Posada v. Suarez et al
Filing
26
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons,1) plaintiffs motion to strike the affidavits and exhibits attached to the motion to dismiss (Docket No. 23 ) is, with respect to the decisions of the Depa rtment of Unemployment Assistance, the MCAD and the EEOC, DENIED but is otherwise ALLOWED; and2) defendants motion to dismiss the amended complaint (Docket No. 20 ) is, with respect to plaintiffs claims for race discrimination under Title VII and Chapter 151B and her claims against White and Ronquillo personally under Title VII, ALLOWED but is otherwise DENIED.So ordered. (Vieira, Leonardo)
United States District Court
District of Massachusetts
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Plaintiff,
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v.
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ACP FACILITY SERVICES, INC.,
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MIKE WHITE and JESUS RONQUILLO, )
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Defendants.
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DINA POSADA,
Civil Action No.
18-10989-NMG
MEMORANDUM & ORDER
GORTON, J.
This case arises from claims of employment discrimination
brought by Dina Posada (“Posada” or “plaintiff”), a former
employee of the defendant corporation, ACP Facility Services,
Inc. (“ACP”).
Posada alleges that ACP, Mike White, ACP’s Chief
Operating Officer (“COO”) (“White”) and Jesus Ronquillo,
plaintiff’s direct supervisor (“Ronquillo”) (collectively
“defendants”), discriminated against her on the basis of sex and
race which ultimately caused her to terminate her employment
with ACP.
She now brings both federal and state law claims for
hostile work environment and retaliation pursuant to Title VII
of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e, et
seq., and M.G.L. c. 151B, § 4 (“Chapter 151B”).
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Before the Court are defendants’ motion to dismiss the
amended complaint (Docket No. 20) and plaintiff’s motion to
strike the affidavits and exhibits attached to that motion to
dismiss (Docket No. 23).
For the reasons that follow, those
motions will be allowed, in part, and denied, in part.
I.
Motion to Strike
There is a dispute as to which documents this Court may
consider in ruling on defendants’ motion to dismiss.
The
standard rule is that a court may not consider, in ruling on a
motion to dismiss, documents that are neither attached to nor
expressly incorporated in the complaint unless the motion is
converted into one for summary judgment. Watterson v. Page, 987
F.2d 1, 3 (1st Cir. 1993).
The court may, however, consider 1)
documents the authenticity of which are not disputed by the
parties, 2) official public records, 3) documents central to the
plaintiff’s claim and 4) documents sufficiently referred to in
the complaint. Id. at 3-4 (collecting cases).
Posada contends that the affidavits of Ronquillo and White
submitted in support of defendants’ motion to dismiss and the
exhibits attached thereto cannot be considered by the Court and
thus must be stricken.
The Court agrees that neither of the
affidavits submitted by defendants can be considered on a motion
to dismiss because they assert facts not alleged in the amended
complaint and do not fall within the exceptions noted above.
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Nor will the Court consider 1) any of the internal documents of
ACP attached as exhibits to those affidavits because they are
not expressly incorporated in the amended complaint or
sufficiently referred to therein, or 2) the emails allegedly
sent by Posada to White, Ronquillo and other employees of ACP
because those emails were never mentioned in the amended
complaint or attached thereto.
The Court will, however, consider the decisions of the
following agencies rendered in connection with this case: 1) the
Department of Unemployment Assistance affirming the denial of
Posada’s claim for unemployment insurance benefits, 2) the
Massachusetts Commission Against Discrimination (“the MCAD”)
denying her claim of employment discrimination for lack of
probable cause and 3) the Equal Employment Opportunity
Commission (“the EEOC”) summarily adopting the findings of the
MCAD and dismissing plaintiff’s claim of discrimination.
All of
those documents are official public records which can be
considered on a motion to dismiss.
Accordingly, plaintiff’s motion to strike will be allowed,
in part, and denied, in part.
II.
Background
A.
The Facts
Posada is a woman of Salvadoran descent who lives in
Somerville, Massachusetts.
She had experience in the cleaning
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industry prior to her employment by ACP, a corporation with its
principal place of business in Woburn, Massachusetts.
ACP
provides cleaning, maintenance and other services for commercial
offices and buildings.
White is the COO and Ronquillo the
current Vice President of Operations who was Posada’s direct
supervisor during the relevant period.
