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Posada v. ACP Facility Services, Inc.

United States District Court, D. Massachusetts

July 29, 2019

DINA POSADA, Plaintiff,



         This 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 (“Ronquillo”) (collectively “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 151B”).

         Before 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.

         I. Motion to Strike

         There 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).

         Posada 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 noted above.

         Nor 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.

         The 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.

         Accordingly, plaintiff’s motion to strike will be allowed, in part, and denied, in part.

         II. Background

         A. The Facts

         Posada 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.

         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.

         One 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.

         At some 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.

         In 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 ...

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