Massaquoi v. 20 Maitland Street Operations LLC et al

Filing 21

ORDER denying 16 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Brown Massaquoi
v.

Civil No. 18-cv-296-LM
Opinion No. 2018 DNH 231

20 Maitland Street
Operations LLC et al.
O R D E R
Plaintiff Brown Massaquoi brings suit against his former
employer 20 Maitland Street Operations LLC, d/b/a Harris Hill
Center, (“Harris Hill”) and its affiliate Genesis Healthcare LLC
(“Genesis”), alleging race, color, and national origin
discrimination and retaliation claims under both Title VII of
the Civil Rights Act of 1964 (“Title VII”) and the New Hampshire
Law Against Discrimination, N.H. Rev. Stat. Ann. (“RSA”) 354-A,
(Count I) and a defamation claim (Count II).

Massaquoi alleges

that defendants discriminated against him while he was employed
at Harris Hill and ultimately terminated him because he is a
“Black, African American from Liberia.”

He also alleges that

defendants subsequently defamed him and retaliated against him
for filing a complaint about the alleged discrimination.
Before the court is defendants’ motion to dismiss Count I
to the extent it is based on claims of national origin
discrimination and retaliation (doc. no. 16).

Defendants’

motion rests on one argument: Massaquoi failed to exhaust his
administrative remedies for those two claims because he did not
report either in an Equal Employment Opportunity Commission
(“EEOC”) charge.1
STANDARD OF REVIEW
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, construe reasonable
inferences in the plaintiff's favor, and determine whether the
factual allegations in the complaint set forth a plausible claim
upon which relief may be granted.

Medina-Velazquez v.

Hernandez-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014).

A claim

is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009).

Ashcroft v.

A “plaintiff who does not

plausibly allege that she successfully exhausted administrative
remedies cannot state a claim under Title VII . . . and her
claims [are] therefore . . . subject to dismissal pursuant to

The court notes that the structure of Massaquoi’s complaint
makes it difficult to discern what facts support each
discrimination claim. Massaquoi describes all facts as common to
all counts. All discrimination claims are then merged together
into one count. See Fed. R. Civ. P. 10(b) (requiring that, for
clarity’s sake, a plaintiff state separate and distinct claims
in separate counts).
1

2

Rule 12(b)(6).”

Harris v. Bd. of Trs. Univ. of Ala., 846 F.

Supp. 2d 1223, 1237 (N.D. Ala. 2012); see also Mercado v. RitzCarlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 46 n.6 (1st
Cir. 2005).
With their motion to dismiss, defendants submit a copy of
Massaquoi’s EEOC charge (doc. no. 16-2).

When the moving party

presents matters outside the pleadings to support a motion to
dismiss, the court must either exclude those matters or convert
the motion to one for summary judgment.

Fed. R. Civ. P. 12(d).

An exception to Rule 12(d) exists “for documents the
authenticity of which [is] not disputed by the parties; for
official public records; for documents central to the
plaintiffs’ claim; or for documents sufficiently referred to in
the complaint.”

Rivera v. Centro Medico de Turabo, Inc., 575

F.3d 10, 15 (1st Cir. 2009) (internal quotation marks and
citations omitted).

Because Massaquoi’s EEOC charge is central

to Massaqoui’s claims and neither party disputes its
authenticity, the court may consider it without converting the
motion to one for summary judgment.
BACKGROUND
The following facts are taken from Massaquoi’s complaint
(doc. no. 14) and, where specifically noted, his EEOC charge.
Massaquoi is an African American from Liberia.

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He is a licensed

nursing assistant who began employment at Harris Hill on January
14, 2014.

Massaquoi alleges that his supervisors at Harris Hill

treated him differently than his white co-workers.

Throughout

his employment, they gave him more difficult work assignments,
did not give him necessary assistance when he requested it, and
failed to investigate complaints he brought to them.

At some

point, certain residents complained to one of Massaquoi’s
superiors, Linda Janowicz, that they “did not want African
Americans or other minorities caring for them.”

Rather than

address the racism, Janowicz accommodated the residents and
advised Massaquoi that he should not enter their rooms.
In addition, Janowicz accused Massaquoi of abusing
residents on five separate occasions.

Company policy required

an investigation into allegations of resident abuse, including a
written statement from the accused employee and suspension of
the employee for the duration of the investigation.

