Hardy v. Whidden Memorial Hospital

Filing 44

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER granting 41 Defendant's Motion for Judgment on the Pleadings. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARIELITE HARDY,
Plaintiff,
v.
WHIDDEN MEMORIAL HOSPITAL,
Defendant.

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CIVIL ACTION
NO. 14-10726-JGD

MEMORANDUM OF DECISION AND ORDER ON
DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS
November 19, 2015
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, Marielite Hardy, was employed by Cambridge Health Alliance (“CHA”)1 and
worked as a Laboratory Assistant in the Phlebotomy Department from July 20, 1994 until
February 11, 2011, when her employment was terminated following a physical altercation
between the plaintiff and another employee. She filed this pro se action on February 27, 2014,
complaining that she had been denied a promotion in 2009 “in favor of a new employee who
was younger and white[,]” and asserting that she had been fired and denied unemployment
benefits due to a false accusation that she “was aggressive towards a co-worker.” (Compl.
(Docket No. 1)). This matter is before the court on the defendant’s Motion for Judgment on
the Pleadings, brought pursuant to Fed. R. Civ. P. 12(c). (Docket No. 41). The plaintiff has failed

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Although she names Whidden Memorial Hospital as the defendant, it is undisputed that the plaintiff
was employed by Cambridge Health Alliance, which has appeared to defend this action.

to oppose the motion, although given several opportunities to do so. Nevertheless, this court is
obligated to examine the merits of the motion, which it has done. See Vega-Encarnacion v.
Babilonia, 344 F.3d 37, 41 (1st Cir. 2003) (“If the merits are at issue, the mere fact that a motion
to dismiss is unopposed does not relieve the district court of the obligation to examine the
complaint itself to see whether it is formally sufficient to state a claim.”). For the reasons
detailed herein, this court finds that the plaintiff has failed to state a viable claim. The motion
for judgment on the pleadings is ALLOWED.
II. STATEMENT OF FACTS
A motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) “implicates the
pleadings as a whole.” Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55 (1st Cir. 2006). In
ruling on a motion for judgment on the pleadings, “the court must view the facts contained in
the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences
therefrom to the nonmovant’s behoof.” R.G. Fin. Corp v. Vergara-Nunez, 446 F.3d 178, 182 (1st
Cir. 2006). Applying this principle, the relevant facts are as follows.
The MCAD Proceedings
On November 18, 2011, Ms. Hardy filed a charge of discrimination with the Massachusetts Commission Against Discrimination (“MCAD”). Since the defendant contends that
complaints raised in this court were not exhausted before the MCAD, some details about the
MCAD proceedings are necessary. 2

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The defendant raised the defense of failure to exhaust in its answer. (See Docket No. 8 at Seventh
Defense). Therefore, the MCAD Charge and MCAD Findings, which are integral to the issues in dispute,
but are not themselves in dispute, are appropriately considered in connection with the pending motion.
See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001) (in connection with
a motion to dismiss, court may consider “documents the authenticity of which are not disputed by the

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In her MCAD charge, Ms. Hardy alleged that she was discriminated against on the basis
of her age and retaliated against in violation of Mass. Gen. Laws ch. 151B, § 4, ¶¶ 1B & 4, the
Age Discrimination in Employment Act (“ADEA”), and Title VII of the 1964 Civil Rights Act, as
amended. (See Berube Aff. (Docket No. 42-1) at Ex. 1 (“MCAD Charge”), and Ex. 2 (“MCAD
Findings”)). Specifically, Ms. Hardy alleged in relevant part:
Since Linda Thomas became manager of my department about three (3)
years ago, she has continually hired people much younger than me
(approximately in their twenties).
In mid-July 2010, I complained to Thomas of a co-worker Rachel Pezzuto’s
disrespectful treatment of me, establishing a hostile work condition for me.
Pezzuto is in her twenties (20s). She constantly harassed me verbally and
physically. She made me feel very uncomfortable. In a meeting between
Pezzuto, Thomas, and me, Thomas said that we two needed to work it out
because we have to work with each other.
Two weeks later, Pezzuto resumed her bullying of me. I did not complain to
Thomas again because I did not feel like she would take any direct action.
On February 5, 2011, Pezzuto repeatedly pushed a chair into me, causing me
to hit the desk several times. She slapped me in the face and continued to
assault me with the chair. I did not fight back. When I asked about film
documentation, Dalton Clark (Director of the Lab) and Carol Madio (head of
the hospital) said the camera showed nothing. They alleged that Pezzuto
suffered from broken bones and other serious injuries. I repeated that I did
not fight back and demanded evidence. However, they did not provide any.
On February 11, 2011, I was terminated because of the altercation with
Pezzuto. Clark gave me a paper to sign stating that I will not put my foot
back into the Respondent’s facilities. He escorted me from the premises.
I believe that I was discriminated by Thomas because of my age. She didn’t
take action because I was the only older phlebotomist. Furthermore, I
believe I was retaliated against by the Respondent because of my previous
complaint to Thomas. Because of this, I was falsely accused of injuring
Pezzuto in an altercation that I did not instigate nor fuel.
parties;” “official public records;” “documents central to plaintiffs’ claim;” or “documents sufficiently
referred to in the [pleadings].” (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993))).

