GALOUCH v. MAINE DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION et al
Filing
7
ORDER granting 4 Motion to Dismiss as to Count One, dismissing without prejudice Count Two, and upon motion of the Plaintiff, dismissing without prejudice Count Three. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PATRICIA GALOUCH,
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Plaintiff,
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v.
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MAINE DEPARTMENT OF
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PROFESSIONAL AND FINANCIAL )
REGULATION, et al.,
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Defendants.
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1:11-cv-00282-JAW
ORDER ON MOTION TO DISMISS
In this employment discrimination case, the Court grants the State
Defendants’ motion to dismiss the Title VII count, dismisses without prejudice the
state law claims, and upon motion of the Plaintiff, dismisses without prejudice the
remaining federal count.
I.
STATEMENT OF FACTS
On July 25, 2011, Patricia Galouch filed a complaint against the state of
Maine, Department of Professional & Financial Regulation (Department) and Anne
Head in her capacity as Commissioner of the Department,1 claiming that the
Department retaliated and discriminated against her when it terminated her.
Compl. (Docket # 1).
The Department moved to dismiss the Complaint on
September 20, 2011. Defs.’ Mot. to Dismiss (Docket # 4) (Defs.’ Mot.). Ms. Galouch
The Court refers to both the Department and Commissioner Head as “the Department” unless the
context requires separate treatment.
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responded on October 11, 2011. Pl.’s Opp’n to Defs.’ Mot. to Dismiss (Docket # 5)
(Pl.’s Opp’n). The Department replied on October 21, 2011. Defs.’ Reply Mem. in
Support of Their Mot. to Dismiss (Docket # 6) (Defs.’ Reply).
According to the Complaint, the Department, specifically the Maine Bureau
of Insurance (Bureau), employed Patricia Ann Galouch, a resident of Augusta,
Maine, from May 6, 2006 to October 22, 2010 as an Office Associate II. Compl. at
¶¶ 4, 7. Throughout her employment, Ms. Galouch was a member of the Maine
State Employees Association (MSEA), a labor union for state employees. Id. ¶ 8.
Beginning in 2007, Ms. Galouch alleges that she was subjected to discrimination
and harassment at work, including ongoing hostility by one or more of her
immediate supervisors, and was falsely accused of unprofessional conduct and
subjected to unjustified disciplinary action and an involuntary reassignment of her
duties.
Id. ¶ 9.
Beginning 2007, the MSEA filed several grievances on Ms.
Galouch’s behalf relating to harassment and retaliatory conduct by managers at the
Bureau. Id. ¶ 10. On January 7, 2009, Ms. Galouch filed a charge with the Maine
Human Rights Commission, alleging discrimination and retaliation in violation of
the Maine Human Rights Act (MHRA), and on January 7, 2009, the MSEA filed a
prohibited practices complaint with the Maine Labor Relations Board on behalf of
Ms. Galouch, alleging discrimination and harassment based on her MSEA
membership. Id. ¶¶ 11-12. On March 10, 2009, Ms. Galouch, her attorney, and
MSEA representatives engaged in mediation with the State and reached an
agreement in which Ms. Galouch agreed to dismiss or withdraw all her past
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complaints in exchange for the State’s agreement to retain her position, improve her
working conditions, remove certain files relating to discipline from her employment
file, and pay her attorney fees. Id. ¶ 13.
On December 16, 2009, the MSEA filed a grievance on Ms. Galouch’s behalf
in connection with an oral reprimand she received from one of her supervisors. Id.
¶ 14. The Department failed to respond to the grievance in accordance with the
applicable collective bargaining agreement or otherwise consistent with the March
2009 Settlement Agreement, specifically automatic elevation to Step 3 of the
collective bargaining agreement’s grievance procedure. Id. ¶ 15.
One of Ms. Galouch’s job duties was to tend to administrative details
regarding Department public hearings, including coordinating with various State
subcontractors.
Id. ¶ 16.
