Nakanwagi v. Executive Office of the Trial Court

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

SARAH NATHREEN NAKANWAGI, )

)

Plaintiff, )

) Civil Action No.

v. ) 23-10533-FDS

)

EXECUTIVE OFFICE of the )

TRIAL COURT, )

)

Defendant. )

_______________________________________)

MEMORANDUM AND ORDER ON

DEFENDANT’S MOTION TO DISMISS

SAYLOR, C.J.

This is a workplace discrimination and retaliation action. Plaintiff Sarah Nakanwagi has

brought suit against her former employer, the Executive Office of the Massachusetts Trial Court,

alleging violations of a variety of federal and state laws. In essence, the complaint alleges that

Nakanwagi was sexually harassed and discriminated against in her workplace, and that the

Executive Office failed to protect her from that hostile environment. She is proceeding pro se.

Defendant has moved to dismiss the complaint for lack of subject-matter jurisdiction and

failure to state a claim upon which relief can be granted. For the following reasons, the motion

will be granted in part and denied in part.

I. Background

A. Factual Background

Unless otherwise noted, the facts are drawn from the complaint, documents referred to or

attached to that complaint, and other filings concerning defendant’s motion to dismiss.1

Sarah Nakanwagi is a resident of Waltham, Massachusetts. (Compl. at 1). She was born

in Uganda, moved to the United States in September 2014, and was naturalized as an American

citizen in February 2020. (Id. ¶¶ 1-2).

In 2021, Nakanwagi was hired to be the Head Account Clerk at the Executive Office of

the Trial Court (“Executive Office”) at the Brighton Division of the Boston Municipal Court.

(Id. ¶ 7).

According to the complaint, soon after Nakanwagi began working at the Executive

Office, she began to be harassed by “a supervisor” named “Paula.” (Id. ¶ 17). The complaint

alleges that Paula made demeaning comments about Nakanwagi, yelled at her, instructed her to

wear wigs or dress in certain styles, and encouraged her to date another court employee.

(Id. ¶¶ 17-30). It alleges that Paula’s treatment made Nakanwagi physically ill and that she

“dreaded” going to work. (Id. ¶ 25). Her vulnerability to harassment was exacerbated by a lack

of entry credentials for the office she shared with Paula. (Id. ¶¶ 36-37).

On May 26, 2021, Nakanwagi reported Paula’s actions to two other court employees,

1 On a motion to dismiss, the court may properly take into account four types of documents outside the

complaint without converting the motion into one for summary judgment: (1) documents of undisputed authenticity;

(2) documents that are official public records; (3) documents that are central to plaintiff’s claim; and (4) documents

that are sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). The Court may

also take judicial notice of both the EEOC right-to-sue letter and charge as public records. See Gallo v. Bd. of

Regents of Univ. of California, 916 F. Supp. 1005, 1007 (S.D. Cal. 1995) (“[T]he Court may consider both the

EEOC right to sue letter and the EEOC charge . . . as public records subject to judicial notice.”); see also Freeman v.

Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (a court deciding a motion to dismiss may consider public records

that would otherwise be subject to judicial notice under Fed. R. Evid. 201).

Eric Donovan and Sheila Lawn. (Id. ¶ 26). Those employees thanked her for bringing Paula’s

conduct to their attention and told her that they would inform the human resources office of the

issue. (Id. ¶ 39). Nearly one month later, the Executive Office placed Nakanwagi on

administrative leave while another employee investigated her complaint. (Id. ¶ 44).

On June 30, 2021, Nakanwagi filed a complaint with the Equal Employment Opportunity

Commission (EEOC) and the Massachusetts Commission Against Discrimination (MCAD).

Those complaints alleged that the Executive Office discriminated against her on the basis of

national origin, sex, and had retaliated against her for raising a complaint. (Def. Exs. 1 and 2).

The complaints were terminated prior to her seeking relief in this court, at which point the EEOC

issued a right-to-sue letter. (See Compl. Ex. 1).

After the administrative complaints had been filed, the investigator assigned by the

Executive Office to examine Nakanwagi’s grievances recommended that she be fired. (Compl.

¶ 47). She was then terminated from her position on September 6, 2021. (Id. ¶ 48).

