Mekonnen v. OTG Management, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ABEBA MEKONNEN, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 12-12183-DPW

)

OTG MANAGEMENT, LLC )

)

Defendant. )

MEMORANDUM AND ORDER

July 25, 2019

Plaintiff Abeba Mekonnen has proceeded pro se1 in this

workplace discrimination action against her former employer

1 Ms. Mekonnen has formally proceeded pro se but also has, at all

stages in this litigation, been advised, mostly from behind the

scenes, by her former husband, Begashaw Ayele. Though Mr. Ayele

is not an attorney, he unsuccessfully sought to “appear” on

behalf of Ms. Mekonnen, [see Dkt. No. 33], and identified

himself as her “assistant,” because he has an “economic interest

and knew the plaintiff’s case as much as she does knew [sic]

from the beginning to the present.” [Dkt. No. 85].

Throughout this litigation, Mr. Ayele has involved himself in

the proceeding as an officious intermeddler and his

participation has interfered with the effective and orderly

resolution of the dispute to such an extent that, during a

hearing on September 23, 2014, I barred Mr. Ayele from

purporting to act further on behalf of Ms. Mekonnen. See Dkt.

No. 90; see also Transcript of hearing at Dkt. No. 92.

Mr. Ayele, and his tactics, are not unknown to various members

of this court and at least one of my colleagues indicated well

before this litigation was filed that Mr. Ayele should be

treated as a potentially vexatious litigant. Ayele v. U.S.

Security Associates, Inc., Case No. 1:05-CV-11273-WGY (D. Mass.

Oct. 5, 2005) (order entered electronically, see generally

transcript of hearing at Dkt. No. 22). I have similarly found

in this proceeding a lack of candor and an indifference to

procedural rules by both Ms. Mekonnen and Mr. Ayele. I provide

Defendant OTG Management, LLC, alleging several different

theories of discrimination under Title VII of the Civil Rights

Act of 1964, the Americans with Disabilities Act (“ADA”), and

state law.

I. BACKGROUND

A. Facts

OTG operates a CIBO Express Gourmet Market at Logan Airport

in Boston, MA, where it employs both utility workers, who

transport materials from the storage room to the storefront, and

cashiers.

Ms. Mekonnen applied for a cashier position at the CIBO

Express Gourmet Market on July 2, 2007. In her application, she

indicated that she preferred to work from 1 PM to 10 PM and that

she needed Sunday mornings off to attend church. Ms. Mekonnen

is an Orthodox Christian. The only shift OTG had available at

the time was an early morning shift from 5 AM to 1 PM. Ms.

Mekonnen accepted the early morning shift, with the hope that

in an Appendix a summary of their respective litigation

histories.

That said, I have, as will be evident in this Memorandum, read

Ms. Mekonnen’s submissions liberally. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam) (“A document filed pro se 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.” (internal citations

and quotations omitted)). To that end, I have painstakingly

sought to provide a reasoned explanation of my resolution of

every alternative theory colorably presented by Ms. Mekonnen in

this litigation.

she would be able to have Sunday mornings off, and began working

for OTG on August 4, 2007.

The parties dispute whether OTG required Ms. Mekonnen to

work on Sunday mornings in 2007. According to William Khayat, a

former Terminal Director for OTG, Ms. Mekonnen’s regular work

schedule was Monday to Friday and every effort was made to avoid

scheduling her shifts on Sunday. Ms. Mekonnen claims she had to

work during church services approximately two or three times in

her first month at OTG. OTG no longer has copies of Ms.

Mekonnen’s work schedule from 2007 and 2008, but payment records

indicate Ms. Mekonnen worked several Sundays in 2007, including

every Sunday in December 2007.

The parties also dispute whether Ms. Mekonnen informed OTG

that she had a disability in 2007. Ms. Mekonnen claims that in

early August 2007, she told her direct supervisor Lily Molla

that she had a leg problem and requested to sit in an elevated

chair during her shift. In addition, she claims she gave OTG a

medical certificate from Ethiopia that stated she suffers from

osteoarthritis in her right knee. Mr. Khayat denied ever seeing

the Ethopian medical certificate and claimed Ms. Mekonnen never

informed him she was disabled.

A few weeks after Ms. Mekonnen started work, Begashaw

Ayele, Ms. Mekonnen’s then husband, who also worked at Logan

Airport, had a conversation with Mr. Khayat about issues Ms.

Mekonnen was having at OTG. Mr. Ayele told Mr. Khayat that Ms.

Mekonnen was concerned about having to work on Sunday mornings.

According to Mr. Ayele, he also informed Mr. Khayat that Ms.

Mekonnen had a permanent leg injury. Mr. Khayat recalled that a

discussion with Mr. Ayele took place, but did not recall any

discussion of Ms. Mekonnen’s medical issues. Mr. Ayele wrote a

letter to Mr. Khayat a few days later, in which he informed Mr.

Khayat that recently at OTG “a Christian employee who was

offered full time job from Monday to Friday was required to work

on his/her religious observance day all in favor of a Muslim

employee.”2 Mr. Ayele cited MASS. GEN. LAWS ch. 149 § 103 and

wrote that “[a]ccording [to] this statute, employers must allow

employees to do their work in a seated position . . . all

industries are covered and OTG is no exception.” Mr. Ayele also

claims he later called the human resources department at OTG to

discuss these issues.

Ms. Mekonnen claims Mr. Khayat and Ms. Molla treated her

less favorably after Mr. Ayele sent the letter. According to

Ms. Mekonnen, they prevented her from taking a lunch break until

approximately an hour before her shift ended and from taking

bathroom breaks during her shift. She also claims Mr. Khayat

2 Mr. Ayele did not mention Ms. Mekonnen’s name specifically, but

said that he had learned of these issues from an employee whom

he had “deep interest through blood relationship, marriage,

national origin affiliation and the like.”

and Ms. Molla assigned her tasks that were not a part of her

regular duties and failed to provide her with the proper change

for her register at the start of her shift. Mr. Khayat denies

that he treated Ms. Mekonnen differently than any other employee

when it came to providing her with meal breaks, restroom breaks,

or proper change for her register.

In January 2008, Ms. Mekonnen was injured at work when a

door fell on her leg. She sprained her knee and had a

contusion, but did not break any bones. She received two

doctor’s notes: one on January 22, 2008 which advised her to

remain out of work for three days, and one on February 11, 2008

which advised her to remain out of work for five days. Ms.

Mekonnen returned to work after two weeks and continued working

full-time.

During Ms. Mekonnen’s time with OTG, the company received

mixed feedback about her from customers; the trend in this

feedback suggested diminishing performance over time. In this

connection, OTG participated in a “secret shopper” program, in

which customers would visit stores and report on their

experiences. In the first report about Ms. Mekonnen, dated

August 27, 2007, she received an overall score of 78% and was

described as having “a lovely smile and demeanor” that “made

[the customer] feel very welcome.” In a second report, dated

November 16, 2007, she received an overall score of 58%. This

“customer” found that Ms. Mekonnen did not understand English

well and did not demonstrate knowledge of the items for sale.

In the third report, dated May 8, 2009, Ms. Mekonnen received an

overall score of 32%. The customer found that “[i]nteracting

with the unfriendly Associate was memorable” and reported that

Ms. Mekonnen was talking on her cell phone when the customer

entered the store. OTG had previously received a complaint that

Ms. Mekonnen took a personal phone call while checking out a

customer on February 9, 2009. Ms. Mekonnen claims she was not

on her cell phone during either of these exchanges.

Ms. Mekonnen was also disciplined repeatedly by her

supervisors at OTG. She received and signed a written warning

on June 10, 2008 for sitting on top of a plastic box while

working. Ms. Mekonnen admits she would sit at times while she

worked, but claims she had to do so because of her knee issues.

On May 19, 2009, Ms. Mekonnen received a written warning for

failing to check the expiration date on a product. The warning

noted that the consequence of further infractions would be

termination. Ms. Mekonnen’s signature does not appear on this

written warning. Ms. Mekonnen claims utility workers at OTG,

not cashiers, were responsible for inspecting the expiration

dates of products.

Subsequently, Ms. Mekonnen received another low score on a

secret shopper report and she was terminated on November 19,

2009. Her termination form listed the reason for firing as

“poor job performance, 3 below avg. failing secret shopper

scores.”

B. Procedural History

Ms. Mekonnen filed an administrative charge of

discrimination and retaliation with the Equal Employment

Opportunity Commission (“EEOC”) and the Massachusetts Commission

Against Discrimination (“MCAD”) on May 10, 2010. She also filed

a complaint with the Massachusetts Office of the Attorney

General regarding OTG’s alleged failure to pay out her accrued

vacation time promptly. On May 25, 2010, the Attorney General

granted Ms. Mekonnen the right to bring an action.

The MCAD dismissed Ms. Mekonnen’s complaint on April 30,

2012. Thereafter, the EEOC sent her a right to sue letter on

August 28, 2012.

Ms. Mekonnen initially filed her complaint in state court

and OTG removed the case to this court on November 23, 2012.

Ms. Mekonnen filed an amended complaint on April 23, 2014. She

alleged that OTG discriminated against her on the basis of her

disability, religion, sex, and age in violation of state and

federal law. She also alleged that OTG retaliated against her

for raising such claims with management. With respect to wages

and hours, Ms. Mekonnen alleged that OTG had failed to pay out

her vacation benefits, and that it violated MASS. GEN. LAWS ch. 136

§ 6(50) and § 16 by forcing her to work on Sunday. Finally, Ms.

Mekonnen brought assorted claims against Mr. Khayat in his

individual capacity. I have dismissed Ms. Mekonnen’s age

discrimination claim, her claim under MASS. GEN. LAWS ch. 136

§ 6(50) and § 16, and her claims against Mr. Khayat. OTG has

moved for summary judgment as to the remaining claims.

II. MOTION TO STRIKE

Along with her opposition to summary judgment, Ms. Mekonnen

submitted several exhibits and affidavits. OTG moved to strike

certain of the exhibits and sections of the affidavits,

contending that they include documents Ms. Mekonnen did not

identify or produce during discovery and statements that

constitute hearsay or that were not based on personal knowledge

and therefore are inadmissible.

Under FED. R. CIV. P. 37(c)(1), “[i]f a party fails to

provide information or identify a witness as required by

Rule 26(a) or (e), the party is not allowed to use that

information or witness to supply evidence on a motion.” FED. R.

