Opposition to Mattel's improper motion to dismiss.

MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION

NO. 99-BEM-2634

WILLIAM SILVERSTEIN, Plaintiff
v.

MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC., MATTEL INC, Respondents

OPPOSITION TO RESPONDENT'S MOTION TO DISMISS

Respondents' request to dismiss complaint should be struck. The motion to dismiss is wholly inappropriate. The respondents have no defense. Not only is their motion replete with misrepresentations, it defies logic, and the respondents should be the last people on this planet to speak of groundless litigation.⁽¹⁾ The three reasons that the respondents give are false and must fail, and I will address the reasons in the same order that they give.

In accordance with 804 CMR 1.10(8)(a) the respondents are required to file a response within 21 days.

"Such answer must assert all jurisdictional and other defenses which the Respondent wishes to raise and shall also contain a full and complete description of the Respondent's positions to all allegations of the complaint."⁽²⁾

Since the respondents have failed to answer as required, they have no defense. Therefore their motion to dismiss must be struck.

History

March 3, 1997 - MCAD complaint 97-BEM-0674 ("MCAD1") filed.
September 24, 1998 - Lawsuit filed in superior court.
December 8, 1998 - Counterclaim for libel filed.
September 13, 1999 - Judgment entered for plaintiff in lawsuit.
September 17, 1999 - MCAD was asked to close their file on MCAD1.
September 20, 1999 - Respondents sent a "settlement agreement" offering to drop counterclaim.
September 21, 1999 - Respondents sent a fax to Olenick, Silverstein's counsel, admitting that Silverstein believed what he published but demanding more discovery.
September 22, 1999 - Complainant moved to have the outstanding discovery order declared moot. Respondent opposed that motion.
September 27, 1999 - MCAD Complaint 99-BEM-2634 ("MCAD2") filed.

DISCUSSION

The motion to dismiss is wholly inappropriate. There is no provision in the MCAD procedures for a motion to dismiss. Even in the attorney assisted unit, there is no provision for a motion to dismiss. There motion to dismiss is abusive!

The act of retaliation is an malicious abuse of process because I spoke out against the respondents' violations of MGL c.151B.⁽³⁾ This is also a malicious prosecution case, brought solely because I publicly complained that the respondents violated the MGL c.151B among other laws. The respondents' countersuit alleged libel by making false with either malice or recklessness.

When the respondents originally filed the countersuit, in December 1998, they may have had a misguided belief and a misunderstanding of the libel law.⁽⁴⁾ But once the Rule 68 judgment they offered was entered, they should have dismissed their counterclaim.⁽⁵⁾

The respondents' libel claim clearly became untenable after the rule 68 judgment was entered on September 13, 1999, as it depended on a finding of falsity of the claims they had just agreed to judgement in my favor on. Their proposed "settlement agreement" delivered on September 20, 1999 made clear their wrongful intent.⁽⁶⁾ In a fax, dated September 21, 1999, Attorney Spruce, respondents' attorney, admitted that I believed what I published on the website. If I believe what I publish, then it can't be published with malice. In the "Statement of Material Facts" respondents admit that they failed to respond to multiple queries as to what was factually incorrect on the site.⁽⁷⁾ Even so, the site was opinion and opinion cannot held as libel.

I. Silverstein Has Not Waived This Retaliation Claim Against Microsystems

The issue in the instant complaint was not and could not have been waived. The retaliation by abuse of process did not exist at the time that the original complaint was filed, or even when the lawsuit was filed. This act is not a generic retaliation but a continuing plot that did not become clear until 19 months after the original MCAD complaint was filed. The respondents' reference to Bagley misses the mark, as this complaint could not have been raised prior to my first complaint with the MCAD or with the lawsuit being filed with superior court -- the instant retaliation happened after all this!⁽⁸⁾ The respondent specifically waited until after we noticed the MCAD, on September 17, 1999, to close the file because we had gone to court before they send the draft "settlement agreement" and follow-up letter that revealed their true intent.

The respondents point to the form that was signed on the September 23, 1999. That form was sent to Attorney Olenick for signature in response to his statutory letter of September 17, 1999. (The September 17, 1999 letter was, strictly speaking, enough to end the case under § 9 of chapter 151B - Attorney Olenick only returned the form faxed to him by the MCAD as a matter of courtesy.) They correctly recognize that it waives "further complaint in the same matter"-but this is not the same matter.

