Ngomba v. Olee

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: KELLEY, U.S.M.J.
• Decision Date: 09 January 2020
• Docket Number: CIVIL ACTION NO. 18-11352-MPK
• Citation: Ngomba v. Olee, CIVIL ACTION NO. 18-11352-MPK (D. Mass. Jan 09, 2020)
• Parties: DESMOND M. NGOMBA, Plaintiff, v. TONG OLEE, MELISSA ACELLO, SUSAN BUNHAM, RESOURCES FOR HUMAN DEVELOPMENT, Defendants.

DESMOND M. NGOMBA, Plaintiff, v. TONG OLEE, MELISSA ACELLO,SUSAN BUNHAM, RESOURCES FOR HUMAN DEVELOPMENT, Defendants.

CIVIL ACTION NO. 18-11352-MPK¹

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

January 9, 2020

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (#40).

KELLEY, U.S.M.J.

I. Introduction.

Desmond M. Ngomba filed a pro se complaint on June 26, 2018, alleging retaliatory discrimination based on national origin. (#1.) Denial of requested leave under the Family Medical Leave Act (FMLA) was part of the alleged retaliation. Id. Defendants' motion to dismiss the complaint was granted, and plaintiff was given leave to file an amended complaint. (#31.)

Plaintiff retained an attorney, and on August 13, 2019, counsel filed a two-count amended complaint alleging a claim of interference with FMLA rights (Count I) and retaliatory termination for exercising FMLA rights (Count II). (#38.) Defendants have once again moved to dismiss forfailure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. (##40, 44.) Plaintiff opposes the motion. (#41.)

II. The Facts.

The relevant facts are taken from the first amended complaint, the operative pleading. Coll. Hill Properties, LLC v. City of Worcester, 821 F.3d 193, 195 (1st Cir. 2016). In May 2015, Mr. Ngomba was hired by defendant Resources for Human Development (RHD) to work as a mental health advocate primarily at an RHD office located in Somerville, Massachusetts. (#38 ¶ 25.) The three individuals named as defendants are all employees of RHD: Tong Olee is a program director, Melissa Acello is a manager, and Susan Bunham is the regional director in Boston. Id. ¶¶ 7-9.

Plaintiff was raised from childhood by his aunt, who essentially stood in loco parentis to him. Id. ¶ 28. In September 2016, his aunt was diagnosed with a terminal illness. Id. ¶ 27. Mr. Ngomba informed defendants of his relationship with his aunt, i.e., that he viewed her as a parent, and her medical prognosis. Id. ¶¶ 29, 30.

In May 2017, plaintiff requested leave/FMLA from John Salle, his program manager. Id. ¶ 31. Not being versed in the FMLA, Mr. Salle referred Mr. Ngomba to his supervisor, Ms. Acello. Id. Following Mr. Salle's advice, plaintiff requested leave/FMLA from Ms. Acello. Id. ¶ 32. Ms. Acello told plaintiff to request the leave directly from her supervisor, Mr. Olee, because she did not want anything to do with the FMLA. Id.

In June 2017, Mr. Ngomba requested leave/FMLA from Mr. Olee "so that he could care for his aunt, who had been transferred to hospice care." Id. ¶ 33. Mr. Olee denied the request because RHD was understaffed, but told plaintiff that if his aunt's condition deteriorated, they could revisit the issue. Id. In July and August 2017, Mr. Ngomba repeated his request forleave/FMLA, but Mr. Olee's response remained the same. Id. ¶ 34. Plaintiff's aunt died on September 5, 2017. Id. ¶ 35.

On November 3, 2017, plaintiff called in sick to work following a sixteen-hour shift. Id. ¶ 36. When his condition did not improve, Mr. Ngomba again called in sick the following day. Id. ¶ 37. On November 5, 2017, plaintiff was notified by RHD that he was terminated from employment, effective immediately, for abandonment of his position. Id.

In Count I, a claim for interference with the right to take leave, plaintiff alleges that defendants "dissuaded and discouraged [him] from taking FLMA leave, thereby interfering with his rights to FLMA leave." Id. ¶ 45. By discouraging Mr. Ngomba from taking FLMA leave, and denying his request for FLMA leave, defendants are alleged to have violated "the applicable statutes and regulations." Id. ¶ 46. In Count II, a claim for retaliatory termination for exercising FLMA rights, Mr. Ngomba alleges that "[b]y terminating [him] after his numerous attempts to exercise his rights under FMLA, and denying his request for FLMA leave, [d]efendants failed to comply with the applicable statutes and regulations." Id. ¶ 51.