CIV. P. 37(c)(1). If a party fails to comply with the discovery

requirements imposed by the Federal Rules and his failure to

comply is neither substantially justified nor harmless, then the

belatedly offered evidence may be stricken. Greene v. Ablon,

2012 WL 4104792, at *2 (D. Mass. Sept. 17, 2012), aff'd in part,

794 F.3d 133 (1st Cir. 2015) (“In its analysis [with respect to

a motion to strike], the Court considers a number of factors

. . . Surprise and prejudice are important integers in this

calculation.” (internal citations omitted)).

I will strike certain exhibits not produced during

discovery, specifically Ms. Mekonnen’s medical certificate from

Ethiopia and the three sets of cell phone records. Ms. Mekonnen

herself admits she did not provide these exhibits to OTG during

discovery, despite being required to do so. Her failure to

inform OTG earlier of these exhibits is not harmless.3 The

medical certificate introduced a previously underdeveloped

theory of disability or handicap into the case, while the cell

phone records attempt to offer a new way of proving that OTG’s

reason for terminating Ms. Mekonnen was pretextual. For the

sake of completeness, however, and because consideration of

these documents does not change my ultimate view of the merits,

I will discuss them in conjunction with my consideration of the

merits of her underlying claim.

3 Ms. Mekonnen explains that she did not provide OTG with the

Ethiopian medical certificate because the hospital that issued

it is outside the United States. At the same time, she also

notes that the certificate is eighteen years old and that she

showed it to Ms. Molla while she worked at OTG. If Ms. Mekonnen

had it within her possession and control when OTG requested her

medical records as part of the discovery process - which it

appears she did - she had a duty to provide it to OTG in a

timely fashion.

I will not strike the November 1, 2016 letter from her

doctor at Massachusetts General Hospital, though this letter was

not produced as part of the original round of discovery. The

letter itself did not exist until November 1, 2016 and Ms.

Mekonnen provided it to opposing counsel on December 12, 2016.

Although Ms. Mekonnen could have submitted the letter more

promptly, I do not find OTG was prejudiced by this brief delay.

Finally, I will not strike references to these submissions

in Ms. Mekonnen’s affidavit, her other filings, and Mr. Ayele’s

affidavit. Ms. Mekonnen may explain the history of her leg

problems and Mr. Ayele may offer his observations of Ms.

Mekonnen’s condition. I will simply treat other references to

the Ethiopian medical certificate in the statement of facts as

argument.

Turning to the affidavits submitted by Ms. Mekonnon, I will

strike some, but not all, of the sections identified by OTG.

Under FED. R. CIV. P. 56(c)(4), “[a]n affidavit or declaration

used to support or oppose a motion must be made on personal

knowledge” and must “set out facts that would be admissible in

evidence.” When striking statements in an affidavit, a court

must use “a scalpel, not a butcher knife” in order “to disregard

those parts of it that are inadmissible and to credit the

remaining portions.” Perez v. Volvo Car Corp., 247 F.3d 303,

315 (1st Cir. 2001).

I will strike the portions of her submissions that

constitute garden-variety hearsay. From Ms. Mekonnen’s

affidavit, I will strike the part of paragraph 5, where she

states: “One day, Begashaw [Ayele] . . . asked Mr. Khayat, Ms.

Molla’s boss, why my request for leg injury and religious

accommodation was ignored. Begashaw told me that Khayat had no

answer.” From Mr. Ayele’s affidavit, I will strike the part of

the second sentence of paragraph 5, where he states: “Abeba

[Mekonnen] told me that Lily’s promise have Sunday off as an to

accommodation for church [sic] was not realized”; the part of

the second sentence of paragraph 14, where he states: “Abeba

said ‘I do know that they took the money to the office but

unable to know whether they pocket the money for themselves”;

the part of paragraph 15, where he states: “Abeba told me that

she can not continue to work unless she sit at a given time

interval to alleviate her leg problem”; and, the first two

sentences of paragraph 16. From Samuel Negash’s affidavit, I

will strike the part of paragraph 11, where he states “I heard

that she [meaning Ms. Mekonnen] was conversing with employees

that Mr. Khayat had fired her for talking by phone while she was

on duty.”

I also note that I will not consider the sections of Mr.

Ayele’s affidavit which recount his interviews with other OTG

employees as substantive evidence of how other OTG employees

were treated. This recounting is focused on the second sentence

of paragraph 17 and on paragraphs 18, 19, and 20.

I will not strike the sections of Ms. Mekonnen’s

submissions that are based upon her review of other documents.

Most of OTG’s objections arise from instances where Ms. Mekonnen

provides her own understanding and interpretation of OTG’s

business records or other evidence properly before me. For

example, Ms. Mekonnen submitted a document titled “Refuting

Murphy’s Declaration and his Exhibit No. 9,” in which she

compares OTG’s records of her work schedule to her own

calculation of her work schedule based on her pay records.

“Motions to strike have been denied when the declarant did not

personally experience the matters discussed in the affidavit,

but did review business or public records and included

information from those records with the affidavit.” Facey v.

Dickhaut, 91 F. Supp. 3d 12, 20-21 (D. Mass. 2014). To the

extent these submissions could raise evidentiary concerns, I

will simply treat her gloss on other documents as argument and

will rely only on the underlying documents themselves as

evidence.

Finally, I recognize Ms. Mekonnen’s Statement of Material

Facts contains many statements not supported by citations to the

record, as required by Local Rule 56.1. I will deem admitted

those facts Ms. Mekonnen has failed to dispute with citations to

the record and strike statements included in her submission that

are not supported with citations to the record, though I will

still fully consider “whether the moving party has met its

burden” based on ”those facts adequately supported by the

record.” Paul v. Johnson, 2013 WL 5299399, at *1-2 (D. Mass.

Sept. 17, 2013). For the purpose of evaluating OTG’s motion for

summary judgment, I will treat these statements as in the nature

of argument.

III. MOTION FOR SUMMARY JUDGMENT

A. Disability Discrimination

Ms. Mekonnen alleges that OTG failed to provide her with a

reasonable accommodation for her disability and that OTG

discriminated against her on the basis of her disability by

issuing her a warning for sitting on a plastic box, by altering

her job duties, and ultimately by terminating her.

I analyze her disparate treatment claims under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq., and the Massachusetts Antidiscrimination Act, MASS. GEN. LAWS

ch. 151B (“151B”), using the McDonnell-Douglas burden-shifting

framework. Tobin v. Liberty Mut. Ins. Co. (“Tobin I”), 433 F.3d

100, 104 (1st Cir. 2005) (citing McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973)). Ms. Mekonnen must first show that:

(1) [s]he suffers from a disability or handicap, as defined

by the ADA and Chapter 151B, that (2) [s]he was

nevertheless able to perform the essential functions of

[her] job, either with or without reasonable accommodation,

and that (3) [defendant] took an adverse employment action

against [her] because of, in whole or in part, [her]

protected disability.

Id.

Under both the ADA and 151B, a person “is considered

disabled if she (a) has a physical or mental impairment that

substantially limits one or more of her major life activities;

(b) has a record of such an impairment; or (c) is regarded as

having such an impairment.” Ruiz Rivera v. Pfizer Pharm., LLC,

521 F.3d 76, 82 (1st Cir. 2008); see also Dahill v. Police Dep’t

of Boston, 748 N.E.2d 956, 962-63 (Mass. 2001) (identifying

“three avenues by which a person can establish that [s]he falls

within the statute’s protection” under state law).

If Ms. Mekonnen establishes a prima facie case of

discrimination, the burden shifts to OTG to articulate a

legitimate, nondiscriminatory reason for its employment decision

and show this was the true reason for its action. Tobin I, 433

F.3d at 105 (citing, inter alia, McDonnell Douglas, 411 U.S. at

802). At this point, if OTG “offers such a reason, the burden

shifts back to [Mekonnen], and [s]he must proffer evidence to

establish that [defendant’s] non-discriminatory justification is

mere pretext, cloaking discriminatory animus.” Id (citing

McDonnell Douglas, 411 U.S. at 804).4 “The ultimate burden of

4 Under MASS. GEN. LAWS ch. 151B, the burden of showing pretext is

proving unlawful discrimination rests at all times with [Ms.

Mekonnen].” Id.

To survive summary judgment for her reasonable

accommodation claims under the ADA, Ms. Mekonnen must show

“(1) [s]he is disabled within the meaning of the ADA, (2) [s]he

was able to perform the essential functions of the job with or

without a reasonable accommodation, and (3) [defendant], despite

knowing of [her] disability, did not reasonably accommodate it.”

Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003).

Similarly, for her reasonable accommodation claims under 151B,

Ms. Mekonnen must show “[she] was a ‘qualified handicapped

person’ capable of performing the essential functions of [her]

job with reasonable accommodation; [she] requested such

accommodation, and [defendant] refused to provide it; and, as a

result of this refusal, [s]he suffered some harm.” Alba v.

Raytheon Co., 809 N.E.2d 516, 522 n.9 (Mass. 2004).

1. Exhaustion

Before examining the merits of her claims, I must determine

whether Ms. Mekonnen has adequately pled and previously

different than the federal standard because “the plaintiff

employee may defeat an employer’s motion for summary judgment by

showing that there are disputed issues of fact as to whether the

employer’s proffered reason was not the true reason, which

permit the inference that the employer offered a pretextual

reason because the true reason was discrimination on the basis

of handicap.” Gannon v. City of Boston, 73 N.E.3d 748, 757

(Mass. 2017).

exhausted all of the theories of disability discrimination she

now advances. Relying in part on the Ethiopian medical

certificate I have stricken, Ms. Mekonnen claims in her

opposition to summary judgment to suffer from osteoarthritis.

Ms. Mekonnen had previously relied on her at-work leg injury in

January 2008 as the sole basis for her disability claim, both in

her administrative charge before MCAD and in her complaint in

this case.

I find Ms. Mekonnen has sufficiently pled disability

discrimination based on her osteoarthritis in her complaint in

this court. According to her amended complaint, as early as

August 2007, she had a “leg problem” that was aggravated by

OTG’s failure to provide her with an elevated chair and that it

was “[b]ecause of this and the employer’s failure to accommodate

the Sunday off time for worship” that Mr. Ayele wrote the

September 2007 letter to Mr. Khayat. The complaint also

mentions how she had one written warning for sitting while at

work because of a preexisting leg problem and later injury

sustained while at work. Even if Ms. Mekonnen previously placed

greater emphasis on her at-work injury, her complaint gave OTG

adequate notice of a theory of disability discrimination based

on a preexisting leg problem, even if it did not elaborate on

the source of that problem.

