United States District Court, D. Massachusetts
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
case arises from claims of employment discrimination brought
by Dina Posada (“Posada” or
“plaintiff”), a former employee of the defendant
corporation, ACP Facility Services, Inc. (“ACP”).
Posada alleges that ACP, Mike White, ACP’s Chief
Operating Officer (“COO”) (“White”)
and Jesus Ronquillo, plaintiff’s direct supervisor
“defendants”), discriminated against her on the
basis of sex and race which ultimately caused her to
terminate her employment with ACP. She now brings both
federal and state law claims for hostile work environment and
retaliation pursuant to Title VII of the Civil Rights Act
(“Title VII”), 42 U.S.C. §§ 2000e, et
seq., and M.G.L. c. 151B, § 4 (“Chapter
the Court are defendants’ motion to dismiss the amended
complaint (Docket No. 20) and plaintiff’s motion to
strike the affidavits and exhibits attached to that motion to
dismiss (Docket No. 23). For the reasons that follow, those
motions will be allowed, in part, and denied, in part.
Motion to Strike
is a dispute as to which documents this Court may consider in
ruling on defendants’ motion to dismiss. The standard
rule is that a court may not consider, in ruling on a motion
to dismiss, documents that are neither attached to nor
expressly incorporated in the complaint unless the motion is
converted into one for summary judgment. Watterson v.
Page, 987 F.2d 1, 3 (1st Cir. 1993). The court may,
however, consider 1) documents the authenticity of which are
not disputed by the parties, 2) official public records, 3)
documents central to the plaintiff’s claim and 4)
documents sufficiently referred to in the complaint.
Id. at 3-4 (collecting cases).
contends that the affidavits of Ronquillo and White submitted
in support of defendants’ motion to dismiss and the
exhibits attached thereto cannot be considered by the Court
and thus must be stricken. The Court agrees that neither of
the affidavits submitted by defendants can be considered on a
motion to dismiss because they assert facts not alleged in
the amended complaint and do not fall within the exceptions
will the Court consider 1) any of the internal documents of
ACP attached as exhibits to those affidavits because they are
not expressly incorporated in the amended complaint or
sufficiently referred to therein, or 2) the emails allegedly
sent by Posada to White, Ronquillo and other employees of ACP
because those emails were never mentioned in the amended
complaint or attached thereto.
Court will, however, consider the decisions of the following
agencies rendered in connection with this case: 1) the
Department of Unemployment Assistance affirming the denial of
Posada’s claim for unemployment insurance benefits, 2)
the Massachusetts Commission Against Discrimination
(“the MCAD”) denying her claim of employment
discrimination for lack of probable cause and 3) the Equal
Employment Opportunity Commission (“the EEOC”)
summarily adopting the findings of the MCAD and dismissing
plaintiff’s claim of discrimination. All of those
documents are official public records which can be considered
on a motion to dismiss.
plaintiff’s motion to strike will be allowed, in part,
and denied, in part.
is a woman of Salvadoran descent who lives in Somerville,
Massachusetts. She had experience in the cleaning industry
prior to her employment by ACP, a corporation with its
principal place of business in Woburn, Massachusetts. ACP
provides cleaning, maintenance and other services for
commercial offices and buildings. White is the COO and
Ronquillo the current Vice President of Operations who was
Posada’s direct supervisor during the relevant period.
White also had supervisory authority over Posada.
was hired as a manager by ACP in or about March, 2015.
Shortly thereafter, she and another female employee began
training for new employees. Posada alleges that the other
female employee left the training almost immediately
“based upon her treatment” but does not describe
that treatment. Posada completed the training but, without
elaborating, claims that she was treated differently than the
male managers because she was a woman who was hired over at
least one other male employee and was resented by other male
employees as a result.
employee, identified in the amended complaint as “Mr.
Alvarado” (“Alvarado”), allegedly
threatened and intimidated Posada, warning her that
“she better watch out”. She allegedly reported
those threats to Ronquillo and was afraid to go into the
parking garage when Alvarado was around but no action was
taken. Ronquillo allegedly told her that “all women
just make stuff up” and made comments about her
personal life and her boyfriend in front of her co-workers
which were intended to humiliate her.
point during her employment, Ronquillo assigned Posada a
project with an unrealistic deadline. When she complained, he
simply ignored her. She claims that she worked on the project
but never received any feedback. Posada submits that no other
managers were assigned similar projects and that she was
given the project as a pretext for firing her when she failed
to meet the assigned deadline. Furthermore, she alleges that
at some point while working on the project, she left work for
a family emergency and notified the appropriate person at ACP
of her absence. Ronquillo allegedly confronted that female
employee and berated her for Posada’s purported failure
to follow protocol. Posada believes the female employee has
since left ACP.
August, 2015, a day after the deadline for the project, White
and Ronquillo scheduled a meeting with Posada to discuss her
failure to complete the assignment. She felt there was no
reason for the COO to be present at that meeting and thus
concluded that her supervisors were targeting her merely
because she was a woman. Posada says that at that meeting,
White and Ronquillo verbally attacked her but adds no
specifics. Posada “just wanted to get out of the
situation” and thus she told them she would give a
30-day or two-week notice of resignation. She was allegedly
told, however, to leave immediately. She contends that
Alvarado was permitted to give a two-week notice before he
left the company ...