Cichocki v. Mass. Bay Cmty. Coll.
| Decision Date | 28 February 2013 |
| Docket Number | CIVIL ACTION NO. 12-10728-GAO |
| Parties | TIMOTHY E. CICHOCKI, Plaintiff, v. MASSACHUSETTS BAY COMMUNITY COLLEGE, JOHN O'DONNELL, ROBIN NELSON-BAILEY, and VALERIE GAINES, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, D.J.
The magistrate judge to whom this matter was referred has recommended that the plaintiff's motion for a preliminary injunction be denied. The plaintiff has filed no objection to the Report and Recommendation. Having reviewed the relevant pleadings and submissions, I fully concur with the magistrate judge's recommendations and ADOPT those recommendations for the reasons expressed in the Report and Recommendation.
Accordingly, the plaintiff's motion for a preliminary injunction (dkt. no. 5) is DENIED.
In addition, the magistrate judge expressed doubt that the plaintiff had asserted any viable legal claims. I further adopt this recommendation that the plaintiff be granted 21 days from the date of this Order to show cause why his Complaint should not be dismissed in its entirety for failing to state claims upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).
It is so ORDERED.
v.
MASSACHUSETTS BAY COMMUNITY COLLEGE, DR. JOHN O'DONNELL, ROBIN NELSON-BAILEY, VALERIE GAINES, Defendants.
On April 24, 2012, plaintiff Timothy Cichocki ("Cichocki") filed an eleven-count complaint (#1) against Massachusetts Bay Community College ("MassBay") and three officials of the college, Dr. John O'Donnell ("O'Donnell"), the President, Robin Nelson-Bailey ("Nelson-Bailey"), the Assistant Vice President of Human Resources, and Valerie Gaines ("Gaines"), the AssistantDirector of Human Resources. MassBay is Cichocki's employer and a public institution of continuing education in the Commonwealth of Massachusetts. (# 1 ¶2; #10 ¶ 19).
Count I of the complaint alleges that MassBay, O'Donnell, and Nelson-Bailey violated the Occupational Safety and Health Act's ("OSHA") prohibition of an unsafe work environment by failing to address Cichocki's "repeated oral and written complaints of [an] unsafe work environment" and taking "actions that exacerbated the already dangerous situation" at Cichocki's workplace. (# 1 ¶ 6). Count II alleges that MassBay, O'Donnell, and Nelson-Bailey violated Title VII of the Civil Rights Act by fostering and exacerbating a hostile work environment and choosing to "overlook the obvious sexual nature of [Professor] Mcfadyen's ruthless, incessant harassments against Cichocki at his workplace." (#1 ¶ 10). Count III alleges that MassBay, O'Donnell, and Nelson-Bailey violated 18 U.S.C. § 241 and 42 U.S.C.A. § 14141 by issuing a No Trespass Order to Dolly Hwang ("Hwang"), Cichocki's wife, and escorting Hwang off of MassBay's campus after the issuance of the No Trespass Order. (#1 ¶¶ 11-12). Count IV alleges that MassBay, O'Donnell, and Nelson-Bailey violated 18 U.S.C.A. § 1503 by refusing to provide Cichocki and Hwang with the requested police documents in connection with the issuance of the No Trespass Order. (#1¶13).
Count V alleges that MassBay and Nelson-Bailey violated 18 U.S.C. § 2511 by intercepting "a number of emails Cichocki sent to his students" and to Nelson-Bailey. (#1 ¶ 14). Count VI alleges that MassBay and Nelson-Bailey violated the anti-retaliation provision of the Fair Labor Standards Act ("FLSA") by refusing to give him his requested job assignment, placing him on "unneeded, unwanted, and unrequested sick leave," and stopping his paycheck in retaliation for his protests of MassBay's No Trespass Order against Hwang and two union grievances against the college. (#1 ¶¶ 15-16). Count VII alleges that MassBay and Gaines committed witness tampering in violation of 18 U.S.C. § 1512 by pressuring Dr. Shinohara, Cichocki's psychologist, "to change his diagnosis of Cichocki" and conducting "hostile interrogations of Dr. Shinohara." (#1 ¶ 17).
Count VIII alleges that MassBay, Nelson-Bailey, and Gaines violated the wage provision of the FLSA by failing to pay Cichocki "according to his work contract agreed upon between his labor union and the college." (#1 ¶ 18). Count IX alleges that MassBay and O'Donnell were negligent in "employing unqualified individuals" such as Professor Mcfadyen, which has "dearly cost the health, marriage, and career of Cichocki." (#1 ¶¶ 18-19). Cichocki also allegesthat MassBay and O'Donnell were negligent in hiring Human Resource employees who are "not only woefully ignorant of employment and workplace laws, but also dangerously lawlessly [sic] in their work related conducts [sic] and decisions." (#1 ¶ 20).