Whether Ms. Mekonnen exhausted administrative remedies for

her disability claim based on her pre-existing knee condition is

a closer call. Under both the ADA and 151B, an employee must

file an administrative charge either with the EEOC or with the

parallel state agency before filing suit. Lattimore v. Polaroid

Corp., 99 F.3d 456, 464 (1st Cir. 1996); see also Thornton v.

United Parcel Service, Inc., 587 F.3d 27, 31 (1st Cir. 2009).

Because it would frustrate the purpose of the administrative

proceedings “if the employee were permitted to allege one thing

in the administrative charge and later allege something entirely

different in a subsequent civil action,” the scope of any

successive lawsuit is limited to the scope of the administrative

charge “and the investigation which can reasonably be expected

to grow out of that charge.” Id. When an employee acts pro se,

as Ms. Mekonnen does here, courts construe the administrative

charge liberally and “afford the complainant the benefit of any

reasonable doubt,” but “[e]ven a pro se complainant is required

to describe the essential nature of the claim and to identify

the core facts on which it rests.” Id.

Ms. Mekonnen’s administrative charge does not mention her

osteoarthritis diagnosis. Instead, her administrative charge

framed her disability claim entirely around the January 2008

injury:

On or about January 22, 2008 I had a work-related injury

when a sliding door fell on my leg. I was out of work for

eight days due to this injury. Upon my return I requested

to be able to sit when there were no customers around.

Respondent failed to accommodate my request and issued me a

warning on June 10, 2008 for sitting when there were no

customers in my line. I also requested a transfer to a

delivery position as an accommodation to my disability but

was told delivery positions were only given to male

employees.

In her rebuttal to OTG’s position statement, she again discussed

her at-work injury but did not discuss her osteoarthritis

diagnosis. Relying on her administrative charge, the MCAD

investigative disposition examined her disability claim only

through the lens of her at-work injury.5

5 Ms. Mekonnen’s MCAD appeal described her disability claim in

even narrower terms:

I the complaint [sic] nowhere alleged that I have claimed

disability be it on the MCAD’s original complaint form or

anywhere in my papers as the law define what disability.

The complainant’s allegation only rest with the claim of

“impairment” related to my performance of my job

responsibility because of the leg injury sustained from

work related activity inflicted causing serious pain and

suffering.

Throughout her appeal, Ms. Mekonnen emphasized this view,

mentioning elsewhere “[a]s repeatedly stated, my claim is

impairment but this does not mean that employer has no

obligation to accommodate temporary injury that employee

sustained at workplace.” (emphasis in original). OTG contends

these statements necessarily narrow the scope of her claim in

this court.

When considering the scope of her claims, I consider the

investigation that “could reasonably be expected to grow from

the original complaint.” Powers v. Grinnell Corp., 915 F.2d 34,

39 n. 4 (1st Cir. 1990). Positions taken in the MCAD appeal

cannot narrow the scope of an investigation that has already

been completed. See Everett v. 357 Corp., 904 N.E.2d 733, 748

(Mass. 2009) (“Once a LOPC [Lack of Probable Cause]

Ms. Mekonnen’s permanent leg problem is one of those “core

facts” upon which her disability discrimination claim may be

said to rest; it should have been identified fully in her

administrative charge. Lattimore, 99 F.3d at 464. The

investigator would likely have conducted a very different

investigation had she known Ms. Mekonnen was contending she

suffered from a permanent leg problem, in addition to the

consequences of a one-time (and relatively minor) injury, as the

charge represented.

Moreover, the osteoarthritis diagnosis was information that

was fully within Ms. Mekonnen’s control. She knew she had

osteoarthritis and, at least according to her opposition to

summary judgment, she believed she was discriminated against

because of this condition.6 Nothing prevented her, then, from

providing this information to the MCAD in her initial

administrative charge.

To be sure, at least the complaint makes clear reference to

disability discrimination based on an injury to Ms. Mekonnen’s

leg and indicates, albeit obliquely, that Ms. Mekonnen had

sought an accommodation to sit at work as early as September

determination issues [from MCAD], the administrative

investigation is closed.”).

6 Her failure to mention the leg problem caused by osteoarthritis

in her administrative charge appears to be yet another instance

where a lack of forthrightness and candor interfered with the

orderly progress of this case.

2007. An investigator reading Mekonnen’s complaint could

reasonably be expected to ask why her husband referred to the

Massachusetts right-to-sit law in his September 2007 letter,

months before her January 2008 accident. An investigator could

also reasonably be expected to ask the complainant if she had

any other problems with the same leg, which would presumably

reveal the osteoarthritis condition, assuming the complainant

was forthright during the process. See Perch v. City of Quincy,

204 F. Supp. 2d 130, 134 (D. Mass. 2002) (disability

discrimination claim based on employee’s cancer diagnosis was

within the scope of investigation for disability discrimination

claim based on employee’s chronic fatigue syndrome diagnosis).

Because the matter is close, and because I will grant

summary judgment for OTG on Ms. Mekonnen’s disability claims on

other grounds, I will assume, without deciding, that her

disability claim based on her permanent leg problem were

properly exhausted.

2. Timeliness

Even if Ms. Mekonnen had fully exhausted administrative

remedies, her disability claims are, at least in part, time-

barred. Under both the ADA and 151B, an employee is required to

file an administrative claim “within 300 days after the alleged

unlawful employment practice occurred.”7 Thorton, 587 F.3d at

31. Ms. Mekonnen filed her administrative charge on May 10,

2010, which means her claims must be premised on acts that

occurred after July 14, 2009. However, at least some of the

discrete acts on which Ms. Mekonnen seeks to rely here – her

requests in August and September 2007 for an elevated chair, her

request for a transfer to a utility position, and the written

warning issued to Ms. Mekonnen for sitting during her shift –

occurred before July 14, 2009 and individually cannot form the

basis of a disability discrimination claim.

I find there is no evidence that Ms. Mekonnen made a

specific request to sit while working after July 14, 2009 that

OTG denied. In determining the timeliness of a reasonable

accommodation claim, “[t]he pivotal question . . . is whether

[the employee] made a specific request for accommodation that

was denied during the statutory periods.” Tobin v. Liberty Mut.

Ins. Co. (“Tobin II”), 553 F.3d 121, 133 (1st Cir. 2009). The

only arguably specific requests for an accommodation Ms.

Mekonnen made were in August and September 2007, when she asked

7 The 300-day limitation period applies to claims filed with a

state administrative agency. Thornton v. United Parcel Serv.,

Inc., 587 F.3d 27, 31 (1st Cir. 2009). The limitations period

to file with the EEOC is shorter, and the ADA requires an

employee to “file an administrative complaint with the EEOC

within 180 days of the alleged unlawful employment practice.”

Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005); see also,

Thornton, 587 F.3d at 31.

Ms. Molla if she could sit in an elevated chair while she worked

and when Mr. Ayele spoke with and wrote to Mr. Khayat on behalf

of Ms. Mekonnen. Any claims based on those requests, or any

other requests made before July 14, 2009, are time-barred.

Neither Ms. Mekonnen’s affidavit nor Mr. Ayele’s affidavit

mentions any requests made on or after July 14, 2009, and Mr.

Khayat claimed he was never aware that Ms. Mekonnen had a

medical condition for which she needed an accommodation. In her

opposition to summary judgment, Ms. Mekonnen contends she told

Ms. Molla repeatedly about her medical condition, and in her

statement of material facts, she claims to have asked Ms. Molla

and Mr. Khayat for an accommodation at various points in during

her employment. Ms. Mekonnen does not, however, support these

contentions with evidence in the record. It is well-settled

that “[f]actual assertions . . . in motion papers, memoranda,

briefs, or other such ‘self-serving’ documents, are generally

insufficient to establish the existence of a genuine issue of

material fact at summary judgment.” Nieves v. Univ. of P.R., 7

F.3d 270, 276 n. 9 (1st Cir. 1993). For this reason alone, Ms.

Mekonnen fails to present sufficient evidence to support a

timely reasonable accommodation claim.

Even if I were to consider the unsupported assertions made

in her opposition and statement of material facts as

evidentiary, they are insufficient to show that Ms. Mekonnen

made “sufficiently direct and specific” requests to sit while

working after July 14, 2009, as required by both the ADA and

151B. Murray v. Warren Pumps, LLC, 821 F.3d 77, 84 (1st Cir.

2016); see also Ocean Spray Cranberries, Inc. v. Mass. Comm’n

Against Discrimination, 808 N.E.2d 257, 267-68, 270-71 (Mass.

2004). In Murray v. Warren Pumps, LLC, the First Circuit found

an employee’s testimony “that only broadly suggest[ed] requests

for accommodation,” such as statements that the employee “sought

breaks from ‘time to time,’ without detailing any particular

occasions or explaining whether and how [the employer] actually

denied any such requests,” did not establish that she made a

specific request for an accommodation. 821 F.3d at 84. Ms.

Mekonnen’s vague assertions in her opposition and statement of

material facts likewise do not include any information regarding

when she made any additional requests or how OTG responded.

There is no failure of reasonable accommodation claim arising

from OTG’s alleged failure to provide her with a seat after July

14, 2009 sufficiently presented by record evidence. This aspect

of her disability discrimination claim is thus time-barred.

Ms. Mekonnen’s reasonable accommodation claim based on her

request to transfer to a utility position faces similar

problems. She presents no cognizable evidence that she

requested this kind of transfer after July 14, 2009. In her

opposition to summary judgment, she claims she requested a

transfer “not only in 2008 when I had leg injury but until 2-3

months before I was fired” and that she “repeatedly sought that

position . . . because it was better than working by standing

due to my leg injury.” Again, Ms. Mekonnen’s factual assertions

in her memorandum are insufficient to create a triable issue of

fact. Nieves, 7 F.3d at 276 n. 9. Without any admissible

evidence of requests after July 14, 2009, I find her request to

transfer accommodation claims time-barred. For the sake of

completeness, I will discuss, and reject, the claims on the

merits below.

