Awad v. Cutone

BASSAM AWAD Plaintiff, v. JOHN CUTONE and BUNKER HILL COMMUNITY COLLEGE, Defendants.

Civil Action No. 18-12022-MBB

United States District Court, D. Massachusetts

August 25, 2021

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO DISMISS (DOCKET ENTRY # 34)

MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

Pending before this court is a motion to dismiss filed by defendants Bunker Hill Community College (“BHCC”) and BHCC Professor John Cutone (“Professor Cutone”), in his official capacity, (collectively “defendants”) under Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”) and Fed.R.Civ.P. 12(b)(6) (“Rule 12(b)(6)”). (Docket Entry # 34). Plaintiff Bassam Awad (“plaintiff”) opposes the motion and attaches a number of exhibits to the opposition. (Docket Entry # 43).

PROCEDURAL BACKGROUND

As set forth in an amended complaint, plaintiff, a 48-year-old former student at BHCC, alleges that defendants violated Massachusetts General Laws chapter 151C (“chapter 151C”) by discriminating against him based on his age sexual orientation, creed, race, national origin, and disability. (Docket Entry # 9). In seeking dismissal under Rule 12(b)(1), defendants argue that sovereign immunity under the Eleventh Amendment bars the chapter 151C claims in the amended complaint. Under Rule 12(b)(6), defendants maintain the chapter 151C claims are deficient because plaintiff does not fall within the categories of individuals covered by the language of the statute as having a private right of action. (Docket Entry # 35, p. 9).^[1]

STANDARD OF REVIEW

The standard of review for a Rule 12(b)(6) motion is well established. To survive a Rule 12(b)(6) motion to dismiss the complaint must contain “enough facts to state a claim to relief that is plausible on its face” even if actual proof of the facts is improbable. Bell Atlantic v Twombly, 550 U.S. 544, 570 (2007); Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016). The “standard is ‘not akin to a “probability requirement, ” but it'” requires “‘more than a sheer possibility that a defendant has acted unlawfully.'” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (citations omitted). “‘[W]here a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”'” In re ARIAD Pharms., Inc. Sec. Litig., 842 F.3d 744, 756 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]ll reasonable inferences” are drawn “in the pleader's favor.” Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). Legal conclusions are not considered. See Dixon v. Shamrock Fin. Corp., 522 F.3d 76, 79 (1st Cir. 2008).

In considering the Rule 12(b)(1) motion, this court credits plaintiff's well-pled factual allegations and draws all reasonable inferences in plaintiff's favor. Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (citing Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001)); Sanchez ex rel. D.R.-S. v. U.S., 671 F.3d 86, 92 (1st Cir. 2012) (“credit[ing] the plaintiff's well-pled factual allegations and draw[ing] all reasonable inferences in the plaintiff's favor” under Rule 12(b)(1)). This court may additionally “‘consider whatever evidence has been submitted, '” including “‘depositions and exhibits submitted.'” Merlonghi, 620 F.3d at 54 (citation omitted).

FACTUAL BACKGROUND

Plaintiff was a student at BHCC throughout the time period described in the amended complaint. (Docket Entry # 9). In the fall of 2015, he enrolled in Professor Cutone's semester-long Small Business Management course. (Docket Entry # 9, p. 2, ¶ 3). Plaintiff failed to submit assignments when the course began due to “personal and health issues.” (Docket Entry # 9, p. 2, ¶ 4). As a result, “Professor Cutone asked [plaintiff] if [he] was going to drop the class.” (Docket Entry # 9, p. 2, ¶ 4).

“On or about September 27, 2015, [plaintiff's] fiancée suffered a severe injury, ” and required plaintiff's full-time care. (Docket Entry # 9, p. 2, ¶ 5). In early October 2015, plaintiff brought Professor Cutone a disability accommodation form which listed two testing accommodations: “Extended Time” and a “Lower Distraction Environment.” (Docket Entry # 9, p. 2, ¶ 6) (Docket Entry # 35-2).^[2] Professor Cutone's comments on the form state that plaintiff “missed 3 weeks of assignments” and “per the [syllabus, Professor Cutone does] not give make ups.” (Docket Entry # 35-2). The syllabus states that “[w]eekly assignments will be open and close on Wednesday Morning at 8:00 AM.” (Docket Entry # 35-1, p. 4). It cautions students to “[t]ake the time to get a couple of weeks ahead of the schedule to avoid missing an assignment due to an unexpected illness or event” and that all of the “assignments are open on the first day of class.” (Docket Entry # 35-1, p. 6) (underlining omitted).^[3]

“On or about October 15, 2015, there was a fire in the apartment” where plaintiff resided. (Docket Entry # 9, p. 3, ¶ 11). The fire destroyed plaintiff's books, notes, and computer. (Docket Entry # 9, p. 3, ¶ 11). It took plaintiff “several weeks” to obtain all of his “supplies again.” (Docket Entry # 9, p. 3, ¶ 11). “On December 9, 2015, Professor Cutone graded two of [plaintiff's] essays, ” and plaintiff “received scores of 100 and 90.” (Docket Entry # 9, p. 3, ¶ 14).

