United States District Court, D. Massachusetts
H. HENNESSY UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Defendants FLLAC Educational
Collaborative (“FLLAC”), Cheryl Hannam, Ricky
Hylson, Holly Jacob, Nancy Levy, Gary MacCallum, Beth Marble,
and Sandy Sylvester's motions to dismiss.,  (Dockets #9, 11).
Plaintiff Mary Flowers has filed an opposition to the
motions. (Docket #15). This matter is now ripe for
adjudication. For the reasons that follow, the motions to
dismiss (Docket #9, 11) are ALLOWED.
is a current employee of FLLAC, a nonprofit corporation that
develops and operates educational programs to serve a wide
range of students. (Docket #10-1 at 2; Docket #10-2 at 3).
One of the educational programs operated by FLLAC is the
Caldwell Alternative High School/Middle School (the
“Caldwell Alternative School”). (Docket #10-2 at
4). The Caldwell Alternative School provides educational
services to approximately forty middle to high school
students with emotional/behavioral concerns, limited academic
success, and/or specific learning disabilities.
(Id.). Flowers was hired by FLLAC in 1997 as a
paraprofessional at the Caldwell Alternative School. (Docket
#10-1 at 2).
December 3, 2012, Flowers filed a Charge of Discrimination
with the Massachusetts Commission Against Discrimination
(“MCAD”) alleging a racially hostile work
environment, and retaliation. (Id. at 2-3). The MCAD
Charge was jointly filed with the United States Equal
Employment Opportunity Commission (the “EEOC”).
(Id. at 4-5).
March 4, 2016, the MCAD made a “Lack of Probable Cause
Finding.” (Docket #10-3). Flowers appealed the decision
with the MCAD. (Docket #10-4). Following a hearing, the lack
of probable cause finding was affirmed on July 22, 2016.
(Id.). On February 24, 2017, the EEOC adopted the
findings of the MCAD, dismissed the claims, and issued a
right-to-sue letter. (Docket #10-5).
April 13, 2017, Flowers filed the instant action. (Docket
#1). In addition to suing FLACC, Flowers also sued co-workers
as individual defendants. (Id.). In the complaint,
Flower asserts the following “Statement of
Racial Harassment, the mistreatment of my complaints along
with a fals[l]ey written warning involving trickery and
neglect. Also learning 3 months later of a violent
write-up and police report filed against me.
(Docket #1 at 4 (emphasis in original)).
of the Federal Rules of Civil Procedure provides, in relevant
part, that “[a] pleading that states a claim for relief
must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The statement must “give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Phelps v.
Local 0222, No. 09-11218-JLT, 2010 U.S. Dist. LEXIS
88007, at *13 (D. Mass. Aug. 20, 2010) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002)). In addition, the pleadings must afford the
defendants “a meaningful opportunity to mount a
defense.” Diaz-Rivera v. Rivera-Rodriguez, 377
F.3d 119, 123 (1st Cir. 2004) (quotation omitted). At a
minimum, “the complaint should at least set forth
minimal facts as to who did what to whom, when, where, and
why - although why, when why means the actor's state of
mind, can be averred generally.” Educadores
Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 68
(1st Cir. 2004). While the “First Circuit holds a pro
se litigant to a standard of pleading less stringent than
that for lawyers, ” “this cannot be taken to mean
that pro se complaints are held to no standard at all.”
Green v. Massachusetts, 108 F.R.D. 217, 218 (D.
motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court
“must assume the truth of all well-plead[ed] facts and
give the plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007). “Under Rule
12(b)(6), the district court may properly consider only facts
and documents that are part of or incorporated into the
complaint; if matters outside the pleadings are considered,
the motion must be decided under the more stringent standards
applicable to a Rule 56 motion for summary judgment.”
Rivera v. Centro Medico de Turabo, Inc., 575 F.3d
10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv.,
Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir.
2008)). There lies an exception to this rule “for
documents the authenticity of which are not disputed by the
parties; for official public records; for documents central
to plaintiffs' claim; or for documents sufficiently
referred to in the complaint.” Id. (quoting
Alternative Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).
survive a motion to dismiss, a plaintiff must “state a
claim that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (internal
citations omitted). “The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 556).
Despite this generous standard, “Rule 12(b)(6) is not
entirely a toothless tiger . . . [t]he threshold for stating
a claim may be low, but it is real.” Dartmouth Rev.
v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)
(quotation omitted). The complaint must therefore “set
forth factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st
Cir. 1988); see DM Research, Inc. v. Coll. Of Am.
Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)
(explaining that the complaint must “allege a
factual predicate concrete enough to warrant further
the complaint need not provide “detailed factual
allegations, ” Twombly, 550 U.S. at 555, it
must “amplify a claim with some factual allegations . .
. to render the claim plausible, ” Iqbal v.
Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). Thus, the
complaint must provide “the grounds upon which [the
plaintiff's] claim rests through factual allegations
sufficient ‘to raise a right to relief above the
speculative level.'” ATSI Commc'ns v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Dismissal is
appropriate if a plaintiff's well-pleaded facts do not
“possess enough heft to show that [the] plaintiff is
entitled to relief.” Ruiz Rivera v. Pfizer Pharms.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and
original alterations omitted).
most motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) are “premised on a plaintiff's
putative failure to state an actionable claim, such a motion
may sometimes be premised on the inevitable success of an
affirmative defense.” Nisselson v. Lernout,
469 F.3d 143, 150 (1st Cir. 2006). “As a general rule,
a properly raised affirmative defense can be adjudicated on a
motion to dismiss so long as (i) the facts establishing the
defenses are definitely ascertainable from the complaint and
the other allowable sources of information, and (ii) those
facts suffice to establish the affirmative defense with
certitude.” Rodi v. S. New Eng. Sch. of Law,
389 F.3d 5, 12 (1st Cir. 2004).
Massachusetts General Laws Chapter 151B
seek dismissal of any claim asserted pursuant to
Massachusetts General Laws chapter 151B, on the basis that
such claims are time-barred. (Docket #10 at 4). A party
seeking to recover under chapter 151B must file a charge of
discrimination with the MCAD within 300 days of the last
alleged discriminatory act. Mass. Gen. Laws ch. 151B, §
5. Ninety days following the filing of the complaint with the
MCAD, but not later than three years after the alleged
unlawful practice occurred, a plaintiff may bring a civil
action. Mass. Gen. Laws ch. 151B, § 9. “[A]
plaintiff need not wait for the resolution of the MCAD
investigation [before bringing a civil action]; the filing of
a lawsuit triggers the dismissal of the MCAD complaint if it
has not already been resolved by MCAD.” Goldstein
v. Brigham & Women's Faulkner Hosp., Inc., 80
F.Supp.3d 317, 324 (D. Mass. 2015).
filed her charge with the MCAD on December 3, 2012. (Docket
#10-1 at 1). She filed the instant complaint in this court on
April 13, 2017, more than five years later. (Docket #1).
Flowers makes no argument that her claim accrued after the
December 3, 2012 filing with the MCAD; instead, she asserts
that the limitations period should be equitably ...