Cross v. Commonwealth of Massachusetts et al

Filing 11

Magistrate Judge Jennifer C. Boal: MEMORANDUM AND ORDER entered: Plaintiff's Motion for Leave to Proceed in forma pauperis (Docket No. 3) is ALLOWED; Plaintiff's Motion to Appoint Counsel (Docket No. 2) is DENIED without prejudice; Within 3 5 days of the date of this Memorandum and Order, plaintiff shall file an amended complaint (curing the pleading deficiencies) in accordance with Rule 8 of the Federal Rule of Civil Procedure; The Clerk shall provide plaintiff with the form for Consen t/Refusal of Magistrate Judge Jurisdiction and the instructions for that form ("consent package"); and Within 35 days of the date of this Memorandum and Order, plaintiff shall advise the Court as to whether he wishes to consent to proceedings before a Magistrate Judge.(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ELMER E. CROSS,
Plaintiff,
v.
EXECUTIVE OFFICE OF LABOR AND
WORKFORCE DEVELOPMENT, ET AL.,
Defendants.

CIVIL ACTION NO.
12-10424-JCB

MEMORANDUM AND ORDER
BOAL, U.S.M.J.
I.

INTRODUCTION
On March 5, 2012, plaintiff Elmer E. Cross (“Cross”), a

resident of Boston, Massachusetts, filed a civil complaint in
which he alleges, inter alia, discrimination and retaliation in
employment, in violation of Title I of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq.
filed a number of other documents in support.

Cross also

See Laws Enforced

by EEOC (Docket No. 4), Documents Pertaining to Requests for
Reasonable Accommodation (Docket No. 5), Adverse Actions After
Request for Reasonable Accommodation (Docket No. 6), and
Mediation Documents (Docket No. 7).1
Cross’s complaint names a number of defendants, including:
(1) the Equal Employment Opportunities Commission (“EEOC”) Boston
Area Office;(2) the EEOC investigator, Mr. Anthony M. Pino, Jr.
(“Pino”);(3) the EEOC Boston Area Office Director, Mr. Robert L.
Sanders (“Sanders”);(4) the Commonwealth of Massachusetts
1

Additionally, Cross filed other exhibits including copies
of boilerplate of various laws, e-mails, letters, EEOC documents,
and other materials.

Executive Office of Labor and Workforce Development/Department of
Workforce Development/Division of Unemployment Assistance
(“EOL/DWD/DUA”)(a Massachusetts Division of Unemployment
Insurance Telephone Call Center);(5) EOL/DWD/DUA employee Mrs.
Petri Turner (“Turner”);(6) EOL/DWD/DUA employee Mrs. Rosie
Cornelison;(7) EOL/DWD/DUA employee Mr. Clarence Weekes; (8)
EOL/DWD/DUA employee Mr. Kenneth Owens (“Owens”);(9) EOL/DWD/DUA
employee Mr. John Cullinane (“Cullinane”);(10) EOL/DWD/DUA
employee Mr. Michael Williams (“Williams”); and
(11) EOL/DWD/DUA employee Mr. David Olsen (“Olsen”).
The complaint is convoluted and not entirely coherent or
organized.

Although Cross uses paragraphs in the complaint, his

allegations are essentially set forth in narrative, stream-ofconsciousness-form, making it difficult to follow.

From what can

be gleaned from the complaint and the various exhibits in
support, Cross alleges that he was constructively discharged from
his employment with the EOL/DWD/DUA as a Job Specialist III,2 and
suffered a number of adverse actions and conditions in his
employment in retaliation for seeking reasonable accommodations
under the ADA.

He claims to be a qualified person with a

disability, suffering from Post Traumatic Stress Disorder,
anxiety, type II diabetes, bone spurs, osteoarthritis, and a
pinched nerve in his lower back.
2

Cross claims that he was on leave under the Family Medical
leave Act from March 31, 2011 to April 1, 2012.
2

Since he started his employment in 2009, Cross complained to
Turner about discrimination and a hostile work environment
because of harassment and intimidation by co-workers.
¶ 17.

