Delva v. Needham Residential, LLC et al

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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building 	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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requested 	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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emotional 	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
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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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478 	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 .
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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
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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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