OTG does not dispute that Mekonnen’s disability claim based

on her termination on November 19, 2009 is timely. In addition

to advancing this specific claim, Ms. Mekonnen attempts to rely

on the continuing violations doctrine to save her otherwise

untimely claims. The continuing violations doctrine allows an

employee to “obtain recovery for discriminatory acts that

otherwise would be time-barred so long as a related act fell

within the limitations period.” Tobin II, 553 F.3d at 130.

“However, it is now well established that the doctrine does not

apply to ‘discrete acts’ of alleged discrimination that occur on

a ‘particular day,’ but only to discriminatory conduct that

takes place ‘over a series of days or perhaps years.’” Id.

(quoting National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

115 (2002)); see also Everett v. 357 Corp., 904 N.E.2d 733, 751

(Mass. 2009) (“[A] discrete, separate act . . . does not draw

other allegedly discriminatory acts into its scope, either

prospectively or retrospectively.”).

The continuing violations doctrine does not apply to the

acts underlying Mekonnen’s disability claims. Denying a request

for a reasonable accommodation, denying a transfer request, and

issuing a written warning are all discrete acts that occur on a

particular day. Tobin II, 553 F.3d at 130; see also Ayala v.

Shinseki, 780 F.3d 52, 57 (1st Cir. 2015) (“[A] negative

performance evaluation, transfer to another area, and letter of

warning also constitute discrete acts.”).

Though any disability discrimination claims based on the

June 10, 2008 written warning for sitting while working and the

May 19, 2009 written warning for failing to check expiration

dates are time-barred, I may consider these acts “‘as background

evidence in support of a timely claim’” for wrongful

termination. Tobin II, 553 F.3d at 142 (quoting Morgan, 536

U.S. at 113). However, because any consideration of the claims

Ms. Mekonnen has advanced in conjunction with her wrongful

termination claim – whether for reasonable accommodation or for

disparate treatment – begins with an examination of whether she

is disabled or handicapped, I will address that question first

before proceeding.

3. Disabled or Handicapped Under the ADA or 151B

The ADA and 151B both use the same three-part test to

determine whether an impairment qualifies as a disability or a

handicap, with one slight difference. Ramos-Echevarria v.

Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011); City of New

Bedford v. Mass. Comm’n Against Discrimination, 799 N.E.2d 578,

588 n. 27 (Mass. 2003) (holding that “[the SJC] has not

previously articulated this three-step analysis for resolution

of the first part of the first prong of claims of handicap

discrimination . . .” and that “[it] see[s] no reason to deviate

from Federal law in this respect.” (internal citations

omitted)).

First, I consider whether the alleged condition

“constitutes a mental or physical ‘impairment.’” Carroll v.

Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002). Second, I

“identify the life activities upon which [plaintiff] relies to

determine whether they constitute ‘major life activities.’ . . .

that is, activities that are ‘of central importance to daily

life.’”8 Id. (internal citations omitted). Finally, I determine

8 This is where federal and state law diverge slightly. MASS.

GEN. LAWS ch. 151B § 1(2) defines the term “major life activity”

broadly to include “working.” City of New Bedford v. Mass.

Comm’n Against Discrimination, 799 N.E.2d 578, 589 and n. 28

(Mass. 2003). In contrast, “[t]he United States Supreme Court

has questioned whether ‘working’ qualifies as a ‘major life

activity’ under Federal law.” Id. at 589 n. 29. The federal

statutory scheme has since been expanded both to include

“whether the impairment substantially limits the activity found

to be a major life activity.” Id.

For many years, “the definitions of ‘disability’ and

‘handicap’ [were] virtually identical” under the ADA and 151B.

Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d

30, 32 n. 1 (1st Cir. 2001). However, the ADA Amendments Act of

2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, 3553-55

(2008), codified in 42 U.S.C. § 12101 et seq. , which became

effective on January 1, 2009, “expanded the definition of

‘disability’” under the ADA. Thornton, 587 F.3d at 34 n. 3. In

particular, the ADA now “provides that ‘[t]he term

‘substantially limits’ shall be interpreted consistently with

the finding and purposes of the ADA Amendments Act of 2008.”

Murray v. Warren Pumps, LLC, 2013 WL 5202693, at *5 (D. Mass.

Sept. 12, 2013), aff'd, 821 F.3d 77 (1st Cir. 2016)

(modifications in original). Because 151B “does not have an

analogous clause,” I have previously held that 151B employs a

narrower, pre-ADAAA understanding of the term “substantially

limits.” Id. at *5-6.

The only timely ADA claims concern conduct that occurred

after July 14, 2009. I will therefore use the ADAAA’s more

“working” in the definition of a “major life activity” and, in

many respects, reach further than the state definition. See

infra note 10.

generous standard to evaluate Ms. Mekonnen’s federal claims.

Moreover, because it is no longer as clear whether the Supreme

Judicial Court will continue to read 151B in a more narrow

fashion, I will, out of an abundance of caution, apply the

ADAAA’s standard to Ms. Mekonnen’s state law claim as well.9

As discussed above, Ms. Mekonnen has, at times, identified

two different conditions from which she suffers. First, she

claimed to suffer consequences from the January 2008 leg injury.

Second, she claimed to suffer from osteoarthritis in the same

leg, a condition which was aggravated by the January 2008

accident. In her opposition to summary judgment and

accompanying affidavit, she disavows reliance on the January

9 The Massachusetts Appeals Court discussed this issue at some

length in Massasoit Industrial Corp v. Mass. Com’n Against

Discrimination, 73 N.E.3d 333, 340 n. 6 (Mass. App. Ct. 2017).

After tracing the history of the ADAAA, the court expressed its

view that “these broad changes in Federal law would be

considered material to the Supreme Judicial Court’s current

interpretation” of 151B and that the court could “look to the

ADAAA . . . for purposes of interpreting similar language in

c. 151B.” Id. But, because the case before it would be

affirmed “even under the law (State and Federal) as it existed

before the ADAAA,” the court chose not to “resolve the question

ourselves.” Id. At least one MCAD decision has since relied on

Massasoit to apply the ADAAA’s broader view of disability to

151B’s definition of handicap. Codinha v. Bear Hill Nursing

Ctr., Inc., No. 15-BEM-00248, 2017 WL 1397556, at *7 (MCAD Mar.

30, 2017); see also Garrison v. Lahey Clinic Med. Ctr., No. 07-

BEM-00796, 2017 WL 466109, at *6 (MCAD Jan. 6, 2017) (Decision

of the Full Commission) (discussing the ADAAA and noting the

MCAD has “historically adhered to” a “less restrictive and more

liberal construction of the term disability” when interpreting

151B). The Supreme Judicial Court has apparently not yet

explicitly ruled on this question.

2008 leg injury as her alleged disability and focuses solely on

her osteoarthritis condition. For the sake of completeness, I

will address both conditions.

a. January 2008 Leg Injury

Assuming, without deciding, that Ms. Mekonnen has satisfied

the first two parts of the test, I find she has failed to show

that her January 2008 leg injury itself substantially limited

her ability to stand or work. Ms. Mekonnen stated at her

deposition that she returned to work two weeks after the

accident and continued working full time. She sought medical

attention for her injury twice in the immediate aftermath of her

accident. Both times, she was advised not to work for a few

days, but was given no other restrictions. The medical record

from her January 22, 2008 visit explains that her contusion and

sprain should heal in a few weeks and that she should treat her

pain with ice and ibuprofen. It made no mention of the need for

any long-term adjustments to her work schedule or working

conditions.

According to her affidavit, Ms. Mekonnen views the January

2008 leg injury not as a disability from which she continues to

suffer but as a byproduct of her osteoarthritis. She stated

that “the fallen object on my knee was not the case [sic] of my

permanent disability resulting from a bone disease aka medically

known as ‘osteoarthritis’” and that “the injury was permanent

from the bone disease and not because of a wooden door that was

fallen on my leg while working for OTG.” (emphasis in original).

The January 2008 leg injury did not, in and of itself,

substantially limit her ability to stand or work. The medical

records suggest the injury was, at most, a relatively minor and

temporary condition from which Ms. Mekonnen would recover in a

few weeks. Indeed, this characterization of the injury is, in

part, confirmed by her return to full-time work two weeks later.

Even under a liberal definition, her January 2008 injury would

not qualify as a disability or handicap under either the ADAAA

or state law because there is no evidence that the injury

substantially limited her ability to stand or work for any

period of time longer than a couple weeks. Murray, 2013 WL

5202693, at *5-6.

Indeed, Ms. Mekonnen herself no longer claims the injury

alone limited her ability to stand or work. Rather, according

to her affidavit, the injury aggravated her preexisting leg

problem, which in turn prevented her from standing after she

returned to work. Her disability or handicap can be understood

only as the broader condition of a leg problem due to

osteoarthritis, exacerbated by but largely independent of the

January 2008 accident.

b. Osteoarthritis

Ms. Mekonnen’s leg problem due to osteoarthritis may

qualify as a disability or handicap under the ADA and 151B. Ms.

Mekonnen stated in her affidavit that she suffered from

osteoarthritis and that her condition made it difficult for her

to stand, especially after the January 2008 accident. Although

I have struck the submission, I note an Ethiopian medical

certificate referenced by Ms. Mekonnen declared that, as of

2007, she was suffering from osteoarthritis of the right knee

joint. Her osteoarthritis constitutes a physical impairment,

Cf. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 172, 176 (1st Cir.

2003) (employee’s “low back strain and strain of the knees with

possible early osteoarthritis” constituted physical impairment),

and the ADA now provides that both standing and working qualify

as major life activities. 42 U.S.C. § 12102(2)(A).

But, Ms. Mekonnen has failed to present sufficient evidence

to show that her leg problem substantially limited her ability

to work. The undisputed evidence shows she was working a full

schedule prior to her injury, she was back at work on her usual

schedule two weeks after the January 2008 accident, and worked

full-time until she was terminated more than a year later. The

doctor’s notes she received after her accident advised her to

remain out of work for only a few days. Her leg problem, of

whatever etiology, either as it existed before January 2008 or

as it was after the accident, does not appear to have

substantially limited her ability to work.

Even if I were to consider the Ethiopian medical

certificate, which declared Ms. Mekonnen “unfit for any work” as

of 2007, it would not provide sufficient evidence for Ms.