Complaint,

On September 4, 2009, he made a verbal request to his

manager (Turner) for reasonable accommodations.

Id.

Turner

rejected his request and directed him to the ADA/504
(Rehabilitation Act) Coordinator (Owens).

Id.

Cross met with

Owens, who determined that Cross’s issues did not merit
reasonable accommodations.

Id.

Cross was then referred to the

Director of Labor Relations (Williams), who advised him to
refrain from being alone on an elevator with a former co-worker
(Lynne Cheeks), with whom he had adverse work relations.
Complaint, ¶¶ 17-18.
(Cullinane).

He was also advised to notify his boss

Complaint, ¶ 17.

On October 5, 2009, Cross submitted a written request for
accommodations to Turner.

Id.

Cross’s requests included: (1)

that he be provided a job coach to address the need for anxiety
accommodation, or to get extra help as needed to improve the
quality of his work; (2) that EOL/DWD/DUA institute a modified
method of supervision of him; (3) that he be allowed to work at a
lower standard of productivity when his blood glucose is low, and
that he be allowed extra rest and bathroom breaks; (4) that he be
allowed to stand and stretch frequently to relieve stress on his
lower back and both knees; (5) that he be given a floor mat that
allowed him to move around better on the carpeting; (6) that he
3

be given a handicap parking space; and (7) that he be given a
flexible work schedule to accommodate medical appointments for
his diabetes.

Docket No. 5-4, p. 2-3.

On August 25, 2010, Owens issued a Memorandum advising Cross
that his request for reasonable accommodations was approved in
part and denied in part.
3.

Complaint, ¶ 22; Docket No. 5-5, p. 1-

Specifically, his request for a floor mat was approved, his

request for breaks when symptoms of his medical condition became
acute was approved (if reasonably necessary), and his request for
breaks to stand and stretch was approved as necessary but for no
more than 15-30 seconds unless otherwise directed by his health
care provider.

Docket No. 5-5, p. 1.

On the other hand, Cross’s request for a job coach, a lower
standard of productivity, and a permanently assigned handicap
parking space were denied on the grounds that: (1) Cross had
already been provided with coaching on his essential job duties
and thus continued coaching was not necessary to perform the
essential functions of his job; and (2) because lowering the
standard of productivity and providing a parking space would
create an undue hardship on the EOL/DWD/DUA, and the EOL/DWD/DUA
determined that the requested accommodations were not required to
perform the essential functions of the job.

See Exhibit (Docket

No. 5-5).
Next, Cross claims that from September 4, 2009 through

4

October 5, 2009, he suffered adverse work conditions.
¶¶ 17-18.

Complaint,

Specifically, he claims his excellent job performance

was overlooked, while his co-workers were given awards; that he
was placed on a Remedial Development Plan; that he was micromanaged; and that his co-workers mocked, intimidated, stalked,
belittled, harassed, and ostracized him.

Complaint, ¶ 18.

On May 19, 2010, Cross filed a complaint with the EEOC
because he had not heard back from Owens about his requests.
Complaint, ¶ 19.

He claims Owens lied when he stated that he had

assigned Mr. Wright to address his requests.

Id.

He seeks to

hold Owens liable for denying his reasonable accommodation
requests in violation of the ADA.

Id.

He also claims Owens

slandered and libeled him by filing a false affidavit.

Id.

Additionally, Cross claims that on June 4, 2010, the
defendants Cullinane and Williams began a “character assignation
campaign” against him, and retaliated against him for complaining
about discrimination and for asking for reasonable
accommodations.

Complaint, ¶ 20.

While it is not entirely

clear, it appears that Cross alleges that Cullinane fabricated a
story that Cross was sexually harassing a telephone claimant
caller.

Id.

