Aung v. Center for Health Information and Analysis

Filing 34

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered: Plaintiff's Motions for Reconsideration (Docket Nos. 14-17 and 19-20) are ALLOWED;Plaintiff's Motion for Reconsideration (Docket No. 18) is DENIED;All claims against defendant Steven Weatherhead, Esq. are DISMISSED; This Court's Stay pending appeal is VACATED; The clerk shall issue summonses as to all remaining defendants; Plaintiff is responsible for effecting service of process within 90 days from the date of this Memoran dum and Order or the case will be dismissed. Aung is not proceeding in forma pauperis, and the United States Marshal Service no longer effects service for private individuals. Thus, Aung needs to make other arrangements for service of process in accordance with Fed. R. Civ. P. 4. (PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
NAING N. AUNG,
Plaintiff,

)
)
)
v.
)
)
)
CENTER FOR HEALTH INFORMATION )
AND ANALYSIS, ET AL.,
)
Defendants.
)

CIVIL ACTION NO. 14-14402-PBS

MEMORANDUM AND ORDER
March 8, 2016
SARIS, C.D.J.
I.

INTRODUCTION

Pro se Plaintiff Naing N. Aung (“Aung”) filed this action
alleging retaliation against her employer, the Center for Health
Information and Analysis (“CHIA”) because she was terminated.
While the pro se complaint is hard to follow, she appears to
allege she was fired because she engaged in protected conduct
and suffered other adverse events in the workplace. She later
amended her complaint to add individual defendants.
On July 31, 2015, this Court issued a Memorandum and Order
(Docket No. 11) denying Aung’s two Motions for Appointment of
Counsel, and permitted this action to proceed only against CHIA
and not against any individual co-workers or supervisors, or the

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Massachusetts Commission Against Discrimination (“MCAD”). 1

Aung

was afforded 21 days to file a Motion for Reconsideration as to
any individual defendant, provided, however, that she
demonstrated good cause, with legal authority, along with a
factual basis for permitting the claims to proceed.

She also

was directed to demonstrate that she had exhausted her
administrative remedies with respect to the individuals before
filing suit, or provide a legal basis to permit this action to
proceed absent exhaustion.
On August 28, 2015, Aung filed a Motion for Reconsideration
as to all the individual defendants except Steven Weatherhead
(Docket No. 14-20). She also filed Exhibits (Docket No. 23) in
support of her Motions for Reconsideration.

These included the

Dismissal and Notification of Rights issued by MCAD on September
27, 2013, and the Investigative Disposition with the
recommendation of a lack of probable cause.
II.

DISCUSSION

The Court has reviewed each of Aung’s Motions for
Reconsideration (Docket Nos. 14-20) as well as her exhibits and
letter (Docket Nos. 23 and 24).

1

These defendants included Steven Weatherhead, Esq., Marc
Prettenhofer, David Wessman, Betty Harney, Kathy Hines, Tonya
Bourassa, Jen Gorke, and MCAD.
2

In the prior Memorandum and Order (Docket No. 11 at 4),
this Court assumed that Aung’s causes of action were raised
pursuant to Title VII, 42 U.S.C. § 2000(e) et. seq. With respect
to the claims against the individual defendants, Aung’s claims
fail at the outset because Title VII does not apply to
individuals.

“Title VII addresses the conduct of employers only

and does not impose liability on co-workers . . . . ”

Fantini

v. Salem State College, et al., 557 F. 3d 22, 31 (1st Cir.
2009)(citations omitted).

In Fantini, the First Circuit Court

of Appeals found that “[t]he statutory scheme [of Title VII]
itself indicates that Congress did not intend to impose
individual liability on employees.”

Id. at 30 (brackets in

original), citing Miller v. Maxwell’s International Inc., 991
F.2d 583, 587 (9th Cir. 1993).

