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Araujo v. UGL Unicco-Unicco Operations

United States District Court, D. Massachusetts

September 30, 2014


Order Filed: July 10, 2014

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[Copyrighted Material Omitted]

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Alfredo Araujo, Plaintiff, Pro se, Roslindale, MA.

For UGL Unicco-Unicco Operations, Defendant: Andrew C. Pickett, LEAD ATTORNEY, Allan N. MacLean, Jackson Lewis PC, Boston, MA.

For Athenahealth, Inc., Defendant: Kenneth M. Bello, LEAD ATTORNEY, Alexandra D. Thaler, Bello Welsh LLP, Boston, MA.

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George A. O'Toole, Jr., United States District Judge.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation (dkt. no. 31) with respect to the motion to dismiss filed by one defendant, athenahealth, Inc. (dkt. no. 10). I have reviewed the relevant pleadings, the parties' motion papers, supporting documentation, the Report and Recommendation itself, and the subsequent objections. I concur with the magistrate judge's conclusion that the plaintiff has failed to state a plausible claim of discrimination against athenahealth and that, consequently, the complaint should be dismissed.

I also agree with the magistrate's conclusion that the dismissal should be without prejudice so as to provide the plaintiff with the opportunity to amend his complaint. In his objection to the Report and Recommendation, the plaintiff references Mr. Costa's practices regarding the selection of supervisors, a list of previously-selected supervisors, and a witness which may have information material to the plaintiff's claims of discrimination. In light of the plaintiff's possible allegations and in accordance with the magistrate's recommendation, it is not clear that amendment would be futile. See Adorno v. Crowley Towing & Transp. Co.., 443 F.3d 122, 126 (1st Cir. 2006).

I do not adopt the magistrate judge's conclusion that an argument raised by athenahealth in a footnote should be deemed waived. If appropriate, that issue may be raised with respect to any future amended complaint.

Accordingly, I ADOPT the recommendation of the magistrate judge. The defendant's Motion to Dismiss (dkt. no. 10) is GRANTED and the complaint is dismissed without prejudice as to athenahealth. The plaintiff shall file an Amended Complaint within thirty-five (35) days. Failure to do so will result in dismissal of this action against athenahealth.



Judith Gail Dein, United States Magistrate Judge


Plaintiff Alfred Araujo (" Araujo" ) has brought this action pro se against his employer, DTZ-UGL Unicco (" DTZ" ), and athenahealth, Inc. (" athenahealth" ), claiming that the defendants discriminated against him on the basis of his race when he was employed as a cleaning and maintenance supervisor at the Arsenal on the Charles property in Watertown, Massachusetts. Specifically, Araujo, who is from the Dominican Republic, claims that DTZ decided to transfer him from the Watertown property to a less desirable location in Chelsea, Massachusetts because a manager at athenahealth did not like the color of his skin. Although the plaintiff has not alleged any specific causes of action in his Verified Complaint, it is undisputed that he is attempting to assert claims against the defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. (" Title VII" ) and/or Mass. Gen. Laws ch. 151B (" Chapter 151B" ).

The matter is presently before the court on " athenahealth, Inc.'s Motion to Dismiss" (Docket No. 10), by which athenahealth is seeking the dismissal of Araujo's claims against it, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6). The defendant contends that dismissal is warranted because the plaintiff failed to file a timely charge of discrimination against it with either the Equal Employment Opportunity Commission (" EEOC" ) or the Massachusetts

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Commission Against Discrimination (" MCAD" ). It further contends that even if Araujo's claims against it are not barred on procedural grounds, it is still entitled to be dismissed from the action because the plaintiff has failed to allege sufficient facts to state a claim under Title VII or Chapter 151B. As described below, the defendant has not shown that Araujo's claims are barred by his alleged failure to file an administrative charge within the limitations periods set forth in Title VII and Chapter 151B, but it has demonstrated that the plaintiff's allegations are insufficient to state a plausible discrimination claim against it under either statute. Accordingly, and for all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that athenahealth's motion to dismiss be ALLOWED. However, this court further recommends that the dismissal be WITHOUT PREJUDICE.


When ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Where, as here, the plaintiff is proceeding pro se, the court must construe his allegations liberally. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (a pro se complaint, however inartfully pleaded, must be liberally construed). " Ordinarily, a court may not consider any documents that are outside of the complaint, or not expressly incorporated therein, unless the motion is converted into one for summary judgment." Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). " There is, however, a narrow exception 'for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint.'" Id. (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)).[1] Applying these standards to the instant case, the facts relevant to athenahealth's motion to dismiss are as follows.[2]

Araujo's Employment at Arsenal on the Charles

The plaintiff, Araujo, is an employee of DTZ, a company that provides cleaning

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and maintenance services to businesses. (See Compl. (Docket No. 1) ¶ 3 and Closing Argument; Def. Ex. 1 at 1). In September 2008, Araujo allegedly began working as a cleaning and maintenance supervisor at the Arsenal on the Charles property located in Watertown, Massachusetts. (See Compl. ¶ ¶ 2-3). At the time of the events giving rise to this action, Arsenal on the Charles was owned by Harvard University and was managed by Beal, Inc. (See id. ¶ 9; Compl. Ex. at 26). It also had 27 different tenants that occupied approximately 900,000 square feet of building space. (Compl. ¶ 3). One of those tenants was the defendant, athenahealth. (Id. ¶ 1).

Araujo claims that Lou Amaral (" Amaral" ), the Director of Operations at DTZ, and Antonio Costa (" Costa" ),[3] the Office Manager for athenahealth, had opposed the selection of the plaintiff as a supervisor at Arsenal on the Charles, and had wrongfully accused him of an attempted attack on a woman in an effort to keep him away from the property. (See id. ¶ ¶ 1-2). He further claims that Amaral's and Costa's actions were motivated by Costa's dislike of Araujo's skin color and deficiency in English. (Id. ¶ 4). Allegedly, however, the managers of the property believed that the plaintiff was honest, responsible and hardworking. (Id. ¶ 2). Accordingly, Araujo became a supervisor despite the opposition. (See id. ¶ ¶ 2-3).

Araujo alleges that during his employment at Arsenal on the Charles, he was one of three supervisors who were responsible for cleaning and maintenance at the site. (Id. ¶ 3). The other supervisors were Hector Flores, who was responsible for approximately 70,000 square feet of space that was occupied by Harvard University, and Vital DaSilva, who was responsible for approximately 120,000 square feet of space that was occupied by athenahealth. (Id.). Araujo claims that ...

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