Shan Wong v. Resolve Tech.
| Decision Date | 25 July 2011 |
| Docket Number | Civil Action No. 10-11642-DJC |
| Parties | Shan Wong, Plaintiff, v. Resolve Technology, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Plaintiff Shan Wong ("Wong") brings this action against Defendant Resolve Technology ("Resolve") alleging a violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and breaches of contract and the implied covenant of good faith and fair dealing in connection with Resolve's termination of her employment. Resolve has now moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure Rule ("Rule") 12(b)(6), or, in the alternative, for summary judgment under Rule 56 and Wong has moved for leave to amend the complaint pursuant to Fed. R. Civ. P. 15(a)(2). For the reasons set forth below, Resolve's motion to dismiss is GRANTED and Wong's motion to amend is DENIED.
Whether a complaint should survive a motion to dismiss depends upon whether the pleading satisfies the "plausibility" standard. Ashcroft v. Iqbal, _ U.S. _, 129 S.Ct. 1937, 1949-50 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 (2007). In determining plausibility, the courtshould first identify and disregard conclusory allegations. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 129 S.Ct. at 1949-50). "A plaintiff is not entitled to 'proceed perforce' by virtue of allegations that merely parrot the elements of the cause of action." Ocasio-Hernandez, 640 F.3d at 12. The remaining "[n]on-conclusory factual allegations in the complaint must be then treated as true, even if seemingly incredible" and assessed to determine whether they, "'allow [ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. at 12 (quoting Iqbal, 129 S.Ct. at 1949, 1951). If they do, "the claim has facial plausibility." Id. at 12 (quoting Iqbal, 129 S.Ct. at 1949).
In ruling on a Rule 12(b)(6) motion to dismiss, the Court "'may properly consider the relevant entirety of a document integral to or explicitly relied upon in the complaint, even though not attached to the complaint, without converting the motion into one for summary judgment.'" Clorox Co. v. Proctor & Gamble Comm. Co., 228 F.3d 24, 32 (1st Cir. 2000) (). The Court does so here.1
Resolve hired Wong as a Business Analyst in February 2007. (Compl. ¶ 2).2 Upon hiring, she signed an offer letter with Resolve setting forth the terms and conditions of her employment which indicated that her employment was at-will. (Def. Mot., Ex. A ¶ 4). Paragraph 4 of the offer letter states, in relevant part, (Def. Mot., Ex. A ¶ 4). The offer letter also presents a summary of Resolve's compensation package, including a bonus. Paragraph 3(b) provides, in pertinent part:
(Def. Mot., Ex. A ¶ 3(b)) (emphasis in original). Resolve's offer letter also "reserve[d] the right to unilaterally alter, amend or discontinue any of its policies, plans or procedures, at its sole discretion." (Def. Mot., Ex. A ¶ 5). Approximately seven months later, on September 4, 2007,Resolve terminated Wong's employment. (Compl. ¶ 3). The complaint alleges that Wong was wrongly terminated and discriminated against when she needed and sought an accommodation from Resolve to seek medical treatment for TMJ and a head injury. (Compl. ¶¶ 3-5).
Several months after her termination, on December 19, 2007, Wong filed a charge with the Massachusetts Commission Against Discrimination ("MCAD") alleging she was discriminated against by Resolve, but based not upon her TMJ and head injury as now alleged in the complaint, but upon "Disability, AIDS perceived." See Def. Reply, Ex. 2 ().3
The MCAD investigated Wong's charge and in its investigative disposition, stated that Wong had alleged "discrimination based upon Disability (AIDS perceived)." See Def. Mot., Ex. B (Investigative Disposition) at 1).4 The investigative commissioner addressed whether Wong had established a prima facie case of discrimination because she was perceived to have or be at risk of having HIV and on July 31, 2009, dismissed Wong's claim for lack of probable cause. Id. at 2-4. The MCAD further explained that even if Wong had demonstrated a prima facie case of perceived disability discrimination, Resolve had provided legitimate non-discriminatory reasons for terminating her employment, namely "erratic and repeated absences as well as her work performance," and that Wong offered no evidence to show that such reasons were merely a pretext for discrimination. Id. at 3. After Wong appealed on October 5, 2009 (Pl. Opp., Ex. A (appealletter)), the MCAD informed Wong on December 29, 2009 that it had affirmed its finding of lack of probable cause on her discrimination charge. See Pl. Opp., Ex. B (12/29/09 MCAD Letter to Wong). On June 28, 2010, Wong received a Right to Sue letter by the EEOC, which stated that the EEOC had adopted the MCAD's findings regarding her charge. See 6/28/10 EEOC letter attached to Complaint.
