Merced v. Hodges Badge Company, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Partial With Supporting Memo

D.R.I.July 3, 2017

UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ANGEL MERCED v. Plaintiff HODGES BADGE COMPANY, INC. and LEE WORLD, alias Defendants C.A. No: 1:17-cv-00061 -M-PAS DEFENDANTS' PARTIAL MOTION TO DISMISS Defendants Hodges Badge Company, Inc. ("Hodges Badge") and Lee World ("Defendant World") (collectively "Defendants") hereby move this Court to partially dismiss Plaintiffs complaint pursuant to Fed. R. Civ. P. 12(b)(6) as follows. Defendant World moves to dismiss Counts 1 - 6 and Count 8 as to her. Hodges Badge also moves to dismiss a portion of Count 2 as to it, because Plaintiff has failed to state a claim upon which relief may be granted. In support of their motion. Defendants rely on the attached Memorandum in Support of Their Partial Motion to Dismiss. For the foregoing reasons, Defendants respectfully request that the Court grant their partial motion to dismiss, along with such other and further relief as the Court deems just and proper. 4827-3714-4907.1 Case 1:17-cv-00061-M-PAS Document 12 Filed 07/03/17 Page 1 of 2 PageID #: 36 HODGES BADGE COMPANY, INC. and LEE WORLD /s/ Andrew B. Prescott Andrew B. Prescott (#3758) Jessica S. Jewell (#8432) NIXON PEABODY LLP One Citizens Plaza, Suite 500 Providence, Rhode Island 02903 (401)454-1000 (401) 454-1030 (Facsimile) aprescott@nixonj3eabody.com jsjewel l@nixonpeabody.com Dated: July 3, 2017 CERTIFICATION I hereby certify that on the 3rd day of July, 2017,1 filed and served this document electronically through the Court's CM/ECF system. /s/ Andrew B. Prescott 4827-3714-4907.1 2 Case 1:17-cv-00061-M-PAS Document 12 Filed 07/03/17 Page 2 of 2 PageID #: 37 UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND ANGEL MERCED v. Plaintiff HODGES BADGE COMPANY, INC. and LEE WORLD, alias Defendants C.A. No: 1:17-cv-00061 -M-PAS MEMORANDUM IN SUPPORT OF DEFENDANTS' PARTIAL MOTION TO DISMISS Defendants Hodges Badge Company, Inc. ("Hodges Badge") and Lee World ("Defendant World") (collectively "Defendants") submit this memorandum in support of their Partial Motion to Dismiss Plaintiffs Complaint filed pursuant to Fed. R. Civ. P. 12(b)(6). I. INTRODUCTION Plaintiff Angel Merced ("Plaintiff or "Merced") has filed an eight-count complaint against Defendants, stemming from his employment with and termination from Hodges Badge. Specifically, he alleges that Defendants discriminated against him because of his (1) race, color and/or ancestral origin in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §1981 ("Section 1981") and the Rhode Island Fair Employment Practices Act ("FEPA"); and (2) disability or perceived disability in violation of the Rhode Island Civil Rights of People with Disabilities Act ("CRPD"), the Americans With Disabilities Act of 1990 ("ADA"), FEPA and the Rhode Island Civil Rights Act ("RICRA"). He also alleges violations of the Family and Medical Leave Act ("FMLA") and the Rhode Island Parental and Family Medical Leave Act ("RIPFMLA"). With respect to each Count in the Complaint, Plaintiff alleges that "Defendants, by their individual and/or concerted acts and/or omissions," violated each law. Because the majority of 4846-4604-5514.4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 1 of 11 PageID #: 38 these laws do not provide for individual liability, Plaintiff has failed to state a claim upon which relief may be granted in accordance with those statutes as to Defendant World. Specifically, Defendant World respectfully requests that this Court dismiss all but Count Seven as to her.1 Furthermore, Plaintiff asserts a claim for color and ancestral origin discrimination as to both Defendants under Section 1981, which does not contemplate such causes of action. Therefore, • * 2 Hodges Badge also requests that that that portion of Count Two be dismissed as to it. II. RELEVANT FACTS AND ALLEGATIONS CONTAINED IN THE COMPLAINT3 A. Race, Color and/or Ancestral Origin Discrimination Plaintiff worked at Hodges Badge from January 2008 to July 2014. See Cmplt. (attached hereto as Exhibit A), 12, 36-37. Defendant World was Plaintiffs supervisor during all relevant times. Id., f3. Plaintiff is Hispanic. Id., f 14. During his employment, one employee told Plaintiff that he was "smarter than the average black guy[,]" (id., fib), the wife of Hodges Badge's owner told Plaintiff that her dog was Plaintiffs daughter because the animal was black (id., fl7) and on several occasions, unidentified management-level employees reprimanded him for performance issues Plaintiff did not cause, but similarly-situated Caucasian employees were not subjected to such treatment. Id., f 18. Plaintiffs Complaint does not allege that Defendant World engaged in any of this conduct. See id. B. Disability Leave Law Discrimination Plaintiff suffered from alcoholism. Id., f 19. Plaintiff told Defendant World that he would be absent from work because he was seeking treatment at a rehabilitation facility and then 1 As set forth in greater detail below, although Section 1981 does allow for individual liability, Plaintiff fails to allege facts concerning Defendant World as it pertains to his Section 1981 claim. 