B. Procedural Background

On March 9, 2023, plaintiff filed suit in this court. The complaint cites various statutes

and constitutional provisions, most of which are listed as bases for jurisdiction. (See Compl.

at 2). In light of plaintiff’s pro se status, the Court will endeavor to construe the claims based on

the cited statutes and the content of the complaint.

The primary claims appear to arise under Title VII, 42 U.S.C. § 2000e, et seq., for

discrimination based on a hostile work environment, derived from sexual harassment (Count 1),

discrimination on the basis of national origin (Count 2), and retaliation for plaintiff’s internal

complaint (Count 3) and her EEOC complaint (Count 4). The complaint separately raises a

claim under Title VI, 42 U.S.C. § 2000d, et seq. (Count 5).

The complaint also asserts claims under federal civil-rights laws, including 42 U.S.C.

§§ 1981, 1983, and 1985 (Counts 6-8), arising from the same alleged discriminatory conduct. It

correspondingly asserts direct constitutional claims under the First, Fourth, Thirteenth, and

Fourteenth Amendments (Counts 9-12).

It next claims violations of a collection of federal statutes: Title I of the Americans with

Disabilities Act (ADA) (Count 13); § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et

seq. (Count 14); the Violence Against Women Act (VAWA), 34 U.S.C. § 12471, et seq.

(Count 15); and the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b (Count 16).

Finally, it asserts claims under a variety of Massachusetts statutes, including Mass. Gen.

Laws chs. 260, 93A, 151B, 214, and 149 (Counts 17-21).

Defendant has moved to dismiss for lack of subject-matter jurisdiction and failure to state

a claim upon which relief can be granted.

II. Standard of Review

A. Fed. R. Civ. P. 12(b)(1)

On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1),

“the party invoking the jurisdiction of a federal court carries the burden of proving its existence.”

Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007) (quoting Murphy v. United States, 45

F.3d 520, 522 (1st Cir. 1995)). If the party seeking to invoke federal jurisdiction “fails to

demonstrate a basis for jurisdiction,” the motion to dismiss must be granted. Id. When ruling on

a motion to dismiss under Rule 12(b)(1), the court “must credit the plaintiff’s well-[pleaded]

factual allegations and draw all reasonable inferences in the plaintiff’s favor.” Merlonghi v.

United States, 620 F.3d 50, 54 (1st Cir. 2010).

B. Fed. R. Civ. P. 12(b)(6)

On a motion to dismiss made pursuant to Rule 12(b)(6), the court “must assume the truth

of all well-plead[ed] facts and give the 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). In other words, the “[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)).

C. Pro Se Pleadings

Because plaintiff is proceeding pro se, the complaint, “however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); FED. R.

CIV. P. 8(e) (“Pleadings must be construed so as to do justice.”); see also Instituto de Educacion

Universal Corp. v. United States Dep’t of Educ., 209 F.3d 18, 23 (1st Cir. 2000). However,

while pro se complaints “are accorded ‘an extra degree of solicitude’ . . . even a pro se plaintiff

is required to ‘set forth factual allegations, either direct or inferential, respecting each material

element necessary to sustain recovery under some actionable legal theory.’” Wright v. Town of

Southbridge, 2009 WL 415506, at *2 (D. Mass. Jan. 15, 2009) (quoting Adams v. Stephenson,

1997 WL 351633, at *1 (1st Cir. June 23, 1997) (per curiam)).

III. Analysis

Defendant has moved to dismiss the complaint on the grounds that many of the asserted

claims are barred by the Eleventh Amendment; that certain claims are improperly pleaded; that

plaintiff failed to exhaust certain available remedies with the EEOC; and that the complaint fails

to state a claim upon which relief can be granted under Title VI and Title VII.

A. Claims Barred by Sovereign Immunity

Defendant has moved under Rule 12(b)(1) to dismiss the civil-rights and direct

constitutional claims (Counts 6-13), the ADA claim (Count 13), and the state-law claims

(Counts 17-21) on the ground that it is an arm of the state protected from suit by the Eleventh

Amendment.