White also had
supervisory authority over Posada.
Posada was hired as a manager by ACP in or about March,
2015.
Shortly thereafter, she and another female employee began
training for new employees.
Posada alleges that the other
female employee left the training almost immediately “based upon
her treatment” but does not describe that treatment.
Posada
completed the training but, without elaborating, claims that she
was treated differently than the male managers because she was a
woman who was hired over at least one other male employee and
was resented by other male employees as a result.
One employee, identified in the amended complaint as “Mr.
Alvarado” (“Alvarado”), allegedly threatened and intimidated
Posada, warning her that “she better watch out”.
She allegedly
reported those threats to Ronquillo and was afraid to go into
the parking garage when Alvarado was around but no action was
taken.
Ronquillo allegedly told her that “all women just make
stuff up” and made comments about her personal life and her
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boyfriend in front of her co-workers which were intended to
humiliate her.
At some point during her employment, Ronquillo assigned
Posada a project with an unrealistic deadline.
complained, he simply ignored her.
When she
She claims that she worked
on the project but never received any feedback.
Posada submits
that no other managers were assigned similar projects and that
she was given the project as a pretext for firing her when she
failed to meet the assigned deadline.
Furthermore, she alleges
that at some point while working on the project, she left work
for a family emergency and notified the appropriate person at
ACP of her absence.
Ronquillo allegedly confronted that female
employee and berated her for Posada’s purported failure to
follow protocol.
Posada believes the female employee has since
left ACP.
In August, 2015, a day after the deadline for the project,
White and Ronquillo scheduled a meeting with Posada to discuss
her failure to complete the assignment.
She felt there was no
reason for the COO to be present at that meeting and thus
concluded that her supervisors were targeting her merely because
she was a woman.
Posada says that at that meeting, White and
Ronquillo verbally attacked her but adds no specifics.
Posada
“just wanted to get out of the situation” and thus she told them
she would give a 30-day or two-week notice of resignation.
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She
was allegedly told, however, to leave immediately.
She contends
that Alvarado was permitted to give a two-week notice before he
left the company and that other male employees were allowed to
give notice before terminating their employment.
Posada
concludes that White and Ronquillo intended to coerce her into
resigning at the meeting.
Posada avers that as a result of the above described
misconduct, she has suffered severe emotional distress and lost
wages.
B.
Procedural History
In September, 2015, Posada filed a claim for unemployment
benefits.
After a hearing, the Department of Unemployment
Assistance denied Posada’s claim, finding that she had left work
voluntarily without good cause attributable to the employer.
That denial of benefits was affirmed on appeal.
At some point after the termination of her employment with
ACP, Posada filed a claim with the MCAD for employment
discrimination on the basis of sex.
In that complaint, she
alleged hostile work environment and retaliation.
The MCAD
found a lack of probable cause on both counts and dismissed her
claim.
That decision was affirmed on appeal in April, 2017.
February, 2018, the EEOC adopted the findings of the MCAD and
dismissed the claim.
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In
In May, 2018, Posada filed a complaint pro se in this Court
for employment discrimination under Title VII and Chapter 151B.
In February, 2019, she filed an amended complaint through
counsel in which she alleges that she was subject to a hostile
work environment and retaliation because of her sex and race.
She submits that the misconduct of defendants effectively
coerced her into resigning from ACP.
Shortly after the filing of the amended complaint,
defendants filed a motion to dismiss.
They assert that: 1)
there is no individual liability for supervisors and co-workers
under Title VII and thus the federal claims against White and
Ronquillo must be dismissed; 2) plaintiff has failed to allege
facts sufficient to state either federal or state law claims for
sex discrimination under the theories of either hostile work
environment or retaliation; 3) she has failed to allege facts
sufficient to establish individual liability for either White or
Ronquillo under Massachusetts law; and 4) she has failed to
exhaust her administrative remedies with respect to her new
claims for race discrimination and thus those claims must be
dismissed.
III. Motion to Dismiss
A.
Legal Standard
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
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to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
In considering the merits of
a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).
Furthermore, the Court must accept
all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).
Although a
court must accept as true all of the factual allegations
contained in a complaint, that doctrine is not applicable to
legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B.
Employment Discrimination
1.
