United States District Court, D. Massachusetts
MARLYNE M. CAMPBELL, Plaintiff,
BRISTOL COMMUNITY COLLEGE, Defendant.
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
AMEND THE AMENDED COMPLAINT
Dennis Saylor, IV, United States District Judge
an employment discrimination action. Plaintiff Marlyne
Campbell alleges that defendant Bristol Community College
discriminated against her because of her race and retaliated
against her for voicing her concerns. Plaintiff, proceeding
pro se, filed a complaint that survived a motion to
dismiss; she then amended the complaint with permission of
the Court, which also survived a motion to dismiss. She has
since obtained counsel, and now requests leave to amend her
complaint a second time, arguing that with the assistance of
counsel she has discovered new claims.
the claims plaintiff seeks to add would be futile, her motion
to amend will be denied.
facts alleged by plaintiff are discussed in detail in the
Court's February 23, 2017 order on defendant's motion
to dismiss. In brief, the amended complaint alleges that
Campbell was employed as a Career Development Counselor at
Bristol Community College; that officials there repeatedly
used an offensive racial slur to describe a particular grant
program; that she was retaliated against when she expressed
her concerns; and that she was eventually fired. (Am. Compl.
filed this complaint pro se on June 23, 2016. On
July 26, she filed a response to an order from this Court
establishing that she had exhausted her administrative
remedies with the Equal Employment Opportunity Commission and
had received a right-to-sue letter dated April 15, 2016.
Defendant moved to dismiss that complaint. On February 23,
2017, the Court granted that motion in part and dismissed all
the state-law claims against defendant as barred by sovereign
immunity and the hostile-work-environment claim as untimely.
The Court denied the motion to dismiss without prejudice as
to plaintiff's discrimination and retaliation claims and
allowed her to file an amended complaint including more
detailed allegations supporting those claims.
then filed an amended complaint on March 17, 2017. Defendant
filed a second motion to dismiss, which the Court also
12, 2017, attorney Robert C. Johnson, Jr. entered an
appearance for plaintiff. Plaintiff has now moved to amend
the complaint again.
Standard of Review
of the Federal Rules of Civil Procedure addresses amendments
to pleadings.Under Rule 15(a), a party may amend a
“pleading” without leave of court in certain
relatively narrow circumstances. “In all other
cases, a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “In the absence
of any apparent or declared reason-such as undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc.-the
leave sought should, as the rules require, be ‘freely
given.'” Foman v. Davis, 371 U.S. 178, 182
(1962). In determining whether to grant a motion to amend,
the court must examine the totality of the circumstances and
“exercise its informed discretion in constructing a
balance of pertinent considerations.” Palmer v.
Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006).
means that the complaint, as amended, would fail to state a
claim upon which relief could be granted.” Glassman
v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.
1996). “In reviewing for ‘futility, ' the
district court applies the same standard of legal sufficiency
as applies to a Rule 12(b)(6) motion.” Id. On
a motion to dismiss, the court “must assume the truth
of all well-plead[ed] facts and give . . . plaintiff the
benefit of all reasonable inferences therefrom.”
Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d
1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss,
the complaint 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 (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 557).
Dismissal is appropriate if the facts as alleged do not
“possess enough heft to show that plaintiff is entitled
to relief.” Ruiz Rivera v. Pfizer Pharm., LLC,
521 F.3d 76, 84 (1st Cir. 2008) (alterations omitted)
(internal quotation marks omitted).
proposed second amended complaint retains the two surviving
counts of her first amended complaint for (1) retaliation and
(2) racial discrimination. It seeks to add four additional
claims: (3) age discrimination in violation of Mass. Gen.
Laws ch. 151B; (4) “violation of due process”;
(5) breach of contract by “failure to implement
affirmative action/equal opportunity as required by federal
Executive Order 11246”; and (6) negligent infliction of
Count 3: ...