Mekonnen to survive summary judgment on this theory, especially

because the record is clear that Ms. Mekonnen was able to, and

did in fact, work after receiving this diagnosis. See Williams

v. Kennedy, 38 F. Supp. 3d 186, 194 (D. Mass. 2014) (“Although

the ADAAA counsels a court to broaden its view of what

constitutes a disability, no authority suggests that the ADAAA

was intended to supplant the requirements of FED. R. CIV. P.

56.”); see also Weaving v. City of Hillsboro, 763 F.3d 1106,

1112 (9th Cir. 2014) (finding that, under ADAAA standard, “[t]he

record does not contain substantial evidence showing that

[plaintiff] was limited in his ability to work compared to ‘most

people in the general population’” (quoting 29 C.F.R.

§ 1630.2(j)(1)(ii))).

The evidence of substantial limitations on her ability to

stand is also thin. In her affidavit, Ms. Mekonnen stated that

she “was unable to stand for extended hours and [was] compelled

to sit when the job was slow and no customer was not [sic]

around.” Such a declaration certainly would not have been

sufficient to show a disability under the narrower, pre-ADAAA

standard for disability or handicap that Massachusetts still

appears to employ. See Ramos-Echevarria, 659 F.3d at 188-90.

That declaration is also likely insufficient under the more

permissive ADAAA standard. Williams, 38 F. Supp. 3d at 194-95.

However, because Ms. Mekonnen’s condition “does not clearly fall

outside the range of disability under the ADAAA” and because

“‘the threshold issue of whether an impairment ‘substantially

limits’ a major life activity should not demand extensive

analysis,’” Murray, 2013 WL 5202693, at *8 (quoting C.F.R.

§ 1630.2(j)(1)(iii)), I will not grant summary judgment on this

ground.

c. Regarded As

Finally, Ms. Mekonnen has, at times, appeared to allege

that OTG regarded her as being disabled and discriminated

against her based on this perception. Before the ADAAA, a

plaintiff bringing a “regarded as” disabled claim had to show

either “‘(1) a covered entity mistakenly believes that a person

has a physical impairment that substantially limits one or more

major life activities, or (2) a covered entity mistakenly

believes that an actual, nonlimiting impairment substantially

limits one or more major life activities.’” Ruiz-Rivera, 521

F.3d at 83 (quoting Sullivan v. Neiman Marcus Grp., Inc., 358

F.3d 110, 117 (1st Cir. 2004)). “After the enactment of the

ADAAA, however, a plaintiff bringing a ‘regarded as’ claim under

the ADA needs to plead and prove only that she was regarded as

having a physical or mental impairment.” Mercado v. Puerto

Rico, 814 F.3d 581, 588 (1st Cir. 2016).

Ms. Mekonnen cannot bring a failure to accommodate claim

under the theory that she was “regarded as disabled,” 42 U.S.C.

§ 12201(h) (referencing 42 U.S.C. § 12102(1)(C)), so I do not

examine her transfer request claims under a “regarded as”

disabled theory. Beyond a section heading referring to

“[p]laintiff’s perceived disability and/or impairment,” Ms.

Mekonnen does not discuss her “regarded as” claim in her

opposition to summary judgment. For the sake of completeness,

however, I will consider Ms. Mekonnen’s termination claim under

a regarded as disabled theory as well.

* * *

OTG does not dispute that Ms. Mekonnen was able to perform

the essential functions of her job with or without a reasonable

accommodation. I will proceed to evaluate the remaining issues

pertaining to her reasonable accommodation and disparate

treatment claims separately.

4. Reasonable Accommodation

Ms. Ms. Mekonnen has failed to establish that transferring

her to a utility position would be a reasonable accommodation.

It is well-settled that “a plaintiff must show, even at the

summary-judgment stage, that the requested accommodation is

facially reasonable.” Echevarria v. AstraZeneca Pharm. LP, 856

F.3d 119, 128 (1st Cir. 2017). To meet this burden, “a

plaintiff needs to show not only that the proposed accommodation

would enable her to perform the essential functions of her job,

but also that, at least on the face of things, it is feasible

for the employer under the circumstances.” Reed v. LePage

Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001).

Ms. Mekonnen does not demonstrate how a transfer to a

utility position would have been an accommodation for her

particular disability or handicap. The contrary appears to be

the case. Employees in utility positions have to carry products

from the storage room to the storefront, stock shelves, and

clean the store. According to Mr. Khayat, utility positions

“are significantly more physically[ ] demanding than the Cashier

positions at OTG.” Employees in utility positions “spend a

majority of their shifts on their feet walking, carrying and/or

delivering products to various OTG locations throughout the

airport.” Ms. Mekonnen does not dispute this description of a

utility worker’s duties. Indeed, she submitted affidavits from

two former utility workers, who both characterize their duties

in a similar manner.

There is, in short, no evidence demonstrating that a

transfer to this position would have relieved Ms. Mekonnen from

standing. In order to perform the essential functions of a

utility worker, she would have had to be on her feet carrying

products out to the storefront and inspecting products

throughout the store. In her own affidavit, Ms. Mekonnen

described how she was asked once to climb a stool to inspect the

expiration dates in the dairy fridge, but she “was unable to do

so” because she “can not stand on floor for extended time let

alone on stool that require balancing oneself and keep from

falling.” (emphasis in original). Even if she were relieved

from having to inspect higher shelves, Ms. Mekonnen would still

have to stand on the floor for extended periods of time to

perform the tasks of a utility worker.

Because a transfer to a utility position would not enable

her to perform the essential functions of her job, I find that

it would not have been a reasonable accommodation. Reed, 244

F.3d at 259; see also Bryant v. Caritas Norwood Hosp., 345 F.

Supp. 2d 155, 170 (D. Mass. 2004) (employee’s proposed

accommodation of working in a position that included lifting and

moving patients as essential functions was not reasonable

because employee’s disability limited her ability to lift).

Having failed to identify a reasonable alternative

accommodation,10 Ms. Mekonnen’s accommodation claim fails.

10 I note, without deciding, that Ms. Mekonnen’s request to sit

on an elevated chair may constitute a reasonable accommodation

in such circumstances. However, as noted above, any reasonable

accommodation claim based on this kind of request is time-

barred.

5. Disparate Treatment

Assuming for present purposes that Ms. Mekonnen can

establish the first two parts of her prima facie case of

disability discrimination as to her termination, I turn to the

final part: whether she has shown that OTG terminated her

“because of, in whole or in part,” her disability or handicap.

Tobin I, 433 F.3d at 104. Again, though inadequately supported,

at this stage, I will assume that Ms. Mekonnen has met that

burden. One of the written warnings Ms. Mekonnen received, and

the only warning that bears Ms. Mekonnen’s signature, was for

sitting while working. If she had to sit because of her

disability, Ms. Mekonnen would, in effect, have been disciplined

for seeking out her own accommodation for her disability after

her earlier requests had been denied. If she was terminated in

part because of the warning, then arguably she would have been

terminated in part because she was disabled.

My inquiry does not end there. Instead, the burden shifts

to OTG, which has articulated a legitimate, nondiscriminatory

reason for terminating Ms. Mekonnen: Ms. Mekonnen was terminated

because of her consistently poor job performance. Ms. Mekonnen

received three failing secret shopper reports, which included

allegations of poor customer service. OTG warned Ms. Mekonnen

that if her performance did not improve, she would be

terminated. Poor work performance, of course, qualifies as a

legitimate, nondiscriminatory reason for termination. See Izzo

v. Genesco, Inc., 171 F. Supp. 3d 1, 8 (D. Mass. 2016).

At the final step of this inquiry, I conclude Ms. Mekonnen

has not met her burden to show that OTG’s reason is pretextual.

She attempts to show pretext by arguing she was, in fact,

performing her job well. She points to one early positive

secret shopper report and to the additional training she did

after work to improve her customer service skills. She also

attempts to introduce evidence, including the cell phone records

which I have already stricken, to dispute the accuracy of the

other secret shopper reports.

Ms. Mekonnen cannot meet her burden of showing pretext

“simply by questioning [OTG’s] articulated reason” or by

demonstrating that OTG was wrong to believe she was not

performing her job well. Gadson v. Concord Hosp., 966 F.2d 32,

35 (1st Cir. 1992); see also Lawton v. State Mut. Life Assurance

Co. of Am., 924 F. Supp. 331, 345 (D. Mass. 1996) (“Evidence of

mistaken good-faith belief . . . fails to suffice as evidence of

pretext.”); Sullivan v. Liberty Mut. Ins. Co., 825 N.E.2d 522,

541-42 (Mass. 2005) (“[O]ur task is not to evaluate the

soundness of [the employer’s] decision making, but to ensure it

does not mask discriminatory animus.”). As then-Judge Gorsuch

wrote for the Tenth Circuit:

That individuals and companies sometimes make employment

decisions that prove to be bad ones in hindsight usually

suggests no more than that—that they got it wrong. To

support an inference of pretext, to suggest that something

more nefarious might be at play, a plaintiff must produce

evidence that the employer did more than get it wrong. He

or she must come forward with evidence that the employer

didn’t really believe its proffered reasons for action and

thus may have been pursuing a hidden discriminatory agenda.

Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211 (10th Cir.

2010).

Even if OTG was mistaken in its evaluation of Ms.

Mekonnen’s work performance, and even if her belatedly proffered

cell phone records indicate that the secret shopper reports or

other customer complaints were inaccurate, she has submitted no

evidence to show that OTG believed they were inaccurate or that

OTG’s true motivation for terminating her was otherwise

discriminatory.

Nor does the warning she received for sitting while working

create a genuine issue of material fact regarding pretext. She

received the warning over a year before she was terminated and

was subject to negative reviews and discipline several times

between the warning and her termination, none of which related

to her sitting while working. The warning alone does not

“refute the clear evidence put forward” by OTG “showing that it

was poor [job performance], and not disability, that constituted

the real reason for [Ms. Mekonnen’s] termination.” Tobin I, 433

F.3d at 105. Because she has proffered no evidence that her leg

problem played a role in OTG’s decision to terminate her, Ms.

Mekonnen cannot successfully oppose summary judgment for OTG as

to her disability discrimination claim under either federal or

state law.

