United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge
Begashaw Ayele (“Ayele”), proceeding pro
se, has filed this lawsuit against Defendant Delta
Airlines, Inc., (“Delta”) alleging discrimination
under Mass. Gen. L. c. 151B and Title VI, retaliation under
c. 151B and Title VII and interference and aiding and
abetting discrimination under c. 151B. D. 5. Pursuant to
Fed.R.Civ.P. 12(b)(5) and 12(b)(6), Delta moves to dismiss
Ayele's complaint. D. 14. For the reasons stated below,
the Court ALLOWS Delta's motion to dismiss. D. 14.
Standard of Review
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the Court must determine if the
allegations “plausibly narrate a claim for
relief.” Schatz v. Republican State Leadership
Comm., 669 F.3d 50, 55 (1st Cir. 2012). The Court
conducts a two-step, context-specific inquiry. See
García-Catalán v. United States, 734 F.3d
100, 103 (1st Cir. 2013). First, the Court must perform a
close reading of the complaint “as a whole” to
distinguish the factual allegations from the conclusory legal
allegations contained therein. Id. The Court must
accept the factual allegations as true. Id. (citing
Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224
(1st Cir. 2012)). The Court may disregard conclusory legal
assertions. Id. Second, the Court must determine
whether the factual allegations present a “reasonable
inference that the defendant is liable for the misconduct
alleged.” Haley v. City of Boston, 657 F.3d
39, 46 (1st Cir. 2011) (internal quotation marks and citation
the factual allegations in the complaint are too meager,
vague, or conclusory to remove the possibility of relief from
the realm of mere conjecture, the complaint is open to
dismissal.” Araujo v. UGL Unicco-Unicco
Operations, 53 F.Supp.3d 371, 379 (D. Mass. 2014)
(quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.
2010)). When a plaintiff is pro se, the Court must
apply a liberal reading to the complaint. Kruskall v.
Sallie Mae Serv., Inc., No. 15-cv-11780, 2016 WL
1056973, at *1 (D. Mass. Mar. 14, 2016) (citing Green v.
Com. of Mass., 108 F.R.D. 217, 218 (D. Mass. 1985)). A
pro se plaintiff, however, must still comply with
procedural and substantive law and "dismissal remains
appropriate . . . when the complaint fails to even suggest an
actionable claim." Overton v. Torruella, 183
F.Supp.2d 295, 303 (D. Mass. 2001).
Delta's Rule 12(b)(5) motion, “[a] district court
may dismiss a complaint for a plaintiff's failure to
effectively serve a defendant with process.” Sosa
Polanco v. United States, 2017 WL 9772872, at *1 (D.
P.R. December 13, 2017). “The Court may consider such
matters outside of the pleadings when deciding a motion to
dismiss based upon lack of service of process under Rule
12(b)(5).” Awadh v. Tourneau, No.
15-cv-13993-DJC, 2017 WL 1246326, at *1 n.2 (D. Mass.
February 17, 2017). Where [the defendant] challenges service
of process pursuant to Rule 12(b)(5), [the plaintiff] has the
burden of proving he effected proper service.”
Id. at *2.
following summary is based upon the allegations in the
complaint, which the Court must accept as true in considering
Delta's motion to dismiss. On or about May 3, 2005, Ayele
commenced his employment at ¶ 2 Secure Staff, Inc.,
(“G2”) as a ticket reader where he confirmed
documents of travelers at Terminal C in Boston Logan
International Airport (“Logan Airport”). D. 5 at
4. Ayele worked as a ticket reader for several weeks,
standing approximately seven and a half hours a day.
Id. Due to a pre-existing leg injury, he requested
an accommodation. Id. G2 granted the accommodation
by transferring Ayele to Terminal A where he split his time
working as a ticket reader and ramp agent until a full-time
ramp agent position became available. Id. On
December 20, 2006, Ayele reported to the Logan Airport police
that his laptop computer had been stolen from Delta's
break room. Id. at 5-6. Following this incident,
Delta no longer permitted G2 employees to use its break room.
Id. at 5. According to Ayele, subsequent to
reporting his laptop stolen, “things changed
against” him as G2 required him to work “multiple
job[s]” not in his job description. Id. at 6.
In 2008, Ayele filed an administrative complaint against G2
because he was allegedly “discouraged” from
forming a labor union. Id. at 5. He asserts that his
efforts to encourage other employees to form a union prompted
G2's desire to seek his “involuntary
resignation” and that both G2 and Delta
“conspired to terminate” him. Id. at 6.