Count X alleges that Nelson-Bailey engaged in criminal harassment and assault on Hwang in violation of Mass. Gen. L. c. 265 §§15A, 14A by demanding that Cichocki discipline Hwang, issuing a No Trespass Order against Hwang, "allowing the college police to force Hwang to leave the campus," and blocking Hwang from attending Cichocki's grievance hearing with the college. (# 1 ¶¶ 21-24). Finally, Count XI alleges that Nelson-Bailey "failed to execute Cichocki's work contract pertaining to labor and management relation in good faith according to [the] Fair Labor Standards Act." (#1 ¶ 24). Cichocki alleges that Nelson-Bailey violated his work contract by refusing to execute his grievance hearing in good faith. (#1 ¶ 24).
Presently before the Court is Cichocki's motion for a preliminary injunction. (#5). Cichocki is asking the Court to order MassBay to "i) either withdraw, and timely notify the withdrawal of, the 'Trespassing Notice' it issued on August 11, 2011 against the plaintiff's wife, Y. Dolly Hwang ... ii) or go to court to seek a restraining order against Y. Dolly Hwang within 20 days ofreceiving this order before taking any actions to bar her from accessing the college campus." (#5 ¶ 2). Cichocki is also asking the Court to order MassBay "to restore the plaintiff's employment right, under the Fair Labor Standards Act, to be paid in full, and in time of [sic] his faculty salary, and to [restore] his employee benefits as contracted by his full-time MCCC [sic] faculty union collective bargaining agreements, and as mandated by the anti-retaliation clause in [the] Fair Labor Standards Act." (#5 ¶ 3).
MassBay has filed an opposition to Cichocki's preliminary injunction motion together with fourteen exhibits. (#10). With the record now complete and after a hearing1, the motion for a preliminary injunction is in a posture to be addressed.
Plaintiff Cichocki is a resident of Boston, Massachusetts. (#1 ¶ 1). Cichocki has been employed with MassBay, a Commonwealth of Massachusetts educational institution, since 1992 as a Professor of Engineering. (#1 ¶¶ 2; #10 ¶ 4). Defendant, MassBay, is one of fifteen community colleges within the Commonwealth's system of public institutions of higher education. (#10 ¶19).Cichocki's wife, Hwang, is a former employee of MassBay, and Professor Helen McFadyen is a Professor of Computer Science at MassBay. (#10 ¶ 4). Until recently, Professor Cichocki and Professor McFadyen had offices near each other at MassBay (#1 ¶ 7; #10 ¶ 4).
In May 2011, McFadyen told Nelson-Bailey that she had received "concerning and unwelcome" emails from Cichocki that contained unwanted sexual undertones, including one from Cichocki's email address stating "I still can feel your body and smell of your neck." (#10 Nelson-Bailey Aff. ¶ 2; #10 Exh. 1). Cichocki claims that during this time, he also "disclosed his suffering [sic] hostile harassments at the hands of McFadyen." (#1 ¶ 7). During a meeting with Nelson-Bailey, Gaines, and Dean Samar Sampan, Cichocki denied sending the emails to McFadyen but was elusive regarding the possibility that his wife had sent them from his email account. (#10 ¶ 6). Cichocki was then informed about MassBay's anti-harassment and retaliation policies, but Cichocki and Hwang continued to contact McFadyen. (#10 ¶ 10; #10 Exh. 4, 8). Professor McFadyen continued to communicate her fear of Cichocki and Hwang to Nelson-Bailey, and MassBay subsequently issued a No Trespass Order barring Hwang from entering the college's campus. (#10 ¶ 11; #10 Exh. 7). After the issuance of the No Trespass Order, campus police found Hwang on campus withCichocki in his classroom where a class was in progress and asked her to leave. (#10 ¶ 12).
On December 14, 2011, Cichocki informed MassBay in writing that it was absolutely necessary for his wife to accompany him to work at the school and if the No Trespass Order against Hwang was not resolved, the "resulting stress" would necessitate him to request sick leave effective December 14, 2011. (#10 ¶ 13; #10 Exh. 10; #7 Exh. B2). On December 15, 2011, MassBay informed Cichocki that his request for sick leave was granted "through the end of the semester pending receipt of medical documentation" to support his request. (#10 ¶ 14; #10 Exh. 13). Although Professor Cichocki submitted a Discharge Order from Massachusetts General Hospital and a letter from Dr. Sumio Shinohara (#12 Exh. 14), he failed to submit the additional documents and information requested by MassBay to support his request to remain on paid sick leave. (#10 ¶ 14). After notifying Cichocki of the additional documents that were required and when Cichocki still failed to produce the requested documents, MassBay placed Cichocki on leave without pay and without group medical insurance. (#10 ¶ 15; #10 Gaines Aff. ¶ 8, 9; #10 Exh. 14).
Despite the documents in the record indicating otherwise, notably, Cichocki's own Exhibit B1, Cichocki claims that his placement on sick leave was"unneeded, unwanted, and unrequested." (#1 ¶ 15). He also claims that the reduction in and ultimate discontinuation of...
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