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Ngomba v. Olee

United States District Court, D. Massachusetts

March 11, 2019

DESMOND M. NGOMBA, Plaintiff,
v.
TONG OLEE, Director of Residential Service, MELISSA ACELLO, Cluster Manager, SUSAN BUNHAM, Regional Director, Boston, RESOURCES FOR HUMAN DEVELOPMENT RHD, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS (#16).

          M. PAGE KELLEY UNITED STATES MAGISTRATE JUDGE.

         I. Introduction.

         Pro se plaintiff Desmond M. Ngomba alleges defendants[1] Melissa Acello, Susan Bunham, Tong Olee, and Resources for Human Development (RHD) have discriminated against him based on his national origin, and violated the Family Medical Leave Act (FMLA). (#1 at 3.) This matter is before the court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted. (#16.) Plaintiff has filed an opposition to the motion. (#28.)

         II. The Facts.

         The factual allegations in the complaint are accepted as true and taken in the light most favorable to plaintiff, the non-moving party. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Ngomba is a naturalized United States citizen from Cameroon living in Somerville, Massachusetts. (#1 at 1, 3.) Plaintiff contends Tong Olee, the Director of Residential Services at RHD, is “Chinese American” and Melissa Acello, a Cluster Manager at RHD, and Susan Bunham, a Regional Director at RHD, are of “White American origin.” Id. at 3. Ngomba formerly worked for RHD at a residential group home in Somerville, Massachusetts. Id. at 4. Plaintiff was terminated from his employment on November 5, 2017. Id. at 4-5.

         According to Ngomba, defendants discriminated against him because of his national origin and retaliated against him after he reported workplace safety concerns to his manager. Id. at 5. In plaintiff's view, he was treated differently than his co-workers, whose nationalities are not identified in the complaint. Id. Plaintiff seems to suggest that one of his managers considered him to be a “whistleblower” after plaintiff reported “issues of serious safety” affecting clients in his care. Id.

         By way of relief, Ngomba seeks $300, 000 in monetary damages resulting from “serious economic hardship and financial loses [sic] of income to properly care for [his] family.” Id. at 4-5.

         In their motion to dismiss, defendants contend first, plaintiff has failed to exhaust his administrative remedies as required under federal and state law, and second, he has not adequately pled that they denied him leave to which he entitled to under the FMLA. (#17.) In his opposition, plaintiff alleges additional details, and attaches several exhibits, purportedly to provide factual support for his claims. (#28.)

         III. The Applicable Law.

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the viability of a complaint. A court must “accept as true all well-pleaded facts and draw all reasonable inferences therefrom in the pleader's favor.” Keach v. Wheeling & Lake Erie Ry. Co. (In re Montreal, Me. & Atl. Ry., Ltd.), 888 F.3d 1, 6 (1st Cir. 2018); González v. Vélez, 864 F.3d 45, 50 (1st Cir. 2017). When considering a motion to dismiss, a court “may augment these facts and inferences with data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011) (citing Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial Mortg. Bankers Corp.), 324 F.3d 12, 15 (1st Cir. 2003)); In re Montreal, 888 F.3d at 7 n.2.

         While a pro se complaint is to be liberally construed, see Woods v. Covidien LP, No. 15- 30094-MGM, 2016 WL 2733102, at *2 (D. Mass. May 10, 2016), to survive a Rule 12(b)(6)

         motion to dismiss, plaintiff must provide “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The First Circuit recently explained:

The plausibility standard requires a court to choreograph a two-step pavane. See A.G. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013). First, the court must “strip away and discard the complaint's conclusory legal allegations.” Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012). Second, “the court must determine whether the remaining facts allow it ‘to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Doe v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016) (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)).

In re Montreal, 888 F.3d at 6. After undertaking this exercise, “[d]ismissal is warranted when a complaint's factual averments are ‘too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture.'” Id. (quoting SEC ...


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