Cross also contends that Williams attempted to

bribe him -- through the Union Vice President (Robert Day) -- by
stating that if Cross dropped his EEOC/MCAD case against his
employer, he would “swap” the formal written warning Cross

5

received into a verbal written warning.

Id.

Cross filed a

retaliation charge with the EEOC on June 7, 2010, and then filed
a second retaliation charge with the EEOC alleging attempted
bribery.

Id.

Further, Cross alleges that he retained a lawyer(s) to
represent him in this matter, but claims that he was misled into
thinking the lawyer(s) were experienced.
constituted legal malpractice.3

Id.

He contends this

Id.

Additionally, Cross claims that defendant Olsen, acting both
as a NAGE (National Association of Government Employees) Union
Hearing Officer and a Human Resources Director, held two illegal
hearings against him.

Id.

Cross asserts this was conflict of

interest because the code of conduct prohibited Olsen from acting
in these dual roles.

Id.

He further claims Olsen “convicted”

him without any finding of fact or law, and without any
confession from him.

Id.

Based on these allegations, Cross

filed a third retaliation charge with the EEOC on May 25, 2011.
Complaint, ¶ 21.

He claims that after he filed the EEOC

complaint, Olsen and others lied in affidavits in which they

3

Cross references his representation by Attorney Douglas
Lovenberg, and Attorney Irena W. Inman. In an attached exhibit,
Cross claimed that the Civil Service Commissioner dismissed his
case for improper venue and jurisdiction. Cross also complains
about the fee arrangements. Although he has claimed legal
malpractice, he has not identified these two attorneys as
defendants in this action, and this Court will not consider this
action as asserting malpractice claims against them.
6

denied any wrongdoing.

Complaint, ¶ 20.

On December 6, 2011,

Cross filed a fourth amended charge against Cullinane and
Williams, as well as Eugene Sullivan (not a named defendant in
this action), alleging he was subject to a negative employment
action and was intentionally retaliated against in order to
constructively terminate his employment, by making Cross quit or
get fired.

Complaint, ¶ 21.

On May 10, 2011, Cross filed a fifth and final amended
retaliation charge with the EEOC.

Id.

In that claim, Cross

alleged that Cullinane interfered with his claim for unemployment
benefits by placing a note (in his file) instructing that no
other employee was to handle Cross’s claim and that any claims
were to be directed to his attention.

Id.

With respect to defendant EEOC Investigator Pino, Cross
claims that Pino was negligent in his investigation and failed to
follow the EEOC Compliance Manuel, and other law.
¶ 15.

Complaint,

He also asserts that Pino denied him due process because

he rejected Cross’s evidence of discrimination and retaliation
(rebuttals and summary responses to four alleged perjured
affidavits and position statements of his former employer).

Id.

Cross next alleges that defendant Sanders submitted a
position statement that supported Pino’s conclusions.
¶ 16.

Complaint,

Cross contends that Sanders’s findings (i.e., that Cross’s

former employer articulated legitimate, non-discriminatory

7

reasons for denying his requested accommodations in part),
constituted a cover-up, obstruction of justice, and fraud.

Id.

He also asserts that his request for “anxiety accommodation” was
never addressed.

Id.

On December 8, 2011, the EEOC dismissed Cross’s claims based
on disability discrimination and hostile work environment, and
his claims for reasonable accommodation for physical and mental
disabilities.
letter.

Complaint, ¶ 14.

He was given a “right to sue”

Docket No. 1-1, p. 1.

In this action, Cross seeks, inter alia, compensatory and
punitive damages, as well as injunctive relief vacating all his
reprimands and negative references in his employment personnel
record.

Complaint, p. 9.

Along with the complaint and exhibits, Cross filed a Motion
to Appoint Counsel (Docket No. 2) and a Motion for Leave to
Proceed in forma pauperis (Docket No. 3).
Thereafter, on March 27, 2012, Cross filed a Motion to
Access and Use CM/ECF to Electronically File Court Papers on the
PACER System (Docket No. 9), and a Motion to Waive PACER and
CM/ECF Filing Fees (Docket No. 10).

