United States District Court, D. Massachusetts
ELMER E. CROSS
COMMONWEALTH OF MASSACHUSETTS, et al.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.
Cross, proceeding pro se, brought this lawsuit
against his former employer - the Commonwealth of
Massachusetts and two of its agencies, the Executive Office
of Labor and Workplace Development (EOLWD) and the
Department of Unemployment Assistance (collectively the
Commonwealth) - and his quondam union, the National
Association of Government Employees (NAGE) Unit One, Local
R1-292, and its President, John Mann. Cross alleges that
defendants discriminated against him based on his disability
and retaliated against him in violation of the Americans with
Disabilities Act of 1990 (ADA), Title I of the Civil Rights
Act of 1991, Section 504 of the Rehabilitation Act of 1973,
Mass. Gen. Laws ch. 151B, § 4, and Massachusetts
Executive Order No. 478. Cross further alleges that NAGE and
Mann breached the duty of fair representation by not
“vigorous[ly]” representing him in two grievances
and by doing “nothing” on his behalf against his
employer's purported breaches of a collective bargaining
agreement. Second Am. Compl. (Dkt # 34) ¶ 14. The
Commonwealth and NAGE, separately, now move to dismiss the
Second Amended Complaint for lack of subject-matter
jurisdiction and for failure to state a claim. For the reasons
to be explained, defendants' motions to dismiss will be
facts, viewed in the light most favorable to Cross as the
nonmoving party, are as follows. In 2009, Cross was employed
by the Commonwealth as a Job Specialist III. On September 4,
2009, he requested an accommodation for anxiety. On August
25, 2010, he received a partial accommodation. After his
health worsened to include symptoms of diabetes and
arthritis, he took medical leave from April 1, 2011 until May
of 2014.During this extended absence, Cross
obtained five “Fitness for Duty Certificates”
from his psychiatrist, Dr. Russell Vasile, which his employer
purportedly ignored. Id. ¶ 11.
18, 2014, Cross returned to work as a Mail Clerk. In June of
2014, he contacted the President of NAGE, John Mann, to file
a Step II grievance for reinstatement as a Job Specialist
III. On January 26, 2015, he was transferred to the
Department of Unemployment Assistance. At his performance
review on August 6, 2015, a supervisor, Theresa DeMarco,
stated that he met expectations. But later that day, he got
into an argument with another supervisor, Luz
Cepeda-Gonzales, over her criticisms of his work. As a
result, Cross was immediately placed on “Involuntary
Administrative Medical Leave of Absen[ce].”
Id. ¶ 13. However, he was allowed to return to
work after obtaining a “Fit for Duty
Certification” from a doctor, which he submitted on
September 19, 2015. Id. On February 18, 2016, he was
placed back on the payroll, but was prohibited from working.
On May 31, 2016, Cross was terminated allegedly for budgetary
13, 2016, Cross filed a charge of discrimination with the
Massachusetts Commission Against Discrimination (MCAD) and
the Equal Employment Opportunity Commission (EEOC).
See Dkt # 10-1. He alleged that the EOLWD retaliated
against him for pursuing a disability discrimination claim
with the EEOC. After the MCAD found a lack of probable cause
on April 6, 2018, Cross initiated this lawsuit on August 17,
2018. He contends that defendants engaged in
disability discrimination and retaliation, and that NAGE and
Mann breached the duty of fair representation.
move to dismiss this action for lack of subject-matter
jurisdiction under Fed.R.Civ.P. 12(b)(1). Cross, therefore,
bears the burden of proving that the court has jurisdiction.
Murphy v. United States, 45 F.3d 520, 522 (1st Cir.
1995). To determine if Cross has met his burden, the court
“glean[s] the relevant background information from the
plaintiff['s] [second] amended complaint, accepting the
well-pleaded factual averments contained therein and
indulging all reasonable inferences in the plaintiff['s]
favor.” Muniz-Rivera v. United States, 326
F.3d 8, 11 (1st Cir. 2003).
also move to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible if
its factual content “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
“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.” Rodríguez-Reyes v.
Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir.
2013), quoting SEC v. Tambone, 597 F.3d 436, 442
(1st Cir. 2010) (en banc).
and Mass. Gen. Laws ch. 151B
alleges that defendants discriminated against him based on
his disability and then retaliated against him in violation
of the ADA and Chapter 151B. However, these claims against
the Commonwealth and NAGE both fail, but for different
claims against the Commonwealth must be dismissed because of
sovereign immunity. The Eleventh Amendment states that
“[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign
State.” U.S. Const. Am. XI. “The Supreme Court .
. . has expanded the doctrine of sovereign immunity beyond
the literal words of the Eleventh Amendment, holding that
state governments, absent their consent, are not only immune
from suit by citizens of another state, but by their own
citizens as well.” Guillemard Ginorio v. Contreras
Gomez, 585 F.3d 508, 529 n.23 (1st Cir. 2009), citing
Alden v. Maine, 527 U.S. 706, 728-729 (1999). The
Supreme Court has also specifically held that “Congress
did not validly abrogate the States' sovereign immunity
from suit by private individuals for money damages under
Title I” of the ADA. Board of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 374 n.9
(2001). The Commonwealth and two of its agencies
are therefore immune from suit under the ADA and Chapter 151B
because they neither consented to this action nor waived
sovereign immunity. See Murphy v. Massachusetts - Exec.
Office of Trial Court, 335 F.Supp.3d 137, 144-145 (D.
Mass. 2018) (dismissing plaintiff's ADA and Chapter 151B
claims against the Commonwealth because of sovereign
claims against NAGE and Mann must be dismissed because Cross
failed to exhaust his administrative remedies. Claims under the
ADA and Chapter 151B must be administratively pursued with
the MCAD or the EEOC before filing a lawsuit. Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir.
1999); Everett v. 357 Corp., 453 Mass. 585, 599-600
(2009). The administrative filing requirement serves the dual
purpose of providing a defendant with notice and of giving
the agency an opportunity to investigate and conciliate the
claim. Id. at 600; Lattimore v. Polaroid
Corp., 99 F.3d 456, 464 (1st Cir. 1996). Although Cross
filed an MCAD charge against the EOLWD, he did not name NAGE
or Mann as defendants. See Dkt # 10-1. The
discrimination claims against them therefore fail as a matter
I of the ...