1. Sovereign Immunity

“As a general matter, states are immune under the Eleventh Amendment from private suit

in the federal courts, absent their consent.” Wojcik v. Massachusetts State Lottery Comm’n, 300

F.3d 92, 99 (1st Cir. 2002) (quotations omitted); see also Seminole Tribe of Florida v. Florida,

517 U.S. 44, 54 (1996); Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (unless a State has

“waived its Eleventh Amendment immunity or Congress has overridden it, . . . a State cannot be

sued directly in its own name regardless of the relief sought.”). This immunity extends to any

entity that is an “arm of the state.” Wojcik, 300 F.3d at 99. The Eleventh Amendment has two

exceptions: “First, Congress may abrogate a State’s immunity by expressly authorizing such a

suit pursuant to a valid exercise of power. Second, a State may waive its sovereign immunity by

consenting to be sued in federal court.” Maysonet-Robles v. Cabrero, 323 F.3d 43, 49 (1st Cir.

2003) (citations omitted). Eleventh Amendment immunity is jurisdictional in nature, and “absent

waiver, neither a State nor its agencies acting under its control may be subject to suit in federal

court.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy Inc., 506 U.S. 139, 144 (1993).

Here, the Executive Office, as part of the Massachusetts Trial Court, is an “arm of the

state” and is thus protected by Eleventh Amendment immunity. See Brown v. Newberger, 291

F.3d 89, 92 (1st Cir. 2002) (finding that the Massachusetts trial court is entitled to sovereign

immunity); Town of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015) (noting that

sovereign immunity extends to state instrumentalities).

As explained below, neither of the two exceptions to Eleventh Amendment immunity

applies to any of the claims set forth in Counts 6 through 21. Those counts will therefore be

dismissed on that basis.

2. Counts 6-8: Civil Rights Claims

The Eleventh Amendment bars claims brought under 42 U.S.C. §§ 1981, 1983, and 1985,

as there has been no congressional abrogation of sovereign immunity as to those types of claims.

See Johnson v. Walgreen, 980 F.2d 721 (1st Cir. 1992) (per curiam) (affirming a finding of

sovereign immunity against claims under §§ 1981 and 1985).

Furthermore, and in any event, those statutes do not apply to state agencies. For

example, to state a valid claim under § 1983, a complaint must allege that some “person”

acting under color of state law deprived the plaintiff of “rights, privileges or immunities

secured by the constitution.” 42 U.S.C. § 1983. It is well-settled, however, that neither a state

nor its agencies or officials are “persons” within the meaning of § 1983. See Poirier v.

Massachusetts Dep’t of Corr., 558 F.3d 92, 97 & n.6 (1st Cir. 2009); Brady v. Dill, 24 F.

Supp. 2d 129, 130 (D. Mass. 1998) (citing Will v. Michigan Dep’t of State Police, 491 U.S.

58, 70-71 (1989)); see also Cook v. McLaughlin, 917 F. Supp. 79, 82 (D. Mass. 1996).

Counts 6 through 8 will accordingly be dismissed.

3. Counts 9-12: Direct Constitutional Claims

The complaint asserts direct claims under the First, Fourth, Thirteenth, and Fourteenth

Amendments of the U.S. Constitution. It does not allege any specific facts or allegations under

those amendments beyond referring to them as bases for this court’s jurisdiction.

Section 1983 is the mechanism through which a plaintiff can bring direct constitutional

claims. See Sacred Feather v. Merrill, 2008 WL 2510100, at *2 (D. Me. June 19, 2008),

adopted, 2008 WL 4791897 (D. Me. Oct. 29, 2008) (citing courts finding no direct cause of

action under the U.S. Constitution). Without a viable § 1983 claim, there is no vehicle to pursue

any direct claims. See Colon Berrios v. Hernandez Agosto, 716 F.2d 85, 88 (1st Cir. 1983)

(“[M]ay one whose cause of action under 42 U.S.C. § 1983 is barred by an accepted judicial

interpretation of that act, avoid that bar by recategorizing the claim? The answer is ‘No.’”).

Counts 9 through 12 will accordingly be dismissed.

4. Count 13: Americans with Disabilities Act

The complaint also asserts a claim under Title I of Americans with Disabilities Act,

which prohibits discrimination in the workplace. See 42 U.S.C. § 12112. The Supreme Court

has determined that the ADA does not abrogate the sovereign immunity of the states from suits

for money damages. See Board of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 374

(2001). Count 13 is therefore barred by the Eleventh Amendment and will be dismissed.

5. Counts 17-21: State-Law Claims

The complaint asserts claims under several Massachusetts statutes, including Mass. Gen.

