United States District Court, D. Massachusetts
TIMOTHY E. CICHOCKI and Y. DOLLY HWANG, Plaintiffs,
MASSACHUSETTS BAY COMMUNITY COLLEGE, et al., Defendants.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’
MOTION TO DISMISS
Gail Dein United States Magistrate Judge.
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.
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).
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. 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.
STATEMENT OF FACTS
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.
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.
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
Id. at ¶ 28.
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.
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.
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, 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.
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.
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