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Ayele v. Delta Airlines, Inc.

United States District Court, D. Massachusetts

November 15, 2018



          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         In 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 omitted).

         “If 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).

         As to 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.

         III. Factual Background

         The 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.” Id.

         When a 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”), [1] 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 (“MCAD”). Id.

         According 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. Id.

         IV. Procedural History

         On May 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.

         V. ...

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