United States District Court, D. Massachusetts
DESMOND M. NGOMBA, Plaintiff,
TONG OLEE, MELISSA ACELLO, SUSAN BUNHAM, RESOURCES FOR HUMAN DEVELOPMENT, Defendants
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT
Page Kelley United States Magistrate Judge.
M. Ngomba filed a pro se complaint on June 26, 2018, alleging
retaliatory discrimination based on national origin. (#1.)
Denial of requested leave under the Family Medical Leave Act
(FMLA) was part of the alleged retaliation. Id.
Defendants' motion to dismiss the complaint was granted,
and plaintiff was given leave to file an amended complaint.
retained an attorney, and on August 13, 2019, counsel filed a
two-count amended complaint alleging a claim of interference
with FMLA rights (Count I) and retaliatory termination for
exercising FMLA rights (Count II). (#38.) Defendants have
once again moved to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), Fed.R.Civ.P. (##40, 44.) Plaintiff
opposes the motion. (#41.)
relevant facts are taken from the first amended complaint,
the operative pleading. Coll. Hill Properties, LLC v.
City of Worcester, 821 F.3d 193, 195 (1st Cir. 2016). In
May 2015, Mr. Ngomba was hired by defendant Resources for
Human Development (RHD) to work as a mental health advocate
primarily at an RHD office located in Somerville,
Massachusetts. (#38 ¶ 25.) The three individuals named
as defendants are all employees of RHD: Tong Olee is a
program director, Melissa Acello is a manager, and Susan
Bunham is the regional director in Boston. Id.
was raised from childhood by his aunt, who essentially stood
in loco parentis to him. Id. ¶ 28. In September
2016, his aunt was diagnosed with a terminal illness.
Id. ¶ 27. Mr. Ngomba informed defendants of his
relationship with his aunt, i.e., that he viewed her as a
parent, and her medical prognosis. Id. ¶¶
2017, plaintiff requested leave/FMLA from John Salle, his
program manager. Id. ¶ 31. Not being versed in
the FMLA, Mr. Salle referred Mr. Ngomba to his supervisor,
Ms. Acello. Id. Following Mr. Salle's advice,
plaintiff requested leave/FMLA from Ms. Acello. Id.
¶ 32. Ms. Acello told plaintiff to request the leave
directly from her supervisor, Mr. Olee, because she did not
want anything to do with the FMLA. Id.
2017, Mr. Ngomba requested leave/FMLA from Mr. Olee “so
that he could care for his aunt, who had been transferred to
hospice care.” Id. ¶ 33. Mr. Olee denied
the request because RHD was understaffed, but told plaintiff
that if his aunt's condition deteriorated, they could
revisit the issue. Id. In July and August 2017, Mr.
Ngomba repeated his request for leave/FMLA, but Mr.
Olee's response remained the same. Id. ¶
34. Plaintiff's aunt died on September 5, 2017.
Id. ¶ 35.
November 3, 2017, plaintiff called in sick to work following
a sixteen-hour shift. Id. ¶ 36. When his
condition did not improve, Mr. Ngomba again called in sick
the following day. Id. ¶ 37. On November 5,
2017, plaintiff was notified by RHD that he was terminated
from employment, effective immediately, for abandonment of
his position. Id.
Count I, a claim for interference with the right to take
leave, plaintiff alleges that defendants “dissuaded and
discouraged [him] from taking FLMA leave, thereby interfering
with his rights to FLMA leave.” Id. ¶ 45.
By discouraging Mr. Ngomba from taking FLMA leave, and
denying his request for FLMA leave, defendants are alleged to
have violated “the applicable statutes and
regulations.” Id. ¶ 46. In Count II, a
claim for retaliatory termination for exercising FLMA rights,
Mr. Ngomba alleges that “[b]y terminating [him] after
his numerous attempts to exercise his rights under FMLA, and
denying his request for FLMA leave, [d]efendants failed to
comply with the applicable statutes and regulations.”
Id. ¶ 51.
The Applicable Standard.
12(b)(6) motion to dismiss challenges a party's complaint
for failing to state a claim. In deciding such a motion, a
court must “treat all well-pleaded facts in the
complaint as true and draw all reasonable inferences in favor
of the plaintiff.” In re Fin. Oversight & Mgmt.
Bd. for P.R., 919 F.3d 121, 127 (1st Cir. 2019) (citing
Ocasio-Hernández v. Fortuño-Burset,
640 F.3d 1, 7 (1st Cir. 2011)). 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.” A.G. ex rel. Maddox v. Elsevier,
Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing
Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.
order to survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must provide “enough facts to state a claim
to relief that is plausible on its face.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
“obligation to provide the grounds of [the
plaintiff's] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (internal quotation marks and alteration
omitted). The “[f]actual allegations must be enough ...