B. Religious Discrimination

Ms. Mekonnen claims OTG’s failure to accommodate her

request for Sunday mornings off constituted religious

discrimination in violation of Title VII of the Civil Rights Act

(“Title VII”), 42 U.S.C. § 2000e et seq., and 151B. The First

Circuit uses a two-part framework to evaluate religious

discrimination claims alleging a failure to accommodate under

both state and federal law. Cloutier v. Costo Wholesale Corp.,

390 F.3d 126, 133 (1st Cir. 2004). “First, the plaintiff must

make her prima facie case that a bona fide religious practice

conflicts with an employment requirement and was the reason for

the adverse employment action.” Id. If the plaintiff makes

this showing, “the burden then shifts to the employer to show

that it offered a reasonable accommodation or, if it did not

offer an accommodation, that doing so would have resulted in

undue hardship.” Id.

Chapter 151B uses a similar framework to evaluate failure

to accommodate claims. Under 151B, “[t]he employee bears the

initial burden of establishing a prima facie case that the

employer required the employee to violate a required religious

practice” and “‘that he or she gave the employer the required

notice of the religious obligations.’” Brown v. F.L. Roberts &

Co., Inc., 896 N.E.2d 1279, 1283 (Mass. 2008) (quoting N.Y. &

Mass. Motor Serv., Inc. v. Mass. Comm’n Against Discrimination,

517 N.E.2d 1270, 1276 (Mass. 1988)). “If the employee makes

this prima facie case, the burden then shifts to the employer

‘to prove that accommodation of the [employee’s] religious

obligations would impose . . . an undue hardship’ pursuant to

the statute.” Id. (modifications in original) (quoting N.Y. &

Mass. Motor Serv., Inc., 517 N.E.2d at 1276).

1. Timeliness

Ms. Mekonnen’s religious discrimination claims based on

accommodations she sought in 2007, 2008, or any other date

before July 14, 2009 are time-barred. As discussed above, the

denial of a request for accommodation “‘is a discrete

discriminatory act triggering the statutory limitations

period.’” Tobin II, 553 F.3d at 129 (quoting Ocean Spray

Cranberries, Inc., 808 N.E.2d at 268); see also Elmenayer v. ABF

Freight Sys., Inc., 318 F.3d 130, 134-35 (2d Cir. 2003) (“[A]n

employer’s rejection of an employee’s proposed accommodation for

religious practices does not give rise to a continuing violation

. . . [and] is the sort of ‘discrete act’ that must be subject

of a complaint to the EEOC within 300 days.”). Even if Ms.

Mekonnen did not receive a clear response from OTG regarding her

request, the fact that OTG allegedly continued to schedule her

on Sundays in 2007 and 2008 meant she “‘knew or reasonably

should have been aware that the employer was unlikely to afford

[her] a reasonable accommodation.’” Tobin II, 553 F.3d at 133

n. 10 (quoting Ocean Spray Cranberries, Inc., 808 N.E.2d at

268).

I find any religious discrimination claims based on denied

requests for Sundays off before July 14, 2009 to be time-barred.

I will, however, consider these earlier requests as background

evidence when evaluating her claims based on requests made on or

after July 14, 2009.

2. Prima Facie Case Under Title VII and 151B

Ms. Mekonnen cannot establish a prima facie case of

religious discrimination under either Title VII or 151B because

she has not shown she was, in fact, required to work Sunday

mornings after July 14, 2009. OTG has submitted Ms. Mekonnen’s

schedule from February 1, 2009 to November 20, 2009 as part of

the summary judgment record and it does not show her scheduled

for any Sunday shifts. With her opposition to summary judgment,

Ms. Mekonnen submitted a document in which she compares her

biweekly wage from February 2009 to November 2009 to the

schedule OTG submitted and concludes she worked more hours than

those listed on her schedule. According to Ms. Mekonnen, she

must have worked these extra hours on Saturdays and Sundays.11

For the purpose of evaluating the present motion, I will

accept Ms. Mekonnen’s assertion that, had she worked the number

of hours listed on her schedule, she would be entitled to a

biweekly wage of $675.00. Starting with the pay period that ran

from July 6, 2009 to July 19, 2009 until she was terminated in

November 2009, Ms. Mekonnen received eleven pay checks. Of the

eleven, nine were for more than $675.00; one, for the pay period

running from September 7, 2009 to September 20, 2009, was for

$309.06; and one was for $343.35, representing a one week pay

period.12

Of those nine pay checks for more than $675.00, seven are

for less than $693.00, meaning in those seven pay periods, Ms.

Mekonnen worked at most an extra two hours,13 while the check for

$343.35 for the one week pay period indicates she worked no more

than one extra hour. Taken together, then, these ten checks do

not support Ms. Mekonnen’s assertion that she was forced to take

11 OTG has moved to strike the second page of this document. The

second page is Ms. Mekonnen’s calculations of her hours worked

based on her earnings statements, while the other pages are

copies of her earning statements and two calendars for the years

2008 and 2009. As I indicated when discussing the motion to

strike, I will treat her calculations and conclusions as

argument and not as substantive evidence in its own right.

12 For all of these checks, I use the gross amount in order to

calculate the hours she worked.

13 At the time, Ms. Mekonnen was paid $9 per hour.

on multiple extra shifts. Rather, they show her occasionally

working a little beyond her regularly scheduled seven and a half

hour days, and add up to no more than two additional hours over

each two week period.

The two pay checks that show Ms. Mekonnen working more than

two extra hours still do not establish that Ms. Mekonnen worked

Sunday mornings after July 14, 2009. Ms. Mekonnen received a

check for $736.47 for the pay period ending on August 2, 2009,

which results in $61.47 above the expected amount, and a check

for $726.84 for the pay period ending on September 6, 2009,

which results in $51.84 above the expected amount. Neither

suggests that Ms. Mekonnen worked a complete extra shift.

Instead, Ms. Mekonnen worked approximately an extra seven hours

during the August 2, 2009 pay period and an extra six hours

during the September 6, 2009 pay period.

Moreover, even if Ms. Mekonnen could show she had worked a

full extra shift during these two pay periods, she cannot show

that the extra shift was on a Sunday morning. Ms. Mekonnen

herself concluded that these earning statements merely establish

that “plaintiff had worked extra hours other than the M-F,

5:00am-1:00pm work shift/schedule on Saturdays and Sundays.”

Working on Saturday would not have interfered with her church

services. In fact, based on Ms. Mekonnen’s affidavit, even

working the Sunday afternoon and evening shift would not have

interfered with her church services. She stated that she

requested in her employment application “to have time off on

Sundays, (not necessarily the ‘whole’ Sunday but for sufficient

time to worship in the morning and to work in the afternoon).”

Finding no demonstration in the evidence of record Ms.

Mekonnen was forced to work Sunday mornings after July 14, 2009,

I will grant summary judgment to OTG as to her religious

discrimination claims.

C. Sex Discrimination

Ms. Mekonnen contends she was denied a transfer to a

utility position and she was terminated because of her gender.

As with her claim for disability discrimination, I use the

McDonnell-Douglas framework to evaluate her gender

discrimination claims under Title VII and 151B. Douglas v. J.C.

Penney Co., Inc., 474 F.3d 10, 13-14 (1st Cir. 2007) (citing,

inter alia, McDonnell Douglas Corp, 411 U.S. at 802).14

1. Denial of Transfer

To the extent Ms. Mekonnen bases her gender discrimination

claims on requests for transfer to a utility position made

before July 14, 2009, those claims are time-barred. As

14 Again, the final stage of the McDonnell-Douglas framework

“appears to be slightly less stringent” under 151B than under

federal law, for a plaintiff can “overcome a motion for summary

judgment if the plaintiff shows that just one of the proffered

reasons was pretextual.” Douglas v. J.C. Penney Co., Inc., 474

F.3d 10, 14 n. 2 (1st Cir. 2007).

discussed previously, a denial of transfer request is a discrete

act to which the continuing violations doctrine does not apply.

Morgan, 536 U.S. at 114.

Ms. Mekonnen presents no admissible evidence that she

requested a transfer to a utility position and was denied such a

transfer, whether because of her gender or for any other reason,

after July 14, 2009. In her opposition to summary judgment, she

claims for the first time that she requested a transfer two or

three months before she was fired and that her request was

denied because her supervisor told her the job was for men only.

She cites no record evidence to support this assertion. Her

complaint in this court refers only to a request for transfer

made “soon after” Ms. Mekonnen received the June 10, 2008

written warning for sitting on a plastic box while working.

Because Ms. Mekonnen fails to support her gender

discrimination claim with admissible evidence that she was

denied a transfer after July 14, 2009, see Nieves, 7 F.3d at 276

n. 9, I will grant summary judgment on the grounds that all of

her request for transfer claims are time-barred.

Considering Ms. Mekonnen’s request for transfer claims on

the merits, I am separately obligated to grant summary judgment

for OTG. In order to establish a prima facie case of gender

discrimination, Ms. Mekonnen must show that OTG took an adverse

employment action against her. To be sure, the denial of a

request for transfer can constitute an adverse employment action

under some circumstances. Gorski v. N.H. Dep’t of Corrections,

290 F.3d 466, 475 (1st Cir. 2002) (“[I]n an appropriate case the

denial of a request for a transfer may be sufficiently harmful

to amount to an adverse employment action.”(citing Randlett v.

Shalala, 118 F.3d 857, 862 (1st Cir. 1997))). Even so, a

plaintiff must present some evidence explaining how she was

harmed by the denial of a transfer. Gorski, 290 F.3d at 475;

see also Marrero v. Goya of P.R., Inc., 304 F.3d 7, 24 (1st Cir.

2002) (“[A] minor increase in work responsibilities is not

enough to render a lateral transfer materially adverse.”).

Here, Ms. Mekonnnen provides no evidence explaining how the

denial of her request for a transfer to a utility position was

an adverse employment action. She does not, for example,

demonstrate there was a difference in compensation, hours, or

benefits between the two positions. Although she contends she

wanted the transfer as an accommodation for her leg injury, as I

have discussed previously, she does not explain how a utility

position would have improved her working conditions. If

anything, it appears from the record that Ms. Mekonnen would

have been unable, as a result of her injury, to perform the

basic responsibilities of that position. Ms. Mekonnen’s

transfer request claim thus cannot proceed on this record.

2. Termination

Even assuming that Ms. Mekonnen has made a prima facie case

of gender discrimination for her termination claims. Moving to

the second step, OTG has provided a legitimate,

nondiscriminatory reason for terminating her. As discussed

above in conjunction with her disability discrimination claims,

OTG has submitted sufficient evidence to show it believed Ms.

