LUYEN HUU NGUYEN & others [Note 1] vs. UNIVERSITY OF MASSACHUSETTS.

DREBEN, J. This is an appeal from the allowance of the motion of the William Joiner Center for the Study of War and Social Consequences (Center), an academic center of the University of

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Massachusetts (University), to dismiss the plaintiff's second amended complaint (complaint) alleging age and national origin discrimination by the Center. [Note 2], [Note 3] The motion was based both on Mass.R.Civ.P. 12(b)(1) and 12(b)(6), 365 Mass. 754 (1974). We affirm the dismissal primarily on the ground that the plaintiff, although casting his claims in terms of discrimination on the basis of national origin and age, alleges membership in a much more narrowly defined class that is not protected by our antidiscrimination employment or education statutes. See G. L. c. 151B, § 4(1), (1C); G. L. c. 151C. We also note that the group is accurately described by the motion judge as "a group defined essentially by its political beliefs." [Note 4]

The complaint is in three counts: a claim of disparate treatment and a claim of disparate impact under G. L. c. 151B, and a claim of discrimination in violation of G. L. c. 151C. For purposes of the motion to dismiss, the complaint's allegations and reasonable inferences in favor of the plaintiff are taken to be true. Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745 , 748-749 (2006). Specific factual allegations, however, may demonstrate that the plaintiff does not have a claim. See Fabrizio v. Quincy, 9 Mass. App. Ct. 733 , 734 (1980). The specific allegations include the following facts.

In July, 1999, the Center was awarded a grant from the Rockefeller Foundation of New York to fund a fellowship program entitled "(Re)Constructing Identity and Place in the Vietnamese Diaspora." The fellows were to research such questions as

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"how diverse constructions of Vietnamese identity and community as well as Vietnamese history, literature and culture are being shaped and reshaped in the contemporary post-war and post-refugee eras across generations throughout the diaspora." The fellows were to have temporary positions with faculty privileges.

At some length, the complaint sets forth the history of the waves of refugees who fled after the North of Vietnam overtook the South by force, and states that these refugees constitute the "Vietnamese Diaspora" that the fellowships were designed to study.

The plaintiff "was born on April 2, 1933, in the Republic of Vietnam (also known as South Vietnam)," [Note 5] served as a captain in the South Vietnam Airborne Division, and was imprisoned for twenty-two years in North Vietnam. After being acquitted of the charges against him in 1991, the plaintiff immigrated to the United States and became a resident of Boston. [Note 6]

In seeking to substantiate the claims of age and national origin discrimination, the complaint asserts that the Center adopted improper methods of advertising and selecting research fellows. The complaint lists the numerous publications in which the Center proposed to advertise the fellowships and claims the Center advertised in none of them, but only advertised in two obscure publications. The complaint also sets forth some of the requirements of the hiring guide of the University, including its policies against discrimination and the necessity to consult with the University's human resources department to insure that its hiring policies are followed and that the appropriate search and

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advertising are performed. According to the allegations, the Center failed to consult with the human resources department or comply with the hiring guide.

The notices given of the program are claimed to have been inadequate. On January 4, 2000, the Center mailed copies of a press release and a letter announcing the fellowships for the first time, but intentionally (according to the plaintiff) failed to inform the Vietnamese-American community, including the plaintiff, of the application requirements and process. Moreover, the application period was restricted to twenty-six days. The plaintiff "first learned that the Program had been established on or about April 11, 2000 -- over two months after the application deadline -- when he was given an envelope and a press release dated December 22, 1999, and mailed by the Center on January 4, 2000." Accordingly, the plaintiff could not and did not apply for a fellowship. He also did not apply for the academic years 2001-2002 and 2002- 2003, because he believed that as a result of these legal proceedings, he would "have been discriminatorily rejected had [he] actually applied."

1. Claims under G. L. c. 151B. The disparate treatment claim was somewhat awkwardly described as follows: "The Plaintiffs were intentionally and discriminatorily excluded from and in the selection process and the Program because of their national origin and age."

