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Schwann v. Fedex Ground Package System, Inc.

United States District Court, D. Massachusetts

August 29, 2018

CLAYTON SCHWANN, Plaintiff,
v.
FEDEX GROUND PACKAGE SYSTEM, INC., et al., Defendants.

          MEMORANDUM AND ORDER

          DENISE J. CASPER UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Clayton Schwann ("Schwann"), proceeding pro se, brings claims against his former employer, FedEx Ground Package Systems Inc. ("FedEx"), and two FedEx employees, Paul Callahan ("Callahan") and Don Clark ("Clark"), in their individual capacities (collectively, the "Defendants"). D. 1. Schwann alleges wrongful termination, retaliation, harassment, and constructive discharge by Defendants. Id. at 1. Defendants FedEx and Clark now move to dismiss Schwann's complaint pursuant to Fed.R.Civ.P. 12(b)(6). D. 10. For the reasons stated below, the Court ALLOWS Defendants FedEx and Clark's motion to dismiss, D. 10, and dismisses the complaint as to all Defendants with prejudice.

         II. Factual Background

         Unless otherwise indicated, the following facts are drawn the complaint, D. 1, and accepted as true for the purposes of considering the motion to dismiss. Schwann began working for FedEx in 2002. D. 1 ¶ 1- In 2005, Schwann became dissatisfied with a voluntary change in route assignments that he alleges was "not what FedEx promised." D. 1 ¶ 2. For two years, Schwann requested to return to his old route or be assigned to a new route but was unsuccessful. D. 1 ¶¶ 2-3. Schwann's efforts included becoming involved with a union in 2006 and sending multiple letters to Callahan, a Vice President of FedEx, concerning his route assignment. D. 1 ¶ 3; D. 1-3 at 3; 5. In October 2008, there was an "incident" in which one of Schwann's supervisors, Clark, "put [Schwann] in fear of [his] physical safety." D. 1 ¶ 4. The following month, Clark and another employee met Schwann at his truck to talk to him about a customer complaint and prevented him from leaving the terminal. D. 1-3 at 5. During the conversation, Clark told Schwann that "[Schwann] didn't understand English" and Clark "said in a sarcastic tone 'comprende.'" Id. Around the same time, Schwann was also prohibited from speaking Portuguese with another coworker. D. 1 ¶ 5. Throughout 2008, Schwann's workload remained light, even during busy times such as the Christmas season. D. 1 ¶ 4.

         In early 2009, Schwann complained about workplace safety to his supervisors. D. 1 ¶¶ 5-6. Worried that he would face retaliation, Schwann "showed [his] Weingarten rights card to a FedEx manager." D. 1. ¶ 7. Two weeks later, Schwann was "disciplined" by not getting any work. Id. Schwann's workload continued to be light through July 2009, resulting in a significant decrease in pay compared to the previous year. D. 1 ¶ 8. On July 14, 2009, Clark began reading a prepared statement to Schwann and Schwann handed Clark a copy of his Weingarten rights. D. 1 ¶ 9. Clark responded by telling Schwann that he had been fired and yelled at Schwann to leave the premises. Id. FedEx officially terminated its contractual arrangement with Schwann on April 6, 2010. D. 1-3 at 25. Between February 2009 and February 2011, Schwann sent many more letters regarding his concerns to various supervisors at FedEx, including Callahan and Clark. D. 1-3 at 10; 12; 14; 18; 21; 27; 30.

         Schwann sought relief from various administrative agencies. Based on one of Schwann's letters, it appears that Schwann filed a charge against FedEx with the National Labor Relations Board ("NLRB") in late 2008. D. 1-3 at 4. There is no further information regarding the NLRB complaint in the record. In July 2010, Schwann filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") on the basis of national origin discrimination. D. 11-4 at 5. MCAD dismissed the complaint for a lack of probable cause in 2013. D. 11-5. Schwann appealed the dismissal. D 11-6. After an appeal hearing in 2014, MCAD affirmed the dismissal. Id.

         III. Relevant Procedural History

         In 2014, Schwann initiated another case in this Court in which he filed an amended complaint in this Court that was largely identical to the complaint he filed three years later in this case. Compare D. 1 with Schwann v. FedEx Ground Package Sys., Inc., No. 14-cv-13396-RGS (D. Mass. Aug. 20, 2014), ECF No. 6; D. 11-2. There, the Court directed Schwann to file an amended complaint to comply with the pleading requirements of Fed.R.Civ.P. 8(a). Mem. & Order, Schwann. No. 14-cv-13396 (D. Mass. Oct. 23, 2014), ECF No. 4. The Court explained that Schwann "must not only identify his cause of action, but he must provide sufficient factual allegations that would allow the Court to reasonably infer that the defendant [was] liable." Id. at 3. In response, Schwann filed an amended complaint, D. 6, that is substantially similar to his complaint in this case, that did not cure the defects of the original complaint. Schwann, No. 14- cv-13396-RGS, 2015 U.S. Dist. LEXIS 6659 (D. Mass. Jan. 20, 2015). In dismissing the amended complaint, the Court held that Schwann's allegations of "inappropriate 'stray remarks' . . . [did] not 'raise a right to relief above the speculative level.'" Id. at *3 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In 2017, Schwann filed a motion to reopen his case and the Court denied the request, but noted that Schwann "may file a new civil case." Schwann, No. 14-cv-13396 (D. Mass. Oct. 4, 2017), ECF Nos. 9; 11.

         Now, several years after filing his original complaint, Schwann has filed the instant case. D. 1. Schwann served the Defendants by sending a letter via certified mail to counsel for FedEx. D. 7. FedEx agreed to waive the insufficient service of process under Fed.R.Civ.P. 4 on behalf of FedEx but not Clark or Callahan. D. 8 ¶ 7; D. 8-1 at 2. Defendants FedEx and Clark moved to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). D. 10. On August 27, 2018, the Court heard the parties on the pending motions and took this matter under advisement. D. 31.

         IV. Discussion

         A. Claims Against FedEx and Don Clark

         Defendants FedEx and Don Clark have moved to dismiss under Fed.R.Civ.P. 12(b)(6). The Court will grant a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) if the complaint fails to plead sufficient facts that "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). When considering a motion to dismiss, the Court is tasked with "separating] the factual allegations from the conclusory statements in order to analyze whether the former, if taken as true, set forth a 'plausible, not merely a conceivable, case for relief" Juarez v. Select Portfolio Servicing. Inc.. 708 F.3d 269, 276 (1st Cir. 2013) (quoting Ocasio-Hernandez v. Fortufno-Burset 640 F.3d 1, 12 (1st Cir. 2011)). In conducting this examination, the Court must not "attempt to forecast a plaintiffs likelihood of success on the merits," id, but instead "give the plaintiff the benefit of all reasonable inferences." Ruiz v. Bally Total Fitness Holding Corp.. 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino. 175 F.3d 75, 77(lst Cir. 1999)).

         When a plaintiff is pro se, the Court must apply a liberal reading to the complaint and hold pro se litigants to a less stringent pleading standard than that applied to lawyers. Kruskall v. Sallie Mae Serv.. Inc.. No. 15-cv-11780-DJC, 2016 U.S. Dist. LEXIS 32507, at *2 (D. Mass. Mar. 14, 2016) (citing Green v. Com, of Mass.. 108 F.R.D. 217, 218 (D. Mass. 1985)). Apro se plaintiff, however, must still comply with procedural and substantive law and "dismissal remains appropriate . . . when ...


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