Mendes v. WinnCompanies LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

GENESA MENDES, )

)

Plaintiff, )

) Civil Action No.

v. ) 23-10417-FDS

)

WINNCOMPANIES LLC and )

JOHN KUPPENS, )

)

Defendants. )

_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANTS’

MOTION TO DISMISS

SAYLOR, C.J.

This is an action for workplace discrimination and retaliation. Plaintiff Genesa Mendes

has brought suit against her former employer, defendant WinnCompanies LLC, and her former

supervisor, John Kuppens. The complaint asserts claims for intentional infliction of emotional

distress, discrimination based on sex, discrimination based on race, failure to accommodate

disability, interference with rights under the Family and Medical Leave Act, violation of the

Equal Pay Act, violation of the Massachusetts Paid Family and Medical Leave Act, and

retaliation.

Defendants have moved to dismiss the complaint in part for failure to state a claim upon

which relief can be granted under Fed. R. Civ. P. 12(b)(6). For the following reasons, the motion

will be granted in part and denied in part.

I. Background

A. Factual Background

The facts are set forth as alleged in the complaint.

According to the complaint, Genesa Mendes is a “female, dark-skinned, Black woman”

and a “qualified handicapped person” who suffers from post traumatic stress disorder (PTSD),

depression and anxiety. (Compl. ¶ 7, 8). In 2008, she was hired by Maloney Property

Management, the predecessor of WinnCompanies. (Id. at ¶ 9). 1 Mendes worked at

WinnCompanies from 2008 to 2019 under the direct supervision of different executive vice

presidents. (Id. at ¶ 10). During that time period, according to the complaint, she “received

positive performance evaluations throughout, and consistently received bonuses for meeting her

yearly goals. (Id. at ¶ 11). She was also promoted at least twice from Senior Property Manager

to Executive Property Manager, and from Executive Property Manager to Regional Vice

President for the Northeast Region. (Id. at ¶ 9). In addition to her work as Regional Vice

President, Mendes served a member of the Diversity, Inclusion, and Equity Committee at the

company. (Id. at ¶ 42).2

In approximately April 2019, John Kuppens became Executive Vice President of the

Northeast Region for WinnCompanies. (Id. at ¶ 12). As a result, he also became Mendes’s

direct supervisor. (Id.). The complaint alleges that Kuppens had a “reputation for treating

people of color differently than white individuals, and for treating light-skinned people of color

preferentially to dark-skinned people of color.” (Id. at ¶ 13). As one example of that behavior, it

1 WinnCompanies LLC “took over property management for Maloney Property Management” in October

2008. (Compl. ¶ 9).

2 As a member of the Diversity, Inclusion, and Equity Committee, Mendes had access to the company’s

alleged “lopsided employment statistics” concerning the “hiring and retention of women and Blacks.” (Id. at ¶ 42).

Mendes alleges that “[i]n Vice President positions, women and Blacks made up less than 5% of the employees” at

WinnCompanies. (Id. at ¶ 43).

alleges an instance in 2019 when Kuppens “recruited a white senior property manager for a

special project.” (Id. at ¶ 14). When the white manager ultimately did not take the job, Mendes

recruited a Hispanic senior property manager. (Id. at ¶ 15). According to the complaint,

Kuppens “refused to pay [the Hispanic manager] the same amount as the white candidate.” (Id.).

As another example, it alleges that Kuppens held Mendes “disproportionately . . . responsible for

issues for which others not in her protected class would have been overlooked or downplayed.”

(Id. at ¶ 17). In particular, it alleges that her “small mistake[s]” were “blown up,” while

Kuppens was “not so critical of lighter-skinned workers.” (Id.).

The complaint further alleges that Mendes was promised in 2019 by Kuppens that “she

would be promoted to Divisional Vice President by January 2020, so long as her performance

was acceptable.” (Id. at ¶ 17). Nevertheless, he “did not promote her or even tell her why.” (Id.

at ¶ 18). In addition, although Mendes received a performance review in 2019 from Kuppens

“with a rating of ‘meets expectations’ . . . she received between 85% and 92% of her available

bonus compensation for achievement-to-goals performance for that year.” (Id.).

