Hwang v. Wentworth Institute of Technology et al

Filing 69

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Y. DOLLY HWANG,
Plaintiff,
v.
WENTWORTH INSTITUTE OF
TECHNOLOGY, JOHN
P. HEINSTADT, ANNE GILL,
and ZORICA PANTIC,
Defendants.

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C. A. No. 11-12042-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

June 9, 2014

I. INTRODUCTION
Pro se plaintiff Y. Dolly Hwang, a former tenured professor of
Computer

Science

at

Wentworth

Institute

of

Technology

("Wentworth"), filed this case on November 17, 2011, against
Wentworth and its employees John Heinstadt, Anne Gill, and Zorica
Pantic. Hwang asserted five claims against the defendants, all of
which related to matters that occurred before or at the time of the
termination of her employment by Wentworth in June, 2006.
Defendants filed a motion to dismiss the complaint for failure
to state a claim, pursuant to Federal Rule of Civil Procedure
12(b)(6), which Hwang opposed. On April 5, 2013, the court issued
a Memorandum and Order (the "April 5, 2013 Order") dismissing four
of Hwang's claims, and denying the motion to dismiss her claim
under Title I of the Americans with Disabilities Act ("ADA"), 42
U.S.C. §12101 et. seq. See April 5, 2013 Order ¶1. The motion to
dismiss Hwang's ADA claim was denied without prejudice to being

resubmitted

as

a

motion

for

summary

judgment

after

limited

discovery. Id. at 1.
On August 30, 2013, defendants filed a Motion for Summary
Judgment. On December 16, 2013, the court issued a Memorandum and
Order (the "December 16, 2013 Order") directing, among other
things, that Hwang file her opposition to defendants' motion for
summary judgment. On January 22, 2014, Hwang filed a Motion to
Reconsider, requesting that the court reconsider the dismissal of
her tort claims and her claim under the Employment Retirement
Income Security Act ("ERISA"). Hwang also filed: (1) a Motion for
Court Order to Defendants to Cooperate with Discovery; (2) a Motion
for Allowing for Discovery of Evidence of Government Investigations
and Fraudulent Concealment; (3) a Motion for Appropriate Orders
Pursuant to Rule 56 Summary Judgment (d), (e), and (f); and (4) a
Motion for Judgments as Matters of Law.
For the reasons described below, Hwang's Motion to Reconsider
is being denied and defendants' Motion for Summary Judgment on
Count V is being allowed. Hwang's remaining motions are, therefore,
moot.

II. DISCUSSION
A. Motion to Reconsider.
Hwang requests that the court reverse the dismissal of Counts
I, II, III, and IV. In the December 16, 2013 Order, the court had

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denied Hwang's request to reconsider the dismissal of Counts I
through IV, her tort and ERISA claims. See Dec. 16, 2013 Order ¶1.
In essence, Hwang requests that the court reconsider the denial of
her first motion to reconsider, and reinstate Counts I-IV.
"Ruling on a motion for reconsideration requires a court to
'balance the need for finality against the duty to render just
decisions.'" Galanis v. Szulik, 863 F. Supp. 2d 123, 124 (D. Mass.
2012) (quoting Davis v. Lehane, 89 F. Supp. 2d 142, 147 (D. Mass.
2000)). A motion to reconsider is not a vehicle to reargue theories
previously advanced and rejected. See Palmer v. Champion Mortgage,
465 F.3d 24, 30 (1st Cir. 2006). Reconsideration is warranted only
when: (1) the moving party presents newly discovered evidence that
was not previously available; (2) there has been an intervening
change in the law; or (3) the earlier decision was based on a
manifest error of law or was clearly unjust. Id. The granting of a
motion for reconsideration is "an extraordinary remedy which should
be used sparingly." Id.
Hwang has not presented any newly discovered evidence. Nor
does she assert that there has been an intervening change in the
law. For the reasons stated in the December 16, 2013 Order, the
dismissal of Counts I, II, III, and IV did not result from a
manifest error of law and was not clearly unjust. See Dec. 16, 2013
Order at 2-5. Accordingly, Hwang's Motion to Reconsider is being
denied.