Legal Standard
Both Title VII and Chapter 151B prohibit employers from
discriminating against their employees on the basis of sex or
race. 42 U.S.C. § 2000e-2(a)(1); M.G.L. c. 151B, § 4.
Under
Title VII, there is no liability for individual employees who
engage in discriminatory conduct but rather there is only
liability for the employer itself. Fantini v. Salem State Coll.,
557 F.3d 22, 30-31 (1st Cir. 2009).
Under Massachusetts law,
however, an individual employee may be held liable for conduct
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that interferes with rights protected under Chapter 151B. See
Beaupre v. Cliff Smith & Assocs., 738 N.E.2d 753, 764-65, 764
n.16, 765 n.19 (Mass. App. Ct. 2000) (citing M.G.L. c. 151B,
§ 4(1), (4), (4A), (5), (16A), and collecting cases).
Those provisions may be violated by subjecting an employee
to an abusive or hostile work environment. Valentin-Almeyda v.
Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)
(citing Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)).
To
establish a claim for hostile work environment, a plaintiff must
show
(1) that she (or he) is a member of a protected class;
(2) that she was subjected to unwelcome sexual [or
racial] harassment; (3) that the harassment was based
upon sex [or race]; (4) that the harassment was
sufficiently severe or pervasive so as to alter the
conditions of plaintiff’s employment and create an
abusive work environment; (5) that sexually [or
racially] objectionable conduct was both objectively
and subjectively offensive, such that a reasonable
person would find it hostile or abusive and the victim
in fact did perceive it to be so; and (6) that some
basis for employer liability has been established.
Ponte v. Steelcase, Inc., 741 F.3d 310, 320 (1st Cir. 2014); see
also id. at 319 n.9 (acknowledging that the same legal standard
applies to claims for hostile work environment brought under
both federal and state law).
In assessing whether a work environment is sufficiently
hostile or abusive, courts must consider the totality of the
circumstances, including 1) “the frequency of the discriminatory
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conduct”, 2) “its severity”, 3) “whether it is physically
threatening or humiliating, or a mere offensive utterance” and
4) “whether it unreasonably interferes with an employee’s work
performance”. Harris, 510 U.S. at 23.
A single, isolated
incident of harassment is ordinarily insufficient to establish a
claim for hostile work environment unless the incident was
particularly egregious. Compare Ponte, 741 F.3d at 320 (finding
that two incidents of inappropriate physical contact was
insufficient to establish a hostile work environment), and
Pomales v. Celulares, 447 F.3d 79, 83-84 (1st Cir. 2006)
(holding that a single incident of nonphysical harassing conduct
was insufficient to establish a claim for hostile work
environment), with Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st
Cir. 2013) (holding that a single incident of physical sexual
assault was sufficiently egregious on its own to demonstrate a
claim for hostile work environment).
The accumulated effect of
numerous offensive comments can constitute a hostile work
environment. Tuli v. Brigham & Women’s Hosp., 656 F.3d 33, 40
(1st Cir. 2011).
Under Title VII, when a supervisor is responsible for
creating a hostile work environment, the employer is vicariously
liable for the supervisor’s misconduct unless a specific
affirmative defense applies. Noviello v. City of Bos., 398 F.3d
76, 94-95 (1st Cir. 2005) (explaining the elements of the
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affirmative defense).
Chapter 151B, however, provides no
affirmative defense to an employer’s vicarious liability for the
hostile work environment created by supervisors. Id. at 95
(citing College-Town, Div. of Interco, Inc. v. Mass. Comm’n
Against Discrimination, 508 N.E.2d 587, 591-94 (Mass. 1987)).
Under both Title VII and Chapter 151B, when a co-worker
(rather than a supervisor) is responsible for creating a hostile
work environment, the employer is liable for the co-worker’s
misconduct only if the harassment is causally connected to the
employer’s negligence. Id. at 95 (“Typically, this involves a
showing that the employer knew or should have known about the
harassment, yet failed to take prompt action to stop it.”).
In addition to proscribing workplace harassment, Title VII
and Chapter 151B also prohibit an employer from retaliating
against an employee for opposing an unlawful employment
practice, such as by filing a complaint. 42 U.S.C. § 2000e-3(a);
M.G.L. c. 151B, § 4.
To establish a prima facie claim for
retaliation, the plaintiff must show that 1) she engaged in
protected conduct, 2) she was subjected to an adverse employment
action and 3) there was a causal connection between the
protected conduct and the subsequent adverse employment action.