2 Defendants intend to file a timely answer to portions of the Complaint which survive the Court's ruling on their Partial Motion to Dismiss, including the counts which Defendants do not contest herein. 3 Defendants dispute many of Plaintiffs allegations. But because the Court must accept Plaintiff s factual allegations as true in deicing a motion under Rule 12(b)(6), Defendants recite Plaintiff s allegations as needed. 4846-4604-5514.4 2 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 2 of 11 PageID #: 39 later at Clinical Services of Rhode Island, Inc. ("CSRI") and would be unable to report to work. Id.. Iff20, 25. Defendants knew that Plaintiff had a need of a reasonable accommodation and refused to offer him a reasonable workplace accommodation. Id., 1H|30-31. On July 18, 2014, Plaintiff reported to work but left shortly thereafter because his immediate supervisor (not Defendant World) told him that he needed to be cleared by a physician before returning to work. Id,, 5!,T32. 33. Later that morning, Plaintiffs counselor e- mailed a letter to Defendant World indicating that Plaintiff was receiving outpatient services at CSRI and that he was able to return to work. Id., ,,34. Plaintiff returned to work that afternoon. Id.. '"35. Approximately one hour later, Defendant World and two other individuals met with Plaintiff and terminated Plaintiffs employment for failing to follow proper absenteeism procedure. Id,, 11136, 37. III. STANDARD OF REVIEW In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court accepts as true the well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff. Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008); McCloskev v. Mueller, 446 F.3d 262, 266 (1st Cir 2006). To withstand "a motion to dismiss, a complaint must allege 'a plausible entitlement to relief.'" ACA Fin. Guar. Corp. v Advest. Inc.. 512 F.3d 46, 58 (1st Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558-59 (2007)). Dismissal for failure to state a claim is appropriate when the pleadings fail to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory. Dineen v. Dorchester House Multi-Service Ctr, Inc.. 2014 U.S. Dist. LEXIS 12929 at *6-7 (D. Mass. Jan. 31, 2014) (citations omitted). The "tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, 3 4846-4604-5514.4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 3 of 11 PageID #: 40 supported by merely conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,'550 U.S. at 555). A complaint "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 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court's assessment of the pleadings is "context-specific" requiring "the reviewing court to draw on its judicial experience and common sense." Iqbal, 566 U.S. at 679. "[Wjhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'showjnj' - 'that the pleader is entitled to relief." Id. (quoting Fed. R. Civ. P. 8(a)(2)). IV. ARGUMENT A. Plaintiffs Claims for Color and Ancestral Origin Discrimination in Violation of Section 1981 (Count Two) Should be Dismissed As To Both Defendants Because There is No Such Cause of Action. Plainti ff alleges race, color, and/or ancestral origin discrimination in violation of Section 1981; however, Section 1981 only permits claims of race discrimination. Therefore, the color and ancestral origin claims should be dismissed. See Fantini v. Salem State Coll., 557 F.3d 22, 33-34 (1st Cir. 2009) (citing Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) ("[sjection 1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship") (emphasis added). See also Al-Wardi v. Command Airways, 1994 U.S. App. LEXIS 29944, at *2 (1st Cir. Oct. 25, 1994) ("Section 1981 reaches racial discrimination.") (Emphasis in original.) Defendants respectfully request that the Court dismiss Plaintiff s claims for color and ancestral origin discrimination from the Complaint. 4846-4604-5514.4 4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 4 of 11 PageID #: 41 B. All Claims for Race. Color and/or Ancestral Origin Discrimination Against Defendant World (Counts One. Two and Five) Should Be Dismissed Because Plaintiff Has Failed to Allege Any Facts Which Would Support Any Causal Link to Defendant World. Plaintiff alleges race, color and/or ancestral origin discrimination against Defendant World in violation of Section 1981, Title VII and FEPA. However, the only allegations in the Complaint arguably related to Defendant World pertain to Plaintiffs alleged disability, his request for leave and his discharge from employment with Hodges Badge. He has not made one allegation about Defendant World that relates to any alleged harassment or discrimination based on his race, color and/or ancestral origin claims. Therefore, although there is individual liability under Section 1981, "in order to make out a claim for individual liability under § 1981, a plaintiff must demonstrate 'some affirmative link to causally connect the actor with the discriminatory action.' " Wliidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (citing Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 983 (10th Cir. 1991)) ("A claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement.") See also Hicks v. IBM, 44 F.Supp.2d 593, 597 (S.D.N.Y. 1999) ("In each of the cases that have allowed individual liability [under § 1981], the individuals have been supervisors who were personally involved in the discriminatory activity.") (Emphasis added.) See also Dalomba v. Simonsen. 