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B. Defendants' Motion for Summary Judgment.
In their motion for summary judgment, defendants assert that
it is undisputed that Hwang has not satisfied the administrative
prerequisite

of

filing

a

charge

with

the

Equal

Employment

Opportunity Commission ("EEOC") or the Massachusetts Commission
Against Discrimination ("MCAD") before filing her claim in this
court. See Mot. for Summary Judgment at 1. This contention is
correct.
"[T]he

ADA

mandates

compliance

with

the

administrative

procedures specified in Title VII of the Civil Rights Act of 1964,
42 U.S.C. §2000e, and that, absent special circumstances, ..., such
compliance must occur before a federal court may entertain a suit
that seeks recovery for an alleged violation of Title I of the
ADA.." Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277
(1st Cir. 1999).
"The Title VII administrative process begins with the filing
of an administrative charge before the EEOC." Franceschi v. U.S.
Dep't of Veteran Affairs, 514 F.3d 81, 85 (1st Cir. 2008). Section
2000e-5 of Title VII states that a "charge under this section shall
be filed [with the EEOC] within one hundred and eighty days after
the alleged unlawful employment practice occurred." See 42 U.S.C.
§2000e-5(e)(1).

"In

a

'deferral

jurisdiction,'

such

as

Massachusetts, this period is extended to three hundred days."
Thomas v. Eastman Kodak Co., 183 F.3d 38, 47 (1st Cir. 1999).

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"The employee may sue in federal court only if the EEOC
dismisses the administrative charge[.]" Franceschi, 514 F.3d at 85.
"The EEOC must send the employee notice, in the form of what is
known as a right-to-sue letter," and "[u]pon receiving such notice,
the employee has ninety days to sue in federal court." Id.
In essence, a claimant, such as Hwang, who seeks to recover
for an asserted claim for violation of Title I of the ADA "first
must exhaust administrative remedies by filing a charge with the
EEOC, or alternatively, with an appropriate state or local agency,
within the prescribed time limits." Bonilla, 194 F.3d at 278.
In this case, defendants filed an affidavit with their motion
to dismiss, asserting that Hwang had not filed a charge with the
EEOC or the MCAD. See May 9, 2012 Anne Gill Aff. ¶5. Hwang
responded by stating that she had filed a charge with the EEOC on
or about June 1, 2007. See Hwang May 31, 2012 Aff. ¶3. As the
affidavits constituted matters outside the pleadings, the court did
not consider them in deciding the motion to dismiss. See Apr. 5,
2013 Order at 7. The court observed that "it is most appropriate to
treat the defendants' motion to dismiss Count 5 as a motion for
summary judgment, and to permit the parties to develop and submit
all of the material that is pertinent to deciding it as such." Id.
On August 14, 2013, Wentworth received notice from the EEOC
that on August 12, 2013, Hwang filed a charge of discrimination
against Wentworth. See Aug. 30, 2013 Gill Aff. ¶3. The August 12,

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2013 charge includes an affidavit signed by Hwang, in which she
states

that

"[i]n

June

of

2006,

my

employer

terminated

my

employment" and "[o]n June 1, 2007, I filed a Complaint to Boston
EEOC Office addressing to the then director of the office and
notifying the office of my already filed complaint with the
Massachusetts Disability Commission." Id. Ex. 1. Hwang further
states that her "copy of the complaint is temporarily inaccessible,
and is expected to become accessible in two months." Id.
On January 27, 2014, Hwang filed a copy of the letter she
claims to have submitted to the EEOC on June 1, 2007 (the "June 1,
2007 letter"). See Pl.'s Filing of Court Required Document. "To be
admissible

at

the

summary

judgment

stage,

documents

must

be

authenticated by and attached to an affidavit that meets the
requirements of Rule 56(e)." Carmona v. Toledo, 215 F.3d 124, 131
(1st Cir. 2000) (internal quotation marks omitted). "Rule 56(e)
requires that the affidavit be made on personal knowledge, set
forth

facts

that

would

be

admissible

in

evidence,

and

show

affirmatively that the affiant is competent to testify to the
matters stated therein." Id. The letter filed by Hwang is not
supported by an authenticating affidavit, and is unsworn and
uncertified. The June 1, 2007 letter, in its present form is,
therefore, inadmissible.
However, the First Circuit has held that evidence submitted in
inadmissible form may be considered if it could be presented in a