After each

of the first four accusations, Massaquoi was permitted to give a
written statement and, after investigation, each was determined
to be without merit.
Janowicz made the fifth accusation against Massaquoi at a
meeting on June 15, 2015.

Contrary to Harris Hill’s policy,

Janowicz took no statement from Massaquoi and terminated him
immediately.

After Massaquoi’s termination, the New Hampshire

Department of Health and Human Services (“DHHS”) investigated
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the fifth accusation and concluded it was “unfounded.”

Despite

this finding, Harris Hill did not offer Massaquoi reemployment.
In response to his termination, Massaquoi, acting pro se,
filed an EEOC charge with the New Hampshire Commission for Human
Rights (“NHCHR”) under both Title VII and RSA 354-A on August
26, 2015.

The EEOC charge form includes a section with

checkboxes for complainants to indicate the categories of
discrimination they are challenging,2 and a section for
complainants to provide a written statement of their
allegations.
Defendants point to two aspects of Massaquoi’s EEOC charge
material to their exhaustion argument.

First, Massaquoi did not

check the boxes for either national origin discrimination or
retaliation; he checked only the boxes for race and color
discrimination.3

Second, although Massaquoi disclosed in his

written statement that he was from Liberia, he alleged Harris
Hill terminated him because of his race and color; he did not
mention being terminated due to his national origin.

The available bases of discrimination on the form are: race,
color, sex, religion, national origin, retaliation, disability,
genetic information, and “other.”
2

Massaquoi also checked the box for “other” but in his
explanation next to that box he wrote only “NH State Statute,
354-A, et seq.”
3

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Massaquoi also alleges that defendants continued to take
negative actions against him after Harris Hill terminated him.
The first negative action involved Harris Hill. Specifically,
Massaquoi alleges that, after he filed his EEOC charge, Janowicz
wrote a letter to DHHS accusing him of attempting to rape a
Harris Hill resident.

Janowicz wrote this letter before

completing an internal investigation.

After she did fully

investigate the accusation, Janowicz determined that it had no
merit.

The second negative action involved Genesis.

Specifically, Massaquoi alleges that, at some point after Harris
Hill terminated him, he sought and gained employment at another
Genesis-affiliated facility, Laconia Rehabilitation.

At

Genesis’s instruction, Laconia Rehabilitation terminated
Massaquoi despite his satisfactory performance.
DISCUSSION
Defendants argue that Massaquoi failed to exhaust his
administrative remedies for his national origin discrimination
and retaliation claims.

Defendants assert this argument with

respect to both the Title VII and RSA 354-A claims.

The court

applies Title VII standards to RSA 354-A claims “unless New
Hampshire precedent or the statutory language of RSA 354-A
warrant otherwise.”

Carney v. Town of Weare, No. 15-cv-291-LM,

2017 WL 680384, at *6 (D.N.H. Feb. 21, 2017) (applying Title VII

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standard in analysis of exhaustion issue under RSA 354-A).

As

there is nothing in RSA 354-A or New Hampshire case law
precluding a joint analysis, the court will address the state
and federal claims together using the Title VII standard.

See,

e.g., id.
Under Title VII, a claimant may not bring suit in federal
court until he “has first unsuccessfully pursued certain avenues
of potential administrative relief.”
U.S. 522, 523 (1972).

Love v. Pullman Co., 404

“Title VII requires an employee to file

an administrative charge as a prerequisite to commencing a civil
action for employment discrimination.”
Coll., 557 F.3d 22, 26 (1st Cir. 2009).

Fantini v. Salem State
“The requirement of

administrative exhaustion serves to provide the employer with
prompt notice of the claim and to create an opportunity for
early conciliation.”

Rodriguez v. United States, 852 F.3d 67,

78 (1st Cir. 2017) (internal quotations omitted).

“That purpose

would be frustrated if the employee were permitted to allege one
thing in the administrative charge and later allege something
entirely different in a subsequent civil action.”

Lattimore v.

Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
“Consequently, . . . in employment discrimination cases, the
scope of the civil complaint is . . . limited by the charge
filed with the EEOC[.]”

Id. (internal quotations omitted).

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“However, Title VII does not say explicitly that the court
suit must be limited to just what was alleged in the agency
complaint.”

