Ayele v. Sec. Servs. of Conn.

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BEGASHAW AYELE, Plaintiff, v. SECURITY SERVICES OF CONNECTICUT, et al., Defendants.

Civil Action No. 22-11798-NMG

United States District Court, D. Massachusetts

April 18, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS [Docket Nos. 13, 17, 19, 22, 24, 28]

JENNIFER C. BOAL, United States Magistrate Judge.

Pro se plaintiff Begashaw Ayele asserts claims of discrimination in violation of Title VII, the Americans with Disabilities Act (“ADA”) and Massachusetts law, violations of 42 U.S.C. § 1983, and breach of contract against various defendants. Defendants Security Services of Connecticut (“SSC”), Peter H. Ryba, Tammy Allard, the Massachusetts Commission Against Discrimination (“MCAD”), Neldy Jean-Francois, Sarah Biglow,^[1]and the Massachusetts Department of Unemployment Assistance (“MDUA”) have moved to dismiss the claims against them. Docket Nos. 17, 19, 22, 24, 28.^[2],[3]For the following reasons, this Court recommends that the case be reassigned to Judge Young and that he grant the motions.

I. FACTUAL BACKGROUND ^[4]

On or about May 2, 2019, Ayele applied for a security guard position at SSC. Amended Complaint (“AC”) at ¶ 12. Ayele met with the Recruitment Manager, Henry A Wilkins. Id. He again met with Wilkins on July 8, 2019 for an interview and to complete employment forms. Id. at ¶ 13. At that time, Ayele told Wilkins about his difficulty in standing or walking for extended periods of time. Id. Wilkins told Ayele that the job required standing outside of a dispensary store and there is a chair where employees sit for “break especially on inclement weather.” Id. at ¶ 14.

Wilkins conditionally offered Ayele a job and told him to go to the Mayflower Medicinal Store in Holliston, Massachusetts to complete additional forms and pick up his uniforms. Id. at ¶ 15. On August 7, 2019, Ayele went to Mayflower Medicinal. Id. There, he met with defendant Peter H. Ryba, an operations manager, completed forms,^[5]and discussed work schedules. Id. at ¶ 16. Ayele alleges that he only met with Ryba at that time. Id. He also alleges that Ryba's and defendant Tammy Allard's affidavits submitted to the MCAD contained false statements regarding Ayele's disability and the availability of a chair. Id. at ¶¶ 16-17. According to Ayele, Allard, the site supervisor, was not present at this meeting. Id. at ¶ 17; Docket No. 25-6.

Ayele signed a Conditions of Employment form, setting his work schedule as 38 hours per week at a pay rate of $16.00 per hour. Docket No. 25-6.^[6]The Conditions of Employment, however, also provided that:

I further understand that it may become necessary for SSC to change the location where my work is performed. I agree in advance, that should it become necessary for whatever reason (client or employee request, failure to successfully complete training requirements, disciplinary reassignment, etc. . .), I will accept any reasonable change in my work location and/or shift hours in order to maintain my employment.

Docket No. 25-6 at 2. Ayele worked a full 38-hour workweek his first full week of work but thereafter his assigned weekly work hours diminished. Id. at ¶ 19. He worked 25.75 hours the week ending August 30, 2019, 19 hours the week ending September 6, 2019, 26.5 hours the week ending September 13, 2019, and 24 hours the week ending September 20, 2019. Id. He alleges that a white female coworker worked a total of 525.75 hours while he only worked 314.25 hours. Id.^[7]

On August 29, 2019, Ayele sent an email message to Wilkins asking that security guards “be permitted to sit and work the security job as that will not affect the job itself, the company SSC. Inc. or the contracting company, Mayflower.” Id. at ¶ 20 and Docket No. 25-8.^[8] Wilkins responded, in relevant part, as follows:

As we discussed during your interview, the job required time performing short patrols and time standing post.

You are permitted to take breaks and sit as needed especially when weather conditions are marginal, however I know the client would not like the look of a chair being placed outside unless you are talking about a chair in the lobby which had been acceptable.

Docket No. 25-8.^[9] Ayele alleges that, after his hours were systematically reduced from one week to the next, he decided to work part-time in order to search for another job in the afternoon. Id. at ¶ 20. Therefore, he asked his supervisor, Allard, for a weekend only shift, consisting of 13 hours on Saturdays and 10 hours on Sundays for a total of 23 hours. Id. Allard originally agreed to the request but then she mistakenly divided the hours on the Saturday shift between Ayele and Young. Id. After Ayele brought this to Allard's attention in a text message on September 21, 2019, Allard corrected the error and assigned Ayele the 23-hour weekend shift he had requested. Id.

