Cross v. Massachusetts

ELMER E. CROSS v. COMMONWEALTH OF MASSACHUSETTS, et al.

CIVIL ACTION NO. 18-11765-RGS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

May 1, 2019

MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

STEARNS, D.J.

Elmer Cross, proceeding pro se, brought this lawsuit against his former employer - the Commonwealth of Massachusetts and two of its agencies, the Executive Office of Labor and Workplace Development (EOLWD)¹ and the Department of Unemployment Assistance (collectively the Commonwealth) - and his quondam union, the National Association of Government Employees (NAGE) Unit One, Local R1-292, and its President, John Mann. Cross alleges that defendants discriminated against him based on his disability and retaliated against him in violation of the Americans withDisabilities Act of 1990 (ADA), Title I of the Civil Rights Act of 1991, Section 504 of the Rehabilitation Act of 1973, Mass. Gen. Laws ch. 151B, § 4, and Massachusetts Executive Order No. 478.² Cross further alleges that NAGE and Mann breached the duty of fair representation by not "vigorous[ly]" representing him in two grievances and by doing "nothing" on his behalf against his employer's purported breaches of a collective bargaining agreement. Second Am. Compl. (Dkt # 34) ¶ 14. The Commonwealth and NAGE, separately, now move to dismiss the Second Amended Complaint for lack of subject-matter jurisdiction and for failure to state a claim.³ For the reasons to be explained, defendants' motions to dismiss will be allowed.

BACKGROUND

The facts, viewed in the light most favorable to Cross as the nonmoving party, are as follows. In 2009, Cross was employed by the Commonwealth as a Job Specialist III. On September 4, 2009, he requested an accommodation for anxiety. On August 25, 2010, he received a partial accommodation. After his health worsened to include symptoms of diabetes and arthritis, he took medical leave from April 1, 2011 until May of 2014.⁴ During this extended absence, Cross obtained five "Fitness for Duty Certificates" from his psychiatrist, Dr. Russell Vasile, which his employer purportedly ignored. Id. ¶ 11.⁵

On May 18, 2014, Cross returned to work as a Mail Clerk. In June of 2014, he contacted the President of NAGE, John Mann, to file a Step II grievance for reinstatement as a Job Specialist III. On January 26, 2015, he was transferred to the Department of Unemployment Assistance. At his performance review on August 6, 2015, a supervisor, Theresa DeMarco,stated that he met expectations. But later that day, he got into an argument with another supervisor, Luz Cepeda-Gonzales, over her criticisms of his work. As a result, Cross was immediately placed on "Involuntary Administrative Medical Leave of Absen[ce]." Id. ¶ 13. However, he was allowed to return to work after obtaining a "Fit for Duty Certification" from a doctor, which he submitted on September 19, 2015. Id. On February 18, 2016, he was placed back on the payroll, but was prohibited from working. On May 31, 2016, Cross was terminated allegedly for budgetary reasons.

On May 13, 2016, Cross filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD) and the Equal Employment Opportunity Commission (EEOC). See Dkt # 10-1.⁶ He alleged that the EOLWD retaliated against him for pursuing a disability discrimination claim with the EEOC. After the MCAD found a lack of probable cause on April 6, 2018, Cross initiated this lawsuit on August 17,2018.⁷ He contends that defendants engaged in disability discrimination and retaliation, and that NAGE and Mann breached the duty of fair representation.

DISCUSSION

Defendants move to dismiss this action for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Cross, therefore, bears the burden of proving that the court has jurisdiction. Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). To determine if Cross has met his burden, the court "glean[s] the relevant background information from the plaintiff['s] [second] amended complaint, accepting the well-pleaded factual averments contained therein and indulging all reasonable inferences in the plaintiff['s] favor." Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003).

Defendants also move to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is faciallyplausible if its factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013), quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).

ADA and Mass. Gen. Laws ch. 151B

Cross alleges that defendants discriminated against him based on his disability and then retaliated against him in violation of the ADA and Chapter 151B. However, these claims against the Commonwealth and NAGE both fail, but for different jurisdictional reasons.

