United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
JUDGMENT ON THE PLEADINGS
Dennis Saylor IV United States District Judge
an action for employment discrimination. Plaintiff Mark
Harper, appearing pro se, has brought suit against
Boston Medical Center Corporation (âBMCâ) and one of its
employees, Angel Melendez. Pursuant to Fed.R.Civ.P. 12(c),
defendants have moved for judgment on the pleadings on the
basis that plaintiff has failed to exhaust his administrative
remedies as required by federal law. For the following
reasons, the motion will be granted.
facts in the complaint are sparse. According to the
complaint, Mark Harper worked for the BMC Medical Supply
Department with Angel Melendez as his supervisor. (Compl.
§ 3). BMC terminated his employment on July 18, 2018.
(Compl. § 3).
complaint alleges “racial discrimination” and
“wrongful termination.” (Compl. §2, ¶
A). It specifically alleges that Melendez fired Harper
because he was “not part of [Melendez's] Puerto
Rican cli[que]” and because he is a “black
man”; that “company policy” requires that
an employee receive three “writeups” and
suspension before termination but he has “never been
written up”; and that the BMC Medical Supply Department
“justified [Melendez's] racial discrimination by
letting him wrongfully terminate” Harper. (Compl.
§ 3). He seeks reinstatement of his employment and $250,
000 in damages. (Compl. §4).
moved for judgment on the pleadings on the ground that the
complaint does not allege that plaintiff has exhausted his
12(c) motion for judgment on the pleadings “is treated
much like a Rule 12(b)(6) motion to dismiss.”
Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st
Cir. 2008). It differs from a Rule 12(b)(6) motion primarily
because it is filed after the close of pleadings and
“implicates the pleadings as a whole.”
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 54-55
(1st Cir. 2006). Because a Rule 12(c) motion “calls for
an assessment of the merits of the case at an embryonic
stage, the court must view the facts contained in the
pleadings in the light most favorable to the nonmovant and
draw all reasonable inferences therefrom to the
nonmovant's behoof.” R.G. Financial Corp. v.
Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006).
to survive a motion for judgment on the pleadings, a
complaint must state a claim that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). That is, “[f]actual allegations must be enough
to raise a right to relief above the speculative level, . . .
on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement,' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the facts as alleged do not
“possess enough heft to show that plaintiff is entitled
to relief.” Ruiz Rivera v. Pfizer Pharm.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (alterations
omitted) (internal quotations omitted).
document filed by a pro se party “is to be
liberally construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation
marks omitted); see also Fed. R. Civ. P. 8(e)
(“Pleadings must be construed so as to do
justice.”). However, while pro se complaints
are “accorded an extra degree of solicitude, ”
even a pro se plaintiff is required to “set
forth factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Wright v. Town of Southbridge, 2009 U.S. Dist. LEXIS
12817, at *6-7 (D. Mass. January 15, 2009) (internal
quotations omitted) (quoting Adams v. Stephenson,
1997 U.S.App. LEXIS 15371, at *2 (1st Cir. June 23, 1997)).
complaint alleges “wrongful termination” and
“racial discrimination, ” without identifying a
specific legal theory, and states that the basis for federal
jurisdiction is a violation of federal law. (Compl. §
2). Accordingly, the Court infers that the complaint in
substance alleges violations of Title VII of the Civil Rights
Act of 1964, under which it is unlawful for an employer to
discriminate against an employee based on his or her
“race, color, religion, sex, or national origin.”
See 42 U.S.C. § 2000e-2(a).
VII requires that an aggrieved employee follow certain
administrative procedures as a prerequisite to commencing a
civil action. See Fantini v. Salem State Coll., 557
F.3d 22, 26 (1st Cir. 2009). The administrative process
begins with the filing of an administrative charge before the
EEOC or its state analogue (here, the Massachusetts
Commission Against Discrimination). See Franceschi v.
U.S. Dep't of Veterans Affairs, 514 F.3d 81, 85 (1st
Cir. 2008). The employee may sue in federal court only if the
EEOC dismisses the administrative charge or if it does not
bring civil suit or enter into a conciliation agreement
within 180 days of the filing of the administrative charge.
42 U.S.C. § 2000e-5(f)(1); see also Franceschi,
514 F.3d at 85. “In either case, the EEOC must send the
employee notice, in the form of what is known as a
right-to-sue letter.” Franceschi, 514 F.3d at
85. After receiving that notice, the employee has 90 days to
bring suit in federal court. 42 U.S.C. § 2000e-5(f)(1).
Title VII, the “unexcused failure to exhaust
administrative remedies effectively bars the courthouse
door.” Jorge v. Rumsfeld,404 F.3d 556, 564
(1st Cir. 2005). “Administrative remedies [can]not be
considered to [be] exhausted . . . until the EEOC issue[s]
[the plaintiff] a ...