Valentin-Almeyda, 447 F.3d at 94 (citing Noviello, 398 F.3d at
88).
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An employment action is adverse if it would have dissuaded
a reasonable worker from engaging in protected activity, such as
making a charge of discrimination. Rodriguez-Vives v. P.R.
Firefighters Corps of P.R., 743 F.3d 278, 284-85 (1st Cir.
2014).
Being assigned disparate work from similarly situated
co-workers can constitute an adverse employment action in
support of a retaliation claim. See id. at 285-86 (collecting
cases).
Moreover, under Chapter VII (and likely under Chapter
151B as well), subjecting an employee to a hostile work
environment can constitute an adverse employment action for
purposes of a retaliation claim. Noviello, 398 F.3d at 89-91.
To prove retaliation in the form of a hostile work environment,
however, the plaintiff must still establish all the elements for
a hostile work environment claim. See id. at 89.
To prevail on a retaliation claim, the plaintiff must also
establish a but-for causal connection between the protected
activity and the adverse employment action. Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013).
Mere temporal
proximity between the plaintiff’s complaint and the subsequent
adverse action is usually not enough to establish a causal
connection unless the plaintiff can also prove that the
individual knew of the protected conduct when he or she engaged
in the adverse action. Pomales, 447 F.3d at 85.
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While the plaintiff must ultimately prove all of the
elements of her claims for hostile work environment and/or
retaliation in order to prevail, the initial burden of
demonstrating a claim of discrimination is not intended to be
onerous and the plaintiff need not establish every element of
the prima facie case at the pleading stage. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981) (as applied to
claim under Title VII); Sullivan v. Liberty Mut. Ins. Co., 825
N.E.2d 522, 530 (Mass. 2005) (as applied to claim under Chapter
151B); see also Rodriguez-Vives, 743 F.3d at 286.
2.
Application
As an initial matter, Posada has not exhausted her
administrative remedies with respect to her claims for race
discrimination.
Both Title VII and Chapter 151B require an
employee to exhaust the administrative process before filing a
civil suit in court and failure to do so normally precludes the
filing of that claim. Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st
Cir. 2005) (as applied to claims under Title VII); Everett v.
357 Corp., 904 N.E.2d 733, 746-47 (Mass. 2009) (as applied to
claims under Chapter 151B).
The requirement of exhaustion is
excused, however, where the plaintiff can demonstrate that the
claims set forth in the civil complaint are based on acts of
discrimination that could reasonably be expected to have been
discovered by the MCAD or the EEOC during the course of their
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investigation of the administrative claim. Everett, 904 N.E.2d
at 748 (citing Powers v. Grinnell Corp., 915 F.2d 34, 39 (1st
Cir. 1990)).
Posada did not raise her claims of race discrimination in
her complaint to the MCAD or the EEOC.
Indeed, the MCAD in its
decision dismissing Posada’s claim of discrimination did not
mention allegations of race discrimination but rather limited
its discussion to sex discrimination.
Nor has plaintiff
demonstrated that the MCAD or the EEOC was reasonably likely to
discover potential race discrimination during their
investigations, given that she did not mention it in her
administrative complaint. See Patoski v. Jackson, 477 F. Supp.
2d 361, 363-64 (D. Mass. 2007) (“It cannot be assumed that EEOC
investigations are designed as fishing expeditions to uncover
all possible transgressions, especially if not alleged.”).
Accordingly, plaintiff has failed to exhaust her administrative
remedies with respect to her claims for race discrimination and
thus those claims will be dismissed.
Furthermore, plaintiff concedes, as she must, that White
and Ronquillo cannot be held personally liable under Title VII.
The claims asserting individual liability against them under
Title VII will therefore also be dismissed.
With respect to the remaining claims, Posada has alleged
enough facts to state plausible claims for both hostile work
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environment and retaliation against ACP under both Title VII and
Chapter 151B and against White and Ronquillo personally under
Chapter 151B.
While Posada provides few details of how she was
threatened or harassed by her co-workers and supervisors, the
Court need not assume at the pleading stage that the complaint
lays out a fixed set of facts in support of her claims of
discrimination. Gorski v. N.H. Dep’t of Corr., 290 F.3d 466, 474
(1st Cir. 2002).
