United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR LEAVE TO AMEND HER COMPLAINT
Gail Dein United States Magistrate Judge
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.
STATEMENT OF FACTS
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).
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.
Alleged Employment Discrimination
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).
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).
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.).
Standard of Review
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,