148 , 4) retaliatory
eviction in violation of M. G. L. c. 186 , §18 , 5) failure of
overtime pay in violation of M. G. L. c . 151 §§lA , 19 ✓ ( "Chapter
151"), 6) constructi v e discharge, 7) intentional infliction of
1 According to the complaint , TCE is an industrial solvent and toxic gas .
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Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 3 of 8emotional distress , 8) breach of quiet enjoyment in violation Of M. G. L . c . 186 §14 and 9) breach of warranty of habitability . In March , 2025 , defendants removed the case to this Court on the basis of diversity jurisdiction . In June , 2025 , defendants filed the pending motion to dismiss Co u nts I , II , III , V, VI and VII and plaintiff timely opposed . II. Motion to Dismiss A. Legal Standard To survive a motion to dismiss pursuant to Fed . R . Civ . P . 12(b) (6) , the plaintiff must state a claim for relief that is actionable as a matter of law and plausible on its face. Ashcroft v . Iqbal , 556 U.S. 662 , 678 (2009) . A claim is facially plausible if , after accepting as true all non - conclusory factual allegations , the court can draw the reasonable inference that the defendant is liable . Ocasio- Hernandez v . Fortuno-Burset , 640 F . 3d 1, 1 2 (1st Ci r . 2011) B . Application i. Count I: Disparate Impact Count I alleges that defendants engaged in disparate impact discrimination against plaintiff based on his race and religion . In order to plead a disparate impact claim , plaintiff must 1) identify the challenged employment practice or policy and defendants ' use of it , 2) demonstrate a disparate impact on a group cha~acteristic and 3) demonstrate a causal relationship - 4- Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 4 of 8
between the identified practice and the disparate impact .
E.E . O. C. v . Steamship Clerks Union , Loe . 1066 , 48 F . 3d 594 , 601
(1st Cir . 1995). The identification of a practice or policy
must be specific . Mompoint v . Dep ' t of Elementary & Secondary
Educ ., No . 18 - CV - 11094 - DJC , 2019 WL 1921631 , at *3 (D. Mass.
Apr . 30 , 2019) .
Plaintiff fails to satisfy those requirements . Rather than
pinpointing a specific practice or policy , Delva identifies
facially neutral commentary and actions of O' Donnell that Delva
believes to have been rooted in racial discrimination . And to
the extent that Delva claims he was denied overtime while other
non - Haitian employees were not , he has failed to identify a
practice or policy by which such discrimination was perpetrated.
Defendants ' motion to dismiss Count I will therefore be allowed .
ii. Count II: Hostile Work Environment
Count II asserts a claim for a host i le work environment
under Chapter 151B and Title VII . Defendants move to dismiss
the claim as time barred , arguing that plaintiff failed to
timely raise the claim at the MCAD or the Equal Employment
Opportunity Commission ("EEOC " ) before filing the complaint .
Such exhaustion is required for claims brought under Chapter
151B and Title VII . See Charland v . Muzi Motors , Inc ., 417
Mass . 580, 586 (1994) (discussing Chapter 151B exhaustion) ;
Frederique-Alexandre v . Dep ' t of Nat . & Env ' t Res. Puerto Rico ,
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Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 5 of 8478 F . 3d 433 , 437 (1st Cir . 2007) (discussing Title VII exhaustion) . Plaintiff has not met his exhaustion requirement . Chapter 151B requires that a complaint be made to MCAD within 300 days of the act of discrimination . M. G. L. ch . 151B §5 . Despite plaintiff ' s confusing contentions to the contrary , the complaint makes clear that the parties ' employment relationship ended on June 2 , 2022 . Plaintiff filed his complaint with the MCAD on February 27 , 2024 , more than 20 months after any discrimina t ion could have occurred and without ever having filed a complaint with the EEOC. Defendants ' motion to dismiss Count II will therefore be allowed . iii. Count III: Retaliatory Action by Employer Count III alleges that defendants refused to renew plaintiff ' s lease in retaliation for his resignation and demand that his apartment be tested for contamination , in violation of Title VII and M. G. L. c 149 §148. Plaintiff ' s employment with defendants ended in June , 2022 , and his notice of nonrenewal was issued in August , 2022 . Because relief under both Title VII and M. G. L . c 149 §148 requires an active employment relationship between the parties , defendants ' motion to dismiss Count III will be allowed . -6 - Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 6 of 8
iv. Count V: Failure of Overtime Pay Plaintiff alleges that defendants failed to pay him overtime pay in violation of Chapter 151 . Defendants seek dismissal based upon the two - year statute of limitations in Chapter 151. That allegation is in error because the statute of limitations under Chapter 151 is three years. Nevertheless , plaintiff ' s claim is untimely . Delva was denied overtime pay in November , 2020 . His claim was filed more than four years later in D~cember , 2024 . Defendants ' motion to dismiss Count V will therefore be allowed. v. Count VI : Constructive Discharge To state a claim for constructive discharge , plaintiff must allege that discrimination made his working conditions so intolerable that a reasonable person in his position would feel the need to resign . Green~: Brennan , 578 U. S . 547 , 555 (2016) It is insufficient that working conditions were difficult or unpleasant. Rather , the plaintiff must show that conditions were so harsh as to effectively deprive him of his opportunity to make a f r ee choice regarding his employment . Torrech - Hernandez v. Gen. Elec . Co ., 519 F . 3d 41 , 50 (1st Cir . 2008) The complaint fails to allege any such harsh employment cond itions . At most , plaintiff describes a working environment that was unfulfilling or unpleasant but certainly not hostile to -7 - Case 1:25-cv-10564-NMG Document 20 Filed 12/23/25 Page 7 of 8
the point of constructive discharge . Defendants ' motion to
dimiss Count VI will therefore be allowed .
vi. Count VII: Intentional Infliction of Emotional
Distress
Plaintiff avers that his treatment by defendants amounted
to intentional infliction of emotion distress (" IIED " ) .
Defendants move to dismiss that claim on the grounds of
preemption under state law .
The Massachusetts Workers ' Compensation Act (" MWCA " ) is the
exclusive remedy in Massachusetts for personal injury claims
against an employer . M.G.L. ch . 152 §26. This exclusivity bar
includes emotional distress cla ims. McCarty v . Verizon New
England , Inc. , 674 F . 3d 119, 122 (1st Cir . 2012) . Defendants'
motion to dismiss Count VII will therefore be allowed .
ORDER
For the forgoing reasons , defendants ' motion to dismiss the
complaint in part (Docket No . 14) is ALLOWED and Counts I , II,
III, V, VI and VII are DISMISSED.
So ordered.
Senior United States District Judge
Dated: December 13 , 2025
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