Nor is she required to establish every element
of the prima facie case at this stage. Rodriguez-Vives, 743 F.3d
at 286.
Further facts in support of her claims of
discrimination may be developed later through discovery.
Posada has stated a plausible claim for hostile work
environment based on the alleged threatening and intimidating
conduct of Alvarado and the comments made and disparate work
assigned by Ronquillo.
The alleged threats made by Alvarado, if
sufficiently egregious, can alone constitute a hostile work
environment.
Even if those threats alone were not sufficiently
severe or pervasive, the cumulative effect of that intimidation,
combined with the conduct of Ronquillo, can have been severe
enough for purposes of a hostile work environment claim.
It is
also plausible that the alleged conduct was both objectively and
subjectively offensive because a reasonable person would feel
intimidated by threats of a co-worker and humiliated and
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demeaned by embarrassing comments made or disparate work
assigned by a supervisor.
Furthermore, Posada has alleged facts sufficient to support
vicarious liability of ACP on the basis of the conduct of
Alvarado and Ronquillo.
Posada allegedly reported Alvarado’s
misconduct to Ronquillo who apparently did nothing to address
the harassment.
Instead, he allegedly engaged in his own
discriminatory conduct thereafter.
It is a reasonable inference
that ACP knew, or should have known, about Alvarado’s misconduct
(especially after Posada reported it to her direct supervisor)
and thus it is plausible that ACP is liable for Alvarado’s
misconduct as a co-worker under both Title VII and Chapter 151B.
ACP can also be held vicariously liable under both statutes for
the alleged misconduct of Ronquillo as Posada’s supervisor.
Moreover, Posada has stated a plausible claim for
retaliation.
She alleges that she reported Alvarado for sexual
harassment and that Ronquillo failed to take any action.
Rather, he assigned her a project to complete within an
unrealistic deadline.
After she failed to complete the project,
she was allegedly verbally attacked by both Ronquillo and White
which ultimately compelled her to resign.
It is reasonable to
infer that Ronquillo and White assigned Posada the subject
project in retaliation for her reporting the misconduct of a
male co-worker and that they were using the project as a pretext
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for disciplining her or forcing her to resign.
It is also
plausible that Ronquillo subjected Posada to a hostile work
environment (by making embarrassing comments about her personal
life in front of her co-workers) in retaliation for her
protected conduct.
For the same reasons that Posada has stated a plausible
claim as to ACP on the basis of the alleged misconduct of
Ronquillo and White, she has also stated plausible claims
against both Ronquillo and White personally under Chapter 151B.
While the allegations as to White are weaker, it is plausible
that he was aware of and complicit in Ronquillo’s alleged
retaliatory misconduct.
Furthermore, Posada alleges that both
Ronquillo and White verbally attacked her and that neither of
them permitted her to give two-weeks notice before resigning.
Those facts support an inference that White and Ronquillo were
colluding either to fire her or to force her to resign.
Finally, the Court notes that, while Posada has not
specifically raised a claim for constructive discharge in her
amended complaint, she has alleged facts that plausibly support
such a claim.
To establish a claim for constructive discharge,
the plaintiff must demonstrate that she was subjected to
conditions “so severe and oppressive” that a reasonable person
in that position would have been compelled to resign. Ara v.
Tedeschi Food Shops, Inc., 794 F. Supp. 2d 259, 264 (D. Mass.
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2011) (quoting Lee-Crespo v. Schering-Plough Del Caribe Inc.,
354 F.3d 34, 45 (1st Cir. 2003)).
Such a claim is likely
dependent upon Posada’s claims of hostile work environment.
ORDER
For the foregoing reasons,
1) plaintiff’s motion to strike the affidavits and exhibits
attached to the motion to dismiss (Docket No. 23) is,
with respect to the decisions of the Department of
Unemployment Assistance, the MCAD and the EEOC, DENIED
but is otherwise ALLOWED; and
2) defendants’ motion to dismiss the amended complaint
(Docket No. 20) is, with respect to plaintiff’s claims
for race discrimination under Title VII and Chapter 151B
and her claims against White and Ronquillo personally
under Title VII, ALLOWED but is otherwise DENIED.
So ordered.
/s/ Nathaniel M. Gorton______
Nathaniel M. Gorton
United States District Judge
Dated July 29, 2019
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