See Roman-Oliveras v. Puerto

Rico Elec. Power Authority, 655 F. 3d 43, 52 (1st Cir. 2011)
(holding that Title I of the Americans with Disabilities Act,
like Title VII, “addresses the conduct of employers only and
does not impose liability on co-workers”).
However, in light of the supplemental filings, the Court
also examines the claims under state law, Mass. Gen. Laws. Ch.
151B, § 4(4), which allows for individual personal liability.
Martin v. Irwin Industrial Tool Company, 862 F. Supp. 2d 37, 38
(D. Mass. 2012) (“[S]ection 4, which makes various employment
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practices unlawful, contains multiple subsections which pertain
to a multitude of individuals and entities.”) (citing cases).
With respect to her claims against the individual defendants, a
plaintiff generally must first bring discrimination claims
before MCAD or else the claims are barred. Lattimore v. Polaroid
Corp., 99 F.3d 456, 464 (1st Cir. 1996). Generally speaking,
plaintiff cannot maintain a civil action against any defendant
not named in the MCAD complaint. Butner v. Department of State
Police, 60 Mass. App. Ct. 461, 468 (2004).
Nevertheless, caselaw has held that the failure to name an
individual as a respondent before MCAD is not necessarily
dispositive. So long as the individual is identified
sufficiently in the MCAD charge regarding that individual’s
conduct, and if the individual was put on notice of the charge
and had an opportunity to conciliate, the individual may be
included as a defendant in a later civil suit alleging Chapter
151B violations. See Chapin v. University of Massachusetts
Lowell, 977 F. Supp. 72, 76 (D. Mass. 1997) citing Chatman v.
Gentle Dental Center of Waltham, et al., 973 F. Supp. 228, 235
(D. Mass. 1997) However, plaintiff must allege facts to justify
application of this exception to the exhaustion requirement.
Butner, 60 Mass. App. Ct. at 468 n. 14; Singleton v. Sinclair
Broadcase Group. Inc. 660 F. Supp. 2d 136, 147 (2010) (finding a
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failure to exhaust where defendant has no notice that plaintiff
intended to name him as a defendant.)
Aung has not specifically addressed the exhaustion issue
with respect to each of the individual defendants as required by
the prior Memorandum and Order, nor has she shown that all the
individual defendants had the requisite notice and opportunity
to conciliate. For starters, plaintiff has not submitted her
complaint to the MCAD, so the Court cannot determine who was
specifically mentioned. Also, while she has asserted a myriad of
allegations against multiple co-workers in her supplemental
filings, it is not at all clear they were on notice in the MCAD
that they might be sued. The primary defendants discussed by the
MCAD in the Investigative Disposition were Assistant
Commissioner David Wessman and Marc Prettenhofer, the project
manager.
In light of this uncertainty in the record on the issue of
exhaustion under state law, the Motions for Reconsideration
(Docket Nos. 14-17 and 19-20) are ALLOWED.
With respect to Aung’s claims for monetary damages against
MCAD, the Court also DISMISSES her claims because they are
barred by Eleventh Amendment sovereign immunity, since MCAD is

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an agency of the Commonwealth of Massachusetts. 2 Accordingly,
Aung’s Motion for Reconsideration (Docket No. 18) is DENIED.
The Stay of this action is VACATED. The clerk should issue
summonses with respect to all the remaining individual
defendants except Steven Weatherhead. Aung must serve process
against all defendants within 90 days of the date of this
Memorandum and Order, failing which, this action may be
dismissed.
C.

Request for Appointment of Counsel
Aung may renew her request for appointment of counsel if

this case survives summary judgment and goes to trial.
III. CONCLUSION
Based on the foregoing, it is hereby ordered that:
1.

Plaintiff’s Motions for Reconsideration (Docket Nos. 14-17
and 19-20) are ALLOWED;

2.

Plaintiff’s Motion for Reconsideration (Docket No. 18) is
DENIED;

3.

All claims against defendant Steven Weatherhead, Esq. are
DISMISSED;

2

The Eleventh Amendment generally is recognized as a bar to
suits against a State, its departments and agencies unless the
State has consented to suit. U.S. Const. Amend. XIV. Alabama v.
Pugh, 438 U.S. 781, 781 (1978) (per curiam). Unless a State has
“waived its Eleventh Amendment immunity or Congress has
overridden it, ... a State cannot be sued directly in its own
name regardless of the relief sought.”
Kentucky v. Graham, 473
U.S. 159, 167 n. 14 (1985) (citing Pugh). Here, there is no
basis for finding that the Commonwealth of Massachusetts has
waived its sovereign immunity.
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4.

This Court’s Stay pending appeal is VACATED;

5.

The clerk shall issue summonses as to all remaining
defendants;

6.

Plaintiff is responsible for effecting service of process
within 90 days from the date of this Memorandum and Order
or the case will be dismissed. Aung is not proceeding in
forma pauperis, and the United States Marshal Service no
longer effects service for private individuals. Thus, Aung
needs to make other arrangements for service of process in
accordance with Fed. R. Civ. P. 4.

SO ORDERED.
/s/ Patti B. Saris
.
CHIEF UNITED STATES DISTRICT JUDGE

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