Ngomba v. Olee, CIVIL ACTION NO. 18-11352-MPK

DESMOND M. NGOMBA, Plaintiff, v. TONG OLEE, Director of Residential Service, MELISSA ACELLO, Cluster Manager,SUSAN BUNHAM, Regional Director, Boston, RESOURCES FOR HUMAN DEVELOPMENT (RHD), Defendants.

CIVIL ACTION NO. 18-11352-MPK

UNITED STATES DISTRICT COURT THE DISTRICT OF MASSACHUSETTS

March 11, 2019

KELLEY, U.S.M.J.

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS (#16).

I. Introduction.

Pro se plaintiff Desmond M. Ngomba alleges defendants¹ Melissa Acello, Susan Bunham, Tong Olee, and Resources for Human Development (RHD) have discriminated against him based on his national origin, and violated the Family Medical Leave Act (FMLA). (#1 at 3.) This matter is before the court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted. (#16.) Plaintiff has filed an opposition to the motion. (#28.)

II. The Facts.

The factual allegations in the complaint are accepted as true and taken in the light most favorable to plaintiff, the non-moving party. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Ngomba is a naturalized United States citizen from Cameroon living in Somerville, Massachusetts. (#1 at 1, 3.) Plaintiff contends Tong Olee, the Director of Residential Services at RHD, is "Chinese American" and Melissa Acello, a Cluster Manager at RHD, and Susan Bunham, a Regional Director at RHD, are of "White American origin." Id. at 3. Ngomba formerly worked for RHD at a residential group home in Somerville, Massachusetts. Id. at 4. Plaintiff was terminated from his employment on November 5, 2017. Id. at 4-5.

According to Ngomba, defendants discriminated against him because of his national origin and retaliated against him after he reported workplace safety concerns to his manager. Id. at 5. In plaintiff's view, he was treated differently than his co-workers, whose nationalities are not identified in the complaint. Id. Plaintiff seems to suggest that one of his managers considered him to be a "whistleblower" after plaintiff reported "issues of serious safety" affecting clients in his care. Id.

By way of relief, Ngomba seeks $300,000 in monetary damages resulting from "serious economic hardship and financial loses [sic] of income to properly care for [his] family." Id. at 4-5.

In their motion to dismiss, defendants contend first, plaintiff has failed to exhaust his administrative remedies as required under federal and state law, and second, he has not adequately pled that they denied him leave to which he entitled to under the FMLA. (#17.) In his opposition, plaintiff alleges additional details, and attaches several exhibits, purportedly to provide factual support for his claims. (#28.)

III. The Applicable Law.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint. A court must "accept as true all well-pleaded facts and draw all reasonable inferences therefrom in the pleader's favor." Keach v. Wheeling & Lake Erie Ry. Co. (In re Montreal, Me. & Atl. Ry., Ltd.), 888 F.3d 1, 6 (1st Cir. 2018); Gonzalez v. Vélez, 864 F.3d 45, 50 (1st Cir. 2017). When considering a motion to dismiss, a court "may augment these facts and inferences with data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice." Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (citing Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial Mortg. Bankers Corp.), 324 F.3d 12, 15 (1st Cir. 2003)); In re Montreal, 888 F.3d at 7 n.2.

While a pro se complaint is to be liberally construed, see Woods v. Covidien LP, No. 15-30094-MGM, 2016 WL 2733102, at *2 (D. Mass. May 10, 2016), to survive a Rule 12(b)(6) motion to dismiss, plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The First Circuit recently explained:

The plausibility standard requires a court to choreograph a two-step pavane. See A.G. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013). First, the court must "strip away and discard the complaint's conclusory legal allegations." Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). Second, "the court must determine whether the remaining facts allow it 'to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Doe v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016) (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).

In re Montreal, 888 F.3d at 6. After undertaking this exercise, "[d]ismissal is warranted when a complaint's factual averments are 'too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture.'" Id. (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc)).