In an email dated Friday, December 11, 2015, Professor Cutone advised plaintiff he had missed various essays, quizzes, and blogs resulting in a “zero” for the missed assignments, as stated in the syllabus (Docket Entry # 35-1, p. 8). (Docket Entry # 43, p. 6, Ex. 1). The email states that Professor Cutone would give plaintiff a C- in the course if he scored 95% or higher on the final exam, but stipulated that plaintiff had to accept the offer “by Monday December 13th at noon.”^[4] (Docket Entry # 9, p. 3, ¶ 13) (Docket Entry # 43, p. 6, Ex. 1). The amended complaint notes that plaintiff “did not see the email until” after the offer's expiration. (Docket Entry # 9, p. 3, ¶ 13).

On December 16, 2015, Professor Cutone emailed plaintiff accusing him of plagiarizing the above-noted assignments graded on December 9, 2015, “for which [plaintiff] received [the] grades of 90 and 100.” (Docket Entry # 9, p. 3, ¶ 14) (Docket Entry # 43, p. 52, Ex. 1).^[5] According to the syllabus, “[t]he first occurrence [of plagiarism] earns an ‘F' for the assignment. Upon the second occurrence the student will receive an ‘F' for the course.” (Docket Entry # 35-1, p. 4) (underlining omitted). Plaintiff was given a failing grade for the course. (Docket Entry # 9, p. 3, ¶ 16). The syllabus also “states that every effort will be made to accommodate students in [Professor Cutone's] class.” (Docket Entry # 9, p. 3, ¶ 15) (Docket Entry # 35-1, p. 4).

“On or about February 29, 2016, [plaintiff] filed an Affirmative Action Discrimination Complaint with Respondent, ” specifically, the Affirmative Action Office at BHCC. (Docket Entry # 9, p. 3, ¶ 17) (Docket Entry # 43, pp. 11-12, 15, 65, Ex. 1). On or about March 9, 2016, plaintiff filed a similar complaint with the United States Department of Education Office for Civil Rights (“OCR”) alleging discrimination based on sexual orientation, age, and disability. (Docket Entry # 43, pp. 12-16, 24, Ex. 1). BHCC investigated the matter and ultimately found insufficient evidence to support a finding of discrimination. (Docket Entry # 43, pp. 31-35, 170, Ex. 1). In a July 6, 2016 letter, OCR advised plaintiff it would undertake an investigation into his disability allegation but determined that the sexual orientation and age discrimination allegations were not appropriate for investigation. (Docket Entry # 43, p. 24, Ex. 1). After investigating the matter, OCR found insufficient evidence to support the disability allegation. (Docket Entry # 43, pp. 100-101, Ex. 4). The amended complaint reflects that plaintiff also filed a complaint against BHCC and Professor Cutone with the Massachusetts Commission Against Discrimination (“MCAD”). (Docket Entry # 9, p. 2) (referencing “MCAD Docket Number 16BED01651”).

DISCUSSION

Defendants move to dismiss the complaint based on sovereign immunity under the Eleventh Amendment pursuant to Rule 12(b)(1). (Docket Entry # 35, pp. 7-8). Separately, they move to dismiss the chapter 151C claims under Rule 12(b)(6). (Docket Entry # 35, p. 9). They also seek a Rule 12(b)(6) dismissal on causes of action not raised in the amended complaint.^[6] (Docket Entry # 35, pp. 10-19). Confining the discussion to the claims raised in the amended complaint i.e., the chapter 151C claims, defendants are entitled to a Rule 12(b)(1) dismissal under the Eleventh Amendment and, assuming arguendo the absence of an Eleventh Amendment bar, a Rule 12(b)(6) dismissal of the chapter 151C claims.

I. Eleventh Amendment

Defendants submit that the Eleventh Amendment bars the chapter 151C claims against defendants because BHCC is “an ‘arm' of the Commonwealth entitled to sovereign immunity from suit in federal court.” (Docket Entry # 35, p. 7). In opposing the motion to dismiss, plaintiff does not respond to defendants' arguments concerning the Eleventh Amendment bar.^[7] (Docket Entry # 35, pp. 7-9).

Absent consent, the Eleventh Amendment bars a suit against “the State or one of its agencies or departments regardless of the nature of the relief sought.” Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Poirier v. Mass. Dep't of Corr., 558 F.3d 92, 97 (1st Cir. 2009) (“States and their agencies are entitled to sovereign immunity ‘regardless of the relief sought'”). “‘[A] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.'” Campbell v. Bristol Cmty. Coll.,...