Connolly v. Shaw's Supermarkets, Inc.

• Decision Date: 20 December 2018
• Docket Number: Civil Action No. 17-11711-NMG
• Citation: 355 F.Supp.3d 9
• Parties: Daniel P. CONNOLLY, Plaintiff, v. SHAW'S SUPERMARKETS, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

355 F.Supp.3d 9

Daniel P. CONNOLLY, Plaintiff,

v.SHAW'S SUPERMARKETS, INC., Defendant.

Civil Action No. 17-11711-NMG

United States District Court, D. Massachusetts.

Signed December 20, 2018

Daniel P. Connolly, Lynn, MA, pro se.

Matthew A. Porter, Jeffrey S. McAllister, Jackson Lewis PC, Boston, MA, for Defendant.

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge

This case arises from the alleged unlawful termination of Daniel Connolly ("Connolly" or "plaintiff") by Shaw's Supermarkets, Inc. ("Shaw's" or "defendant"). Before this Court is defendant's motion to dismiss (Docket No. 13). For the following reasons, defendant's motion will be allowed, in part, and denied, in part.

I. Background

A. Facts

Connolly is a resident of Nahant, Massachusetts. Shaw's is a grocery store chain incorporated in Massachusetts with over 100 locations throughout New England.

Connolly was employed by Shaw's from January, 1998, until May, 2014. During his 16-year tenure, plaintiff worked as a grocery clerk or receiver at multiple store locations. As part of his duties as a receiver, plaintiff was required to "index" items when they were received from the vendor which consisted of counting the items and entering a corresponding code into a system tracking their receipt. Over the course of his employment, he received two written warnings, not including the final warning that led to this claim. In 2002, Connolly received his first written warning for not rotating products adequately. He received his second written warning in 2014 for failing to keep the back room clean and not completing daily assignments. No other discipline was imposed for those infractions and other than those there have been no complaints about Connolly's performance.

In May, 2014, while working at Shaw's store in Ipswich, Massachusetts, Connolly alleges he was subjected to an adverse employment action. He was 64 years old at the time. While Connolly was out on a planned vacation, the person assigned to cover his position discovered vendor slips for certain bread items that had not been entered into the indexing system. On May 2, 2014, Acting Store Director Tarsha Cunha reported the situation to the Loss Prevention Department and asked it to investigate whether plaintiff had been stealing produce.

Upon returning from vacation, plaintiff met with Cunha and Grocery Manager Troy Mudgett to discuss the situation and was subsequently interviewed by the Loss Prevention Department. During that interview, Connolly stated that there had been previous issues with respect to the indexing system and missing codes for items which prevented receivers from making proper entries into the system. He indicated that those issues had been resolved in the past without incident.

On May 11, 2014, the Loss Prevention Department completed an Investigative Summary which included a report by Accounts Payable Manager Jayne Maranhas.

She concluded that there was "no blatant sloppiness in [indexing]" and that the bread items likely had not been listed because the indexing system lacked a code for those particular items as "was common to many stores". She clarified that her conclusions did not, however, "speak to [plaintiff] not counting" those items properly when received from the vendor. There was no indication in the report that Connolly was suspected of stealing from Shaw's.

On May 15, 2014, plaintiff received a disciplinary notice giving him a final written warning and suspending him from work. That notice explained that he was being suspended for

[g]ross [n]egligence of job responsibilities [because he] didn't use the proper procedures well [sic] Dexing and [c]ounting the gold medal bread for several months.

Connolly signed the final written warning and requested a hearing pursuant to Shaw's Associate Appeal Process policy. He allegedly later called a store representative to inquire about his appeal. That call allegedly was not returned nor was Connolly ever instructed to return to work. Plaintiff contends that the failure to issue a notice to return to work following his suspension constituted a termination of his employment.

B. Procedural History

In March, 2015, plaintiff filed a complaint with the Massachusetts Commission Against Discrimination ("the MCAD") alleging that defendant had unlawfully terminated him in May, 2014, due to his age. The outcome of the MCAD proceeding is unclear. Connolly asserts that some time later he spoke to someone at the Equal Employment Opportunity Commission ("the EEOC") who advised him to file an action in this Court.

