Campbell v. Bristol Community College
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Motion to Dismiss. (Zaleski, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARLYNE M. CAMPBELL,
BRISTOL COMMUNITY COLLEGE,
Civil Action No.
MEMORANDUM AND ORDER
ON MOTION TO DISMISS
This is a workplace discrimination and retaliation action. Plaintiff Marlyne Campbell has
brought suit against her former employer, defendant Bristol Community College. The complaint
alleges claims for hostile work environment, discrimination on the basis of race, and retaliation
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, as well as
state-law claims arising out of the same facts. Plaintiff is proceeding pro se.
Defendant has moved to dismiss the complaint for failure to state a claim upon which
relief can be granted under Fed. R. Civ. P. 12(b)(6) and for lack of subject-matter jurisdiction
under Fed. R. Civ. P. 12(b)(1). For the following reasons, the motion will be granted in part and
denied in part.
Unless otherwise noted, the facts are set forth as alleged in the complaint.
Bristol Community College (“BCC”) is a public institution of higher education
established under Mass. Gen. Laws ch. 15A, § 5. Marlyne Campbell is an African-American
woman and former employee of BCC. (Compl. 2).
In 2012, Campbell worked as a Career Development Counselor at BCC. (Id.). BCC was
one of fifteen state community colleges that benefitted from a $20 million federal educational
grant entitled the Massachusetts Community College and Workforce Development
Transformation Agenda, or the MCCWDTA grant. (Id. ¶ 6). The complaint alleges that from
August 28, through October 10, 2012, staff members at BCC informally referred to the
MCCWDTA grant as the “Mack Daddy” grant. (Id.). The complaint characterizes that term as
an “insulting racial slur.” (Id. ¶¶ 7, 9).
On November 17, 2012, Campbell met with unspecified personnel in the human
resources department to complain about what she viewed as harassment and an excessive
workload. (Id. ¶ 8). Two days later, on November 19, she received a poor work-performance
review. (Id.). On December 11, 2012, BCC allegedly took away resources that Campbell
needed to perform her responsibilities, including her computer, desk, phone extension, and office
space. (Id. ¶ 7). The following week, she reported to “[an] appropriate manager, human
resources, and faculty” that employees were referring to the MCCWDTA grant as the “Mack
Daddy” grant. (Id. ¶ 9). Shortly thereafter, on December 26, 2012, Campbell was terminated.
(Id.). The complaint alleges that BCC terminated her without conducting a fair investigation and
without any verbal or written warning. (Id.).
On September 13, 2013, Campbell filed a claim with the Massachusetts Commission
Against Discrimination (“MCAD”) alleging employment discrimination on the basis of age and
race, as well as retaliation. (Campbell MCAD Charge, Def. Mot., Ex. A, 3).1 After an
For the purposes of a motion to dismiss under Rule 12(b)(6), the Court may consider “official public
records” in addition to the facts alleged in the complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The
investigation and preliminary hearing, the MCAD determined that there was insufficient
evidence to determine that Campbell had been discriminated against. (MCAD Notice of Lack of
Probable Cause Finding, Def. Mot, Ex. C).
On June 23, 2016, Campbell brought this lawsuit alleging violations of state and federal
law arising out of what she viewed as BCC’s discriminatory and retaliatory conduct. BCC has
moved to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6).
Standard of Review
On a motion to dismiss for failure to state a claim made pursuant to Fed. R. Civ. P.
12(b)(6), the Court “must assume the truth of all well-plead[ed] facts and give the plaintiff the
benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496
F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a
motion to dismiss, the complaint must state a claim that is “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a
right to relief above the speculative level . . . on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). Dismissal is
appropriate if the complaint fails to set forth “factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery under some actionable legal
theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del
Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
On a motion to dismiss for lack of subject matter jurisdiction made pursuant to Fed. R.
Civ. P. 12(b)(1), “‘the party invoking the jurisdiction of a federal court carries the burden of
Court may “take judicial notice of [MCAD documents] without converting [defendant’s] motion to one for summary
judgment. Wong v. Resolve Tech., 2011 WL 3157198, at *2 n.4 (D. Mass. July 25, 2011). See also Gallo v. Bd. of
Regents of Univ. of California, 916 F. Supp. 1005, 1007 (S.D. Cal. 1995) (“[T]he Court may consider both the
EEOC right to sue letter and the EEOC charge . . . as public records subject to judicial notice.”).
proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber
Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). When ruling on a 12(b)(1)
motion the Court “must credit the plaintiff's well-[pleaded] factual allegations and draw all
reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st
Although not entirely clear, the pro se complaint appears to allege six claims arising
under Title VII and state law. The Title VII claims include (1) hostile work environment, (2)
race discrimination, and (3) retaliation. The state law claims include (1) breach of contract, (2)
intentional infliction of emotional distress, and (3) wrongful termination.