The claims against the Commonwealth must be dismissed because of sovereign immunity. The Eleventh Amendment states that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Am. XI. "The Supreme Court . . . has expanded the doctrine of sovereign immunity beyond the literal words of the Eleventh Amendment, holding that state governments, absent their consent, are not only immunefrom suit by citizens of another state, but by their own citizens as well." Guillemard Ginorio v. Contreras Gomez, 585 F.3d 508, 529 n.23 (1st Cir. 2009), citing Alden v. Maine, 527 U.S. 706, 728-729 (1999). The Supreme Court has also specifically held that "Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I" of the ADA. Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001).⁸ The Commonwealth and two of its agencies are therefore immune from suit under the ADA and Chapter 151B because they neither consented to this action nor waived sovereign immunity. See Murphy v. Massachusetts - Exec. Office of Trial Court, 335 F. Supp. 3d 137, 144-145 (D. Mass. 2018) (dismissing plaintiff's ADA and Chapter 151B claims against the Commonwealth because of sovereign immunity).

The claims against NAGE and Mann must be dismissed because Cross failed to exhaust his administrative remedies.⁹ Claims under the ADA andChapter 151B must be administratively pursued with the MCAD or the EEOC before filing a lawsuit. Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999); Everett v. 357 Corp., 453 Mass. 585, 599-600 (2009). The administrative filing requirement serves the dual purpose of providing a defendant with notice and of giving the agency an opportunity to investigate and conciliate the claim. Id. at 600; Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). Although Cross filed an MCAD charge against the EOLWD, he did not name NAGE or Mann as defendants.¹⁰ See Dkt # 10-1. The discrimination claims against them therefore fail as a matter of law.¹¹

Title I of the Civil Rights Act

Cross also alleges that defendants violated Title I of the Civil Rights Act. However, the Act does not create an independent cause of action, but rather provides "a major expansion in the relief available to victims of employment discrimination." Landgraf v. USI Film Prod., 511 U.S. 244, 255 (1994) (emphasis added). In other words, it "merely expands the remedies available under substantive acts and should only be regarded as an extension of and amendment thereto." Presutti v. Felton Brush, Inc., 927 F. Supp. 545, 550 (D.N.H. 1995) (emphasis added). Thus, having already dismissed the ADA claim, the court must also dismiss the Civil Rights Act claim. See Rivera Concepcion v. Puerto Rico, 682 F. Supp. 2d 164, 172 (D.P.R. 2010) ("Plaintiffs . . . misunderstand basic applications of the law, trying to raise a 'claim' pursuant to a section of a statute pertaining exclusively to remedies.").

Section 504 of the Rehabilitation Act

Cross further alleges that defendants violated Section 504 of the Rehabilitation Act. To state such a claim, Cross "must show that []he is disabled; (2) that []he sought services from a federally funded entity; (3) that []he was 'otherwise qualified' to receive those services; and (4) that []he wasdenied those services 'solely by reason of [his] . . . disability.'" Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001), quoting 29 U.S.C. § 794(a).

Here, Cross does not allege that either NAGE or Mann are "federal agencies, contractors [or] recipients of federal financial assistance." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004).¹² Nor has Cross alleged that the Commonwealth and two of its agencies are federally funded. See Jenkins v. Bos. Hous. Court, 350 F. Supp. 3d 1, 6 (D. Mass. 2018) ("Absent any allegation that defendant BHC is the recipient of federal funding, plaintiff has failed to allege an element of a § 504 claim[.]"). Cross, therefore, fails to state a valid Rehabilitation Act claim against defendants.

Massachusetts Executive Order No. 478

Cross additionally alleges that defendants violated Executive Order No. 478. Implemented on January 30, 2007, the Order provides that "[n]on-discrimination, diversity, and equal opportunity shall be the policy of theExecutive Branch of the Commonwealth of Massachusetts in all...