According to the complaint, on July 27, 2020, Mendes discussed a plan with Kuppens

concerning her relocation to North Carolina due to the COVID-19 pandemic and her need to care

for relatives who lived in the state. (Id. at ¶ 20-21). They agreed that she would work remotely

while returning to Massachusetts for at least one week per month. (Id. at ¶ 22-23). On August

20, 2020, Kuppens allegedly informed Mendes “that she would need to take a ‘cost of living’ pay

decrease as a result of her relocation to North Carolina.” (Id. at ¶ 24). Mendes objected to that

decrease, bringing a complaint to Human Resources on August 25, 2020. (Id. at ¶ 27). Her pay

was decreased, however, by $14,000 per year. (Id.). The complaint alleges that “no other white,

male Regional or Senior Vice President had to take a pay decrease for relocating,” including

Brian Leverone, a Divisional Vice President, who “was able to commute to his position in New

York from Boston without a pay cut.” (Id. at ¶ 28-29).

The complaint alleges that on May 10, 2021, Mendes made a “request[] to utilize the

Family and Medical Leave Act (‘FMLA’) in connection with her ongoing depression, anxiety,

and Post-Traumatic Stress Disorder.” (Id. at ¶ 30). It alleges that these conditions were being

“exacerbated” by her job and, more specifically, her treatment by Kuppens. (Id.). Although her

leave request was granted, Kuppens allegedly asked Mendes to “work for him on several

occasions while she was on leave.” (Id. at ¶ 31). He “required her to provide monthly statistical

reports on all of the properties and staff in her portfolio while she was on leave, starting in June

2021.” (Id. at ¶ 21). In addition, he allegedly “requested statistics on the number of employees

in her portfolio who had been diagnosed with COVID-19” and “would call her just before a

meeting began to ask her opinion about how to proceed.” (Id.). The complaint alleges that

Mendes felt “obligated” to work while she was on leave under the FMLA “[d]espite not wanting

to work” during that time. (Id. at ¶ 33).

Finally, according to the complaint, Mendes was informed during her leave on August

26, 2021, that “she would be losing one of her largest property management portfolios, Madison

Park Village, as a result of complaints or concerns that the property owners and mangers had

raised about her to WinnCompanies.” (Id. at ¶ 35). Until that time, Mendes had been the only

person at WinnCompanies to manage Madison Park. (Id. at ¶ 36). Because she had a “16-year

relationship” with the client, Mendes contacted the Madison Park CEO. (Id. at ¶ 38). According

to the complaint, she learned that Madison Park had never actually requested that

WinnCompanies remove her from the project. (Id.). In fact, Madison Park allegedly asked

Mendes to “remain on it.” (Id.). Nonetheless, according to the complaint, WinnCompanies

assigned a new portfolio manager to the project who was a younger “light-skinned Hispanic

woman” with “no real experience in large portfolio management.” (Id. at ¶ 40). Mendes was

allegedly promised that “she would receive a similar portfolio to replace the one that was taken

from her,” but she never did. (Id. at ¶ 41).

The complaint alleges that on December 8, 2022, Mendes was “forced to resign [from

WinnCompanies] rather than return to a hostile environment. (Id. at ¶ 44).

B. Procedural Background

On December 7, 2022, plaintiff filed this action in the Suffolk County Superior Court.

She filed a first amended complaint on January 30, 2023.

On February 21, 2023, defendants removed the case to this court on the basis of federal-

question jurisdiction. Defendants moved to dismiss the first amended complaint on February 28,

2023; plaintiff responded on March 9, 2023, with a motion to file a second amended complaint.

Plaintiff’s motion was granted, and defendants’ motion to dismiss was denied without prejudice

to its renewal.