“As a general matter, states are immune under the Eleventh Amendment from private suit
in federal courts, absent their consent.” Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 99
(1st Cir. 2002) (quotations omitted). States’ sovereign immunity “extends to any entity that is an
‘arm of the state.’” Id. (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 888 F.2d 940,
942 (lst Cir. 1989)). It is well-established that “[a] State's constitutional interest in immunity
encompasses not merely whether it may be sued, but where it may be sued.” Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 98 (1984). The Commonwealth has not waived
sovereign immunity for tort claims brought in federal court. See Caisse v. DuBois, 346 F.3d 213,
218 (1st Cir. 2003) (“By enacting the Massachusetts Tort Claims Act, the Commonwealth has
not waived its Eleventh Amendment immunity to suit in federal court.”). It also appears that the
state has not consented to be sued in federal court for the contract claims alleged here. See BT
INS, Inc. v. Univ. of Massachusetts, 2010 WL 4179678, at *3 (D. Mass. Oct. 19, 2010) (finding
that neither the Commonwealth nor the University of Massachusetts, created by Mass. Gen.
Laws ch. 15A, § 5, “has unequivocally expressed consent to suit in federal court” on breach of
As a public community college established under Mass. Gen. Laws ch. 15A, § 5, BCC “is
an arm of the Commonwealth of Massachusetts.” Thomas v. Salem State Univ., 2013 WL
3404331, at *7 (D. Mass. July 2, 2013). See also Shocrylas v. Worcester State Coll., 2007 WL
3332818, at *6 (D. Mass. Oct. 29, 2007) (concluding that Worcester State College, created by
Mass. Gen. Laws ch. 15A, § 5, is an “arm of the Commonwealth” entitled to sovereign
immunity); Cichocki v. Massachusetts Bay Cmty. Coll., 2016 WL 4194239, at *4 (D. Mass. Aug.
8, 2016) (concluding that Massachusetts Bay Community College, created by Mass. Gen. Laws
ch. 15A, § 5, is a “state entity” entitled to sovereign immunity). As such, it is entitled to
sovereign immunity under the Eleventh Amendment. Because Massachusetts has not consented
to suit in federal court for the state law claims pleaded in the complaint, the Court lacks
jurisdiction to consider them. Accordingly, the state law claims will be dismissed pursuant to
Fed. R. Civ. P. 12(b)(1).
Hostile Work Environment Claim Under Title VII
Plaintiff contends that the repeated use of the epithet “Mack Daddy” created a hostile
work environment prohibited by Title VII. It is well-established that prior to filing a civil action
for employment discrimination under Title VII, a plaintiff must first file a timely charge of
discrimination with the EEOC and/or MCAD. See Lattimore v. Polaroid Corp., 99 F.3d 456,
464 (1st Cir. 1996). A charge of discrimination must be filed with the EEOC and/or MCAD
within 300 days after the unlawful conduct occurred. 42 U.S.C. § 2000e–5(e)(1); Mass. Gen.
Laws ch. 151B, § 5. “A charge alleging a hostile work environment claim, however, will not be
time barred so long as all acts which constitute the claim are part of the same unlawful
employment practice and at least one act falls within the time period.” Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 (2002).
Here, the complaint alleges that the repeated use of the term “Mack Daddy” gives rise to
the hostile work environment claim and occurred during a discrete period, from August 28 to
October 10, 2012. Plaintiff did not bring her MCAD complaint until September 13, 2013, 339
days after the complaint alleges that the phrase “Mack Daddy” was last used in her presence.
Because none of the acts that form the basis for the hostile work environment claim occurred
within 300 days of the date plaintiff brought her MCAD complaint, the claim is untimely. See
Goldstein v. Brigham & Women's Faulkner Hosp., Inc., 80 F. Supp. 3d 317, 324 (D. Mass. 2015)
(finding that “only those acts that occurred . . . 300 days prior [to the filing of an MCAD/EEOC
complaint] may be the basis for liability”). Accordingly, the hostile work environment claim
will be dismissed.
Retaliation and Discrimination Claims Under Title VII
The complaint also alleges discrimination and retaliation claims pursuant to Title VII. In
her opposition to the motion to dismiss, plaintiff referred to a number of facts that may be
relevant to the retaliation and discrimination claims, but that were not alleged in the complaint.
However, on a motion to dismiss, the Court may consider only the allegations contained in the
complaint to determine whether it has stated a claim upon which relief can be granted. It is a
close question whether the claims pleaded in the complaint concerning retaliation and
discrimination are sufficient to survive a Rule 12(b)(6) challenge. Because plaintiff is
proceeding pro se, and rather than consider the merits of the motion at this time, the Court will
grant plaintiff leave to file an amended complaint in order to give her an opportunity to
incorporate additional allegations contained in the opposition papers into the complaint. The
motion to dismiss will be denied as to the discrimination and retaliation claims without prejudice
to its renewal after plaintiff files an amended complaint.
For the foregoing reasons, defendant’s motion to dismiss is GRANTED in part as to the
claims arising under state law and for a hostile work environment under Title VII and DENIED
in part without prejudice as to the claims for unlawful discrimination and retaliation under Title
VII. Plaintiff may file an amended complaint on or before March 17, 2017, concerning the
remaining claims under Title VII for retaliation and discrimination.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: February 23, 2017
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