Ngomba v. Olee

• Decision Date: 09 January 2020
• Docket Number: CIVIL ACTION NO. 18-11352-MPK
• Parties: DESMOND M. NGOMBA, Plaintiff, v. TONG OLEE, MELISSA ACELLO, SUSAN BUNHAM, RESOURCES FOR HUMAN DEVELOPMENT, Defendants.
• Court: U.S. District Court — District of Massachusetts

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 for

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failure 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 for

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leave/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,

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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...