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(MCAD Charge at 1-2). The MCAD conducted an investigation, and concluded that Ms. Hardy
had failed to produce sufficient evidence to support her claims for either age discrimination or
retaliation, that she had actively participated in the workplace fight, and that she had been
terminated as a result (along with Ms. Pezzuto). (MCAD Findings at 3-4). The MCAD issued a
Lack of Probable Cause finding on November 30, 2012. The EEOC adopted the MCAD Findings
and dismissed the matter on November 29, 2013. (Compl. at 2).
Ms. Hardy filed her action in this court on February 27, 2014. In her complaint, Ms.
Hardy alleges as follows:
I was denied a promotion to fulltime in 2009, in favor of a new employee
who was younger and white.
An allegation was lodged in February of 2010 against me, stating I was
aggressive towards a coworker. The allegation was untrue. I was fired and
denied unemployment benefits due to the accusation.
(Compl. at 1). Although Ms. Hardy refers to the accusation against her being made in February
2010, it is clear from the pleadings filed with the MCAD, and the fact that she was fired in
February 2011, that the 2010 date is a typographical error. Thus, this court will assume that it
was supposed to state February of 2011.
Procedural History of the Litigation
After the complaint was duly served, the defendant filed an answer on August 13, 2014.
The court held a Rule 16(b) conference on October 1, 2014, but Ms. Hardy failed to appear.
(Docket No. 19). She did, however, come to the court the next day and the court scheduled
another conference for October 29, 2014. (Docket No. 22). The plaintiff appeared and the
court set deadlines for initial disclosures and written discovery. (Docket Nos. 23, 24).
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The case was reassigned to this Magistrate Judge. On March 13, 2015, CHA filed a
Motion to Dismiss for Lack of Prosecution, alleging that Ms. Hardy had failed to comply with the
court’s scheduling order. (Docket No. 32). A status conference and hearing on the motion was
held on April 6, 2015. At that time, this court ordered as follows:
In light of the plaintiff’s appearance and her production of documents to the
defendant, Cambridge Health Alliance’s motion to dismiss for failure to
engage in discovery and to prosecute this action is DENIED WITHOUT
PREJUDICE. However, the plaintiff is cautioned that any failure to comply
with future deadlines or orders of the court may result in the dismissal of this
case with prejudice.
(Docket No. 40 ¶ 1). This court further authorized the defendant to file the instant motion for
judgment on the pleadings by May 6, 2015, which it did. No opposition having been filed, on
May 27, 2015 this court ordered “that the plaintiff shall file an opposition on or before June 19,
2015 or the Motion will be deemed unopposed.” (Docket No. 43). No opposition was filed.
Additional facts will be provided below where appropriate.
III. ANALYSIS
A.

Standard of Review

Since the defendant has filed an answer to the complaint, the motion before the court is
properly one for judgment on the pleadings, brought pursuant to Fed. R. Civ. P. 12(c). See
Aponte-Torres, 445 F.3d at 54. The legal standard for evaluating this motion is essentially the
same as the standard for evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), except
that the pending motion “implicates the pleadings as a whole.” Id. at 54-55. Thus, the court
accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the
plaintiff. Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Dismissal is only
appropriate if the complaint, so viewed, fails to allege a “plausible entitlement to relief.”
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Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 559, 127 S. Ct. 1955, 1967, 167 L. Ed. 2d 929 (2007)).
“The plausibility inquiry necessitates a two-step pavane.” Garcia-Catalan v. United
States, 734 F.3d 100, 103 (1st Cir. 2013). “First, the court must distinguish ‘the complaint’s
factual allegations (which must be accepted as true) from its conclusory legal allegations (which
need not be credited).’” Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.
2012)). “Second, the court must determine whether the factual allegations are sufficient to
support ‘the reasonable inference that the defendant is liable for the misconduct alleged.’” Id.
(quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)) (additional citation omitted).
This second step requires the reviewing court to “draw on its judicial experience and common
sense.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009)). “If the factual allegations in the complaint are too meager, vague, or conclusory to
remove the possibility of relief from the realm of mere conjecture, the complaint is open to
dismissal.” Morales-Cruz, 676 F.3d at 224 (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
2010)).
Applying these principles compels the conclusion that the motion for judgment on the
pleadings should be allowed.
B.