Laws chs. 260, 93A, 151B, 214, and 149. The Eleventh Amendment bars a federal court from

hearing suits brought under state law against states or their officers, absent specific waiver. See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 120 (1984). None of the statutes cited

by the complaint contain such a waiver. Accordingly, Counts 17 through 21 will be dismissed.

B. Counts 14-16

Defendant has also moved to dismiss Counts 14 through 16 under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted.

1. Count 14: Rehabilitation Act

The complaint cites § 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq., in both the

“basis for jurisdiction” and “relief” sections.

To state a claim under the Rehabilitation Act, a plaintiff must show “(1) that she is

disabled; (2) that she sought services from a federally funded entity; (3) that she was “otherwise

qualified” to receive those services; and (4) that she was denied those services solely by reason

of her disability.” Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir. 2001) (quotation omitted).

As relevant here, the fourth element restricts claims to circumstances where the adverse action

alleged by a plaintiff was exclusively caused by her claimed disability, not due to any other

issue. Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995) (“Section 504 . . . continues to require a

showing that the plaintiff’s disability was the sole reason for the defendant’s adverse action.”).

Here, the complaint alleges a host of alleged causes for the adverse action plaintiff

experienced, including discrimination and retaliation. Because she has alleged those alternative

grounds, not solely a denial of services based on her disability, Count 14 will be dismissed.

2. Count 15: Violence Against Women Act

Count 15 cites the Violence Against Women Act (VAWA), 34 U.S.C. § 12471, et seq.

Although the complaint describes an assault plaintiff apparently suffered in Arizona in 2015

(Compl. ¶ 3-6), it does not allege any facts, plausible or otherwise, that the Executive Office

perpetrated any act that would be actionable under VAWA. Moreover, the Supreme Court has

held that the private cause of action created by VAWA is unconstitutional. See United States v.

Morrison, 529 U.S. 598, 617 (2000) (holding the federal civil remedy provision of VAWA

unconstitutional); United States v. Morales-De Jesus, 372 F.3d 6, 10 (1st Cir. 2004); Malouf v.

Benson, 2018 WL 10155427, at *3 (D. Mass. Aug. 23, 2018). Count 15 will accordingly be

dismissed.

3. Count 16: Immigration and Nationality Act

Count 16 asserts a claim under § 1324b of the Immigration and Nationality Act, 8 U.S.C.

§ 1324b, which prohibits unfair employment practices because of an individual’s national origin

or immigration status. The statute provides that “[n]o complaint may be filed respecting any

unfair immigration-related employment practice occurring more than 180 days prior to the date

of the filing of the charge with the Special Counsel.” 8 U.S.C. § 1324b(d)(3). “An individual

may initiate a private action only if the [Special Counsel] fails to file a complaint within 120

days of receiving a claim.” Weiss v. City Univ. of N.Y., 2019 WL 1244508, at *12 (S.D.N.Y.

Mar. 18, 2019); see also Trivedi v. Gen. Elec. Co., 2020 WL 9744754, at *10-11 (D. Mass. Aug.

13, 2020), adopted, 2021 WL 2229088 (D. Mass. May 27, 2021), aff’d, 2022 WL 1769136 (1st

Cir. May 3, 2022).

Here, the complaint does not allege that plaintiff ever filed a charge with the Office of

Special Counsel. Nor is there any allegation that office failed to file its own complaint within

120 days of receiving any such charge. The complaint therefore fails to allege sufficient facts

showing that plaintiff either filed a charge within the statutory 180-day limit, or exhausted her

administrative remedies as required by that statute. Plaintiff has not moved for leave to amend

her complaint to cure this defect. Count 16 will accordingly be dismissed.

C. Employment-Discrimination Claims

1. Count 5: Title VI

Count 5 asserts a claim under Title VI of the Civil Rights Act of 1964. That statute

provides that “[n]o person in the United States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. As relevant here, Title VI may only provide a cause of action to challenge

discriminatory employment practices when “a primary objective of the federal financial

assistance is to provide employment.” 42 U.S.C. § 2000d-3.

Here, the complaint does not allege that the Executive Office receives any federal

funding with an employment-related purpose. Plaintiff has not sought leave to amend her

complaint to address that deficiency. Accordingly, Count 5 will be dismissed. See Faculty,

Alumni, & Students Opposed to Racial Preferences v. Harvard L. Rev. Ass’n, 2019 WL 3754023,

at *9 (D. Mass. Aug. 8, 2019).

