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Cichocki v. Massachusetts Bay Community College

United States District Court, D. Massachusetts

August 8, 2016



          Judith Gail Dein United States Magistrate Judge.


         The plaintiffs, Timothy E. Cichocki (“Cichocki”) and his wife, Y. Dolly Hwang (“Hwang”), are former professors at Massachusetts Bay Community College (“Mass Bay”). They have brought this pro se action against the college; its former President, John O’Donnell (“O’Donnell”); Robin Nelson-Bailey (“Nelson-Bailey”) who was chief Personnel Officer at Mass. Bay and is now Director of Human Resources; and Valerie Gaines (“Gaines”), the former Human Resources Director. This suit follows the dismissal of another action brought in this court by Cichocki alone in 2012 against the same defendants. Both suits challenge the defendants’ alleged responses to Cichocki’s contention that he was sexually harassed and manipulated into a sexual relationship with his then colleague, Helen Mcfadyen (“Mcfadyen”). See Cichocki v. Mass. Bay Cmty. Coll., et al., Civil Action No. 12-10728-GAO (the “2012 Litigation”). The plaintiffs assert that the defendants not only failed to take action after Cichocki complained of the harassment, but also deliberately engaged in unlawful conduct and retaliation against the plaintiffs.

         By their complaint, the plaintiffs assert nine claims, including claims for negligent hiring and supervision (Counts I and II), Title VII violations (Counts III and IV (incorrectly numbered VI)), and violations of the Fair Labor Standards Act (FLSA), the Massachusetts Wage Act (MWA) and the Access to Medical Report Act (Count V). In addition, the plaintiffs allege multiple alleged constitutional violations and have asserted various claims pursuant to 42 U.S.C. § 1983 (Counts VI, VII, VIII, and IX).

         The matter is presently before the court on the defendants’ Motion to Dismiss (Docket No. 42) brought on behalf of all the defendants who have been served.[1] By their motion, the defendants argue that the court should dismiss all Counts of the Complaint based on Eleventh Amendment immunity, res judicata and/or failure to state a claim upon which relief can be granted. For all the reasons detailed herein, the defendants’ motion to dismiss is ALLOWED.


         Where the plaintiff is proceeding pro se, the court must construe the plaintiff’s allegations liberally. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed. 2D 251 (1976) (a pro se complaint, even if poorly pleaded, must be liberally construed). However, “the necessary factual averments are required with respect to each material element of the underlying legal theory.” Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st Cir. 1990) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). This burden rests upon the pleader and “initial failure to satisfy the burden in no way obligates the district court to allow the parties an opportunity to offer matters outside the pleadings.” Id. Nevertheless, the court may consider, “in addition to the complaint itself, a limited array of additional documents such as any that are attached to the complaint.” Giragosian v. Bettencourt, 614 F.3d 25, 27-28 (1st Cir. 2010) (quoting Miss. Pub. Emp. Ret. Sys. v. Boston Sci. Corp., 523 F.3d 75, 86 (1st Cir. 2008)). Applying this standard, the relevant facts are as follows.


         Cichocki was a Professor of Electrical Engineering at Mass. Bay, and taught there from 1992 until the events at issue in this litigation in 2012. See Compl. at 4. Hwang was Division Dean of Math, Science and Engineering at Mass. Bay from 1991 to 1993, and she married Cichocki sometime after she left the school. Id. at 5. While Division Dean she hired Cichocki, but rejected Mcfadyen (nee Corrigan) for a position. Id. at ¶¶ 2-5. Mcfadyen was hired after Hwang left. Id. at ¶ 5. It is Hwang’s contention that Mcfadyen pursued a relationship with Cichocki to get back at Hwang for refusing to hire her. Id. at 3.

         According to the Complaint, Mcfadyen began pursuing Cichocki in or about 2005, by which time he was married to Hwang. Id. at ¶¶ 8-11. A relationship developed. See id. at ¶ 16. The crux of the Complaint is that Mcfadyen manipulated Cichocki into a destructive relationship that strained his marriage to Hwang. See id. at ¶¶ 8-26. In May 2011, Cichocki decided to end the relationship with Mcfadyen and asked Hwang to help. Id. at ¶ 26. Around the same time, Mcfadyen complained to the Wellesley Police that Cichocki had sexually harassed her. Id. at ¶ 27. After the police dismissed her complaint, Mcfadyen filed a sexual harassment complaint against Cichocki with the college’s chief personnel officer, Nelson-Bailey. Id. at ¶¶ 27-28. As the plaintiffs allege:

Considering the obvious fact that to all eyes Mcfadyen could not possibly be perceived in any way to be a subject of sexual interest, along with the fact that the much younger looking and physically fit Cichocki, who had a wife that looked more than a generation younger than Mcfadyen, and also turned heads on street, could not possibly be having sexual interest in Mcfadyen, Cichocki expected that Nelson-Bailey would quickly dismiss the complaint. On the other hand, Mcfadyen’s violent reaction to Cichocki’s demand to leave him alone caused Cichocki and Hwang to be concerned with the escalation of Mcfadyen’s vengeance. They decided to report the whole story of Mcfadyen to the college, including Hwang’s connection to Mcfadyen’s vengeful madness.