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form that would be admissible at trial. See Federal Rule of Civil
Procedure 56(c)(2); Gorski v. New Hampshire Dep't of Corr., 290
F.3d 466, 475-76 (1st Cir. 2002). The June 1, 2007 letter is
capable of being presented in a form that would be admissible at
trial. Also, as Hwang is appearing pro se, the document filed must
be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). Therefore, Hwang's June 1, 2007 letter is being considered
to decide whether defendants are entitled to summary judgment.
The court "shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a) The party moving for summary judgment "bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However,
the moving party's burden "may be discharged by 'showing' . . .
that there is an absence of evidence to support the nonmoving
party's case." Id. at 325. Summary judgment is, therefore, mandated
"after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Id. at 322; Gorski,

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290 F.3d at 475-76; Smith v. Stratus Computer, Inc., 40 F.3d 11, 12
(1st Cir. 1994).
In this case, defendants contend that summary judgment should
be entered in their favor because Hwang has presented no evidence
to show that she satisfied the administrative prerequisite of
filing a claim with the EEOC before initiating this case. See Mot.
for Summary Judgment at 1. The letter produced by Hwang was
allegedly filed with the EEOC on June 1, 2007. See Pl.'s Filing of
Court Required Document. The alleged "unlawful employment practice"
she complains of, the termination of her employment, occurred in
June, 2006. See Compl. ¶9. Even assuming Hwang's employment was
terminated on the last day of June, 2006, the charge was not
presented to the EEOC within three hundred days from the alleged
"unlawful employment practice." Therefore, the charge Hwang claims
to have filed with the EEOC on June 1, 2007, was submitted too late
to satisfy the usual requirements for later litigating a claim in
federal court. See 42 U.S.C. §2000e-5(e); Bonilla, 194 F.3d at 278;
Thomas, 183 F.3d at 47 (holding that in a deferral jurisdiction
such as Massachusetts, a charge under Section 2000e-5 of Title VII
must be filed with the EEOC within three hundred after the alleged
unlawful employment practice occurred). Similarly, the charge filed
by Hwang before the EEOC on August 12, 2013, was not timely.
Hwang has not submitted any other evidence indicating that she
exhausted her administrative remedies before filing her ADA claim

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in this court. Hwang has not produced a right-to-sue letter from
the EEOC. Nor does she claim to have been issued one. See 42 U.S.C.
§2000e-5(f)(1);

Franceschi,

514

F.3d

at

85

(holding

that

an

employee may sue in federal court only if the EEOC dismisses the
administrative charge and the EEOC sends the employee a right-tosue letter).
Hwang has, therefore, not produced evidence that would permit
a reasonable fact finder to conclude that she satisfied the
administrative prerequisite of timely filing a charge with the EEOC
before initiating this case.
The court recognizes that "[t]he charge-filing requirement,
while obligatory, is not jurisdictional" and that it is "subject to
the usual gamut of equitable exceptions." Bonilla, 194 F.3d at 278.
However, "time limitations are important in discrimination cases,
and [] federal courts therefore should employ equitable tolling
sparingly." Id. However, even liberally construed, Hwang has not
submitted evidence that would permit a reasonable fact finder to
conclude that any circumstance beyond her control caused her to
miss the filing deadline and, therefore, that equitable tolling is
justified. Id.
Because

a

reasonable

fact

finder

would

be

compelled

to

conclude that Hwang inexcusably failed to timely file a complaint
with the EEOC that is the prerequisite to filing a federal suit

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under the Title I of the ADA, defendants are entitled summary
judgment on Count V, the only remaining claim in this case.

III. ORDER
In view of the foregoing, it is hereby ORDERED that:
1. Plaintiff's Motion for Reconsideration (Docket No. 49) is
DENIED.
2. Defendants' Motion for Summary Judgment (Docket No. 36) is
ALLOWED. Judgment shall, therefore, enter for defendants on Count
V.
3.

Plaintiff's

Motion

for

Court

Order

to

Defendants

to

Cooperate with Discovery (Docket No. 56) is MOOT.
4. Plaintiff's Motion for Allowing for Discovery of Evidence
of Government Investigations and Fraudulent Concealment (Docket No.
58) is MOOT.
5. Plaintiff's Motion for Appropriate Orders Pursuant to Rule
56(d), (e), and (f) (Docket No. 61) is MOOT.
6. Plaintiff's Motion for Judgments as Matters of Law (Docket
No. 66) is MOOT.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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