United States District Court, D. Massachusetts
DESMOND M. NGOMBA, Plaintiff,
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
PAGE KELLEY UNITED STATES MAGISTRATE JUDGE.
plaintiff Desmond M. Ngomba alleges defendants 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.)
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.
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.
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.
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
The Applicable Law.
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.
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)
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
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 ...