COMPLAINANT'S RESPONSE TO INVESTIGATOR'S DIRECTION TO FILE MORE DEFINITE STATEMENT

1. The investigator took "under advisement" my opposition and cross-motion for default based on the motion for more definite statement's being filed out of time. As it has not yet been ruled whether the motion for more definite statement is properly before the Commission, the motion for more definite statement cannot be acted on until that question has been decided. ⁽¹⁾
   
2. The investigator's direction is unclear and inappropriate. Was it a grant of the respondents' motion or something new on her part? The respondents make two different categories of requests: four answers to a numbered list of four questions and for facts and law supporting commission jurisdiction. The Investigator did not indicate which of those I was supposed to respond to. ⁽²⁾ Neither is appropriate here, but for different reasons.

The respondents asserted in their motion for a more definite statement, with no explanation, that my Complaint does not comply with 804 CMR 1.10(5), which requires only that the Complaint set forth:

"(a) the date(s) on which the unlawful discriminatory acts occurred; or, where the acts are of a continuing nature, the period of time during which acts occurred;

"(b) a concise statement of the alleged discriminatory acts;

"(c) if appropriate, a statement indicating that the complaint constitutes a class action as provided in 804 CMR 1.09(4);

"(d) appropriate identification of the Complainant(s) and the person(s) alleged to have committed unlawful discriminatory acts (hereinafter referred to as the Respondent(s)), unless proceeding by use of pseudonym, pursuant to 804 CMR 1.10(5)(d);..."

My complaint, which was drafted by the MCAD for my signature, clearly met these requirements, and the respondent's suggestion that the MCAD's intake officer didn't know how to comply with those requirement is offensive, since the complaint clearly did comply:

(a) the Complaint clearly set forth the date on which the libel counterclaim that is the basis for this Complaint was filed and that the use of that counterclaim to retaliate against me is continuing. ⁽³⁾

(b) the Complaint clearly set forth that the alleged discriminatory acts were the bringing and maintaining of the counterclaim, which the respondents--even after the filing of the Complaint here--continue to refuse to allow to be dismissed with finality.

(c) the complaint is not a class action, and no allegation that it is could be read into it, so this paragraph is inapplicable.

(d) the Complaint explicitly identified myself and the respondents by name.

Thus, the initial allegation in the request for a definite statement, that the Complaint did not comply with 804 CMR 1.10(5) is simply false.

To the extent that an a more definite statement in response to questions 1 and 2 is desired, the following is submitted, but it is also submitted that this is repetitive of the complaint itself:

(1) the protected group for a complaint of retaliation for the exercise of a right protected by chapter 151B is a person who has exercised a right protected by chapter 151B.

(2) I am a member of the protected group because I had complained of violations of chapter 151B publicly on my website and in a lawsuit, which are unquestionably exercises of rights protected by chapter 151B that put me in the protected group. As noted in the Complaint, the claim of libel by the website was not asserted until I filed the lawsuit, as a counterclaim, making it an act of retaliation for the lawsuit as well as the website.

The Respondent's citation to Dartt v. Browning-Ferris, 427 Mass. 1 (1998), a case that dealt with the evidence necessary at trial to sustain jury findings under chapter 151B, is totally irrelevant to the adequacy of a Complaint to give notice to the Respondents of the nature of a claim.

The respondents' further request that I be required to brief--in my Complaint! -- a question of law with respect to the Commission's jurisdiction is not only subject to the same objection but is, to put it simply, putting the cart before the horse. If they present a legal argument that their actions in abusively putting me to expense and inconvenience to defend a lawsuit that was brought in violation of chapter 151B is somehow outside this Commission's jurisdiction, I will examine the authorities they present in support of such a defense and respond to them. It is not my obligation to present legal argument in the Complaint to anticipate and avoid a defense, particularly since no type of legal argument is required in a Complaint, the function of which is merely to put a respondent on notice of the nature of the claim. ⁽⁵⁾

In fact, what the respondents appear to be doing in this paragraph of their motion is to be trying to use a motion for a more definite statement as a motion to dismiss before answering--a procedure that is not even part of MCAD practice.