III. The Applicable Standard.

A Rule 12(b)(6) motion to dismiss challenges a party's complaint for failing to state a claim. In deciding such a motion, a court must "treat all well-pleaded facts in the complaint as true and draw all reasonable inferences in favor of the plaintiff." In re Fin. Oversight & Mgmt. Bd. for P.R., 919 F.3d 121, 127 (1st Cir. 2019) (citing Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 7 (1st Cir. 2011)). When considering a motion to dismiss, a court "may augment these facts and inferences with data points gleaned from documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice." A.G. ex rel. Maddox v. Elsevier,Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).

In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must provide "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The "obligation to provide the grounds of [the plaintiff's] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (internal quotation marks and alteration omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level," and to cross the "line from conceivable to plausible[.]" Id. at 555, 570.

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). However, the court is "'not bound to accept as true a legal conclusion couched as a factual allegation[.]'" Id. at 678 (quoting Twombly, 550 U.S. at 555). Simply put, the court should assume that well-pleaded facts are genuine and then determine whether such facts state a plausible claim for relief. Id. at 679.

IV. Discussion.

As a threshold matter, defendants argue that the amended complaint should be dismissed because the funeral/bereavement leave sought by plaintiff was not a qualifying reason for leave under the FMLA. This argument is based not on the allegations of the amended complaint, but rather on the allegations of the original complaint and an MCAD complaint filed by Mr. Ngomba. (#1; #30.) In the MCAD complaint, plaintiff asserted that "[i]n or about August 2017, my aunt's health took a turn for the worse and I filled out a request for FMLA leave, to begin in November and to last for ninety days." (#30 ¶ 7.) The claim in the original complaint was more general: "Iwas discriminated against because of my national origin, FMLA denied and retaliation." (#1 at 6.) Defendants contend that plaintiff is recasting the facts to avoid dismissal. While no supporting case law has been cited, defendants appear to be invoking judicial estoppel to foreclose the claims in the amended complaint.

"Judicial estoppel is an equitable doctrine that 'prevent[s] a litigant from taking a litigation position that is inconsistent with a litigation position successfully asserted by him in an earlier phase of the same case or in an earlier court proceeding.'" RFF Family P'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (quoting Perry v. Blum, 629 F.3d 1, 8 (1st Cir. 2010)). Appropriate application of this doctrine requires:

First, the estopping position and the estopped position must be directly inconsistent, that is, mutually exclusive. Second, the responsible party must have succeeded in persuading a court to accept its prior position. There is also a third oft-considered factor that asks whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Guay v. Burack, 677 F.3d 10, 16 (1st Cir. 2012) (internal citations and quotation marks omitted); RFF Family P'ship, 814 F.3d at 528. At a minimum, the second condition has not been met here. "To demonstrate acceptance of the prior position by a court, a party need not show that the earlier representation led to a favorable ruling on the merits of the proceeding in which it was made, but must show that the court adopted and relied on the represented position either in a preliminary matter or as part of a final disposition." RFF Family P'ship, 814 F.3d at 528 (internal citations and quotation marks omitted). Since the original complaint in this case was dismissed, it cannot be shown that the Court adopted or relied on plaintiff's position. The elements of judicial estoppel are not satisfied.²

Defendants next argue that Count I, the FLMA interference claim, should be dismissed because it was filed outside the two-year statute of limitations. See 29 U.S.C. § 2617(c)(1) ("an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought"). Plaintiff counters that the amended claim relates back to the original complaint under Rule 15(c), and so was filed within the limitations period.

The relevant rule provides that "[a]n amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). In practice,

The First Circuit generally allows relation back for 'technical errors' but will not allow relation back for claims 'not even suggested in the original complaint.' O'Loughlin v. Nat'l R.R. Passenger Corp., 928 F.2d 24, 26-27 (1st Cir. 1991) citing 6A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE, § 1497 (2d ed. 1990). Between those two poles, courts look to see whether 'the alteration of the original statement is so substantial that it cannot be said that defendan

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