2. Counts 1-4: Title VII

The complaint further asserts a claim under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seq., which prohibits an employer from discriminating against an

employee based on their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

Title VII also prohibits requiring an employee “to work in a discriminatorily hostile or abusive

environment.” Valentin-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)

(quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). The Eleventh Amendment bar does not

apply to suits for monetary damages for employment discrimination under Title VII. Fitzpatrick

v. Bitzer, 427 U.S. 445, 456 (1976).

The complaint appears to allege (1) a hostile work environment claim based on sexual

harassment and national origin discrimination (Counts 1 and 2) and (2) a retaliation claim arising

out of her internal and EEOC complaints (Counts 3 and 4).2 Defendant contends that none of

those claims have been adequately pleaded under Rule 12(b)(6), and that the claim of retaliation

based on the EEOC complaint should be barred for failing to exhaust administrative remedies.

a. Hostile Work Environment

The principal contention of the complaint is that plaintiff was forced to endure a

discriminatory hostile work environment created by Paula, based on a pattern of sexual

harassment and discrimination based on national origin.

To plead a claim of a hostile work environment under Title VII, the complaint must

allege six elements: (1) that plaintiff is a member of a protected class; (2) that she encountered

unwelcome harassment; (3) that the harassment was based on race, color, or national origin; (4)

that the harassment was sufficiently severe or pervasive so as to alter the conditions of her

employment and create an abusive work environment; (5) that the conduct was both objectively

and subjectively offensive, such that a reasonable person would find it hostile or abusive, and the

victim perceived it to be so; and (6) that a basis for employer liability has been established.

Valentin-Almeyda, 447 F.3d at 94.

Here, there is no question that the first five elements have been pleaded in the complaint.

It alleges that Nakanwagi is a Ugandan woman (and thus a member of two protected classes);

that she was harassed by Paula based on her sex and national origin; that harassment was both

severe and pervasive; and, if true, both subjectively and objectively offensive. The sixth

element, however, requires more careful consideration.

Defendant contends that the complaint fails to allege employer liability because it does

2 The EEOC complaint, filed before Nakanwagi’s termination, likewise alleged discrimination based on

sexual harassment, national origin, and retaliation based on her internal complaint. (ECF No. 12-2 at 2).

not define Paula’s role or responsibilities, and asserts that Paula was merely a coworker, not a

supervisor. A plaintiff asserting a hostile-environment claim “must satisfy different

standards . . . depending on whether the harasser is a supervisor or co-employee.” Wilson v.

Moulison N. Corp., 639 F.3d 1, 7 (1st Cir. 2011). To legally qualify as a supervisor, the person

must have “actual authority,” which “primarily consists of the power to hire, fire, demote,

promote, transfer, or discipline an employee.” Velazquez-Perez v. Devs. Diversified Realty

Corp., 753 F.3d 265, 271 (1st Cir. 2014) (quoting Noviello, 398 F.3d at 96). “When coworkers,

rather than supervisors, are responsible for the creation and perpetuation of a hostile work

environment . . . an employer can only be liable if the harassment is causally connected to some

negligence on the employer’s part.” Id. (citing Noviello v. City of Boston, 398 F.3d 76, 84 (1st

Cir. 2005)). This causal connection exists if “the employer knew or should have known about

the harassment yet failed to take prompt and appropriate remedial action.” Id. (citing Crowley v.

L.L. Bean Inc., 303 F.3d 387, 401 (1st Cir. 2002)).3

Here, the complaint alleges that Paula was “a supervisor.” (Compl. ¶ 17). It does not

provide any further details as to her precise role but does allege that she was in a position of

authority and that plaintiff was subjected to a hostile environment as a result. (Compl. ¶ 48).

Whether that is true is not the relevant issue at this stage. The complaint contains sufficient facts

to plausibly support a claim that Paula was a supervisor who created a hostile work environment,

which in turn states a claim of employer liability against defendant.

Even assuming, however, that Paula was only a coworker, the complaint may be

construed to allege sufficient facts to preclude dismissal. It alleges that Paula repeatedly

3 By contrast, when alleged misconduct is attributable to a supervisory employee with immediate or

higher authority over a victimized employee, an employer may be vicariously liable for the resulting hostile

work environment without a showing of actual or constructive notice. Faragher v. City of Boca Raton, 524 U.S.