As I was not expressly directed to respond to this portion of the motion for a more definite statement, but was instead told to explain what my charge is, I will not attempt to brief the commission's jurisdiction until required to.

My charge has been explained to respondents' previous counsel. The charge is quite simple to understand given and understanding of the history.

In 1996, on my website, it I posted that "I was fired when I went to the hospital for medical treatment. Richard Gorgens sent me a letter, via Federal Express, claiming that that statement was libelous. I made repeated requests as to what was factually incorrect. The only response was a note from Richard Gorgens, that he had received it. and only received a manually acknowledgment. In 1997:

• I publicly complained that the respondents' violated MGL c.151B
• I publicly complained that the respondents' violated the ADA.
• I publicly complained that the respondents' committed acts that would be considered violations of both the ADA and MGL c.151B.
• The website at http://www.sorehands.com/mattel detailed my charge with the MCAD. This statements on the website, clearly delineated as opinion, became the basis of the original lawsuit.
  

Since the acknowledgment of my request for any inaccuracies, the defendants had not informed me of any inaccuracy in my website ⁽⁶⁾. Even though the defendants regularly read the website and had been in contact with me, both directly and through counsel, respondents never any inaccuracy. ⁽⁷⁾ This is though I have been in contact with them and they regularly read the site. there had been no comment regarding my website or any act of libel, even though I had been in contact with the respondents.

After I filed my lawsuit, including charges under MGL c.151B, in October 1998. My website, http://wwww.sorehands.com/mattel, detailed this lawsuit.

• The respondents filed a counterclaim for libel on December 8, 1998.

• The complaint stated: "Via his website, Silverstein has made and published a number of false statements about MSI and TLC, including inter alia, that he was harassed at work by MSI's management because of his alleged handicap; that MSI, "owned by the The Learning Company," fired him because of his alleged medical condition; that MSI is using software which belongs to Silverstein; that MSI violated and refuses to comply with the Family and Medical Leave Act, the Americans With Disabilities Act, M.G.L. c.151B and other laws, that Microsystems "fires an employee who goes to the hospital for medical treatment," and that Microsystems refuses to accommodate injured employees."
• The respondents' complaint stated that these statements were published with recklessness or malice.
• The respondents caused me to undergo additional discovery and motions.
• The respondents repeatedly refused to provide evidence that would show my statements were false.

This libel counterclaim was clearly filed in retaliation for my protected activities. These protected activities includes complaining about discrimination, aiding others in bringing their own claims of discrimination, and for filing a complaint of discrimination in the form of a lawsuit.

After entry of judgment against the respondents ⁽⁸⁾ for $125,000 on September 13, 1999, against the defendants:

• The respondents demanded more discovery, on the counterclaim.

• The respondents refused to drop the counterclaim, though it was obvious that at that point it was insupportable.

• The respondents' attorney admitted that I believed what I published. ⁽⁹⁾ Therefore, the statements could not have been published with malice.

• The respondents forced me to go through a summary judgment motion, taking both time and money.

They may argue that they had a right to file a lawsuit if they were libeled. To prove that they were libeled, they would have to show that my statements on the website are false -- the same evidence needed to defend against my lawsuit. But, once the offer of judgment was accepted, the respondents knew that their counterclaim had no basis. ⁽¹⁰⁾ The defendants knew the statements on the site were true, otherwise they would not have offered a judgment amount of more than two years salary, when I was unemployed for seven months. ⁽¹¹⁾

For the reasons stated above and for the reasons briefed in my "OPPOSITION TO RESPONDENTS' REQUEST FOR MORE DEFINITE STATEMENT, AND CROSS-MOTION TO DEFAULT THE RESPONDENTS" the defendants should be defaulted.