In the same text message, Ayele told Allard that the two weekend days are long hours and “I must use a sitting chair outside the dispensary rather than the inside because I can't see what is going on outside as customer's parking was behind the dispensary store.” Id. Allard did not respond to Ayele's request regarding using a chair outside of the dispensary rather than inside. Id.

On Sunday, November 17, 2019, Ayele sent a text message to Allard asking whether he could take a bike that he felt had been abandoned at the dispensary. Id. at ¶ 23. Allard told Ayele that Mayflower's policy prohibited him from taking the bike. Id. When Ayele continued to argue with Allard after she informed him that he could not take the bike, Allard asked Ayele if he was calling her stupid. Id.

On November 23, 2019, Raymond Ahern told Ayele that he “should not use his chair to sit inside or outside the dispensary but take it home.” Id. at ¶ 24. After hearing this and because he could not work a 13-hour shift without sitting, Ayele decided to resign and left with his chair and a “lawsuit threat.” Id. On November 26, 2019, Ayele received an email message from the Assistant HR Director at SSC accepting his resignation. Id. at ¶ 25.

On February 11, 2020, Ayele filed a complaint with the MCAD against SSC and Mayflower alleging retaliation and discrimination based on race, color, national origin, and disability. Id. at ¶ 9; Docket No. 18-1; see also Docket No. 23-1; Docket No. 25-1; Docket No. 25-2.^[10]Ayele alleges that the MCAD did not allow him to conduct discovery during its investigation of his claims. AC at p. 15. He also claims that, during her investigation, MCAD's investigator communicated with the respondents without Ayele's participation. Id. On September 1, 2019, MCAD notified Ayele that it would not complete its investigation within eighteen months due to its case load. Id. at ¶ 9.

On July 29, 2022, the MCAD issued an investigative disposition recommending a finding of lack of probable cause as to Ayele's claims (the “Disposition”). Id. at ¶ 10; Docket No. 18-1. The Disposition was issued by defendant Jean-Francois in her role as investigating commissioner and lists defendant Sarah Biglow as the MCAD investigator. Docket No. 18-1 at 9.

MCAD mailed the Disposition to Ayele on August 4, 2022. AC at p. 15. Ayele received the Disposition by mail on August 9, 2022. Id. Ayele alleges that the adverse Disposition was issued by the MCAD in retaliation for Ayele's threat to hold a community demonstration against MCAD. Id. Nevertheless, Ayele chose not to appeal the Disposition. Id.

Ayele took a second security job with Sodexo USA in September 2019 after SSC cut his hours. AC at p. 16. Ayele's managers at Sodexo accused him of insubordination and allowing an employee to access the workplace with an expired identification card. Id. at p. 16-17. Ayele told his supervisor that he was lying. Id. at p. 17. Ayele told his supervisor that he “kn[ew] how Arab lied because I saw the Iraqi General (in the American TV) lying to the Iraqi people.” Id. (emphasis in original). After this incident, Sodexo suspended Ayele for an indefinite period and ultimately terminated him on November 21, 2022. Id.

Ayele applied for unemployment insurance. Id. When asked, Ayele told the MDUA employee assisting him that he was terminated for “retaliation and disability discrimination.” Id. at p. 18. The unnamed MDUA employee told Ayele that she would process his claim and that he should begin searching for three jobs per week. Id.

Two weeks later, Ayele had not received unemployment assistance, and was told that he needed to submit further identification. Id. Ayele's claim for unemployment assistance was further delayed because his former employer had not submitted the required documentation. Id. Eventually, MDUA denied Ayele's claim because terminated employees were not entitled to receive unemployment insurance. Id.

Ayele disagreed with MDUA's denial of his claim and argued that unemployment insurance could not be withheld when the termination was not the fault of the employee. Id. His claim was remanded to the initial claim processor for redetermination. Id. On December 28, 2022, MDUA informed Ayele that he could prepare witnesses and exhibits to argue his case at a hearing. Id. Ayele went to MDUA to inquire when the hearing date would be, but MDUA issued a Notice of Disqualification that same day. Id. On January 10, 2023, Ayele delivered a letter to MDUA that stated his intent to “find other ways including seeking judicial remedy” to receive payment. Id. at p. 19.

Ayele has named nine defendants: (1) SSC; (2) Ryba; (3)Allard; (4) Mayflower; (5) Andrew Plante, National Director of Security & Risk Management for Mayflower; (6) MCAD; (7) Neldy Jean-Francois; (8) Sarah Biglow; and (9) MDUA. He has listed four claims in his Amended Complaint: (1) Title VII and/or M.G.L. c. 151B; (2) 42 U.S.C. § 1983; (3) ADA; and (4)...