On January 13, 2010, Ms. Galouch reported to her
supervisor that she believed a State subcontractor had breached the terms of a
court reporting service agreement. Id. ¶ 17. Ms. Galouch’s direct supervisor—a
senior state attorney at the Bureau—suggested that her concerns were unjustified
and became angry with Ms. Galouch. Id. Ms. Galouch’s supervisor passed her
concerns along to the Deputy Superintendent of the Bureau and both the Deputy
Superintendent and the supervisor were angered by the fact that Ms. Galouch had
reported what she perceived to be a violation of law. Id.
On January 21, 2010, Ms. Galouch reported to the Department Contract
Administrator that another court reporter may have violated the terms of the
service agreement by asking one of her colleagues to cover a hearing without
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approval from the Bureau. Id. ¶ 19. As with the earlier report, this report angered
her supervisors. Id.
On January 28, 2010, the Superintendent of the Bureau, Mila Kofman,
placed Ms. Galouch on involuntary (paid) administrative leave. Id. ¶ 20. The notice
of suspension referred to “serious allegations of misconduct,” claimed that she had
“exceeded her authority” and notified her that her conduct “could lead to discipline,
up to and including discharge.” Id. The letter stated that an investigation would be
conducted in the “near future.” Id. As of January 28, 2010, Ms. Galouch was not
allowed on Bureau premises. Id. Ms. Galouch later learned that it was the reports
to her supervisors in January regarding the alleged violations of law that served as
the basis for placing her on administrative leave. Id. ¶ 21. Ms. Galouch was placed
on administrative leave without prior notice, without an opportunity to understand
these allegations or respond to them, and without regard to the express terms of the
March 10, 2009 Settlement Agreement. Id. ¶ 22.
On February 8, 2010, the MSEA filed a grievance alleging a hostile work
environment, intimidation and harassment. Id. ¶ 23. Once again, the State failed
to respond to the grievance in accordance with the collective bargaining agreement
or the March 2009 Settlement Agreement. Id. Between January 28, 2010 and July
8, 2010, the State did not communicate with Ms. Galouch, did not permit her on the
premises, and did not provide any information regarding the status of her
administrative leave or the results of any investigation. Id. ¶ 24.
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In June 2010, Ms. Galouch hired counsel and on July 7, 2010, her attorney
wrote the Chief Counsel of the state of Maine Bureau of Employee Relations, Joyce
Oreskovich, and the Commissioner to inform them of his representation of Ms.
Galouch and to request a copy of her personnel file. Id. ¶ 25. On July 12, 2010, Ms.
Galouch received a letter dated July 9, 2010 from an investigator within the state of
Maine Office of Employee Relations, seeking an interview with her “in connection
with the allegations that she exceeded her authority.” Id. ¶ 26. The letter also
stated that the investigation “has now been expanded to include allegations of
additional performance issues discovered since your leave, including inattention to
detail, entering incorrect information into a database, and failure to follow
directions.” Id. (emphasis in Complaint).
On August 17, 2010, Ms. Galouch and a MSEA Field Representative met
with the investigator to discuss the State’s concerns and to answer questions. Id.
¶ 27.
Ms. Galouch provided truthful, complete answers to the investigator’s
questions. Id. ¶ 28. On September 9, 2010, the investigator issued a report to
Attorney Oreskovich entitled “Patricia Galouch Investigation.” Id. ¶ 29.
On September 27, 2010, Ms. Galouch received notice from Superintendent
Kofman that the Department intended to terminate her employment. Id. ¶ 30. On
October 15, 2010, Ms. Galouch and her MSEA Field Representative met with the
Commissioner, Superintendent Kofman, and Attorney Oreskovich at a “Loudermill”
hearing at which the State must provide oral or written notice of the charges
against Ms. Galouch, an explanation of the evidence against her, and an
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opportunity for a fair and meaningful hearing. Id. ¶ 31. At the Loudermill hearing,
Ms. Galouch was asked questions about her alleged misconduct and provided
truthful responses. Id. ¶ 32.