In September, 2017, plaintiff filed a complaint pro se in this Court. The entirety of that complaint consists of two factual allegations:

I was wrongly dismissed from my position without a hearing that I requested in writing. When the company reviewed my receiving records, Shaw's Supermarkets found everything in order.

In February, 2018, this Court directed Connolly to file an amended complaint because the original complaint failed to allege facts sufficient to state a claim under federal or state law. In March, 2018, plaintiff submitted nine exhibits to supplement his original complaint. Those exhibits include 1) his resume, 2) a rebuttal statement filed with the MCAD in 2015, 3) internal Shaw's performance reviews of plaintiff and 4) the disciplinary notice and other documents related to the May, 2014 incident. Shortly thereafter, this Court entered an order construing plaintiff's complaint and associated exhibits as an action for unlawful employment discrimination based on age and directing plaintiff to serve process upon the defendant.

In May 2018, a United States Marshal served a copy of the summons and complaint by hand to defendant's receptionist at its corporate office. The complaint served did not include any exhibits or a copy of this Court's order. Defendant learned of those exhibits through review of the docket by its counsel. A few weeks later, defendant filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(4), 12(b)(5) and 12(b)(6). Defendant maintains that the complaint must be dismissed because 1) it was not properly served, 2) the Court lacks subject matter jurisdiction in that the complaint alleges no action under federal law and the exhibits refer only to an age discrimination claim under Massachusetts state law, 3) the complaint otherwise fails to state a claim for age discrimination under federal law and 4) any claim for age discrimination under Massachusetts state law is time-barred.

II. Motion to Dismiss

A. Legal Standard

A plaintiff faced with a motion to dismiss under Fed. R. Civ. P. 12(b)(1) bears the burden of establishing that the court has subject matter jurisdiction over the action. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If the defendant proffers a "sufficiency challenge", the court will assess plaintiff's jurisdictional allegations liberally, treating all well-pled facts as true and drawing all reasonable inferences in the plaintiff's favor. Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

If the defendant advances a "factual challenge" by controverting the accuracy, rather than the sufficiency, of the alleged jurisdictional facts, "the plaintiff's jurisdictional averments are entitled to no presumptive weight" and the court will consider the allegations by both parties and resolve the factual disputes. Id. The court has "broad authority" in conducting the inquiry and can, in its discretion, order discovery, consider extrinsic evidence or hold evidentiary hearings in determining its own jurisdiction. Id. at 363-64.

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering the merits of a motion to dismiss, the Court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint and matters of which judicial notice can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000). Furthermore, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). Although a court must accept as true all of the factual allegations contained in a complaint, that doctrine is not applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Pro se pleadings are held to "less demanding standards than those drafted by lawyers" and are read liberally on a motion to dismiss. Boivin v. Black, 225 F.3d 36, 43 (1st Cir. 2000). Even pro se plaintiffs must, however, follow procedural rules and dismissal is appropriate when the court lacks jurisdiction or when the complaint fails to suggest an actionable claim. Overton v. Torruella, 183 F.Supp.2d 295, 303 (D. Mass. 2001) (citing Lefebvre v. Comm'r Internal Rev., 830 F.2d 417, 419 (1st Cir. 1987) ).

One of the applicable procedural rules is service of process pursuant to Fed. R. Civ. P. 4. A motion to dismiss for improper process under Fed. R. Civ. P. 12(b)(4) pertains to the "content of the summons" and a motion to dismiss for improper service of process under Fed. R. Civ. P. 12(b)(5) challenges the "mode of delivery". Taite v. Bridgewater State Univ., 236 F.Supp.3d 466, 472 (D. Mass. 2017). Defendant bears the initial burden of showing service was improper. Id. Once adequately challenged, the burden shifts to plaintiff to show service was proper. Rivera–Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992).

While ignorance of procedural rules is ordinarily no excuse for improper service, courts have recognized certain exceptions for plaintiffs pr...