On April 25, 2023, plaintiff filed a second amended complaint alleging (1) intentional

infliction of emotional distress against all defendants, (2) discrimination based on sex in

violation of Mass. Gen. Laws ch. 151B, § 4(1), against WinnCompanies, (3) discrimination

based on race in violation of Mass. Gen. Laws ch. 151B, § 4(1), against WinnCompanies, (4)

retaliation in violation of Mass. Gen. Laws ch. 151B, § 4(4), against all defendants, (5) failure to

accommodate disability in violation of Mass. Gen. Laws ch. 151B, § 4(16), against

WinnCompanies, (6) interference with rights under the Family and Medical Leave Act in

violation of 29 U.S.C. § 2615, against WinnCompanies, (7) violation of the Equal Pay Act,

Mass. Gen. Laws ch. 149, § 105A, against WinnCompanies, (8) violation of the Massachusetts

Paid Family and Medical Leave Act, Mass. Gen. Laws ch. 175M, § 9, against WinnCompanies,

and (9) retaliation in violation of 42 U.S.C. § 2000e-3 et seq., against WinnCompanies.

Defendants have moved to dismiss the claim for intentional infliction of emotional

distress (Count 1), claims arising under Mass. Gen. Laws ch. 151B, §§ 4(1) and 4(4) (Counts 2,

3, and 4), the claim for failure to accommodate disability in violation of Mass. Gen. Laws ch.

151B, § 4(16) (Count 5), and the claim for retaliation under 42 U.S.C. § 2000e-3 et seq. (Count

9).

II. Standard of Review

On a motion to dismiss, the court “must assume the truth of all well-plead[ed] facts and

give . . . plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness

Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.

1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its

face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must

be enough to raise a right to relief above the speculative level, . . . on the assumption that all the

allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the complaint fails to set

forth “factual allegations, either direct or inferential, respecting each material element necessary

to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301,

305 (1st Cir. 2008) (quoting Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1,

6 (1st Cir. 2005)).

III. Analysis

A. The Claim for Intentional Infliction of Emotional Distress (Count 1)

Count 1 alleges that defendants’ actions constitute intentional infliction of emotional

distress. Defendants contend that that claim is barred by the Workers’ Compensation Act

(“WCA”), Mass. Gen. Laws ch. 152.

Under Massachusetts law, the WCA provides the exclusive means by which an employee

can recover for personal injuries sustained in the course of and arising out of his or her

employment, including claims for intentional infliction of emotional distress. Mass. Gen. Laws

ch. 152, § 24; Dorn v. Astra USA, 975 F. Supp. 388, 395 (D. Mass. 1997) (citing Green v.

Wyman–Gordon Co., 422 Mass. 551, 558 (1996)); see also Andresen v. Diorio, 349 F.3d 8, *16

(1st Cir. 2003). Common-law actions are barred by the exclusivity provision of the WCA where

(1) the plaintiff is shown to be an employee, (2) her condition is shown to be a personal injury

within the meaning of the compensation act, and (3) the injury is shown to have arisen out of,

and in the course of, her employment. Mass. Gen. Laws ch. 152. § 26; Saab v. Massachusetts

CVS Pharmacy, LLC, 452 Mass. 564, 569–70 (2008).

Here, plaintiff does not dispute that she was an employee of WinnCompanies and that her

emotional distress is a personal injury within the meaning of the WCA. Nevertheless, she

contends that her injury did not arise out of, and in the course of, her employment. She alleges

that defendants’ decisions “to reduce her salary without her permission” or “contact[] her on

numerous occasions while she was out on medical leave” concerning work matters, for example,

“should be considered, a priori outside the scope of . . . employment” because they fall outside of

“the expected risk of doing business.” (Docket No. 18, 12).

The WCA, however, “covers broadly any injury that arises out of the employment

relationship.” Diorio, 349 F.3d at *16. Under Massachusetts law, a personal injury is sustained

in the course of employment if it “arises out of the nature, conditions, obligations or incidents of

the employment; in other words, out of the employment looked at in any of its aspects.” Doe v.