The Court granted these

motions on April 3, 2012.
II.

DISCUSSION
A.

The Motion for Leave to Proceed In Forma Pauperis

A review of Cross’s financial disclosures indicates that he

8

is on medical leave, and receives social security disability
benefits.

He expects that he will be unable to return to work.

He reports that he has no substantial assets or income, and that
his debts exceed his income.

In light of these disclosures, this

Court finds that he has demonstrated sufficiently that he lacks
funds to pay the $350.00 filing fee for this action.
Accordingly, his Motion for Leave to Proceed in forma pauperis
(Docket No. 3) is ALLOWED.
B.

The Complaint is Subject to Screening

Because Cross is proceeding in forma pauperis, his complaint
is subject to screening under 28 U.S.C. § 1915(e)(2).

This

statute authorizes federal courts to dismiss actions in which a
plaintiff seeks to proceed without prepayment of fees if the
action is malicious, frivolous, fails to state a claim upon which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.

See 28 U.S.C.

§ 1915(e)(2); Denton v. Hernandez, 504 U.S. 25, 32-33 (1992);
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
For purposes of preliminary screening, the Court liberally
construes Cross’s complaint because he is proceeding pro se.
Hughes v. Rowe, 449 U.S. 5, 9 (1980);
519, 520 (1972);

See

Haines v. Kerner, 404 U.S.

Instituto de Educacion Universal Corp. v. U.S.

Dept. of Education, 209 F.3d 18, 23 (1st Cir. 2000).
Nevertheless, even under a liberal construction, Cross’s claims

9

are subject to dismissal for the reasons discussed below.
C.

Failure to Comply With Fed. R. Civ. P. 8

Rule 8 of the Federal Rules of Civil Procedure provides, in
relevant part, that “[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 ....”
Civ. P. 8(a)(2).

Fed. R.

The statement must “give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon
which it rests.”

Phelps v. Local 0222, No. 09-11218, 2010 WL

3342031, at *5 (D. Mass. August 20, 2010)(quoting Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512 (quotations and citations
omitted)).

In addition, the pleadings “must afford the

defendants a meaningful opportunity to mount a defense.”
Benyamin v. Commonwealth Med. UMass Med. Ctr., Inc., 2011 WL
2681195, at *2, (D. Mass. 2011) (quoting Diaz-Rivera v.
Rivera-Rodriguez, 377 F.3d 119, 123(1st Cir. 2004)(internal
punctuation and additional citations omitted)).

At a minimum,

“the complaint should at least set forth minimal facts as to who
did what to whom, when, where, and why.”
omitted).

Id. (quotation

While the “First Circuit holds a pro se litigant to a

standard of pleading less stringent than that for lawyers,” “this
cannot be taken to mean that pro se complaints are held to no
standard at all.”
(D. Mass. 1985).

Green v. Massachusetts, 108 F.R.D. 217, 218
Thus, “the requirements of Rule 8(a)(2) are

10

minimal – but minimal requirements are not tantamount to
nonexistent requirements.” Educadores Puertorriquenos en Accion
v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004) (internal quotation
omitted).

Under Rule 8, a plaintiff must plead more than a mere

allegation that the defendant has harmed him [or her].

Ashcroft

v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(detailed factual
allegations are not required under Rule 8, but a complaint
“demands more than an unadorned, the defendant-unlawfullyharmed-me accusation” (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).

See Chiang v. Skeirik, 582 F.3d 238,

244 (1st Cir. 2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”) (internal citation and quotation marks omitted).
Here, as noted above, Cross’s complaint is convoluted.