Paragraphs 37 and 38 of the complaint, however, reveal that the group allegedly discriminated against is not defined solely by the protected classes of national origin or age:

"37. The advertisement and method of publication were illusory, false and misleading, and in violation of University policy, and were intended to preclude and discriminate against Vietnamese-Americans over the age of 40 -- specifically, the refugees from South Vietnam who personally experienced the Vietnamese Diaspora.

"38. On May 12, 2000, Plaintiff Luyen Huu Nguyen first learned the Fellowships had been awarded on an unlawful and discriminatory basis. The Defendants selected candidates with insufficient qualifications, no experience of the Vietnamese Diaspora, and in some instances are

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admitted agents of the Communist Party of the Socialist Republic of Vietnam (the unified North and South Vietnam), the very entity that caused the diaspora. Vietnamese-Americans over the age of 40 -- South Vietnamese refugees with the most knowledge and experience regarding the Vietnamese Diaspora -- were discriminated against in favor of two members of the Communist Party, [Note 7] one Caucasian-American by birth under the age of 40, and one person of Vietnamese-American descent of approximately 25 years of age. The candidates selected were far less qualified than the Plaintiffs."

Thus, in addition to being over the age of forty and born in South Vietnam, members of the group allegedly discriminated against had the additional attributes of being refugees, and being refugees to the United States. That age and national origin did not comprise the class is evident from the fact that persons over the age of forty born in South Vietnam and now living in the unified Socialist Republic of Vietnam are not within the class. Surely, not all persons born in the South left, and indeed, the two persons described as agents of the Socialist Republic of Vietnam may have been born in South Vietnam. In view of the allegations in paragraph 38, they are probably over the age of forty. It is also evident that the class the plaintiff seeks to protect excludes a person over forty born in South Vietnam who lives in Australia, in Great Britain, or in any country other than the United States. Such a person would also be excluded from the class if he were not a refugee.

The real objection to the persons chosen as fellows by the Center appears to be that they were less qualified in the eyes of the plaintiff and were of a different political persuasion. That this was the thrust of the complaint is also apparent in the count alleging disparate impact. The two relevant paragraphs state:

"56. The Defendants awarded the Fellowships on the basis of an ideological employment test: Fellowships were available only to those who adhered or were sympathetic to the views of the Communist government of the Socialist Republic of Vietnam.

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"57. The practical result of the application of this ideological test was to exclude all Vietnamese Americans over the age of 40 -- virtually the entire Vietnamese Diaspora -- the only group of people with personal knowledge and firsthand experience of the brutalities inflicted on the diaspora by the Communist North Vietnamese government and the dislocation and adaptation of the diaspora community."

The statutes relied on by the plaintiff are G. L. c. 151B, § 4(1), § 4(1C), and § 1(8), which, in pertinent part, are set forth in the margin. [Note 8], [Note 9] They do not provide protection for political beliefs; they do not provide protection for refugees; and they do not provide protection for refugees who are American.

The plaintiff may be correct that South Vietnamese refugees would be more suited for the fellowships than the persons selected by the Center. That circumstance, however, does not entitle him to relief. Since he seeks protection as a member of a

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class that is not protected by the statutes relied upon, see, e.g., Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) (citizenship not protected), he has not stated a claim under G. L. c. 151B, either for disparate treatment or disparate impact.

2. Claims under G. L. c. 151C. The third count of the complaint alleges discrimination by the Center in violation of G. L. c. 151C. [Note 10] In addition to claiming discrimination on account of age and national origin, [Note 11] the plaintiff alleges discrimination "on the basis of creed -- in this instance, adherence to or sympathy for the creed of Communism."

This additional claim is barred because it was not made before the Massachusetts Commission Against Discrimination (MCAD). Cf. Charland v. Muzi Motors, Inc., 417 Mass. 580 , 584-585 (1994). Contrary to the plaintiff's contention, this claim was not encompassed by the allegations of the charges filed with the MCAD, or any investigation that would reasonably be expected to grow out of such charges. Cf. Wynn & Wynn, P.C. v. Massachusetts Commn. Against Discrimination, 431 Mass. 655 , 672-673 (2000) (different portions of which were overruled by Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549 , 562 [2004]).

3. Conclusion. Since the plaintiff is not entitled to relief, the motion judge did not err in dismissing the complaint. [Note 12]

Judgment affirmed.