United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO CERTIFY AND DEFENDANT’S MOTION TO DISMISS
F. Dennis Saylor IV, United States District Judge
On October 5, 2015, plaintiff Janice Stevenson filed a self-prepared complaint against her employer, Security Industry Specialists, Inc. (“SIS”), and Amazon.com, Inc. It appears that Stevenson is employed by SIS as a security specialist working the night shift on Amazon property in Cambridge, Massachusetts. The complaint asserts causes of action for, among other things, retaliation under Title VII of the Civil Rights Act of 1964; violations of her Fourteenth Amendment rights to due process and equal protection; violations of the Massachusetts Constitution; violations of Mass. Gen. Laws ch. 149 §§ 148 and 150; and violations of the Eighth Amendment right against cruel and unusual punishment. Plaintiff alleges that this Court has diversity jurisdiction because the defendants are citizens of other states.
Plaintiff has moved the Court to certify questions of state law to the Massachusetts Supreme Judicial Court. Defendant SIS has moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), contending that all of plaintiff’s claims are either moot or barred as a matter of law. The original complaint remains the operative complaint in this action. However, because plaintiff is proceeding pro se, the Court will deem the factual allegations in plaintiff’s opposition memorandum and surreply to be part of the complaint for purposes of resolving defendant’s motion to dismiss.
For the foregoing reasons, plaintiff’s motion to certify will be denied, and defendant’s motion to dismiss will be granted.
I. Factual Background
The facts are as stated in the complaint and in plaintiff’s briefing materials in opposition to defendant’s motion to dismiss.
Defendant Security Industry Specialists, Inc. provides contracted security staff for businesses, including for Amazon.com, Inc. in Cambridge, Massachusetts. (Compl. ¶¶ 4-7). Plaintiff Janice Stevenson is a security specialist employed by SIS at the Amazon work site. (Id. ¶ 2).
The dispute appears to arise from a written warning directed to Stevenson in an “Employee Counseling Form” (“ECF”) prepared by SIS supervisors on September 30, 2015, and placed in her personnel file. It appears that on September 27, 2015, Stevenson was asked by a supervisor to patrol the seventh floor of the Amazon property along with a co-worker, Nicole Washington. Stevenson had completed half of the patrol when she was told to finish patrol of the rest of the floor. She refused to do so on the ground that she had to go to the eleventh floor to guard an area, and she told her supervisor that Washington should patrol the seventh floor instead. As a result of that conversation, Stevenson was cited for insubordination and failure to perform work duties. She contested the citation, contending that she had dual responsibilities for patrolling both the seventh and eleventh floors and thus had received conflicting assignments. She further alleges that it was Washington who refused to patrol the seventh floor and that her supervisor showed favoritism toward Washington.
In her opposition to the motion to dismiss, Stevenson states that she “had no disciplinary issues until after filing an initial complaint against [three SIS supervisors] on August 9, 2015, . . . for unsubstantiated discipline action against Plaintiff and the vicious harassment of Security Specialist Sasha Smith.” (Pl. Opp. 4, ¶ 3). Stevenson contends that the information in the ECF was false and that SIS has refused to allow her access to that form, any investigatory documentation upon which it relies, and has “denied Plaintiff direct evidence to disprove allegations and [refused to] expunge the Employee Counseling Form” from her employee record. (Compl. ¶ 32). She further contends that surveillance video of the property, which she alleges is currently in the possession of Amazon, will disprove the assertions against her.
On August 18, 2015, Stevenson filed another written complaint regarding the use of “anti-Semitic and racial animus [display of a swastika and use of racially motivated speech] among white male security specialists” at her work site. (Id. ¶ 17). It is not clear whether her complaint concerning the ECF is related to her complaint of apparent racial harassment.
The complaint also makes various general complaints about the way SIS is operated. For example, Stevenson contends that SIS policy is to fire any security specialist working the night shift who sleeps at his or her post. That policy, Stevenson alleges, does not apply to day shift or swing shift workers. In addition, she contends that SIS fails to take measures to ensure that security specialists remain alert. She further asserts that there is no appeal procedure for disciplinary action, no “predictable management, ” and no “right to know job expectations” and consequences.
The complaint separately alleges that SIS pays its security specialists on a semi-monthly basis, instead of bi-weekly as required by Massachusetts law. (Id. ¶ 46). In her surreply, Stevenson states that she was “fired for complaining about unpaid wages.” (Pl. Sur. 3).
It is not clear whether plaintiff continues to be employed by SIS. Her opposition memorandum asserts that she was “discharged” by SIS, (Pl. Opp. at 7), and her surreply memorandum requests back pay and front pay for “retaliatory discharge.” The complaint itself, however, does not ...