It

does not give notice to each of the defendants of the cause of
action(s) asserted against them separately, nor does it give the
minimal “who, what, when, where, and why” information as to each
defendant.4

Indeed, this Court is unable to discern any claims

4

Cross references causes of actions under 42 U.S.C. § 1983
and the Rehabilitation Act as well as state tort claims, but he
fails to delineate these claims coherently in accordance with
Rule 8. This Court cannot infer on this record that a
constitutional claim has been pled, or that there is no other
statutory remedial scheme adequate to address Cross’s alleged
damages. See Adams v. Johnson, 355 F.3d 1179, 11-83-84 (9th Cir.
2004) citing Schweiker v. Chilicky, 487 U.S. 412, 423(1988)(“When
the design of a Government program suggests that Congress has
provided what it considers adequate remedial mechanisms for
constitutional violations that may occur in the course of its
11

against Rosie Cornelison or Clarence Weekes, notwithstanding that
they are referenced in the complaint.

Further, Cross has

asserted wrongdoing by a number of individuals who are not named
as defendants in this action.

His submission of a host of

exhibits including employment records, EEOC proceedings, medical
records, e-mails, letters, and other documents cannot serve as a
substitution for a complaint that meets Rule 8 standards.5

In

short, it would be immensely unfair to require each of the named
defendants to peruse the complaint as pled and cull out Cross’s

administration, we have not created additional Bivens
remedies.”).
5

Moreover, “[d]istrict courts are not required to conjure up
questions never squarely presented to them or to construct full
blown claims from sentence fragments.” Terrance v. Cuyahoga
County, 2005 WL 2491531 at *1 (N.D. Ohio 2005) citing Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). See
McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979)(court is not
required to “conjure up unpled allegations,” notwithstanding duty
to be less stringent with pro se complaints). Such an exercise
by the Court would “‘require ... [the courts] to explore
exhaustively all potential claims of a pro se plaintiff, ...
[and] would ... transform the district court from its legitimate
advisory role to the improper role of an advocate seeking out the
strongest arguments and most successful strategies for a party.”
Terrance, 2005 WL 2491531, at *1, quoting Beaudett, 775 F.2d at
1278. See also Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)
(“It is certainly reasonable to ask that all plaintiffs, even pro
se plaintiffs,.... alert party defendants that they may be
individually responsible in damages. The trial and appellate
courts should not have to guess at the nature of the claim
asserted.”). “[T]he failure to identify a particular legal
theory ... places an unfair burden on the defendant to speculate
on the potential claims that plaintiff may be raising against it
and the defenses it might assert in response to each of these
possible causes of action.” Terrance, 2005 WL 2491531, at *1.
12

claims for which liability would attach.6
Although Cross appears to have exhausted his administrative
remedies with the EEOC and obtained a “right to sue” letter, this
Court cannot permit this action to proceed as pled.

If and/or

when Cross files an amended complaint that complies with the
pleading requirements of Rule 8, this Court would consider
permitting this action to proceed in whole or part against
defendants who have participated in the EEOC proceedings, and
other defendants as to whom plausible claims are asserted.
D.

Failure to State a Plausible Claim Against the EEOC

Next, with respect to the defendant EEOC, Cross fails to

6

As an additional matter, this Court notes that, to the
extent Cross seeks to hold individual defendants liable for
employment discrimination, he fails to state claims upon which
relief may be granted, because there is no individual liability
under the ADA. See Roman-Oliveras v. Puerto Rico Elec. Power
Authority, 655 F.3d 43, 52 (1st Cir. 2011)(noting agreement
“‘with the virtually universal view that Title I of the ADA, like
Title VII of the Civil Rights Act,’ ‘addresses the conduct of
employers only and does not impose liability on co-workers.’”)
(quoting Fantini v. Salem State College, 557 F.3d 22, 31 (1st
Cir. 2009)(holding that this circuit has held that there is no
individual liability for employees under Title VII)(other
citations omitted). Further, without deciding, this Court notes
that Cross’s ADA claim for a reasonable accommodation in the form
of a parking space may be subject to dismissal. In
Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 36 (1st
Cir. 2011) the United States Court of Appeals for the First
Circuit rejected a claim for a reasonable accommodation in the
form of a reserved parking space, holding that such a claim was
not cognizable because the plaintiff could not show an adverse
employment action that both caused her material harm and was
linked to her request for a parking spot.