Purity Supreme, Inc., 422 Mass. 563, 566 (1996) (quoting Caswell’s Case, 305 Mass. 500, 502

(1940). Here, the alleged emotional distress suffered by plaintiff was clearly a personal injury

arising out of and in the course of her employment. Indeed, the entire premise of plaintiff’s

claim is that she suffered emotional distress, including the exacerbation of her depression,

anxiety, and PTSD, because of “her job” and her experience with her supervisor in the

workplace. (Compl. ¶ 30). The emotional-distress claim against defendant WinnCompanies is

thus barred by the WCA and will be dismissed.

Plaintiff’s emotional-distress claim against defendant Kuppens is also barred by the

WCA. Claims against a fellow worker for the commission of an intentional tort are barred by the

exclusivity clause of the WCA if committed within the course of the fellow worker’s

employment and in furtherance of the employer’s interest. O’Connell v. Chasdi, 400 Mass. 686,

690–91 (1987). The complaint alleges that Kuppens was critical of plaintiff’s mistakes (Compl.

¶ 17); promised her a promotion but ultimately did not give her one (Id. at ¶ 18); asked her to

take a “cost of living” pay decrease when she relocated from Massachusetts to North Carolina

(Id. at ¶ 24); contacted her about work during her medical leave (Id. at ¶ 31); and reassigned one

of her properties to another portfolio manager (Id. at ¶ 35). These actions were clearly related to

Kuppens’ position as plaintiff’s supervisor and taken in furtherance of their employer’s interest.

Accordingly, the emotional-distress claim against defendant Kuppens will be dismissed.

B. The Claims Arising Under Mass. Gen. Laws ch. 151B, §§ 4(1) and 4(4)

(Counts 2, 3, and 4)

Defendants contend that plaintiff’s Chapter 151B claims should be dismissed because

they were not filed with the Massachusetts Commission Against Discrimination (“MCAD”)

within the relevant limitations period. Plaintiff contends that defendants’ actions constituted a

single unlawful employment practice and that the “continuing violation” doctrine applies.

Counts 2, 3, and 4 assert claims under Mass. Gen. Laws ch. 151B, § § 4(1) and 4(4) for

discrimination based on sex, discrimination based on race, and retaliation. In Massachusetts, a

claimant alleging discrimination under Chapter 151B “may maintain a civil action only if she has

previously filed a timely complaint with the [MCAD].” Christo v. Edward G. Boyle Ins. Agency,

402 Mass. 815, 816 (1988). Massachusetts law requires that a Chapter 151B complainant file a

complaint with the MCAD “within 300 days after the alleged unlawful conduct.” 804 Mass.

Code Regs. 1.04(3).

Plaintiff filed a complaint with the MCAD on March 22, 2022. (Docket No. 14, 5).

There is no question that any claim that she may have arising out of events occurring after May

26, 2021—300 days before the filing of her MCAD complaint—is timely. Claims arising out of

events before that date may also be timely under the “continuing violation” doctrine.

The continuing violation doctrine is an equitable exception that allows an

employee to seek damages for otherwise time-barred allegations if they are

deemed part of an ongoing series of discriminatory acts and there is some

violation within the statute of limitations period that anchors the earlier claims.

This ensures that these plaintiffs’ claims are not foreclosed merely because the

plaintiffs needed to see a pattern of repeated acts before they realized that the

individual acts were discriminatory.

O'Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir. 2001) (internal quotations and

citations omitted).