The respondents attempt to place too much weight on the interrelation of MCAD1 and MCAD2. The website detailed the basis for MCAD1, then chronicled MCAD1, the counterclaim, and now chronicles this proceeding. The Rule 68 judgment establishes the truth of the statements as a matter of law, but even if that is not accepted by the Commission, the respondents have already admitted that I believed that the statements were true, and the recommendation of a finding of probable cause by the MCAD investigator in that proceeding makes it clear that my belief was reasonable⁽⁹⁾ The respondents knew that the statements on the website were true.⁽¹⁰⁾

The respondents are confused on the difference between "further complaint in the same matter" and interrelated nature. MGL c.151B § 4 complaints are almost always interrelated to the original complaint, since § 4 includes protection for people who bring complaints and people who aid others in bringing complaints.⁽¹¹⁾ Do the respondents believe that they may blacklist an employee after a charge has been resolved and escape a new complaint about that? Is it the position of the respondent that they may call future potential employers and advise them not to hire someone because they received a finding of probable cause at the MCAD? Is it their position that a complainant include acts of retaliation by the employer that have not yet occurred? Does the respondent suggest that anyone filing a claim at the MCAD must in the complaint include every possible act of retaliation that might occur? The respondent would like the MCAD to take the position that once a company retaliates against an employee in one manner and that case is dealt with, they may forever continue to retaliate, and find other forms of retaliation, with total immunity.

The MCAD complaint was functionally removed from the MCAD when the lawsuit was filed in September of 1998, the year before. Counsel agreed not to notice the MCAD as we were still trying to mediate through the MCAD's American Arbitration Association program.⁽¹²⁾ The MCAD was noticed on September 17, 1999.

Respondents fail to show that malicious prosecution by means of their libel countersuit was in MCAD1 MCAD filing or in the lawsuit complaint or the amended version of the complaint. Lattimore v. Polaroid, 99 F.3d 456 (1st. Cir. 1996) stated:

Both Title VII and Chapter 151B require an employee to file an administrative charge as a prerequisite to commencing a civil action for employment discrimination. See 42 U.S.C. §(s) 2000e-5(f); Mass. Gen. L. ch. 151B, Section(s) 5-9. The purpose of that requirement is to provide the employer with prompt notice of the claim and to create an opportunity for early conciliation. . . .
"That purpose would be frustrated if the employee were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action. Consequently, we have stated that, in employment discrimination cases, "[t]he scope of the civil complaint is . . . limited by the charge filed with the EEOC and the investigation which can reasonably be expected to grow out of that charge."

Since the MCAD1 agency filing did not include retaliation by malicious prosecution by a counterclaim that had not yet been brought, that charge could not have been brought in the Superior Court action. If it could not be legally entered in the Superior Court action, it could not have been disposed of by the entry of judgment.⁽¹³⁾ There is nothing that prevents a claim that is not ripe for prosecution from being used separately as a defense.

II. Silverstein's Complaint is Not Time-Barred

The respondents wrongful act is a retaliatory malicious abuse of prosecution. Their libel counterclaim should have been dropped upon entry of judgment on September 13, 1999. This is a systemic continuing violation going back to the filing of their counterclaim. To show abuse of process, I would have had to have had some evidence that showed a demand for collateral advantage -- which was first provided by the respondents on September 20, 1999.⁽¹⁴⁾

"The statutory period for complaining of a discriminatory termination does not begin to run until the employee has sufficient notice of that specific act."⁽¹⁵⁾ Unless the respondent is lying to the commission their filings with the MCAD, then they originally filed the countersuit in good faith. The respondents' malicious intent was announced on September 20, 1999 by the delivery of their "settlement offer."

III. Silverstein's Claims are Not barred by Public Policy

The respondents try to paint this complaint as a disgruntled complainant who chose to leave the MCAD to then return with a new claim. As the respondents stated earlier, there is a requirement to bring a new claim of retaliation to the MCAD within 180 days of learning of the wrongful motives of the respondents.

The respondents would like the commission to believe that unfettered access to the courts is an absolute right. It is not, it has been codified into law, regulations, and rules of process, . The respondents are known internationally for using the courts for improper motives. Access to the courts is not an absolute privilege. Respondents are aware of FRCP 11 and MRCP 11 which makes access to the courts conditional.⁽¹⁶⁾ The MCAD also recognized MCRP 11, given that they used the exact same wording in 804 CMR 1.09(d). Prohibition of malicious abuses of process, as the use of legal process for an ulterior purpose for which it was not designed or intended.⁽¹⁷⁾ The existence of the Anti-SLAPP statute, MGL c.231 § 59H, further erodes their argument of access to the courts being an absolute privilege. If access to the courts were an absolute right, then why does MGL c.231 § 6F provide a mechanism for punishing parties for abusive litigation?

It is incredible that these respondents are claiming there is a absolute privilege in litigation, when they have filed a lawsuit asking for damages from sham litigation.⁽¹⁸⁾ The respondents argue that no privilege exists in sham litigation.⁽¹⁹⁾ When the counterclaim was filed, it may not have been sham litigation, but was definitely a sham after the Rule 68 judgment was entered.

Conclusion

The counterclaim was continued past September 13, 1999 for the specific purpose of stopping Silverstein's public opposition of the respondents discrimination.⁽²⁰⁾ This intent was made clear by the respondents by the delivery of their "settlement agreement" on September 20, 1999. The respondents argue that the counterclaim was brought in good faith, but at no time disputed their later illegal intent.

Respectfully submitted,

WILLIAM SILVERSTEIN