A complaint must also meet the requirements of Rule 8, which mandates that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In other words, the complaint must include "'enough detail to provide a defendant with fair notice of what the . . . claim is and the grounds upon which it rests.'" Silverstrand Investments. v. AMAG Pharmaceutical., Inc., 707 F.3d 95, 101 (1st Cir. 2013) (quoting Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (alteration in original) (citation and further internal quotation marks omitted)); Barbosa v. Commonwealth of Massachusetts, No. CV 14-13439-ADB, 2016 WL 3976555, at *2 (D. Mass. July 22, 2016). This means that the statement of the claim must "'at least set forth minimal facts as to who did what to whom, when, where, and why.'" Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006) (quoting Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68 (1st Cir. 2004)). Although the requirements of Rule 8(a)(2) are minimal, "'minimal requirements are not tantamount to nonexistent requirements.'" Id. (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988)).

IV. Discussion.

A. The Federal Claims.

1. The Title VII Claim.

Ngomba appears to be asserting claims under Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating "against any individual with respect to hiscompensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin . . ." 42 U.S.C. § 2000e-2(a)(1). "Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor." Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342 (2013). The First Circuit has repeatedly held that "a federal court will not entertain employment discrimination claims brought under Title VII unless administrative remedies have first been exhausted." Rodriguez v. United States, 852 F.3d 67, 78 (1st Cir. 2017) (citing Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009)); see Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005) (failing to exhaust administrative remedies "effectively bars the courthouse door.").

In order to establish that a Title VII claim has been exhausted, a plaintiff must demonstrate that he timely filed a charge with the EEOC, and that he was in receipt of a right-to-sue letter from the agency. See Jorge, 404 F.3d at 564. A Title VII claim filed before a plaintiff obtains a right-to-sue notice from the EEOC is not exhausted, and so is barred from proceeding in federal court. See Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 85 (1st Cir. 2008) ("Administrative remedies could not be considered to have been exhausted, however, until the EEOC issued Franceschi a right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1)."); Taite v. Bridgewater State Univ., 236 F. Supp. 3d 466, 477-78 (D. Mass. 2017) (finding a litigant bringing federal Title VII discrimination claim did not exhaust her administrative remedies since she did not receive a right-to-sue letter from the EEOC); Goldstein v. Brigham & Women's Faulkner Hosp., Inc., 80 F. Supp. 3d 317, 323-24 (D. Mass. 2015).

In this case, Ngomba has not alleged that he has received a right-to-sue letter issued by the EEOC. Because administrative remedies have not been exhausted, the court does not have jurisdiction over the Title VII claim. Plaintiff's federal discrimination claim will be dismissed,without prejudice, and with leave to refile upon receipt of a right-to-sue letter from the EEOC. See Taite, 236 F. Supp. 3d at 478 (citing Lebron-Rios v. U.S. Marshal Service, 341 F.3d 7, 14 (1st Cir. 2003)) ("[T]his court has repeatedly preferred dismissal without prejudice in analogous circumstances" of failure to exhaust administrative remedies).

2. The FMLA claims.

The FMLA allows qualifying employees to take up to twelve weeks of unpaid leave for specified family and medical reasons. 29 U.S.C. §§ 2601-2654. Under the statute, it is unlawful for employers to discriminate against employees for taking such leave by retaliating against them. 29 U.S.C. § 2615(a). Ngomba seems to allege two violations of the FLMA: an interference claim, i.e., he was denied his right to FMLA leave, and a retaliation claim, i.e., he was discharged for trying to exercise his FMLA rights. (#1 at 3, 5.)

a. Interference Claim.

"[T]he FMLA makes it 'unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise' such rights. 29 U.S.C. § 2615(a)(1). Under this provision, employees may assert so-called "interference" claims alleging deprivations of their substantive rights." Germanowski v. Harris, 854 F.3d 68, 72 (1st Cir. 2017) (citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005)); ...