775, 807 (1998).

engaged in harassing conduct in the office and that a member of the public reported that conduct

to defendant on at least one occasion. (Compl. ¶ 43). Moreover, the complaint asserts that

plaintiff reported Paula’s conduct to two supervisory employees, that there was an investigation,

and that the result of that process was her termination. Because the allegations support a

plausible inference that defendant knew or should have known of misconduct by its employees

and purportedly failed to act on that knowledge to protect plaintiff, the complaint sufficiently

states a claim for a hostile work environment.

b. Retaliation

As to the retaliation claims, defendant first raises a procedural objection that the

complaint includes facts related to the internal investigation and plaintiff’s termination that were

not included in her EEOC complaint.

A failure to exhaust administrative remedies is an affirmative defense that defendant

bears the burden of pleading and proving. Owens v. West, 182 F. Supp. 2d 180, 190 (D. Mass.

2001); see also Fisher v. Town of Orange, 885 F. Supp. 2d 468, 477-78 (D. Mass. 2012). A

court will only dismiss a claim based on an affirmative defense when “the facts establishing the

defense are clear on the face of the plaintiff[’s] pleadings and there is no doubt that the

plaintiff[’s] claims are barred.” Lowe v. Mills, 68 F.4th 706, 719 (1st Cir. 2023), cert. denied,

144 S. Ct. 345 (2023) (citations and quotations omitted).

In Title VII cases, “[a] claim of retaliation for filing an administrative charge with the

EEOC is one of the narrow exceptions to the normal rule of exhaustion of administrative

remedies.” Franceschi v. U.S. Dep’t of Veterans Affs., 514 F.3d 81, 86 (1st Cir. 2008) (citing

Clockedile v. New Hampshire Dep’t of Corr., 245 F.3d 1, 6 (1st Cir. 2001)). Under that

exception, “retaliation claims are preserved so long as the retaliation is reasonably related to and

grows out of the discrimination complained of to the agency . . . .” Clockedile, 245 F.3d at 6.

Here, plaintiff’s EEOC complaint alleged that she was placed on administrative leave as

retaliation for filing an internal complaint. (ECF No. 12-2 at 2). It does not assert any claims

concerning the conduct of defendant’s internal investigation or plaintiff’s termination. However,

defendant does not dispute that the conclusion of the investigation and plaintiff’s subsequent

termination only occurred after the EEOC complaint was filed. The relevant question, then, is

whether the later retaliation was “reasonably related to and [grew] out of” the same conduct that

gave rise to the first EEOC complaint. See Clockedile, 245 F.3d at 6. It appears that it did, given

that the investigation and termination in question were the direct result of plaintiff’s initial

complaints. Under the circumstances, the retaliation claim will not be dismissed under Rule

12(b)(6) for failure to exhaust administrative remedies.

Defendant further contends that the complaint does not adequately plead the substantive

elements of a retaliation claim. Title VII makes it an unlawful act for an employer “to

discriminate against any individual . . . because [s]he has opposed any practice made an unlawful

employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). To state a claim under that

provision, the complaint must allege that (1) plaintiff engaged in protected activity, (2) she

suffered some materially adverse action, and (3) the adverse action was causally linked to her

protected activity. Dixon v. Int’l Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007).

Here, construed liberally, the complaint adequately alleges all three of the required

elements. First, plaintiff allegedly engaged in two protected activities—filing an internal

complaint and an EEOC complaint. See Ruffino v. State St. Bank & Tr. Co., 908 F. Supp. 1019,

1045 (D. Mass. 1995). Second, the complaint alleges that she suffered adverse action as a result

of those activities—that is, being placed on administrative leave and then fired. (Compl. ¶¶ 44-

48). Third, it seems to assert that she was fired, at least in part, because of those complaints.

(Compl. ¶ 48). Construing the complaint broadly in light of plaintiff’s pro se status, those

allegations are sufficient to state a retaliation claim under Title VII.

IV. Conclusion

For the foregoing reasons, defendant’s motion to dismiss is DENIED as to Counts 1

through 4, and GRANTED as to the remaining counts.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor, IV

Dated: January 3, 2024 Chief Judge, United States District Court