On October 19, 2010, the Commissioner notified Ms. Galouch in writing that
she was terminating her employment effective October 22, 2010 and on October 22,
2010, the Department in fact terminated her employment.
Id. ¶¶ 33-34.
The
Department terminated Ms. Galouch’s employment without regard or deference to
the terms of the 2009 Settlement Agreement or the collective bargaining
agreement’s “progressive discipline” provisions, which set forth disciplinary
measures ranging from (i) oral reprimand, (ii) written warning, (iii) written
reprimand, (iv) suspension, (v) demotion, and finally (vii) dismissal. Id. ¶ 35.
II.
THE PARTIES’ POSITIONS
A.
The Department’s Motion to Dismiss
The Department’s motion to dismiss is premised on its assertion that the
Complaint does not contain sufficient facts to state claims for employment
discrimination under Title VII of the Civil Rights Act of 1964, the MHRA, the Maine
Whistleblowers Protection Act (MWPA), or 42 U.S.C. § 1983. Turning first to Count
One, the Title VII count, the Department notes that Title VII covers unlawful
employment practices based on race, color, religion, sex, or national origin. Defs.’
Mot. at 6 (quoting 42 U.S.C. § 2000e-2).
The Department contends that the
Complaint “has not alleged any facts suggesting discrimination on the basis of any
characteristic protected by Title VII.” Id. Furthermore, the Department maintains
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that Ms. Galouch has not alleged any facts “that set forth the elements of a
retaliation claim under Title VII.” Id. To the extent Ms. Galouch is relying on her
filing a grievance to establish a Title VII case, the Department says that these
allegations do “not establish protected activity under Title VII.” Id. at 7. According
to the Department, Ms. Galouch’s reporting of alleged contract violations by court
reporters does not trigger Title VII protection. Id. at 8. Finally, the Department
says that Ms. Galouch’s attorney’s letter dated July 7, 2010 to the Department is
not protected activity under Title VII. Id. at 8-9.
The Department turns to Count Two, the MHRA and MWPA claims. Citing
case law, the Department observes that there are three elements to a MWPA claim:
(1) that the claimant engaged in protected activity; (2) that the claimant was the
subject of adverse employment action; and (3) that there was a causal link between
the protected activity and the adverse action. Id. at 9. The Department says that
the Maine Supreme Judicial Court addressed a nearly identical set of facts in Bard
v. Bath Iron Works Corp., 590 A.2d 152 (Me. 1991) and concluded that the employee
had failed to plead a case under the MWPA. Defs.’ Mot. at 10-11. The Department
maintains that this Complaint does not contain sufficient facts to support a MWPA
allegation. Id. at 11-12.
Finally, regarding Count Three, the § 1983 count, the Department observes
that to the extent the Complaint seeks monetary damages against the Department
or against the Commissioner in her official capacity, the claim is barred by the
Eleventh Amendment. Id. at 12-13. Furthermore, the Department contends that
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the Complaint does not contain sufficient facts to sustain an equal protection claim
of sex discrimination brought under § 1983. Id. at 13-14.
B.
Ms. Galouch’s Response
In her reply, Ms. Galouch withdraws Count Three; however, she argues that
the Department’s motion to dismiss Counts One and Two is “premature and raises
factual issues not appropriately raised in a motion for judgment on the pleadings.”
Pl.’s Opp’n at 2.
Ms. Galouch clarifies that Count One was “brought pursuant to the antiretaliation provisions of Title VII.” Id. at 4. She claims that the “protected activity”
included the filing of grievances by the MSEA against the Department and her
complaints to her supervisors about violations of law or policy.
Id. Citing two
District of Maine cases, she insists that the filing of a grievance has been deemed
protected activity under Title VII, the MHRA, and the MWPA. Id. at 5. She also
says that her complaints to her supervisors about “violations of law or policy”
should not be read in isolation and might support a jury finding of mixed motives.