Clockedile v. N.H. Dep’t of Corrections, 245 F.3d

1, 4 (1st Cir. 2001).

The First Circuit has noted that “an

administrative charge is not a blueprint for the litigation to
follow” and that “the critical question is whether the claims
set forth in the civil complaint come within the scope of the
EEOC investigation which can reasonably be expected to grow out
of the charge of discrimination.”

Fantini, 557 F.3d at 27

(quoting Powers v. Grinnell Corp., 915 F.2d 34, 38-39 (1st Cir.
1990)).

Therefore, the civil suit “may encompass acts of

discrimination which the . . . investigation could reasonably be
expected to uncover.”

Thornton v. United Parcel Serv., Inc.,

587 F.3d 27, 31-32 (1st Cir. 2009).

Especially in cases where,

as here, the employee filed the EEOC charge “pro se, the
administrative charge is liberally construed in order to afford
the complainant the benefit of any reasonable doubt . . . and an
employee is not required to comprehensively set forth with
literary exactitude all of the facts and theories upon which his
or her claim is based.”

Lattimore, 99 F.3d at 464 (internal

quotations omitted).
The court now applies these principals to determine whether
Massaquoi exhausted his national origin and retaliation claims.
For the reasons explained below, the court concludes that
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Massaquoi has put forth enough at this early stage to show that
he has properly exhausted both claims.
I. National Origin Discrimination
It is undisputed that Massaquoi failed to check the box for
national origin discrimination or expressly state in his EEOC
charge that the discrimination he suffered was the result of
national origin discrimination.

Defendants argue that this

omission necessarily means that Massaquoi failed to exhaust his
administrative remedies for that claim and it must therefore be
dismissed.

The court disagrees.

Viewed in a light most favorable to Massaquoi, it is likely
that national origin discrimination would have fallen within the
scope of a reasonable investigation into the race discrimination
he alleged in his EEOC charge.

The First Circuit has recognized

that “race and national origin discrimination may present
identical factual issues when a victim is born in a nation whose
primary stock is one’s own ethnic group” and that “in certain
circumstances . . . national origin and race discrimination may
overlap.”

Sinai v. New England Tel. and Tel. Co., 3 F.3d 471,

475 (1st Cir. 1993).

In an analogous case, this correlation led

the Second Circuit to hold that:
[B]ecause racial categories may overlap significantly
with nationality or ethnicity, the line between
discrimination on account of race and discrimination
on account of national origin may be so thin as to be
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indiscernible . . . or at least sufficiently blurred
so that courts may infer that both types of
discrimination would fall within the reasonable scope
of the ensuing EEOC investigation for exhaustion
purposes.
Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. 2003) (internal
quotations and citations omitted).
In his EEOC charge, Massaquoi stated that he is an African
American, that he is originally from Liberia, and that he
suffered from race discrimination at his place of employment.
The connection between Massaquoi’s race and Liberian origin
creates a reasonable inference that the NHCHR, while
investigating allegations of discrimination based on race, would
have uncovered, to the extent it existed, evidence of
discrimination based on Massaquoi’s national origin.

This

generous inference is especially warranted here for two reasons.
First, Massaquoi’s disclosure of his Liberian origin in his EEOC
charge would likely have alerted the NHCHR to probe this
possibility from the start of its inquiry.
of filing, Massaquoi acted without a lawyer.

Second, at the time
Accordingly, the

court finds that, with respect to his national origin
discrimination claim, Massaquoi has exhausted his administrative
remedies.

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B. Retaliation
Defendants also contend that Massaquoi, by not raising in
his EEOC charge that Janowicz accused him of attempted rape, has
failed to exhaust his administrative remedies for his
retaliation claim.

The First Circuit has held that a plaintiff

may bring a retaliation claim not raised in an administrative
charge if “the retaliation is reasonably related to and grows
out of the discrimination complained of to the agency – e.g.,
the retaliation is for filing the agency complaint itself.”
Clockedile, 245 F.3d at 6.
Massaquoi alleges that Janowicz reported the attempted rape
accusation to DHHS after he filed his EEOC charge. Construed
favorably to Massaquoi, this is sufficient to meet the
Clockedile test.

Accordingly, the court finds Massaquoi has

exhausted his administrative remedies for this claim at this
early stage.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss
(doc. no. 16) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
November 28, 2018
cc: Counsel of Record
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