Id. at ¶ 28.

         Over the plaintiffs’ objections, the college accepted Mcfadyen’s version of events and disciplined Cichocki. Id. at ¶¶ 29-30. This allegedly emboldened Mcfadyen and forced Cichocki “back into Mcfa[d]yen’s control with renewed fears for Mcfadyen and further submission to Mcfadyen’s commands[.]” Id. at ¶ 30. It also “[m]ade Cichocki resentful to Hwang[.]” Id.

         In July 2011, Hwang made a request to the college to allow her to accompany Cichocki to work, allegedly in order to protect him from Mcfadyen. Id. at ¶ 31. Mass. Bay denied this request and suggested to Mcfadyen that she file a restraining order. Id. The plaintiffs claim that “Nelson-Bail[e]y conspired with Mcfadyen to make a false report to the college’s campus police of Hwang’s physical threats to Mcfadyen to have a no trespass order ne [sic] issued to Hwang. The order would prevent Hwang from accompanying Cichocki to work in the upcoming fall semester.” Id. As a direct result of the defendants’ actions, Cichocki apparently resumed his relationship with Mcfadyen; Hwang had Cichocki arrested for domestic violence; Cichocki was so distraught that he got into several car accidents; Cichocki, at Mcfadyen’s suggestion, had Hwang committed to McLean Hospital; and Mcfadyen filed a harassment complaint against Hwang in Stoughton District Court, which was eventually dismissed. Id. at ¶ 32.

         On December 12, 2011, in violation of the no trespass order, Hwang accompanied Cichocki to work. Id. at ¶ 33. Mcfadyen found out and called Nelson-Bailey, who arranged to have campus police escort Hwang and Cichocki off campus. Id. Cichocki then emailed O’Donnell, his supervisor, and Nelson-Bailey, and told them that “Mcfadyen’s madness and aggressions made it necessary to have Hwang’s company at work for him to carry out work duties in peace and security[, ]” and that if Hwang could not accompany him, he would have to take sick leave for the remaining four days of the semester. Id. at ¶ 34. Cichocki also requested permission to teach online classes the following semester if Hwang was not allowed to accompany him. Id. Mass. Bay did not respond to these requests. Id. at ¶ 35. Mass. Bay did, however, request medical documentation to show why Hwang’s presence at Cichocki’s work was required. Id. at ¶ 36. Although Cichocki sent in some documents, the college apparently was not satisfied, and demanded Cichocki take a leave, which he refused. Id. Cichocki allegedly filed a union grievance based on the alleged unlawful withholding of his salary and benefits, the outcome of which is not known to this court. Id. According to the plaintiffs, the “college ha[s] kept Cichocki out of work since February of 2012.” Id.

         Prior Litigation

         In 2012, Cichocki, as the sole plaintiff, brought suit against the same defendants challenging, “Mcfadyen’s ruthless, incessant harassments against the plaintiff Cichocki at his work place.” 2012 Litigation Compl. (Docket No. 1) at Count II. The complaint stood in 11 counts, and Cichocki moved for a preliminary injunction ordering Mass. Bay to “i) either withdraw, and timely notify the withdrawal of, the ‘Trespassing Notice’ it issued on August 11, 2011 against the plaintiff’s wife, Y. Dolly Hwang . . . ii) or go to court to seek a restraining order against Y. Dolly Hwang within 20 days of receiving this order before taking any actions to bar her from accessing the college campus.” R&R at 4-5. He also sought to have his employment rights restored, with back pay and benefits. Id. at 5. On January 14, 2013, Magistrate Judge Robert B. Collings issued a Report and Recommendation recommending that the motion for a preliminary injunction be denied, and that “the Court issue an Order granting the plaintiff twenty-one (21) days to show cause in writing why his complaint should not be dismissed in its entirety for failing to state claims upon which relief may be granted.” Id. at 31.

         Although advised of his obligation to do so, Cichocki did not file any objections to the Magistrate Judge’s Report, and the Report and Recommendation was adopted by the District Judge, following his independent review, on February 28, 2013. 2012 Litigation at Docket No. 33. The plaintiff was given 21 days to show cause why the complaint should not be dismissed in its entirety for failing to state claims upon which relief can be granted. Id. The plaintiff failed to adequately respond to the Court’s show cause order, and the complaint was dismissed on May 7, 2013. 2012 Litigation at Docket No. 38. Cichocki filed a notice of appeal on June 5, 2013. 2012 Litigation at Docket No. 39.

         On June 16, 2014, the First Circuit affirmed the denial of the preliminary injunction and the dismissal of the 2012 Litigation “substantially for the reasons stated in the magistrate judge’s 1/14/13 report and recommendation, which the district court adopted on 2/28/13.” 2012 Litigation at Docket No. 52. In addition, the First Circuit denied plaintiff’s motion for leave to amend his complaint. Id. Nevertheless, on December 10, 2014, Cichocki and Hwang purported to file an amended complaint with the District Court, which was stricken by the court. 2012 Litigation at Docket Nos. 54 & 55. Cichocki and his wife commenced the instant action on March 5, 2015. The ...

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