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Bangura v. Shulkin

United States District Court, D. Massachusetts

October 2, 2017



          Judith Gail Dein United States Magistrate Judge


         The plaintiff, Rosaline Bangura, has brought this action against her former employer, the Department of Veteran Affairs, through its Secretary (collectively, the “VA”), raising a number of claims of discrimination and retaliation in connection with her work as a Certified Nursing Aide and her departure from the VA as a result of her alleged constructive discharge. This matter is before the court on “Plaintiff's Motion for Leave to Amend Her Complaint.” (Docket No. 39). By this motion, the plaintiff seeks to amend her Complaint to restate Count I as a claim under the Rehabilitation Act (“RA”) instead of the Americans with Disability Act (“ADA”), and to add a new count for a claim for promissory estoppel. For the reasons detailed herein, the plaintiff's motion is ALLOWED as to the changes from the ADA to the RA, but DENIED insofar as she is seeking to add a count for promissory estoppel.


         Procedural History

         Plaintiff filed her original Complaint on March 29, 2016, and amended the Complaint on August 3, 2016 pursuant to Fed.R.Civ.P. 15(a)(1)(A). In her Amended Complaint, plaintiff added details to her nine causes of action for “retaliation; denial of reasonable accommodation; harassment/hostile work environment; constructive discharge; intentional and/or negligent infliction of emotional distress; breach of contract; and breach of implied covenant of good faith and fair dealing in plaintiff's employment contract and her employment relationship with the defendants.” (Am. Compl. (Docket No. 11) ¶ 1). Count I of the Amended Complaint purported to state a claim for failure to accommodate under the ADA. (Id. ¶¶ 23-26). Count II purported to state a claim of retaliation under the RA. (Id. ¶¶ 28-30).

         On July 28, 2017, plaintiff again moved to amend her Complaint pursuant to Fed.R.Civ.P. 15(a)(2). (Docket No. 39). Plaintiff seeks to bring her claim for failure to accommodate (Count I) under the RA instead of the ADA, and to make the necessary substitutions throughout the Complaint. Plaintiff additionally seeks to add a claim of promissory estoppel against the VA because “she may not have a robust, valid, or sustainable breach of contract claim against the defendants.” (Id. at 3). The VA filed a “Partial Opposition to Plaintiff's Motion to Amend the Complaint” on August 2, 2017, contending that the promissory estoppel claim is futile and should be dismissed, but not objecting to plaintiff's request to amend Count I to state a claim under the RA. (See Docket No. 41).[1]

         The Alleged Employment Discrimination

         According to her proposed Second Amended Complaint (Docket No. 39-1) (“Second Amended Complaint” or “SAC”), plaintiff was hired by the VA in 2007 to work as a Certified Nursing Aide in the Bedford VA Medical Center in Bedford, Massachusetts. (SAC ¶¶ 4, 6, 8). Plaintiff alleges that she accepted the job with defendants and failed to seek any other employment based on defendants' representation of a discrimination-free workplace. (Id. ¶ 57). Plaintiff, an African American woman of Sierra Leone origin, is disabled with severe arthritis and high blood pressure. (Id. ¶¶ 4, 15). In January 2014, plaintiff returned to work after an illness, with the doctor's advice that she not work more than eight hours a day due to her health conditions. (Id. ¶ 10).

         Plaintiff made her doctor's advice known to her management officials, Barbara Mueller, Ann Goulet, and Mary-Ann Petrillo. (Id. ¶ 11). Her management officials allegedly ignored the advice and forced plaintiff to work extra hours, “especially when any employee on the midnight shift called out.” (Id.). Mueller and Goulet acted with hostility towards plaintiff, and caused plaintiff's co-workers to also turn against plaintiff with hostility. (Id. ¶ 12). Mueller and Goulet additionally “instigated harassing, intimidating and humiliating conducts” and wrote false reports against plaintiff. (Id.). Plaintiff's accent and manner of speaking were also targeted, and when plaintiff was eating, persons used their hands “to close their noses as if plaintiff's food was stinking” as plaintiff ate. (Id. at ¶ 13).

         Plaintiff reported the behavior to management and requested to be reassigned, but her request was denied. (Id. ¶¶ 12, 14). Plaintiff's shift was then changed to the nine-hour morning shift in June 2014, allegedly constructively discharging plaintiff as she was under medical advisement to not work more than eight hours a day. (Id. ¶¶ 16-17). Defendants knew at the time that plaintiff was unable to work the morning shift, and plaintiff again informed defendants that it would be “against [her] health and medical conditions” to work the morning shift. (Id. ¶ 16). Defendants threatened to arrest plaintiff if she came to work on any evening shift. (Id.).


         A. Standard of Review

         The government opposes the amendment of the Complaint to add a claim of promissory estoppel on the basis that the claim is futile. A motion to amend may be denied on the basis of the futility of the underlying claim. See Hatch v. Dep't for Children, Youth & Their Families, 274 F.3d 12, ...

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