United States District Court, D. Massachusetts
MEMORANDUM & ORDER
INDIRA TALWANI UNITED STATES DISTRICT JUDGE
Plaintiff Ralph Claudomir (“Claudomir”), a former employee of Defendant Massachusetts Environmental Police (“MEP”), brings this action alleging disability discrimination by MEP, MEP Executive Director Defendant Aaron Gross and MEP Deputy Director of Finance Defendant Robert Wong. Defendants have moved to dismiss several of the nine causes of action in Claudomir’s First Amended Complaint [#19] based on Eleventh Amendment sovereign immunity and other grounds. For the following reasons, Defendants’ Motion to Dismiss Claims Against Defendants Massachusetts Environmental Police, Aaron Gross and Robert Wong [#22] is ALLOWED IN PART and DENIED IN PART.
I. Legal Standard
In ruling on a motion to dismiss, whether for lack of jurisdiction or for failure to state a claim, the court must accept the plaintiff’s well-pleaded factual allegations and draw all reasonable inferences in the plaintiff’s favor. See Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) (Rule 12(b)(6)); Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001) (12(b)(1)). A motion to dismiss based on sovereign immunity is treated as a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). To survive a motion to dismiss for failure to state a claim, a complaint must contain sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
II. Facts as Alleged in the Amended Complaint
Claudomir has been hearing impaired since birth, is deaf in his left ear, and suffers from 35% hearing loss in his right ear. Id. ¶¶ 10-11. Claudomir’s hearing loss manifests in a number of ways including limiting his ability to hear, concentrate, think, communicate, work, interact with others, and control the volume of his voice. Id. ¶ 12.
On or about April 25, 2011, Claudomir was hired under written contract to work with Massachusetts Environmental Police’s (“MEP”) Office of Energy and Environmental Affairs as a Registration Bureau Chief, Revenue Account Manager. Id. ¶ 17. The Registration Bureau Chief is responsible for, among other things, managing the five registration offices located throughout Massachusetts that handle registration of motorized boats and recreational vehicles. Id. ¶¶ 18, 19. MEP Executive Director Aaron Gross (“Gross”) and MEP Deputy Director of Finance Robert Wong (“Wong”) were present at Claudomir’s second interview for the position. Id. ¶ 15. Claudomir disclosed his hearing impairment to Gross and Wong at that interview, and further disclosed the impairment to other supervisors and staff once he was hired. Id. ¶¶ 16, 21.
On or about July 2011, Defendants demoted Claudomir from Registration Bureau Chief to Revenue and Systems Manager and gave a substantial portion of his former job duties to Operations Manager and former Acting Registration Bureau Chief Janice Santos (“Santos”). Id. ¶¶ 21, 24. Specifically, Santos became responsible for communicating with and managing staff at the five registration offices, and only the Boston Registration Office staff continued to report to Claudomir. Id. ¶ 24.
Claudomir alleges that throughout 2011 and 2012, Gross and Wong treated him differently than Santos and other colleagues, including by Wong unnecessarily micromanaging Claudomir, and by Gross, Wong, and others routinely excluding Claudomir from senior management meetings. Id. ¶ 25. In addition, Gross and Wong badgered Claudomir about the volume of his voice, making “cruel” remarks such as “I can’t understand you, ” “you are too loud all the time, ” and “I know you hear me.” Id. ¶ 26.
Around May or June 2013, Claudomir complained to Assistant Secretary of Human Resources Barbara Nobles-Crawford (“Nobles-Crawford”) about his disparate treatment, hostile work environment, and being demoted without justification, and requested a reasonable accommodation for his hearing impairment. Id. ¶ 28. Human Resources then investigated Claudomir’s complaints, leading to a meeting between Claudomir, Nobles-Crawford, Wong, and MEP Deputy Director Christian Baker. Id. ¶¶ 28, 29. At that meeting, the parties agreed to (1) transition Claudomir back to the Registration Bureau Chief position; (2) include Claudomir in all meetings and discussions pertinent to him; and (3) involve Claudomir in all matters related to the Registration Bureau. Id. ¶ 29. Around June 18, 2013, Claudomir submitted a formal request for an accommodation for his hearing impairment, which was supported by medical documents submitted June 24, 2013. Id. ¶¶ 30, 31.
Around July 9, 2013, MEP Technology Specialist Jonathan O’Dell conducted an evaluation of Claudomir’s workspace with the Massachusetts Commission for the Deaf and Hard of Hearing. Id. ¶ 32. Around July 19, 2013, O’Dell issued a memo describing four reasonable accommodations to be made for Claudomir, including: (1) an office with floor to ceiling walls; (2) use of a high quality ancillary headset to block out ambient noise and to enable Claudomir to adjust the volume of his telephone without use of the speakerphone; (3) use of an “FM system” with headphones and a remote microphone for meetings and trainings with two or three participants; and (4) use of an “FM system” or Communication Access Real-Time Translation system for employment related meetings, hearings, evaluations or interviews. Id. ¶ 33. Defendants did not provide Claudomir with any of these four accommodations in a timely manner. Id. ¶ 34. Defendants ultimately provided Claudomir with a headset to block ambient noise around September 2013. Id. ¶ 38. However, Claudomir told Crawford-Nobles and Wong that it did not meet his needs, and Claudomir could not use the headset until about December 12, 2013. Id.
Before the headset was provided, in summer 2013, Wong and Santos humiliated and harassed Claudomir by repeatedly yelling at him during meetings. Id. ¶ 37. Claudomir reported this increased hostility to Nobles-Crawford in August 2013. Id. Claudomir, Nobles-Crawford, Wong, and Gross met to address Claudomir’s complaints and the parties affirmed their commitment to the agreement reached during the June 2013 meeting. Id.
On October 22, 2013, MEP Director of Diversity Michelle Waters-Ekanem (“Waters-Ekanem”) contacted Claudomir regarding an investigation into various issues in Claudomir’s department. Id. ¶¶ 39, 40. Claudomir told Waters-Ekanmen about the complaints he had raised to Crawford-Nobles in the preceding months. Id. ¶ 40. On December 10, 2013, Waters-Ekanem issued a report finding: (1) Claudomir was never allowed to fulfill his hired position as Registration Bureau Chief; (2) Wong did not properly transition Claudomir into his job as Bureau Chief when he was first hired and following his demotion; (3) Wong’s micro- management of Claudomir and inappropriate disclosure of private information about Claudomir to management and staff aided in undermining Claudomir’s authority and role in the department; and (4) the perception that Claudomir yells when he speaks is attributable to his hearing impairment. Id. ¶ 41. Additionally, Waters-Ekanmen recommended that Claudomir be returned to his hired position as Registration Bureau Chief. Id. ¶ 42. Waters-Ekanem’s findings and recommendations were forwarded to Gross and Nobles-Crawford on December 10, 2013, and Wong and others were also informed of the findings. Id.
Around December 19, 2013, Defendants issued a warning to Claudomir for attempting to speak with Gross during his lunch break and speaking too loudly. Id. ¶ 43. On January 2, 2014, Defendants issued a second warning to Claudomir for his allegedly disruptive and disrespectful behavior, including speaking with a loud voice, in a meeting with Wong on December 4, 2013. Id. ¶ 44. On January 6, 2014, Defendants issued a final written warning notifying Claudomir that he would be terminated if he did not resign. Id. ¶ 45. On January 29, 2014, Claudomir informed Wong and ...