Under federal law, a claim of a “continuing violation” is evaluated according to the

following criteria: (1) whether the subject matter of the discriminatory acts was sufficiently

similar such that there was a substantial relationship between the otherwise untimely acts and the

timely acts; (2) whether the acts were isolated and discrete or occurred with frequency or

repetitively or continuously; and (3) whether the acts were of sufficient permanence that they

should have triggered an awareness of the need to assert one’s rights. See O’Rourke, 235 F.3d at

731. The “continuing violation” doctrine does not apply if, at the relevant time, plaintiff was or

should have been aware of the discriminatory practice. Sabree v. United Bhd. of Carpenters &

Joiners Local No. 33, 921 F.2d 396, 401-02 (1st Cir. 1990).

Under Massachusetts law, a plaintiff can establish a continuing violation by showing that

(1) at least one discriminatory act occurred within the limitation period, (2) the alleged timely

discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts,

and (3) earlier violations outside the limitations period did not trigger the plaintiff's “awareness

and duty” to assert her rights. Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against

Discrimination, 441 Mass. 632, 642-43 (2004). When a plaintiff brings a claim based on an

alleged hostile work environment, the limitation period begins to run when “the plaintiff knew or

reasonably should have known that her work situation was pervasively hostile and unlikely to

improve.” Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 539 (2001).

The “continuing violation” doctrine may have particular force in the context of a claim of

hostile work environment.

A plaintiff usually will not have a viable claim of hostile work environment from

single acts that are isolated or sporadic or not themselves severe enough to alter

the work environment and create an abusive work environment—both from an

objective and subjective viewpoint. Or they may not of themselves appear to be

discriminatory. But the recurrence of events that do not of themselves appear to

be discriminatory may, over time, come to demonstrate both an increasingly

difficult environment and that the events lack an innocent explanation. A plaintiff

may be unable to appreciate that he is being discriminated against until he has

lived through a series of acts and is thereby able to perceive the overall

discriminatory pattern.

O’Rourke, 235 F.3d at 732 (internal quotations and citations omitted).

Here, plaintiff’s claims under Mass. Gen. Laws ch. 151B, §§ 4(1) and 4(4) are time-

barred. Those claims arise primarily out of events that allegedly occurred in 2019 and 2020:

plaintiff’s low bonus in 2019 (Compl. ¶ 18), the failure to promote her as promised in 2020 (Id.),

and her salary reduction in 2020 (Id. at ¶ 24-27). In fact, the only allegations in the complaint

concerning events that occurred after May 26, 2021, involve Kuppens’s contacts with plaintiff

during her FMLA leave (Id. at ¶ 31-32) and her loss of the Madison Park Village portfolio (Id.

at ¶ 35-39).

The “continuing violation” doctrine does not apply for at least two reasons. First, as set

forth above, the doctrine does not apply if earlier violations outside the limitations period

reasonably should have triggered plaintiff’s awareness that her rights had been violated.

Assuming the truth of the allegations in the complaint, plaintiff was aware of the alleged

discriminatory practices no later than August 25, 2020, when she filed a complaint with Human

Resources after Kuppens had decreased her pay. Despite that awareness, she failed to file a

complaint with the MCAD until March 22, 2022.

Second, the complaint fails to allege a substantial relationship between the timely and

untimely acts. It is not clear from the complaint that there is any connection between the acts

that predate and postdate May 26, 2021. Instead, each allegation seems to constitute a “discrete

act[]” occurring on a “particular day.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.

2009) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Discrete acts

include “termination, failure to promote, denial of transfer, or refusal to hire.” Morgan, 536 U.S.

at 114. According to the First Circuit, “denial of a reasonable accommodation, the failure to

renew a contract, a change of supervisor, a relocation to another floor, a transfer to another

office, and the failure to assign work to an employee” are likewise discrete acts. Ayala v.

Shinseki, 780 F.3d 52 (1st Cir. 2015); see also Miller v. New Hampshire Dep't of Corr., 296 F.3d

18, 22 (1st Cir. 2002) (describing a “letter of warning and [negative] performance evaluation” as

discrete acts). It is “well established that the [continuing violations] doctrine does not apply to

‘discrete acts’ of alleged discrimination.” Tobin, 553 F.3d at 130. As a result, the claims under

Mass. Gen. Laws ch. 151B, §§ 4(1) and 4(4) are time-barred and will be dismissed.

