Ortiz v. Fed. Bureau of Prisons, Civil Action No. 16–10595–TSH

Decision Date05 December 2017
Docket NumberCivil Action No. 16–10595–TSH
Citation290 F.Supp.3d 96
Parties Evelyn Marcial ORTIZ, Plaintiff, v. FEDERAL BUREAU OF PRISONS, J. Grondolsky, Warden in his individual capacity, Richard H. Russell, Associate Warden in his individual capacity, and Michael Bollinger, Captain in his individual capacity, Defendants.
CourtU.S. District Court — District of Massachusetts

Simon B. Mann, Mann Law Firm, P.C., Framingham, MA, for Plaintiff.

Anita Johnson, Shelbey D. Wright, Annapurna Balakrishna, United States Attorney's Office, Boston, MA, for Defendants.




Plaintiff, Evelyn Marcial Ortiz ("Plaintiff" or "Ortiz") brings an employment discrimination action against Defendants, the Federal Bureau of Prisons ("BOP") and several BOP employees: Warden Jeffery Grondolsky ("Grondolsky"), Associate Warden Richard H. Russell ("Russell"), and Captain Michael Bollinger ("Bollinger"). In her amended complaint (Docket No. 15) ("Complaint"), Plaintiff alleges the Defendants deprived her of certain constitutionally protected rights under the First and Fourteenth Amendments in violation of 42 U.S.C. § 1983 (Count I); discrimination based on sex or gender in violation of 42 U.S.C. § 2000 et seq. ("Title VII") (Count II); discrimination based on race in violation of Title VII (Count III); discrimination based on sexual orientation in violation of Title VII (Count IV); retaliation for engaging in protected activities in violation of Title VII (Count V); discrimination based on race in violation of Mass.Gen.L., ch. 151B (Count VI); discrimination based on gender in violation of Mass.Gen.L., ch. 151B (Count VII); discrimination based on sexual orientation in violation of Mass.Gen.L., ch. 151B (Count VIII); and retaliation for engaging in protected activities in violation of Mass.Gen., ch. 151B (Count IX)1 . This memorandum and order addresses Defendants' Motion to Dismiss Complaint (Docket No. 23). For the reasons stated below, Defendants' motion is granted in part and denied in part.2

Standard of Review

To withstand a 12(b)(6) motion to dismiss, a complaint must allege a claim that plausibly entitles the plaintiff to relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 559, 570, 127 S.Ct. 1955, 1967, 1974, 167 L.Ed.2d 929 (2007). Plausibility does not amount to probability but "it asks for more than a sheer possibility the defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). While a complaint does not need detailed factual allegations, it "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Ocasio–Hernàndez v. Fortuño–Burset , 640 F.3d 1, 13 (1st Cir. 2011).

While weighing a motion to dismiss, the court must take all of the well-pleaded factual allegations as true and "give the plaintiff the benefit of all reasonable inferences therefrom." Ruiz v. Bally Total Fitness Holding Corp. , 496 F.3d 1, 5 (1st Cir. 2007). In deciding whether a complaint states a "plausible claim for relief" the court undertakes a "context specific task" that necessarily requires it to "draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (internal citations omitted). A claim may be dismissed "if plaintiff's well-pleaded facts do not possess enough heft to show that plaintiff is entitled to relief." Rhodes v. Owens Loan Servicing, LLC. , 44 F.Supp.3d 137, 140 (D.Mass. 2014) (quoting Ruiz Rivera v. Pfizer Pharm., LLC , 521 F.3d 76, 84 (1st Cir.2008) (internal quotations omitted)). However, a court may not neglect sufficiently pleaded factual allegations, "even if it strikes a savvy judge that actual proof of those facts is improbable" Twombly , 550 U.S. at 556, 127 S.Ct. 1955.


Ortiz began working for the BOP in 1987. In 2008, she attained the rank of GL–11 Lieutenant. In March 2011, she was reassigned to the position of Escort Lieutenant. Ortiz alleges that from March 2011 through October 2014, she was subjected to "continuous and pervasive discriminatory treatment" because of her race, and gender (Plaintiff is Hispanic)3 . Grondolsky, Russell, and Bollinger supervised the Plaintiff for the relevant period.