Id.
She rejects the Department’s contention that the hiring of an attorney is
unprotected activity, asserting instead that letters from an employee’s counsel
could, on the facts, constitute protected activity. Id. at 6. Ms. Galouch repeats this
same argument for Count Two, her MHRA and MWPA claims. Id. at 6-7.
C.
The Department’s Reply
The Department reasserts its position that complaining to a supervisor about
possible violations of a court reporting contract is not a Title VII violation. Defs.’
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Opp’n at 1. Even though Ms. Galouch blankly asserted that she endured a hostile
work environment, the Department points out that she failed to describe what
precipitated that environment and whether it was related to one of Title VII’s
protected categories. Id. at 1-2. Even assuming some grievances could constitute
protected activity, the Department contends that the basis for the grievances
appears to have been Ms. Galouch’s reports of court reporter violations, which
would not be a Title VII issue, and that there is no allegation that the subject of Ms.
Galouch’s grievances was related to race, color, religion, sex, or national origin. Id.
at 2. The Department also disputes the assertion that the July 10, 2010 attorney
letter constitutes protected activity under Title VII. Id. at 2-3.
As regards the state law claims, the Department notes that the MHRA
prohibits discrimination on the basis of race, color, sex, sexual orientation, physical
or mental disability, religion, ancestry or national origin, age, and previous
assertion of a workers’ compensation claim. Id. at 4 (citing 5 M.R.S. § 4552). The
Department concedes that the MHRA also prohibits retaliation and coercion against
an individual because he or she has opposed any act or practice that is unlawful
under the MHRA or because that person made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under the
MHRA. Id. (citing 5 M.R.S. § 4633). The Department reiterates that Ms. Galouch’s
state law claims fail “for the same reason her claims under Title VII fail.” Id.
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III.
LEGAL STANDARD
The Defendants move to dismiss the complaint, alleging that Ms. Galouch’s
federal pleading is inadequate. Rule 8 provides:
A pleading that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is entitled to
relief . . . .
FED. R. CIV. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Rule 12(b)(6) provides that a complaint can be dismissed for “failure to state
a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). In ruling on a
motion to dismiss, a court is required to “accept as true all the factual allegations in
the complaint and construe all reasonable inferences in favor of the plaintiff.”
Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009) (quoting Alt. Energy, Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)). To survive a
motion to dismiss, a plaintiff must allege “sufficient facts to show that he has a
plausible entitlement to relief.” Id. (citing Iqbal, 556 U.S. 685-87).
In Schatz v. Republican State Leadership Comm., 669 F.3d 50 (1st Cir. 2012),
the First Circuit amplified the proper handling of a motion to dismiss. Id. at 55
(citing Ocasio-Hernández v. Fortuña-Burset, 640 F.3d 1, 7, 11-13 (1st Cir. 2011)).
Step one: isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements.
Step two:
take the complaint’s well-pled (i.e., nonconclusory, non-speculative) facts as true, drawing all reasonable
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inferences in the pleader’s favor, and see if they plausibly narrate a
claim for relief.
Id. (citing Ocasio-Hernández, 640 F.3d at 12).
“Plausible, of course, means
something more than merely possible, and gauging a pleaded situation’s plausibility
is a ‘context-specific’ job that compels [the court] ‘to draw on’ [the judge’s] ‘judicial
experience and common sense.’” Id. (quoting Iqbal, 556 U.S. at 679).
IV.
DISCUSSION
A.
The Title VII Count
Following the First Circuit’s analytic path, the Court sifts through Ms.
Galouch’s allegations, winnowing out legal labels and conclusions. The Court thus
has jettisoned blanket accusations of “discrimination” or “harassment” and has
examined what is left. What emerges is not a Title VII cause of action.