Mekonnen was not performing her job well and was not following

OTG policies regarding cell phone use during work.

Ms. Mekonnen fails to show OTG’s reason for terminating her

was pretextual. Again, Ms. Mekonnen’s attempts to undermine the

veracity of the secret shopper reports or reports of her cell

phone use are insufficient under these circumstances to prove

OTG acted with discriminatory animus. See Gadson, 966 F.2d at

35; Sullivan, 825 N.E.2d at 541-42.

Ms. Mekonnen also attempts to show pretext by pointing to

similarly-situated male employees, who she contends were treated

differently. In order to make a meaningful comparison, Ms.

Mekonnen must identify male employees who “closely resemble” her

“in respect to relevant facts and circumstances.” Conward v.

Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999). She has

failed to do so.

Ms. Mekonnen suggests two comparators: Mulugeta Gifaw and

Joseph Temesgen. Mr. Gifaw was a cashier who worked for OTG in

Logan Airport from November 2006 to March 2008. He received

several warnings for violating company policies, including a

reprimand for sitting while working, and was suspended by OTG.

After receiving a final warning, Mr. Gifaw threw his employee

badge at Mr. Khayat and told him he quit. Mr. Khayat accepted

Mr. Gifaw’s resignation but noted on his separation notice that

Mr. Gifaw was also terminated.

It is unclear how Ms. Mekonnen was treated differently than

Mr. Gifaw. Both were subject to multiple warnings because their

work was below OTG’s standards, both were subject to escalating

measures of discipline, and both were eventually terminated.

The mere fact that Mr. Gifaw asserted greater agency over the

timing and manner of his termination is not sufficient to raise

the inference that Ms. Mekonnen was treated worse than he.

Even if Ms. Mekonnen could show that Mr. Gifaw was given a

longer leash before being terminated, there is a key difference

between Mr. Gifaw’s and Ms. Mekonnen’s circumstances: only Ms.

Mekonnen received three secret shopper reports with scores below

70%. OTG contends that its regular practice was to terminate

employees who received three secret shopper reports with scores

below 70% and Ms. Mekonnen has submitted no evidence to dispute

this. I find the three failing secret shopper report scores

justifies any purported difference in treatment between Ms.

Mekonnen and Mr. Gifaw. Perkins v. Brigham & Women’s Hosp., 78

F.3d 747, 751 (1st Cir. 1996) (finding comparator not

sufficiently similar because plaintiff had a “history of

repeated disciplinary actions” while comparator did not).

Mr. Temesgen is no more helpful to Ms. Mekonnen’s case.

Mr. Temesgen was also a cashier who worked with Ms. Mekonnen at

OTG. Mr. Temesgen did not receive three secret shopper reports

with scores below 70%. In fact, of the six secret shopper

reports for Mr. Temesgen that Ms. Mekonnen submitted, all but

one were above 70%. Moreover, Mr. Temesgen was never subject to

any warnings or other disciplinary actions while working at OTG.

Assuming Ms. Mekonnen could show she was disciplined

differently than Mr. Temesgen for using a cell phone at work,

their employment histories, and not their genders, adequately

explains the difference in treatment.15 After she received a

written warning in May 2009 for failing to check an expiration

date on a product, Ms. Mekonnen was told that further

infractions would result in her termination. In contrast, Mr.

Temesgen had never received a written warning. If he were found

to be on his cell phone during work, he would presumably have

15 In her opposition to summary judgment, Ms. Mekonnen contends

she was treated differently than Mr. Temesgen because both of

them spoke on their cell phones during work, but only she was

terminated. She again does not support this assertion with

admissible evidence. In response, OTG submitted an affidavit

from Mr. Khayat, in which he claims he never knew that Mr.

Temesgen spoke on his cell phone during his work shift.

been subject to the same escalating series of warnings Ms.

Mekonnen had already received by the time she was terminated in

November 2009. Under these circumstances, I cannot find Mr.

Temesgen to be a similarly situated employee.

Ms. Mekonnen can point to no evidence to suggest that OTG’s

proffered reason for her termination – that she performed poorly

at her job – was pretextual. Even if OTG did not permit her to

take timely breaks and did not give her the proper money to make

change during her shift — all facts that OTG disputes — Ms.

Mekonnen points to no evidence showing that OTG took any these

actions because of her gender. These allegations are

insufficient to undercut OTG’s legitimate, nondiscriminatory

reason for terminating Ms. Mekonnen.

D. Retaliation

Without citing a particular statute, Ms. Mekonnen claims

OTG retaliated against her for filing an internal written

complaint in 2007 and for making subsequent oral complaints to

OTG’s management. I will assume Ms. Mekonnen seeks to recover

under the anti-retaliation provisions of the ADA, Title VII, and

151B.

As with her other claims, to the extent Ms. Mekonnen claims

OTG retaliated against her before July 14, 2009, her claims are

time-barred. Velazquez-Perez v. Developers Diversified Realty

Corp., 753 F.3d 265, 276 (1st Cir. 2014) (referencing the

timeliness requirements for retaliation claims under Title VII);

Crevier v. Town of Spencer, 600 F. Supp. 2d 242, 258 (D. Mass.

2008) (“[T]he plaintiff’s action alleging unlawful retaliation

in violation of the ADA or chapter 151B must be brought within

three years of the alleged retaliatory event.”). I will

consider retaliatory acts alleged to have occurred after July

14, 2009, namely her termination, the withholding of her

vacation pay, and the other assorted conduct mentioned by Ms.

Mekonnen in her opposition to summary judgment.

To establish a prima facie case of retaliation under the

ADA, Title VII, and 151B, Ms. Mekonnen must show “(1) that she

engaged in protected activity, (2) that she suffered an adverse

employment action, and (3) that there was a causal connection

between the protected activity and the adverse employment

action.” Crevier, 600 F. Supp. 2d at 259-60. If Ms. Mekonnen

were to make this showing, the burden shifts to OTG “to

articulate a legitimate, nonretaliatory reason for its

employment decision.” Wright v. CompUSA, Inc., 352 F.3d 472,

478 (1st Cir. 2003) (internal quotations and citations omitted).

Once OTG articulates a reason, Ms. Mekonnen must show the

proffered reason is mere pretext. Id.

Assuming Ms. Mekonnen could make a prima facie showing of

retaliation, she again fails to show that OTG’s proffered reason

for terminating her was mere pretext, for the same reasons I

have discussed previously. Based on the secret shopper reports,

as well as OTG’s own observations of her performance, OTG

determined that Ms. Mekonnen did not meet its standards for

customer service. In response, Ms. Mekonnen mostly rehashes the

mistreatment she claims she experienced while working at OTG,

without pointing to evidence that would show OTG’s true reason

for termination was retaliation. Sekamate v. Newton Wellesley

Hosp., 2002 WL 31194873, at *12 (D. Mass. Sept. 3, 2002)

(granting summary judgment for employer on retaliation claim

under ADA, Title VII, and 151B because “[p]laintiff relies

purely on speculation to connect his complaints about

discrimination to the disciplinary action and his ultimate

termination”).

I also find Ms. Mekonnen has failed to show OTG’s proffered

reason for withholding her vacation pay was pretextual. It was

OTG’s written policy not to pay terminated workers their accrued

vacation benefits. OTG’s employee manual states that

“[t]erminated employees forfeit their accrued vacation days.”

As I will discuss in the following section, this policy may run

afoul of the Massachusetts Wage Act, see generally, Elec. Data.

Sys. Corp. v. Attorney Gen., 907 N.E.2d 635 (Mass. 2009), but

otherwise appears facially neutral. Moreover, Ms. Mekonnen has

failed to show that OTG applied the policy in a selective and

retaliatory manner. Without evidence indicating that OTG acted

with retaliatory intent, OTG’s policy — while undoubtedly

problematic under state law — provides a nonretaliatory reason

for withholding Ms. Mekonnen’s vacation pay. See, e.g., Gembus

v. MetroHealth Sys., 2007 WL 642075, at *7 (N.D. Ohio Feb. 27,

2007), aff'd, 290 F. App'x 842 (6th Cir. 2008) (“[I]t is not

enough for Gembus to opine that MetroHealth’s policy was illegal

under the FLSA, as she must present evidence that she was

terminated for discriminatory or retaliatory reasons and not

because she violated another policy that allegedly offends a

wholly different statute.”); see also Hazen Paper Co. v.

Biggins, 507 U.S. 604, 612 (1993) (“[I]t cannot be true that an

employer who fires an older black worker because the worker is

black thereby violates the ADEA. The employee’s race is an

improper reason, but it is improper under Title VII, not the

ADEA.”).

Finally, the assorted acts mentioned by Ms. Mekonnen in her

opposition are not acts of retaliation, but are plainly the

“petty slights or minor annoyances that often take place at work

and that all employees experience.” Burlington Northern & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Her issues with

her lunch break and coverage at the cash register, as well the

other “reprehensible instances” she references are typical

workplace complaints that Ms. Mekonnen has failed to link to

retaliatory animus on the part of OTG.

E. Violation of Massachusetts Wage Act

Finally, though her discrimination claims fail, Ms.

Mekonnen is entitled to at least some recovery for her state

wage law claim. Under the Massachusetts Wage Act (“Wage Act”),

MASS. GEN. LAWS ch. 149 § 148 et seq., MASS. GEN. LAWS ch. 151 § 1 et

seq., “an employee whose employment is terminated involuntarily

must be paid in full on the day of discharge.” Prozinksi v.

Northeast Real Estate Servs., LLC, 797 N.E.2d 415, 419 (Mass.

App. Ct. 2003). The Wage Act defines wages to include “any

holiday or vacation payments due an employee under an oral or

written agreement.” MASS. GEN. LAWS ch. 149 § 148. An employee

may bring a civil action to enforce § 148, “provided the

employee first files a complaint with the attorney general and

either 90 days elapses or the attorney general assents to the

earlier filing of a private action by the employee.” Clermont

v. Monster Worldwide, Inc., 102 F. Supp. 3d 353, 357-58 (D.

Mass. 2015) (citing MASS. GEN. LAWS ch. 149 § 150). It is

undisputed that OTG, following its policy on vacation pay for

terminated workers, did not pay Ms. Mekonnen for her vacation

time on the day she was discharged and did not pay her the

$335.70 she was owed until February 12, 2010.

The question remaining concerns the damages to which Ms.