C. The Claim for Failure to Accommodate Disability in Violation of Mass. Gen.

Laws ch. 151B, § 4(16) (Count 5)

The complaint asserts a claim against defendant WinnCompanies for failure to

accommodate disability in violation of Mass. Gen. Laws ch. 151B, § 4(16). It alleges that

defendant’s “actions in requiring her to work during her leave constitute a failure to

accommodate her disability.” (Comp. ¶ 58). Defendant asserts that “[p]laintiff cannot avail

herself of the rights under ch. 151B, § 4(16) because she was not a qualified handicapped person

as defined by the law.” (Docket No. 14, 14).

Under ch. 151B, an individual has a “handicap” if he or she (1) has a substantial

impairment that substantially limits one or more major life activities; (2) has a record of such a

physical or mental condition; or (3) is regarded by the employer as having such a condition.

Mass. Gen. Laws ch. 151B, §§ 1(17); 1(20); and 4(16); City of New Bedford v. Massachusetts

Comm'n Against Discrimination, 440 Mass. 450 (2003). “Major life activities” include “caring

for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning

and working.” Mass. Gen. Laws ch. 151B, § 1(20). Whether a plaintiff is “handicapped” is a

fact-intensive analysis and must be made on a case-by-case basis. Calero–Cerezo v. U.S. Dept.

of Justice, 355 F.3d 6, 20 (1st Cir. 2004). Similarly, whether a plaintiff’s impairment

“substantially limits” a major life activity requires a case-by-case analysis, as the term is not

defined by statute. See Mass. Gen. Laws ch. 151B, § 1.

In addition to establishing that she is handicapped, plaintiff must establish that she was a

“qualified handicapped person”—that is, that she was “capable of performing the essential

functions of the position involved with reasonable accommodation.” Mass. Gen. Laws ch. 151B,

§ 1(16); Garcia–Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000). An

“essential function” is a “fundamental job duty of the employment position the individual with a

disability holds or desires.” Ward v. Massachusetts Health Research Institute, 209 F.3d 29, 34

(1st Cir. 2000).

Here, the complaint alleges that plaintiff has PTSD, depression, and anxiety. (Compl. ¶

8). The complaint also specifically alleges that these conditions “impact her major life functions

of working and thinking.” (Id.). There is no direct allegation that WinnCompanies was aware

that plaintiff experiences those conditions. Nonetheless, the complaint does allege that plaintiff

“requested to utilize the Family and Medical Leave Act for ongoing depression, anxiety, and

Post-Traumatic Stress Disorder,” and the “leave request was allowed.” (Id. at ¶ 30). From that,

it could be plausibly inferred that part of the process of requesting leave was advising her

employer of these conditions.

Finally, the complaint alleges that plaintiff was “capable of performing the essential

functions of her job with or without a reasonable accommodation.” (Id. at ¶ 8). It alleges that

she “received positive performance evaluations throughout” her time at WinnCompanies, and

“consistently received bonuses for meeting her yearly goals.” (Id. at ¶ 11).

Accordingly, the complaint sufficiently alleges that she was a “qualified handicapped

person” and her claim against defendant WinnCompanies for failure to accommodate disability

in violation Mass. Gen. Laws ch. 151B, § 4(16) will not be dismissed.

D. The Retaliation Claim Under 42 U.S.C. § 2000e-3 et seq. (Count 9)

In her opposition to defendants’ partial motion to dismiss, plaintiff stated that she

“withdraws her claim of Retaliation under Title VII.” (Docket No. 18, 8 n.2). Accordingly, that

claim will be dismissed.

IV. Conclusion

For the foregoing reasons, defendants’ motion to dismiss is GRANTED as to Counts 1, 2,

3, 4, and 9, and otherwise DENIED.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: December 14, 2023 Chief Judge, United States District Court