United States District Court, D. Massachusetts
For Ms. Lee Ann Dyer, Plaintiff: Janet E. Dutcher, LEAD ATTORNEY, Kazarosian Law Offices, Haverhill , MA; Marsha V. Kazarosian, LEAD ATTORNEY, Kazarosian Law Offices, Haverhill , MA.
For East Coast Diners Llc, doing business as Denny's, Inc., Defendant: Janet R. Barringer, LEAD ATTORNEY, LeClairRyan PC, Boston , MA; Elitza V. Miteva, LeClair Ryan, P.C., Boston , MA.
MEMORANDUM AND ORDER ON DEFENDANT EAST COAST DINERS, LLC d/b/a DENNY'S MOTION TO DISMISS ALL COUNTS OF THE SECOND AMENDED COMPLAINT, ETC. (#17)
ROBERT B. COLLINGS, United States Magistrate Judge.
On October 29, 2013, the plaintiff, Leann Dyer, (hereinafter plaintiff or " Dyer" ) filed a complaint (#1) against East Coast Diners, LLC d/b/a Denny's. On October 31, 2013, the plaintiff filed an amended complaint adding Jonnel  Paul as a defendant. On December 23, 2013, the plaintiff filed an assented to Second Amended Complaint (#16) against East Coast Diners, LLC d/b/a Denny's, adding certain claims and deleting other claims. The Second Amended Complaint alleges that the defendants engaged in a pattern or practice of discrimination, as well as sexual harassment. The Second Amended Complaint also alleges breach of contract, breach of the implied covenant of good faith and fair dealing, violations of the plaintiff's civil rights, hostile work environment, and retaliation. Id. On January 6, 2014, East Coast Diners, LLC d/b/a Denny's (hereinafter " East Coast Diners" or " defendant" ) moved to dismiss all counts of the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (#17) On February 7, 2014, the plaintiff filed a notice of dismissal as to defendant Jonnel Paul. (#20) The defendant's motion to dismiss is now poised for disposition.
II. The Facts
According to the allegations of the Second Amended Complaint, the plaintiff was hired as a waitress at the defendant's restaurant (hereinafter " restaurant" or " Denny's" ) located in Lawrence, MA. (#16 at ¶ 11) In May of 2011, Efron Sola (hereinafter " Sola" ) was hired as the general manager. Id. at ¶ 12. Plaintiff and Sola would engage in conversations regarding their personal lives, and during one conversation, Sola instructed the plaintiff to enter an office and close the door. Id. at ¶ 14. Sola told the plaintiff he was proud of her, offered to show her how proud, and put his
hand on her thigh. Id. at ¶ 15. Plaintiff stood up and left the office.
In late fall of 2012, Jonnel Paul(hereinafter " Jonnel" ) was hired as a manager of the restaurant. Id. at ¶ 16. Immediately upon his employment, Jonnel began touching the plaintiff with his hands, rubbing his body against her, and making verbal sexual comments about her. Id. at ¶ 17. The plaintiff states that she continually rebuffed Jonnel and asked him stop. Id. at ¶ 18. Despite the plaintiff's request, Jonnel continued to make unwanted and inappropriate sexual advances regularly, actions which took place in front of customers and fellow employees. Id. at ¶ 19, ¶ 20.
In December of 2012, the plaintiff reported Jonnel's behavior to Sola. Id. at ¶ 21. Sola laughed and stated " he must know you like black dick." Id. at ¶ 22. On December 29, 2012, while plaintiff was bent at the waist at a refrigerator, Jonnel approached her from behind, grabbed her hips and began to rub his pelvic area across her. Id. at ¶ 23. Plaintiff jumped and screamed. Id. On December 31, 2012, the plaintiff reported to Sola what had occurred, and later that day Sola advised the plaintiff that he had spoken to Jonnel and the issue was resolved. Id. at ¶ 24, ¶ 25. On January 1, 2013, Jonnel approached the plaintiff, began to scream at her, pointed his finger in her face, and grabbed her arm when she attempted to retreat. Id. at ¶ 26.
At 6:00 A.M. on January 3, 2013, the plaintiff arrived at a mandatory work meeting and was told by Sola that she was suspended. Id. at ¶ 37. As she was leaving the building, she saw Jonnel, and informed him that he had just gotten her suspended. Id. at ¶ 38. Jonnel attempted to hug the plaintiff, and stated " don't worry, I got you." Id. On that same day general manager Marily Costanza interviewed employees of the restaurant regarding their observations pursuant to the facts which had been reported by the plaintiff in December 2012. Id. at ¶ 39. Also on that same day, the plaintiff filled out an Equal Employment Opportunity Commission (hereinafter " EEOC" ) questionnaire online. Id. at ¶ 36. On January 6, 2013, Sola advised Dyer that she was fired for starting malicious rumors.
The plaintiff states that at no time was a sexual harassment policy disseminated to her, posted at the restaurant, discussed with her by any employee or official of the restaurant. Id. at ¶ 28, ¶ 29. The plaintiff further states that she was never advised by Denny's or anyone in human resources as to the protocols or processes for reporting sexual harassment. Id. at ¶ 34, ¶ 35.
III. Legal Standard
A motion to dismiss brought under Rule 12(b)(6), Fed. R. Civ. P., requires the court to " accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the plaintiffs' favor." Gargano v. Liberty International Underwriters, Inc., 572 F.3d 45, 48 (1st Cir. 2009). A party's Rule 12(b)(6) motion to dismiss challenges the ability of an opponent's complaint to state a claim. The Supreme Court in Bell Atlantic adopted the view that the complaint must allege facts that " raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)(citation omitted). Thus, the factual allegations in the complaint must be specific enough to cross " the line from conceivable to plausible." Bell Atlantic, 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(citation omitted). " Determining whether a complaint states a plausible claim for relief [is]. . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679 (citation omitted). A court does not have to accept as true allegations in a complaint that are legal conclusions. Id. at 678. However, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 679.
The Federal Rules of Civil Procedure " do not contain a heightened pleading standard for employment discrimination cases." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 999, 152 L.Ed.2d 1 (2002), overruled in part on other grounds by Bell Atlantic, 550 U.S. at 569-70; see also Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir. 2013) (discussing the pleading standard for discrimination cases the court said Swierkiewicz remains good law and " there is no need to set forth a detailed evidentiary proffer in a complaint." ). " Thus, a complaint alleging discrimination under Title VII need not include specific facts establishing a prima facie case, but 'instead must contain no more than " a short a plain statement of the claim showing that the pleader is entitled to relief." '" Edsall v. Assumption College, 367 F.Supp.2d 72, 76 (D. Mass. 2005)(citations omitted); see also, Educadores-Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66 (1st Cir. ...