United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Relevant Procedural History
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.
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.
Claims Against FedEx and Don Clark
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)).
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 ...