13

make clear any wrongdoing by the EEOC (i.e., the agency itself).
Apart from his disagreement with the decision by employees of the
EEOC, he fails to set forth any basis for liability of the EEOC.
Thus, Cross fails to state a plausible claim under Rule 8.

In

any event, Cross’s claims (to the extent there are any) are
barred because the EEOC is entitled to sovereign immunity, and
because Cross has not set forth a basis for this Court to find
that sovereign immunity has been waived.
It is well settled that under the doctrine of sovereign
immunity, the United States (including its various branches,
departments, and agencies, such as the EEOC) enjoys immunity from
suit except in those instances in which it has expressly
consented to be sued.

See FDIC v. Meyer, 510 U.S. 471, 475

(1994); United States v. Testan, 424 U.S. 392, 399 (1976).

A

waiver of this immunity may never be implied from the factual
circumstances of a particular case.

Rather, the waiver must be

unequivocally expressed in each instance.

See United States v.

Nordic Vill., Inc., 503 U.S. 30, 33-34 (1992); United States v.
Mitchell, 445 U.S. 535, 538, (1980).
In light of the above, Cross’s claims against the EEOC are
subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
(failure to state a claim upon which relief may be granted) and
(iii)(claim barred where it seeks monetary relief against a
defendant who is immune from relief).

14

E.

Failure to State Plausible Claims Against the
Department of Unemployment Assistance

With respect to the defendant Department of Unemployment
Assistance, Cross fails to set forth his claims clearly.

To the

extent that Cross is asserting discrimination claims against his
employer (EOL/DWD/DUA) which were the subject of the EEOC
proceedings, this Court would permit those claims to proceed upon
the filing of an amended complaint in accordance with Rule 8;
however, to the extent that Cross seeks to hold the Department of
Unemployment Assistance liable for failure to provide
unemployment benefits, Cross has not set forth any basis for
liability of the agency itself.

Apart from asserting that

Cullinane interfered with his claim for unemployment assistance,
there are no facts alleged to support a claim for liability of
the state agency.
Additionally, any other federal claims (to the extent there
are any) are barred because the Department of Unemployment
Assistance is entitled to sovereign immunity, and because Cross
has not set forth a basis for this Court to find that sovereign
immunity has been waived.7

7

“The Eleventh Amendment bars actions in federal courts
claiming damages against a state and its agencies unless the
state has consented to be sued in federal court.” Boulais v.
Commonwealth of Mass., No. 00-12086, 2002 WL 225936 at *1 (D.
Mass. January 30, 2002)(citations omitted). See Seminole Tribe
of Florida v. Florida, 517 U.S. 44, 54 (1996); Kentucky v.
Graham, 473 U.S. 159, 167 n.14 (1985)(unless a State has “waived
its Eleventh Amendment immunity or Congress has overridden it,...
15

Accordingly, Cross’s claims against the Department of
Unemployment Assistance are subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii)(failure to state a claim upon which
relief may be granted) and (iii)(claim barred where it seeks
monetary relief against a defendant who is immune from relief).
F.

Order to File an Amended Complaint

In light of the above, the Court will recommend that this
action be dismissed within thirty-five (35) days from the date of
this Memorandum and Order unless Cross files an “amended
complaint” that comports with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure.

Any amended complaint

must be coherent, and should not simply reiterate the claims made
in the original complaint; it must set forth each cause of action
against each defendant separately and not jointly, along with a
brief statement of the underlying facts to support each claim
(i.e., the “who, what, when, where, and why information”).