Timeliness/Failure to Exhaust

The defendant contends that Ms. Hardy failed to exhaust her administrative remedies,
since she did not raise the claims described in her complaint in her filing with the MCAD. As
noted above, this court has found that the reference in the complaint to February 2010 is a
typographical error. Since Ms. Hardy did allege before the MCAD that she was wrongly fired in
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February 2011 based on an inaccurate claim that she had fought back and caused injury to her
co-worker, this court finds that she exhausted her present claim that she “was fired and denied
unemployment benefits due to the accusation” made “in February of 201[1] against [her],
stating [she] was aggressive towards a coworker.” (Compl. at 1). However, this court also finds
that her present contention that she was discriminated against by being denied a promotion to
fulltime work in 2009 is untimely, and was not exhausted before the MCAD. Therefore, that
claim must be dismissed.
As a prerequisite to bringing suit either under Title VII or the ADEA, the plaintiff must
first file a charge of discrimination with the EEOC (or a local Fair Employment Practices Agency
with whom it has a Worksharing Agreement, like the MCAD), which sets forth the basis of the
alleged discrimination. See Title VII, 42 U.S.C. § 2000e-5(f); ADEA, 29 U.S.C § 626(d)(1). The
charge must be filed within 300 days after the alleged unlawful practice occurred. Title VII, 42
U.S.C. § 2000e-5(e)(1); ADEA, 29 U.S.C. § 626(d)(1)(B). The purpose of the requirement that the
charge be filed “is to provide the employer with prompt notice of the claim and to create an
opportunity for early conciliation.” Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009).
In filing a complaint in court, the plaintiff is therefore limited to claims that “come within the
scope of the EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Id. (quotations and citations omitted).
In the instant case, Ms. Hardy’s complaint of a failure to promote in 2009 occurred
much more than 300 days before she filed her 2011 charge with the MCAD. See Ocean Spray
Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 441 Mass. 632, 641, 808 N.E.2d 257,
265-66 (2004) (statute of limitations begins to run on the date the employee is denied a
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promotion). Moreover, her MCAD charge makes no mention of a failure to promote.3 Under
such circumstances, “the claim must be dismissed for failure to exhaust administrative
remedies and the expiration of the statute of limitations.” Bradford & Bigelow, Inc. v.
Richardson, Civil Action No. 13-11025-RWZ, 2014 WL 949781, at *1 (D. Mass. Mar. 11, 2014)
(citing Alston v. Massachusetts, 661 F. Supp. 2d 117, 122-23 (D. Mass. 2009) (dismissing claim of
sex discrimination)). See also Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277-78 (1st Cir.
1999) (filing of claim with the EEOC is a prerequisite to bringing a claim under Title VII).
C.

Sufficiency of Allegations

A most liberal reading of Ms. Hardy’s complaint is that she was terminated from her
employment on the basis of her age or race. Where, as here, there is no direct evidence of
discrimination, “[her] case is governed in the first instance by the burden-shifting framework of
McDonnell Douglas Corp. v. Green,” 411 U.S. 792, 802-805, 93 S. Ct. 1817, 1824-26, 36 L. Ed. 2d
668 (1973).” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991). “First, the plaintiff has
the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the
defendant to articulate some legitimate, nondiscriminatory reason for the employee’s
rejection. Third, should the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dept.

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Ms. Hardy’s allegations are described in the MCAD Findings as including the claim that “in or about
2009, Lynda Thomas became manager of the department. Complainant claims that since that time,
Thomas began hiring individuals that were much younger than Complainant (approximately in the 20s).”
(MCAD Findings at 1). There is no mention of a failure to promote in 2009.

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of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981)
(internal quotation marks and citations omitted). See also Hicks v. Johnson, 755 F.3d 738, 744
(1st Cir. 2014). In the instant case, this court will assume, arguendo, that Ms. Hardy has
established a prima facie case of race and age discrimination.4 The defendant has put forth a
non-discriminatory reason for her termination — the fact that Ms. Hardy was engaged in a
physical altercation with her co-worker. However, Ms. Hardy has not put forth any facts which
would support a finding “that the employer’s proffered reason is pretextual and that the actual
reason for the adverse employment action is discriminatory.” Johnson v. Univ. of P.R., 714 F.3d
48, 54 (1st Cir. 2013). (See MCAD Findings at 4 (“Respondent provides a legitimate, nondiscriminatory reason for her termination; involvement in a workplace fight. Complainant
failed to rebut this reason when requested by this Commission.”)). Under these circumstances,
the complaint fails to state a claim and must be dismissed.
IV. CONCLUSION
For the reasons detailed herein, the defendant’s Motion for Judgment on the Pleadings
(Docket No. 41) is ALLOWED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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In reality, Ms. Hardy did not raise the issue of race before the MCAD, and that claim is not exhausted.
This court also notes that there is nothing in the complaint which raises a claim of retaliation, even
though such a claim was addressed by the MCAD. Nevertheless, for the same reasons discussed herein,
any claim of race discrimination or retaliation would be dismissed for failure to rebut the nondiscriminatory reason given for the termination of Ms. Hardy’s employment.

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