The heart of Ms. Galouch’s Complaint is that she notified her superiors at the
Department about potential violations of the court reporter contracts and that her
superiors reacted poorly. Instead of responding positively, the higher-ups within
the Department turned on her, held her report against her, and accused her of
acting without authority.
Her efforts to notify the Department of contractual
violations by third persons became the basis for the Department’s termination of
her job.
A second undercurrent in Ms. Galouch’s Complaint is the MSEA’s
involvement, through the collective bargaining agreement, in pursing grievances on
behalf of Ms. Galouch. She says that the Department effectively punished her for
the MSEA’s filing of grievances on her behalf.
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A third underpinning for the
Complaint is that the Department breached the terms of the March 10, 2009
settlement agreement with the MSEA regarding Ms. Galouch.
A final factual
allegation is that the Department terminated Ms. Galouch after she retained
counsel and in so doing, violated Title VII.
The obvious problem with these allegations, taken individually or as a whole,
is that they have nothing to do with Title VII. Title VII makes it unlawful for an
employer to discriminate against or classify an individual “because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)(2). It is also unlawful under Title VII for an employer to discriminate against an
employee because the employee “has opposed any practice made an unlawful
practice” by Title VII or because the employee has “made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing”
under Title VII. 42 U.S.C. § 2000e-3(a).
To make out a retaliation claim under Title VII, “the plaintiff must prove
that (1) he or she engaged in protected activity under Title VII, (2) he or she
suffered an adverse employment action, and (3) the adverse employment action was
causally connected to the protected activity.” Collazo v. Bristol-Myers Squibb Mfg.,
Inc., 617 F.3d 39, 46 (1st Cir. 2010). The standard for surviving a motion to dismiss
is not especially high. The First Circuit has held that a plaintiff “need not show
that the conditions he or she opposed actually amounted to a violation of Title VII.”
Id. at 48 (internal punctuation and citation omitted). Instead, the plaintiff “must
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demonstrate only that he or she had a good faith reasonable belief that the
underlying challenged actions were unlawful.” Id.
Ms. Galouch argues that the actions listed in the Complaint—the December
2009 grievance, her complaints to her supervisors, the February 2010 grievance,
and her attorney’s July 7, 2010 letter to the Department—are protected activity
under Title VII.
Her argument against the motion to dismiss is based on the
content of her grievances. But as she concedes, the Complaint did not attach or
incorporate these documents.
“Ordinarily, of course, any consideration of
documents not attached to the complaint, or not expressly incorporated therein, is
forbidden.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). There are “narrow
exceptions” for “documents the authenticity of which are not disputed by the
parties; for official public records; for documents central to plaintiffs’ claim; or for
documents referred to in the complaint.” Id. Yet, in the post-Complaint filings, Ms.
Galouch has not attempted to place any of the actual documents before the Court.
She has merely alluded to them and made a general statement about what they say.
Her attorney’s description of the content of these documents—“more specific
allegations of disparate treatment, intimidation, retaliation, harassment, and
hostile work environment”—is no less legal labels and conclusions than the
generalized allegations in her Complaint and does not change the analysis. See
Schatz, 669 F.3d at 55-56.
Further, in a footnote, Ms. Galouch remarks that if the court considers
“matters outside the pleadings,” the motion should be treated as a motion for
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summary judgment. Pl.’s Opp’n at 5 n.2 (citing FED. R. CIV. P. 12(d)). But see
Watterson, 987 F.2d at 3 (“The problem that arises when a court reviews statements
extraneous to a complaint generally is the lack of notice to the plaintiff. Where
plaintiff has actual notice and has relied upon these documents in framing the
complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56
is largely dissipated”). To fit within Rule 12(d), however, the parties must “present”
matters outside the pleadings to the court. FED. R. CIV. P. 12(d) (“If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment
under Rule 56”). Here, Ms. Galouch has made no such presentation.
Even if the Court did consider the Plaintiff’s characterization of these
extraneous grievances and the attorney letter, there is still no allegation that Ms.
