557 F.3d 22 (1st Cir. 2009), 07-2026, Fantini v. Salem State College

Docket Nº:07-2026.
Citation:557 F.3d 22
Party Name:Marianne J. FANTINI, Plaintiff-Appellant, v. SALEM STATE COLLEGE, et al., Defendant-Appellees.
Case Date:February 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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557 F.3d 22 (1st Cir. 2009)

Marianne J. FANTINI, Plaintiff-Appellant,


SALEM STATE COLLEGE, et al., Defendant-Appellees.

No. 07-2026.

United States Court of Appeals, First Circuit.

February 23, 2009

Heard July 29, 2008.

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[Copyrighted Material Omitted]

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Robert J. Forrest, was on brief, for appellant.

Martha Coakley, Attorney General of Massachusetts, with whom Anne Sterman, Assistant Attorney General, was on brief, for appellees.

Before BOUDIN and DYK,[*] Circuit Judges, and DOMINGUEZ, [**] District Judge.

DOMINGUEZ, District Judge.

Plaintiff/appellant, Marianne J. Fantini (" Fantini" / " Appellant" ), appeals from the final order and judgment entered on May 28, 2007, of Honorable Judge Zobel, from the United States District Court for the District of Massachusetts. Appellant, a former female state employee of Salem State College, claims she was discriminated against because of her gender, and suffered unlawful retaliation, by her former employer, Salem State College. Appellant alleges that the district court abused its discretion in granting Defendants' motion to dismiss under Fed.R.Civ.P. Rule 12(b)(6). Specifically, Appellant alleges that the district court abused its discretion 1) in dismissing the first count under gender discrimination

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and retaliation pursuant to Title VII (Count 1), 2) in finding that Appellant failed to plead facts enabling her to recover on a particular theory under 42 U.S.C. § 1983 (Counts 2 & 5), 3) in finding that Appellant failed to plead facts enabling her to recover on a particular theory under 42 U.S.C. § 1981 (Count 3), and 4) in finding that Appellant failed to exhaust administrative remedies under M.G.L. ch. 151B, § § § 4, 4A and 5 (Count 6). We affirm in part and reverse and remand in part.


This case was brought by Marianne J. Fantini, a former state employee of Salem State College, employed as the Director of Accounting from November 1999, through November 11, 2001. On April 3, 2000, after having worked as a temporary employee since November 1999, Appellant was hired by Salem State College to a full-time position as the Director of General Accounting, under the supervision of Matilda DelVecchio (" DelVecchio" ). On November 11, 2001 Appellant involuntarily left work because her Supervisor, defendant, DelVecchio allegedly created a hostile work environment which caused Appellant to suffer a nervous breakdown. Appellant alleges that said hostile environment arose after she had notified DelVecchio of certain problems and errors with the financial information that was being provided by Edward Manning (" Manning" ), a male employee, which Appellant believed violated state regulations. Appellant alleged that DelVecchio, rather than disciplining Manning, discriminated against her because of her gender and retaliated against her for her continuous complaints. Appellant further alleged that DelVecchio denigrated her abilities to perform her job and unfavorably compared her clothing to that of a male employee. DelVecchio's alleged continuous verbal attacks, led Appellant to have a mental breakdown on November 8, 2001. One month after Fantini was out on leave under the Family and Medical Leave Act (" FMLA" ), due to her nervous breakdown, defendant, Salem State College hired an independent accounting firm to audit the College's cash reconciliations and General Ledger account, which had been previously handled by Fantini.

As a consequence of the audit, Appellant was accused of unsatisfactory work performance, including calculating " incomplete or incorrect" cash reconciliations, and accused of misconduct. Allegedly without being offered any type of opportunity to respond to these findings, on February 14, 2002, defendant, Salem State College terminated Appellant's employment.

After her termination, Fantini filed a grievance in April 2002 and later a complaint with the Massachusetts Commission Against Discrimination (" MCAD" ) and the Equal Employment Opportunity Commission (" EEOC" ) on May 7, 2002. After receiving a " Right to Sue" letter from the EEOC, dated October 12, 2005, Fantini brought suit in the U.S. District Court for the District of Massachusetts on November 22, 2005, against (1) Salem State College, (2) Nancy D. Harrington, President of Salem State College, (3) Janyce J. Napora, V.P. of Administration and Finance, (4) Matilda DelVecchio, Supervisor of Treasury Services, (5) the Massachusetts Board of Higher Education's Office of Human Resources, (6) Stephen P. Tocco, Chairman of the Massachusetts Board of Higher Education, and (7) Peter Alcock, Jr., Salem State College's Representative of the Massachusetts Board of Higher Education, for gender discrimination and retaliation under both state and federal statutes. Nevertheless, on January 3, 2007 Appellant filed an Amended Complaint eliminating all defendants except Salem

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Sate College, Nancy Harrington, and Matilda DelVecchio, and withdrawing six of the original thirteen counts.