Mekonnen is entitled. The Wage Act provides that a prevailing

employee “shall be awarded treble damages, as liquidated

damages, for any lost wages and other benefits and shall also be

awarded the costs of the litigation and reasonable attorneys’

fees.” MASS. GEN. LAWS ch. 149 § 150. However, if an employer

pays the employee after the day of discharge but before the

employee files a complaint, the employer “‘is not required to

pay treble the lost wages and benefits’” and must pay only “‘the

interest foregone from the delay in payment, which would be

trebled under the Act.’” Clermont, 102 F. Supp. 3d at 358

(quoting Dobin v. CIOview Corp., 2003 WL 22454602, at *7 (Mass.

Super. Oct. 29, 2003)); Guevara-Saldago v. Hayes-Meninno, LLC,

125 F. Supp. 3d 379, 388 (D. Mass. 2015).

Ms. Mekonnen did not file her complaint with the Attorney

General until May 10, 2010, approximately three months after OTG

paid her the full amount she was owed.16 Thus, I conclude she is

entitled as damages to only the foregone interest at the trebled

rate caused by the delay in payment, and not to treble her

underlying lost wages and benefits. Dobin, 2003 WL 22454602, at

*8. I also conclude she is entitled to her reasonable costs in

this litigation.

Because Ms. Mekonnen is a non-attorney pro se litigant, she

16 Although Ms. Mekonnen appears to dispute in her opposition to

summary judgment precisely when she received payment from OTG

for her vacation benefits, in her complaint to the Attorney

General, she herself stated that “I received my vacation pay

check on February 12, 2010.”

cannot recover attorney’s fees. O’Leary v. Nepomuceno, 693

N.E.2d 701, 703 (Mass. App. Ct. 1998); see also Kay v. Ehrler,

499 U.S. 432, 434 (1991) (“[A] pro se litigant who is not a

lawyer is not entitled to attorney’s fees.” (emphasis in

original)); Sykes v. Dish Network, 2005 Mass. App. Div. 58, 60

n. 5 (“Generally, a party proceeding without legal counsel is

not entitled to recover legal fees.”).

Ms. Mekonnen has not herself moved for summary judgment.

However, because a careful review of the record establishes

there is no genuine dispute of material facts on the issue of

Wage Act liability and limited damages, I will nevertheless

grant summary judgment for Ms. Mekonnen on her Wage Act claim —

since OTG has had adequate opportunity to address the relevant

considerations — see FED. R. CIV. P. 56(f); see also National

Expositions, Inc. v. Crowley Maritime Corp., 824 F.2d 131,

133-34 (1st Cir. 1987) (noting that the district court has the

power to grant summary judgment, even in the absence of a

motion, so long as the party adversely affected has had an

adequate opportunity to show that its “opponent is not entitled

to judgment as a matter of law.” (internal quotations and

citations omitted) (emphasis in original)).

Ms. Mekonnen shall have judgment of $56.54, as interest

trebled, together with prejudgment interest thereon on the

delayed vacation pay.17 She also shall have only the costs she

actually expended in this litigation.18

IV. CONCLUSION

For the reasons discussed above:

I GRANT in part OTG’s motion [Dkt. No. 183] to strike as

specified in Section II of this Memorandum and Order;

I GRANT OTG’s motion [Dkt. No. 164] for summary judgment as

to all of Ms. Mekonnen’s discrimination claims, but DENY the

motion as to Ms. Mekonnen’s Massachusetts Wage Act claim; and,

I GRANT summary judgment for Ms. Mekonnen as to so much of

her Wage Act claim regarding vacation pay as constitutes

prejudgment interest on delayed payment in the amount of $56.54

together with her only compensable litigation expenses, the

17 Ms. Mekonnen was terminated on November 19, 2009 and was paid

$335.70 for her lost vacation benefits on February 12, 2010, a

delay of 79 days. Consequently, at the state interest rate of

12%, interest on the $335.70 is $8.72 ($335.70 times .12 (the

state interest rate) times .22 (79/365)). Because Ms. Mekonnen

is entitled to treble damages, this generates a base liquidated

damages figure of $26.16.

Ms. Mekonnen is also entitled to pre-judgment interest on the

$26.16 in damages from November 19, 2009 to July 25, 2019 at the

12% state interest rate. She is therefore entitled to $30.38

(26.16 times .12 (the state interest rate) times 9.68

(representing 9 years and 250 days)) in pre-judgment interest.

18 Ms. Mekonnen’s court costs total $280.00, representing the

$240 filing fee, $20 security fee, and $15 surcharge she paid

when initiating this matter in Suffolk County Superior Court,

and the $5 fee for issuing summons. Because the case was

removed to federal court by OTG, OTG bore the separate cost of

filing in this court.

costs of $280.00 incurred in filing this action initially in the

state court.

/s/ Douglas P. Woodlock_________

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

APPENDIX

Two years after this litigation began, Ms. Mekonnen,

proceeding pro se, filed a similar suit against another

employer, Ampco System Parking Co., alleging discrimination on

the basis of religion, national origin, and sex, and retaliatory

termination. See generally, Mekonnen v. ABM Parking Services,

Inc., Case No. 1:14-cv-12389-IT, 2014 WL 5112110 (D. Mass. Oct.

10, 2014). Judge Talwani dismissed the case for failure to

state a claim under FED. R. CIV. P. 12(b)(6) without prejudice and

allowed Ms. Mekonnen to file amended pleadings. Id. Judge

Talwani subsequently dismissed the amended complaint, finding

that Ms. Mekonnen had not alleged sufficient facts to survive a

motion to dismiss. Mekonnen v. ABM Parking Services, Inc., Case

No. 1:14-cv-12389-IT at Dkt. No. 53 (D. Mass. July 16, 2015).

The First Circuit summarily affirmed this decision. Mekonnen v.

ABM Parking Services, Inc., Case No. 15-2054 (1st Cir. Jan. 3,

2018).

Over the past two decades, Ms. Mekonnen’s former husband,

Begashaw Ayele, who has plainly directed the tactics of the

instant litigation, see supra note 1, has pursued multiple

separate pieces of litigation on his own behalf that provide a

template for his former wife’s employment discrimination claims.

See generally, Ayele v. Standard Parking Co., et. al., Case No.

1:96-cv-10267-NG (D. Mass. Oct. 2, 1996), denying interlocutory

appeal, Case No. 96-2230 (1st Cir. Jan 21, 1997) (dismissing

three of the four counts of employment discrimination brought by

Mr. Ayele. The parties eventually settled the remaining count

and stipulated to the dismissal of the case on June 25, 1998);

Ayele v. Allright Boston Parking, Inc., Case No. 1:96-cv-12201-

REK (D. Mass. Dec. 4, 1998), aff’d, 201 F.3d 426 (1st Cir. 1999)

(per curiam), cert. denied 529 U.S. 1026 (2000) (Mr. Ayele

brought suit alleging employment discrimination and Judge Keeton

granted summary judgment in favor of the employer); Ayele v.

Barton Protective Services, Inc., Case No. 1:03-cv-11249-NG (D.

Mass. March 3, 2004) (Mr. Ayele asserted claims of employment

discrimination on the basis of, among other things, race. The

parties ultimately settled); Ayele v. Allied Security Co., Case

No. 1:04-cv-12216 (D. Mass. July 26, 2005) (Mr. Ayele filed suit

for employment discrimination and wrongful termination. The

parties ultimately settled); Ayele v. U.S. Security Associates,

Inc., Case No. 1:05-cv-11273-WGY (D. Mass. Oct. 5, 2005),

summarily aff’d, Case No. 05-2698 (1st Cir. April 5, 2006) (Mr.

Ayele alleged that his employer discriminated against him on the

basis of, among other things, race. Judge Young granted summary

judgment for the employer); Ayele v. Cognisa Sec. Co., Inc.,

Case No. 1:04-cv-12217, 2005 WL 6431857 (D. Mass. Nov. 18,

2005), summarily aff’d, Case No. 01-2874 (1st Cir. May 8, 2006)

(Judge Saris, adopting report and recommendations of Magistrate

Judge Bowler granted summary judgment for the employer with

respect to Mr. Ayele’s claims for discrimination on the basis of

race, disability, and national origin); Ayele v. Boston

University, et. al., Case No. 1:01-cv-12175-MLW (D. Mass. Dec.

1, 2006), summarily aff’d, Case No. 07-1358 (1st Cir. Nov. 28,

2007) (dismissing after a bench trial Mr. Ayele’s claims for

race discrimination and under ERISA); Ayele v. Delta Airlines,

Inc., 2018 WL 6001021 (D. Mass. Nov. 15, 2018) (dismissing Mr.

Ayele’s claims under MASS. GEN. LAWS ch. 151B and Title II of the

Civil Rights Act for failing to state a claim).

Nor is Mr. Ayele’s extensive litigation experience limited

to this court. See, e.g., Ayele v. Simkins Industries, Inc.,

166 F.3d 1199 (2d Cir. Dec. 8, 1998) (per curiam), cert. denied,

528 U.S. 904 (1999), petition for rehearing denied, 528 U.S.

1107 (2000) (affirming the judgment of the District of

Connecticut in favor of the employer following a bench trial on

Plaintiff’s claims of employment discrimination).

Moreover, Mr. Ayele’s experience in this court is not

limited to employment discrimination suits; he has also pursued

other related categories of claim. See generally, Ayele v. G2

Secure Staff, LLC, Case No. 1:17-cv-10417-RGS (D. Mass. May 5,

2017) (Mr. Ayele sought to vacate or modify an arbitration award

entered in favor of his former employer pursuant to the

employment agreement and the National Labor Relations Act

(“NLRA”). Judge Stearns dismissed the suit, holding that there

was no basis for a federal court to disturb the arbitration

agreement); Ayele v. Educational Credit Management Corp., Inc.,

Case No. 1:12-cv-11005-NMG, 490 B.R. 460 (D. Mass. March 8,

2013), summarily aff’d, Case No. 13-1350 (1st Cir. Oct. 22,

2013), cert. denied, 573 U.S. 910 (2014), petition for rehearing

denied, 135 S. Ct. 343 (2014) (Mr. Ayele unsuccessfully appealed

the decision of the Bankruptcy court declining to discharge his

student debt as part of his Chapter 7 Bankruptcy petition, see

in re Ayele, 468 B.R. 24 (D. Mass. Bkr. 2012)).