Ayele further alleges that when Delta learned of his efforts,
he and some of his co-workers were again “assigned
multiple task[s]” not within their job descriptions,
which he refused because he did not want to work for
“two companies [sic]  for one payment.”
full-time ramp agent position became available, Ayele was
assigned to this position until November 19, 2010, the date
his employment with G2 ceased. Id. at 3. On November
18, 2010, Ayele worked at Delta's shuttle service located
at Terminal A, where Delta's Customer Service Manager,
John Gaff (“Gaff”),  was also stationed.
Id. at 4. According to Ayele, although G2 had an
agreement with Delta, the Delta supervisors did not have any
control over G2 employees as only G2 management supervised
them. Id. At approximately 11:45 a.m. that day,
Ayele took a thirty-minute, unpaid lunch break in the
“passenger waiting area, ” because, according to
Ayele, G2 did not have an employee break room. Id.
While on break, Ayele spent twenty minutes eating his lunch
followed by a ten-minute nap. Id. at 5. According to
Ayele, it was not uncommon for G2 employees to sleep in the
passenger waiting area and for this reason, Delta previously
permitted G2 employees to use its break room. Id.
During his nap, Gaff approached Ayele,
“disturb[ing]” him from sleeping in the passenger
waiting area. Id. In this same area, Ayele alleges
there was also a Caucasian Delta pilot sleeping next to
Ayele, but Gaff did not approach the pilot. Id.
Ayele then asked Gaff whether his skin color had anything to
do with the “preferential treatment” Gaff
afforded the pilot. Id. Gaff subsequently contacted
Ayele's supervisor and reported the napping incident.
Id. The following day, Ayele was “suspended
indefinitely.” Id. He construed his suspension
as a constructive discharge resulting from his
“numerous” internal complaints filed against G2
with the Massachusetts Attorney General's office
concerning wage violation as well as his complaint filed with
Massachusetts Commission Against Discrimination
to Ayele, despite the fact that sleeping in the passenger
area was common, suspension or termination for same was not.
Id. at 6-7. As he alleges, thirteen other G2
employees were similarly found sleeping on the job, but none
were suspended or terminated. Id. Ayele alleges that
when another employee was also found sleeping on the job by a
Delta manager and reported such to G2, the employee was not
similarly disciplined. Id. at 7. Ayele asserts that,
unlike him, this employee had not filed internal and/or
administrative complaints against G2 nor did the employee
participate in his union formation efforts. Id.
Additionally, Ayele alleges that because the employee is
Eritrean and a friend of Ayele's supervisor, whom he
alleges is also Eritrean, together with the disparate
treatment from Delta in “aiding [and] abetting”
Ayele's termination, resulted in discrimination.
16, 2011, Ayele filed charges with MCAD alleging his former
employer, G2, unlawfully subjected him to discrimination on
the basis of his national origin, sex, and disability and
retaliated against him in violation of Title VII of the Civil
Rights Act of 1964 and Mass. Gen. L. c. 151B, § 4(1),
(4), (16). D. 5 at 1; D. 18-2 at 16. On August 19, 2011, and
on August 30, 2011, Ayele amended his MCAD complaint to
include new allegations of race discrimination against Delta
and G2 supervisors. D. 18-2 at 16. Ayele concurrently filed
his charge with the U.S. Equal Employment Opportunity
Commission (“EEOC”). D. 15-1 at 13. On May 3,
2012, MCAD issued a lack of probable cause finding and
dismissed Ayele's discrimination claim. D. 15-1 at 4-5.
On October 23, 2012, EEOC adopted MCAD's finding and
dismissed the claim. D. 15-1 at 13. Ayele filed a lawsuit in
Suffolk Superior Court on January 3, 2012, against G2
alleging a violation of the Massachusetts Wage Act. Ayele
v. G2 Secure Staff, LLC, No. 12-00003 (Mass. Super. Ct.
Jan. 13, 2012). On September 26, 2012, Suffolk Superior Court
issued an order compelling arbitration, which Ayele
unsuccessfully appealed. Ayele v. G2 Secure Staff,
LLC, 84 Mass.App.Ct. 1136, review denied, 468
Mass. 1101, cert. denied, __ U.S. __, 135 S.Ct. 267
(2014). His claims against G2 were eventually arbitrated
pursuant to an arbitration agreement, to which Delta was not
party. D. 5 at 1. The arbitrator issued an award affording
Ayele with some, and not all, of his requested relief. D.
18-2 at 18, 71-74. On May 5, 2017, Ayele moved to vacate the
award, which the Court denied. See Ayele v. G2 Secure
Staff, LLC, No. 1:17-cv-10417-RGS (D. Mass. May 5,
2017), ECF No. 23. On March 29, 2018, Ayele filed this
lawsuit against Delta, D. 1, and on April 9, 2018, filed an
amended complaint. D. 5. Delta has now moved to dismiss
Ayele's amended complaint. D. 14. The Court heard the
parties on the pending motion and took this matter under
advisement. D. 24.