On March 26, 2007, the district court granted Defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissing the remaining seven counts within Appellant's Amended Complaint. Judgment was entered on March 28, 2007. After the denial of several post-trial motions, Appellant filed its notice of appeal on June 26, 2007. Appellant specifically challenges the dismissal of counts one, two, three, five and six, that is five of the seven counts.


A. Standard of Review

We review de novo the district court's dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.2008). In doing so, we must accept as true all well-pleaded facts " indulging all reasonable inferences in [Appellant's] favor." Nisselson v. Lernout, 469 F.3d 143, 150 (1st Cir.2006). However, the Court shall not accept Appellant's " ‘ bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation,’ or ‘ subjective characterizations, optimistic predictions, or problematic suppositions.’ " Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008)(quoting Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 971 (1st Cir.1993)); see also Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996).

We will affirm the dismissal of the complaint if, and only if, accepting all well-pleaded facts as a true and drawing all reasonable inferences in favor of Appellant, the complaint " fails to state a claim upon which relief can be granted." Fed.R.Civ. P. 12(b)(6). In order to defeat a Fed.R.Civ.P. 12(b)(6) motion, a complaint must contain " enough facts to raise a reasonable expectation that discovery will reveal evidence" supporting the claims. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).

B. Count One

1. Gender Discrimination and Exhaustion of Administrative Remedies under Title VII

Although we agree with the district court's ruling that Appellant has adequately pled a general claim of gender discrimination under Title VII in order to survive a motion to dismiss, we disagree with the district court's ruling as to Fantini's failure to exhaust the required administrative remedies. The district court explained that although Plaintiff made one passing mention of gender discrimination in the last paragraph of the five page attachment of her MCAD complaint,

[s]uch a barely articulated claim, which was not addressed by either party nor by the administrative agency, does not satisfy the exhaustion requirement. It defeats the whole purpose of the exhaustion requirement if plaintiff can raise an entirely new discrimination theory in court after testing, and losing on, a different theory in the administrative hearing.

R.A. 18.

Title VII requires an employee to file an administrative charge as a prerequisite to commencing a civil action for employment discrimination. See 42 U.S.C. § 2000e-5(f). The purpose of that requirement is to provide the employer with prompt notice of the claim and to create an opportunity for early conciliation. See Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir.1990). Furthermore, " [t]he scope of the

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civil complaint is accordingly limited to the charge filed with the EEOC and the investigation which can reasonably be expected to grow out of that charge." Id .; see also Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir.1996); Clockedile v. New Hampshire Dept. of Corrections, 245 F.3d 1, 4 (1st Cir.2001). Moreover, it has been clearly established by this Circuit that

[a]n administrative charge is not a blueprint for the litigation to follow. See EEOC v. General Electric Co., 532 F.2d 359, 364 (4th Cir.1976) (quoting EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir.1975)) (" The charge is not to be treated as a common-law pleading that strictly cabins the investigation that results therefrom, or the reasonable cause determination that may be rested on that investigation. The charge merely provides the EEOC with ‘ a jurisdictional springboard to investigate whether the employer is engaged in any discriminatory practices.’ " ). See also Graniteville Co. v. EEOC, 438 F.2d 32, 38 (4th Cir.1971) (purpose of charge is to initiate EEOC investigation, " not to state sufficient facts to make out a prima facie case" ); Sanchez, 431 F.2d at 465 (" [T]he purpose of a charge of discrimination is to trigger the investigatory and conciliatory procedures of the EEOC." ). Thus, " the exact wording of the charge of discrimination need not ‘ presage with literary exactitude the judicial pleadings which may follow.’ " Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir.1971) (quoting Sanchez, 431 F.2d at 466). Rather, the critical question is whether the claims set forth in the civil complaint come within the " scope of the EEOC investigation...

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