The

amended complaint may reference exhibits, but any referenced
exhibit must be clearly identified and marked with a letter or
number; however, Cross may not include exhibits in lieu of

a State cannot be sued directly in its own name regardless of the
relief sought.”); Alabama v. Pugh, 438 U.S. 781 (1978) (per
curiam) (11th Amendment generally is recognized as a bar to suits
against a State, its departments, and agencies unless the State
has consented to suit). Nothing in Cross’s allegations could be
reasonably construed as presenting claims as to which the
Commonwealth of Massachusetts has waived its sovereign immunity
to suit in federal court.
16

stating his claims in an amended complaint.

Rather, he must

allege, in the amended complaint, the necessary information to
give each defendant sufficient notice of the claim(s) and the
grounds for asserting liability.

Additionally, with respect to

each defendant as to whom retaliation is alleged, Cross shall
state whether he has filed a claim with the EEOC and exhausted
his remedies with the EEOC as to that defendant.

Further, Cross

must identify clearly any claims based on state law and set them
forth in accordance with Rule 8.
Finally, with respect to the EEOC and the Department of
Unemployment Assistance, Cross must set forth claims under Rule 8
and, except as to the employment discrimination claims, set forth
a basis to find that there has been a waiver of sovereign
immunity of the Commonwealth of Massachusetts.
To facilitate Cross’s compliance with the directives
contained herein, the Court suggests (but does not mandate) that
Cross organize his claims by defendant’s name, identify the cause
of action (e.g., the ADA, the Rehabilitation Act, retaliation,
hostile work environment, etc.), and state the factual grounds in
support.8

Cross need not include legal argument or extraneous

8

In setting forth claims for hostile work environment, Cross
must specify some factual basis for the claim, and may not
include amorphous allegations or legal conclusions. See
Colon-Fontanez, 660 F.3d at 43 (noting that to establish a
hostile work environment claim, a plaintiff must show that the
workplace was “permeated with discriminatory intimidation,
ridicule, and insult that [was] sufficiently severe or pervasive
17

background information.
Failure to comply with these directives may result in a
dismissal of this action.
G.

The Motion for Appointment of Counsel

Under 28 U.S.C. § 1915, a “court may request an attorney to
represent any person unable to afford counsel.”
1915(e)(1).

28 U.S.C. §

The United States Court of Appeals for the First

Circuit provides the following set of factors to consider when
determining whether to appoint counsel to an indigent under §

to alter the conditions of ... [his] employment and create an
abusive working environment.") quoting Quiles–Quiles v.
Henderson, 439 F.3d 1, 7 (1st Cir. 2006)(other citations
omitted). It is well settled that “‘simple teasing,’ offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the ‘terms and conditions
of employment’ necessary to establish an objectively hostile or
abusive work environment.” Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998)(other citation omitted). Similarly, in
setting forth retaliation claims, Cross must show that he
suffered material harm. The conclusory allegation that he was
not offered training to assist him in his job performance is
insufficient. See, e.g., Colon-Fontanez, 660 F.3d 17, 40-41
(finding the conclusory allegation that lack of training is not
sufficient for purposes of establishing a non-trivial harm that
“rises above mere inconvenience” and noting that plaintiff had
the burden of showing that the alleged adverse action was “taken
for the purpose of retaliating.")(citing Randlett v. Shalala, 118
F.3d 857, 862 (1st Cir. 1997)). Cross need not succeed on an ADA
discrimination claim in order to assert a claim for retaliation.
Colon-Fontanez, 660 F.3d 17, 36, citing Soileau v. Guilford of
Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997). Nevertheless, to
establish a retaliation claim, Cross must show that: (1) he was
engaged in protected conduct; (2) he suffered an adverse
employment action; and (3) there was a causal connection between
the protected conduct and the adverse action. Id. citing
Carmona–Rivera v. Puerto Rico, 464 F.3d 14, 19 (1st Cir. 2006);
Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003).
18

1915: “[1] the indigent’s ability to conduct whatever factual
investigation is necessary to support his or her claim; [2] the
complexity of the factual and legal issues involved; and [3] the
capability of the indigent litigant to present the case.”
Cookish v. Cunningham, 787 F.2d 1, 3 (1st Cir. 1986) (per
curiam); see Bemis v. Kelley, 857 F.2d 14, 16 (1st Cir. 1988).
Ultimately, to be eligible for this assistance under 28 U.S.C.
§ 1915, Cross “must demonstrate that he [is] indigent and that
exceptional circumstances [are] present such that a denial of
counsel [is] likely to result in fundamental unfairness impinging
on his due process rights.”
(1st Cir. 1991).