More specifically, Ortiz claims that numerous times during her employment with the BOP, Caucasian male lieutenants suffered lessened consequences for disobeying Bollinger's orders, while she was more severely disciplined for similar infractions. For example, a Caucasian male lieutenant improperly opened a cell door without ensuring an inmate was handcuffed, but was not disciplined for his behavior. However, when the Plaintiff opened a cell door while an inmate was not handcuffed, she was investigated and suspended for two days. On other occasions, Caucasian male lieutenants were either not investigated or not severely punished for serious infractions, including misplacing $4,000.00 of escort equipment and leaving a weapon unattended at a local hospital.

On June 22, 2011, Ortiz was working in an office with multiple Caucasian corrections officers. As another Hispanic corrections officer entered the room, one of the Caucasian corrections officers told him "your sister is here," in apparent reference to the Plaintiff's Hispanic heritage. Four or five of the Plaintiff's subordinates heard the comment and laughed. On June 7, 2011, a department head/lieutenant meeting was held in which employees voiced their workplace concerns. Lieutenant Roberts and Lieutenant Allred, both Caucasian males, spoke for ten and fifteen minutes respectively and were not cut off even when they spoke harshly about the department. Bollinger cut the Plaintiff off from speaking after just one minute. On August 1, 2011, Ortiz noticed a sheet of paper on the window in the Control Center which stated, in big bold letters, "Attention! Please do not feed the Orangutans!" with a picture of an orangutan. The Plaintiff was "humiliated" by the sign, as this is traditionally a racist reference and she was "certain" that the sign was directed at herself and other persons of color. Plaintiff notified a Senior Officer, Bollinger, Special Investigative Services, and the Regional Director of the BOP that she was offended by the sign and asked that it be removed immediately. She received no response. Similar signs, including pictures of "Bubba Gump Shrimp" and a Rastafarian man with dreadlocks, remained hanging in the control room despite the Plaintiff telling multiple supervisors she found the signs offensive4 .

After an email from the corrections officers' union president on May 25, 2012, that instructed all corrections officers and union staff "not to heed any orders issued" by the Plaintiff, she again formally complained to all individually named Defendants about being subjected to "racial disrespect" and a "hostile working environment." Plaintiff received no follow-up on her complaints, and no investigation ever occurred.

On February 22, 2013, Officer John Hansen ("Hansen") physically assaulted Ortiz while they were in a seclusion unit by intentionally hip-checking her into the wall. Ortiz's version of the events was corroborated by another officer. Ortiz submitted a memo to Bollinger that Hansen assaulted and battered her, but received no response and had to work with Hansen the next day. On February 27, 2013, an inmate was given a rotten bag of cereal. Per Bollinger's instructions, Plaintiff exchanged the rotten bag for a new one and was given a six day suspension for doing so. Bollinger did not support mitigating the suspension despite the fact the Plaintiff replaced the cereal on his orders. Plaintiff was not able to appeal her suspension or present her position to either Grondolsky or Human Resources. Ortiz alleges that all these events, as well as others described in the Complaint, demonstrate discrimination on the basis of race and/or gender.

Claims Against Defendants in Their Individual Capacities

Plaintiff's Complaint names Grondolsky, Russell, and Bollinger in their individual capacities. According to the Complaint, all three were BOP employees during the relevant period. It is well settled that "there is no individual employee liability under Title VII." Fantini v. Salem State College , 557 F.3d 22, 30 (1st Cir. 2009) (accepting reasoning of other circuits in holding individual employees cannot be liable in Title VII claims); Horney v. Westfield Gage Co. , 95 F.Supp.2d 29, 35 (D. Mass. 2000). Accordingly, Counts II, III, and V are dismissed as to the individually named Defendants. The Court will now address the sufficiency of Ortiz's claims against the BOP.

Plaintiff's Claims for Gender and Race Discrimination in Violation of Title VII 5

Title VII makes it unlawful for employers to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] sex." 42 U.S.C.A. § 2000e–2(a)(1). Under a disparate treatment theory of employment discrimination, a plaintiff must demonstrate they were the victims of intentional discrimination. Udo v. Tomes , 54 F.3d 9, 12 (1st Cir. 1995). Disparate treatment claimants bear the burden of proving they were "subjected to different treatment than persons similarly situated in all relevant aspects." Byrd v. Ronayne , 61 F.3d 1026 (1st Cir. 1995) (citing Smith v. Stratus Computer, Inc. , 40 F.3d 11, 17 (1st Cir. 1994) ). Complaints must be more than "merely conclusory regarding the characterization of the defendant's motives," and allege facts that give "rise to an inference of discriminatory animus." Johnson v. General Electric , 840 F.2d 132, 138 (1st Cir. 1988)....

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