United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANT THE HOUSING
COURT DEPARTMENT OF THE CITY OF BOSTON OF THE TRIAL COURT OF
THE COMMONWEALTH OF MASSACHUSETTS' MOTION FOR
Page Kelley, United States Magistrate Judge
facts of this case have been extensively detailed in the
prior Reports and Recommendations (see,
e.g., ##43, 60) and the Memorandum and Order (#66).
General familiarity by the reader is presumed, although
specific facts necessary to resolve the motion at hand will
March 2017, this court issued a Report and Recommendation
(“R&R”) (#43) recommending that the motion to
dismiss the amended complaint filed by Boston Housing Court
of the Commonwealth of Massachusetts, the Massachusetts Trial
Court (“BHC”) be allowed in its entirety. Chief
Judge Saris endorsed that R&R as follows: “After a
review of the objections, I adopt the report and
recommendation and dismiss the claims with prejudice except
the Title VII claim in count II which will be dismissed
unless plaintiff, who is pro se, amends it to meet the
deficiencies outlined by the magistrate judge within 30
days.” (#50.) Plaintiff Hector M. Jenkins filed a
second amended complaint (#54); BHC moved to strike
plaintiff's pleading, and sought dismissal of the
remaining Title VII claim (#57). On November 3, 2017, this
court issued another R&R (#60) recommending that the
Title VII failure to promote claim be dismissed as
time-barred, and that any remaining claims beyond the failure
to promote claim be stricken as outside the scope of
amendment allowed by Chief Judge Saris. Plaintiff filed an
objection to the recommendation. (#62.) On March 12, 2018,
Chief Judge Saris issued a Memorandum and Order on the
Memorandum, Chief Judge Saris adopted the recommendation that
the failure to promote claim be dismissed. Id. at 9.
She further determined that plaintiff's hostile work
environment claim should be dismissed “because there is
no indication that it was exhausted at the administrative
level.” Id. Having reviewed the allegations of
the second amended complaint, however, Chief Judge Saris
concluded that the interests of justice favored permitting
Jenkins to prosecute his retaliatory termination claim.
Id. at 11-12.
filed a motion for reconsideration of the decision that the
retaliatory termination claim is viable. (#69.) Jenkins
opposes the motion. (#72.) The motion for reconsideration has
been referred to the undersigned for the issuance of a report
and recommendation as to disposition.
VII requires that a charge be filed with the Equal Employment
Opportunity Commission (EEOC) within 180 days after the
alleged unlawful employment practice occurred, or within 300
days if the aggrieved person has initially instituted
proceedings with a state or local agency. Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 104-05 (2002);
42 U.S.C. § 2000e- 5. Before an employee may sue in
federal court on a Title VII claim, he must first exhaust
administrative remedies, which include the timely filing of a
charge with the EEOC and the receipt of a right-to-sue letter
from the agency. Franceschi v. U.S. Dep't of Veterans
Affairs, 514 F.3d 81, 85 (1st Cir. 2008); Jorge v.
Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005).
instance, the timeliness of the EEOC complaint is not an
issue. Rather, BHC's argument is that the facts
supporting the race-based retaliatory termination claim
alleged in the second amended complaint were not in the EEOC
charge, and would not have fallen within the scope of the
agency's investigation. Consequently, according to BHC,
Jenkins has not exhausted his administrative remedies on his
race-based retaliatory termination claim.
applicable law has been laid out by the First Circuit:
The fact that a complainant has filed an EEO complaint does
not open the courthouse door to all claims of discrimination.
Rather, the scope of the federal court complaint is
constrained by the allegations made in the administrative
complaint: the former must ‘bear some close
relation' to the latter. Jorge v. Rumsfeld, 404
F.3d 556, 565 (1st Cir.2005). The language used in the
complaint need not ‘presage with literary exactitude
the judicial pleadings which may follow.' Thornton v.
United Parcel Serv., Inc., 587 F.3d 27, 32 (1st
Cir.2009) (quoting Davis v. Lucent Techs., Inc., 251
F.3d 227, 233 (1st Cir.2001)). But, in order to serve the
purposes of the administrative exhaustion requirement --
prompt notice to the agency and an opportunity for early
resolution, Lattimore v. Polaroid Corp., 99 F.3d
456, 464 (1st Cir.1996) -- ‘the factual statement in
[the] written charge should have alerted the agency to [the]
alternative basis of discrimination' that the plaintiff
raises for the first time in court. Thornton, 587
F.3d at 32 (quoting Davis, 251 F.3d at 233) (first
alteration in original).
Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st
Cir. 2011); Rodriguez v. United States, 852 F.3d 67,
79 (1st Cir. 2017); Morales-Vallellanes v. Potter,
339 F.3d 9, 18 (1st Cir. 2003) (“[Plaintiff's]
VII cause of action is limited to those discrimination and
retaliation allegations in his amended complaint that were
previously the subject of a formal EEO complaint.”).
critical question is whether the claims set forth in the
civil complaint come within the ‘scope of the EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination.'” Fantini v.
Salem State College, 557 F.3d 22, 27 (1st Cir. 2009)
(citations omitted); Thornton v. United Parcel Service.,
Inc., 587 F.3d 27, 31-32 (1st Cir. 2009) (“[T]he
scope of a civil action is not determined by the specific
language of the charge filed with the agency, but rather, may
encompass acts of discrimination which the . . .
investigation could reasonably be expected to
uncover.”) (citation omitted); Lattimore v.
Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996)
(“For a claim to fall within the scope of the
investigation, the plaintiff must “describe the
essential nature of the claim and . . . identify the core
facts on which it rests.”).
entirety, the substance of plaintiff's EEOC complaint
reads as follows:
Around 2004, judge Winik accepted the promotion to First
Justice from the new chief justice and then proceeded to
bring in the protégé of the judge who promoted
him to the Boston Division, and then in an in-house posting
proceeded to ...