DesRosiers v. Moran, 949 F.2d 15, 23

This Court considers the total situation,

including the merits of the case, the complexity of the legal
issues, and the litigant’s ability to represent herself.

Id.9

At this juncture, the Court credits that Cross has attempted
to retain counsel on his own but is unable to afford the costs of
representation.

The Court also considers that Cross is indigent,

unskilled in the law, and may have a difficult time prosecuting

9

The standard is less stringent in employment discrimination
cases. See, e.g., Gadson v. Concord Hosp., 966 F.2d 32, 35 (1st
Cir. 1992) (stating: “[a] district court considers three factors
in determining whether to appoint counsel to a pro se plaintiff
under Title VII: (1) the merits of plaintiff’s case; (2) the
efforts by plaintiff to obtain legal representation; and (3) the
plaintiff’s financial ability."). “Any one of the three factors
may be determinative.” Id. at 36 (citing Darden v. Illinois Bell
Telephone Co., 797 F.2d 497, 501 (7th Cir. 1986)). Even under
this standard, however, this Court does not consider appointment
of pro bono counsel at this time to be prudent.
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this action pro se.

Nevertheless, without a response from the

defendants, this Court cannot gauge adequately the merits of his
claims nor can this Court find, on this record, that Cross has
demonstrated exceptional circumstances that warrant the
expenditure of scarce pro bono resources.

Indeed, on this

record, even under a liberal reading of the pleadings, the merits
of Cross’s claims are dubious, based primarily on generalized
allegations and legal conclusions.
Accordingly, Cross’s Motion for Appointment of Counsel
(Docket No. 2) is DENIED without prejudice to renew after the
defendants have filed a responsive pleading to any amended
complaint (if this action is permitted to proceed further), upon
good cause shown.
H.

Consent Pending

This action was randomly assigned to this Court pursuant to
the District Court’s Program for Random Assignment of Civil Cases
to Magistrate Judges.

The Clerk shall send to Cross the standard

consent package with information and instructions so that he may
choose whether or not to elect to proceed before a Magistrate
Judge for all purposes.

Within 35 days of the date of this

Memorandum and Order, Cross shall advise the Court whether or not
he consents.

Should he elect not to consent, or fail to comply

with the directives contained in this Memorandum and Order, this
Court will direct the reassignment of this case to a District

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Judge for further proceedings.
III.

CONCLUSION
Based on the foregoing, it is hereby Ordered that:

1.

Plaintiff’s Motion for Leave to Proceed in forma pauperis
(Docket No. 3) is ALLOWED;

2.

Plaintiff’s Motion to Appoint Counsel (Docket No. 2) is
DENIED without prejudice;

3.

Within 35 days of the date of this Memorandum and Order,
plaintiff shall file an amended complaint (curing the
pleading deficiencies) in accordance with Rule 8 of the
Federal Rule of Civil Procedure;

4.

The Clerk shall provide plaintiff with the form for
Consent/Refusal of Magistrate Judge Jurisdiction and the
instructions for that form (“consent package”); and

5.

Within 35 days of the date of this Memorandum and Order,
plaintiff shall advise the Court as to whether he wishes to
consent to proceedings before a Magistrate Judge.

SO ORDERED.

/s/ Jennifer C. Boal
JENNIFER C. BOAL
UNITED STATES MAGISTRATE JUDGE
DATED: April 11, 2012

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