The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
KIMBERLY COLE, )
Plaintiff, )
) Civil Action No.
v. ) 21-11595-NMG
)
MASSACHUSETTS COMMISSION AGAINST )
DISCRIMINATION, )
Defendant. )
)
MEMORANDUM & ORDER
GORTON, J.
Now before the Court is the amended complaint of pro se
litigant Kimberly Cole, in which she claims the Massachusetts
Commission Against Discrimination (“MCAD”) discriminated against
her on the basis of disability vis-à-vis its handling of a claim
Cole had filed with the agency. For the reasons set forth
below, the Court will order that this action be dismissed for
failure to state a claim upon which relief can be granted.
I. Procedural Background
In its previous orders, the Court found that Cole had
failed to state a claim upon which relief can be granted because
the MCAD’s Eleventh Amendment immunity precluded Cole’s claims
and because her pleading did not contain a “short and plain
statement of [her] claim.” Fed. R. Civ. P. 8(a)(2). The Court
left open the possibility of a claim under Title II of the
Americans with Disabilities Act and gave Cole the opportunity to
file an amended complaint to assert such a claim. Cole timely
filed her amended complaint (Dkt. #8).
II. The Amended Complaint
Cole sets forth her claims in four bulleted paragraphs. In
the first paragraph, Cole states that her claims arise from the
MCAD’s handling of an administrative complaint that Cole filed
with the MCAD in October 2018. Cole represents that the
complaint concerned three separate matters: (1) a landlord who
unlawfully charged Cole fees to have a cat; (2) sexual
harassment of Cole by the Marshfield Police and Fire
departments; and (3) the assault and battery of Cole by the
Boston Police Department. Cole represents that the matter
concerning the cat fees was settled. Id. at 2.
In the second bulleted paragraph, Cole alleges that MCAD
“allowed for ongoing discrimination by not addressing” her
allegations that the Marshfield Police and Fire departments
sexually harassed her” and that the Boston Police Department had
used teargas on her. Id.
In the third bulleted paragraph, Cole alleges that the
MCAD’s failure to investigate crimes she reported to them was
“discriminatory and favors Perpetrator of said crimes.” Id.
These alleged crimes all concern events at the apartment complex
where Cole lived: an “erroneous and Retaliatory eviction,”
staff breaching Cole’s privacy, staff damaging her car, the
existence of a “nail sticking out of the door” (which injured
Cole), and the existence of “a lead paint coated playground.”
Id.
In the fourth bulleted paragraph, Cole alleges that she
“repeatedly requested to meet in person with the [MCAD]
investigators due to the voluminous paperwork and Plaintiff’s
worsening bilateral cataracts.” Id. at 3. She further
represents that she “was not allowed this accommodation which is
covered under ADA.” Id. Cole also claims she had previously
stated to the MCAD that “[i]n the absence of counsel and an
appropriate ADA accommodation a ruling against Plaintiff is of
itself a violation of ADA §36.102.” Id.1
III. Discussion
To state a claim upon which relief can be granted, a
complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). The plaintiff’s obligation to provide the grounds
of his claim “requires more than labels and conclusions.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The
1 To the extent “ADA §36.102” is a reference to 28 C.F.R.
§ 36.102, the cited regulation is not relevant to this
litigation. The regulation concerns Title III of the ADA, see
28 C.F.R. § 36.101(a), while Cole asserts claims under Title II
of the ADA.
complaint must “contain sufficient factual matter, accepted as
true” to state a plausible claim for relief. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
Title II of the ADA states in broad language that “no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. The statute guards not only against
intentional discrimination based on disability, but also against
exclusion of a qualified person with a disability from the
benefits of a public entity’s services because the public entity
failed to provide a reasonable modification for a disability.
Thus, “[a] plaintiff seeking relief under Title II ‘must
establish: (1) that [s]he is a qualified individual with a
disability; (2) that [s]he was excluded from participating in,
or denied the benefits of a public entity’s services, programs,
or activities or was otherwise discriminated against; and (3)
that such exclusion, denial of benefits, or discrimination was
by reason of [her] disability.’” Kiman v. N.H. Dep't of Corrs.,
451 F.3d 274, 283 (1st Cir.2006) (quoting Parker v. Universidad
de P.R., 225 F.3d 1, 5 (1st Cir.2000)).
The statute does “not require States to employ any and all
means” to make a public entity’s services accessible. Tennessee
v. Lane, 541 U.S. 509, 531 (2004). “It requires only
‘reasonable modifications’ that would not fundamentally alter
the nature of the service provided, and only when the individual
seeking modification is otherwise eligible for the service.”
Id. at 532.
Here, Cole has not alleged facts from which the Court may
reasonably infer that the MCAD violated her rights under Title
II of the ADA. Cole’s first three bulleted paragraphs contain
wholly conclusory allegations of discrimination, which the Court
cannot credit because there is no suggestion that any
discrimination, let alone discrimination based on an alleged
disability, occurred.
The fourth bulleted paragraph may be construed as alleging
that the MCAD discriminated against Cole by failing to
accommodate a disability. According to the amended complaint,
the accommodation for which Cole “repeatedly” asked was “to meet
in person with the [MCAD] investigators due to the voluminous
paperwork and Plaintiff’s worsening bilateral cataracts.”
Compl. at 3. However, Cole has not alleged how a meeting with
MCAD investigators would have accommodated her alleged
disability, or why such an accommodation would have been
reasonable. The Court does not assume that, as employees of the
MCAD, the investigators are permitted to assist pro se parties
with “voluminous paperwork.” In addition, Cole’s allegations do
not permit the Court to reasonably infer that the denial of
Cole’s request to meet with MCAD investigators excluded her from
participating in or denied her the benefits of the MCAD’s
services based on her assumed disability. That her litigation
in front of the MCAD did not end in her favor does not mean that
she was denied the participation in or benefits of the agency.
III. Conclusion
For the reasons stated above, the Court orders that this
action be DISMISSED for failure to state a claim upon which
relief can be granted.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: May 18, 2022