Wong filed the instant complaint on September 27, 2010, alleging violation of the ADA for failure to provide an accommodation for mental disability (Count I), breach of contract (Count II) and breach of implied covenant of good faith and fair dealing (Count III). (D. 1). Resolve subsequently moved to dismiss. (D. 13). After Wong filed her opposition to Resolve's motion, she moved to amend her complaint. (D. 16, 19). The Court heard oral argument on the motions on June 17, 2011. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
In the complaint, Wong alleges that during her employment at Resolve, she was seeking medical treatment for TMJ and a head injury and that at the time of her termination, she was entitled to a disability accommodation under ADA and company policy but that Resolve did not provide her the opportunity to apply for the disability accommodation or for short term disability. (Compl. ¶¶ 4, 5). Her ADA claim in Count I, captioned "Mental Disability Accommodation," only alleges that she believes her "disability was a factor in defendants' decision to terminate her" and that such "discrimination was in violation [of the] ADA. . . ." (Compl. ¶ 8).
"[I]t is well-settled that an employee alleging discrimination must file an administrative claim with the E.E.O.C. or with a parallel state agency before bringing a civil action." Thornton v. UPS, Inc., 587 F.3d 27, 31 (1st Cir. 2009) (citing Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir. 1999)). Filing an administrative claim "gives notice to both the employer and the agency of an alleged violation and affords an opportunity to swiftly and informally take any corrective action necessary to reconcile the violation." Thornton, 587 F.3d at 31 (citing Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st Cir. 1990)). In light of this purpose, "[t]he scope of the civil complaint is . . . limited by the charge filed with the EEOC [or MCAD] and the investigation which can reasonably be expected to grow out of that charge. Thornton, 587 F.3d at 31. As the First Circuit has explained, "the scope of a civil action is not determined by the specific language of the charge filed with the agency, but rather, may encompass acts of discrimination which the MCAD investigation could reasonably be expected to uncover." Davis v. Lucent Tech., Inc., 251 F.3d 227, 233 (1st Cir. 2001) (citation omitted). "[T]he exact wording of the charge of discrimination need not 'presage with literary exactitude the judicial pleadings which may follow.'" Powers, 915 F. 2d at 39 (citation omitted). The scope of the suit is "nonetheless constrained by those allegations in the sense that the judicial complaint must bear some close relation to the allegations presented to the agency." Jorge v. Rumsfeld, 404 F.3d 556, 565 (1st Cir. 2005).
As Resolve correctly points out, Wong's disability claim raised in her complaint, based on "TMJ and head injury," was not included in her original MCAD charge. The original charge submitted to the MCAD and transmitted to the EEOC states that Wong alleged discrimination on the basis of perceived HIV or AIDS, not on the basis of Wong's TMJ or head injury. Although in a March 10, 2008 letter to the MCAD that Wong has now proffered to the Court, Wong noted thatshe had been involved in a car accident in May 2006 and had been receiving treatment for severe migraines, neck, back and TMJ since then, even in that letter she repeatedly claimed that Resolve had discriminated on the basis of the perception that she had AIDS: (Pl. Mot. to Amend, Ex. A at 2). Her MCAD charge and March 2008 letter to the...
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