Galouch engaged in protected activity under Title VII.
For her grievances and
attorney contact to constitute protected activity, they would have to relate to a
practice made unlawful by Title VII. See Fantini v. Salem State Coll., 557 F.3d 22,
31-32 (1st Cir. 2009) (“An employee has engaged in activity protected by Title VII if
she has either (1) opposed any practice made an unlawful employment practice by
Title VII or (2) made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under Title VII”). Yet the Complaint does
not allege that she opposed any employment practice made unlawful by Title VII or
participated in any matter in an investigation or proceeding under Title VII. Here
there are no facts at all in the Complaint that link Ms. Galouch’s actions to a matter
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relating to “race, color, religion, sex, or national origin.”
Even viewed most
favorably to Ms. Galouch, the Court cannot infer that the Department’s adverse
employment actions had anything to do with activity protected under Title VII.
This case is similar to Ahanotu v. Mass. Tpk. Auth., 466 F. Supp. 2d 378 (D.
Mass. 2006) in which an employee alleged that he suffered retaliation “as a result of
reporting on mismanagement and fraud within the Big Dig project but not for any
reported instances of discrimination.” Id. at 395. Concluding that the retaliation
claim “is more appropriately considered as being brought under the Massachusetts
Whistleblower Statute,” the district court dismissed the Title VII count. Id.
Finally, even assuming her grievances and attorney letter constituted
“protected activity” under Title VII, the subject of the grievances and letter must
relate to a Title VII concern. See Morales-Vallellanes v. Potter, 605 F.3d 27, 36 (1st
Cir. 2010) (adverse employment action suffered by retaliation plaintiff must be “on
account of a protected activity”). The grievances were directed to the Department’s
response to Ms. Galouch’s court reporter complaints; the attorney letter only
informs the State that Ms. Galouch was represented by counsel and requests her
personnel file. There is nothing in these documents to suggest that Ms. Galouch
was making a claim related to her race, color, religion, sex, or national origin.
Morales-Cruz v. Univ. of P.R., No. 11-1589, 2012 U.S. App. LEXIS 7158, at *13 (1st
Cir. Apr. 10, 2010) (“To state a cause of action under this portion of the statute, the
pleading must contain plausible allegations indicating that the plaintiff opposed a
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practice prohibited by Title VII and suffered an adverse employment action as a
result of that opposition”).
In sum, accepting as true all the factual allegations in the complaint and
construing all reasonable inferences in favor of the plaintiff, Ms. Galouch’s
Complaint does not contain “sufficient facts to show that [s]he has a plausible
entitlement to relief.” Sanchez, 590 F.3d at 41.
B.
Pendant State Claims
This leaves the MHRA and MWPA claims in Count Two. These are purely
state law claims before this Court pursuant to its supplemental jurisdiction. See 28
U.S.C. § 1367. Where a district court has dismissed all claims over which it has
original jurisdiction, it may decline to exercise supplemental jurisdiction over the
remaining state law claims. See 28 U.S.C. § 1367(c)(3). The First Circuit generally
assumes that once all federal claims are resolved, the state claims should be
dismissed. See, e.g., Rojas-Velazquez v. Figueroa-Sancha, No. 11-1447, 2012 U.S.
App. LEXIS 6395, at *16-18 (1st Cir. Mar. 29, 2012) (“Because the only federal
claims in this suit were properly dismissed . . . [the plaintiff’s] pendent claims were
also appropriately dismissed”); Batterman v. Leahy, 544 F.3d 370, 376 (1st Cir.
2008) (“if the federal claims were disposed of on the papers, the district court would
likely decline to exercise pendent jurisdiction over the state-law claims”).
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V.
CONCLUSION
The Court GRANTS the Defendants’ Motion to Dismiss (Docket # 4) as to
Count One and DISMISSES without prejudice Count Two. Upon motion of the
Plaintiff, the Court also DISMISSES without prejudice Count Three.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 13th day of April, 2012
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