2016 U.S. Dist. LEXIS 42359, *23 ((D.N.H. Mar. 30, 2016) ("a claim seeking personal liability under section 1981 must be predicated on the actor's personal involvement;" there must be "some affirmative link to causally connect the actor with the discriminatory action."); Kwok Leung Yan v. Ziba Mode, Inc., 2016 U.S. Dist. LEXIS 42328, at *6 (S.D.N.Y. Mar. 29, 2016) ("individuals may be liable under Section 1981, so long as a plaintiff shows 'some affirmative link to causally connect the actor with the discriminatory action.' ") 4846-4604-5514.4 5 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 5 of 11 PageID #: 42 c. This Court Should Dismiss Plaintiffs Title VII. ADA. FEPA, RICRA. CRPDA and RIPFMLA Claims Against Defendant World Because These Statutes Do Not Permit Individual Liability. 1. Title VII, the ADA and FEPA The law is clear that Title VII, ADA and FEPA do not allow for individual liability under the respective statutes. See Fantini. 557 F.3d at 31 (holding that there is no individual liability under Title VII); Roman-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir. 2011) (holding that there is no individual liability under the ADA); and Mancini v. City of Providence. 155 A.3d 159, 168 (R.I. 2017) (answering the certified question to the Rhode Island Supreme Court in the negative regarding individual liability under FEPA). There is no question that these respective statutes do not allow for individual liability. Therefore, Defendants request that this Court dismiss Counts One (Title VII), Four (ADA) and Five (FEPA) as to Defendant World. 2. RIPFMLA Does Not Pro vide for Individual Liability Prior to the Mancini decision, the Rhode Island Superior Court determined that FEPA does not provide for individual liability and, for the same reasons, held that the RIPFMLA similarly did not provide for individual liability. See Bringhurst v. Cardi's DepT Store, Inc., 2011 R.I. Super. LEXIS 166, *10 (December 30, 2011). In that case, the court set forth RIPFMLA's definition of "employer" and then held that "[njotably, 'employer' is defined in a similar manner in the RIFEPA." Id., *15. The Superior Court went on to hold that to find that an individual could be liable under RIPFMLA "would allow a human resources employee who signs a letter of termination or discipline to be routinely subject to individual liability simply by signing his or her name. This would be an absurd result." (Emphasis in original.) In Mancini, the Rhode Island Supreme Court also discussed the resultant "chilling effect" of individual liability on managerial decisions. The Court predicted that "supervisors frequently tending to make employment decisions based on their apprehensiveness as to the possibility of 6 4846-4604-5514.4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 6 of 11 PageID #: 43 suit rather than on what they deem to be in the best interest of the employer." Mancini. 155 A.3d at 165-66. The Supreme Court went on to hold that "a supervisor should not have to be concerned about keeping his or her house or car, or having enough wherewithal to pay for the education of his or her children when" making managerial decisions. Id. The Supreme Court further noted that the statutory remedies in FEPA - the issuance of a cease-and-desist order, hiring, reinstatement, upgrading of employees with or without back pay, and admission or restoration to union membership - more clearly relate to the employer, not the individual, kh The point about remedies strongly suggests no individual liability under RIPFMLA. This Court held in Reid v. Citizens Sav. Bank/Citizens Trust Co., 887 F.Supp. 43, 47 (D.R.I. 1995) that RIPFMLA only provides for equitable relief - e^g., job restoration. See also Moran v. GTECH Corp., 989 F. Supp. 84, 87-88 (D.R.I. 1997) (adopting the Reid decision and holding that "the only relief available under the statute is equitable relief, aimed at restoring the employee to his or her rightful place - where he or she would have been were it not for the unlawful discrimination.") The employer - not an individual - has the ability to reinstate an employee. For the reasons set forth above, Defendants request that this Court dismiss Count Eight against Defendant World. 3. CRPDA In Roman-Oliveras, 655 F.3d at 51, the First Circuit applied its Fantini decision to the ADA and held that the federal law prohibiting disability discrimination similarly did not provide for individual liability. The First Circuit held that the "logic of Fantini [was] compelling[,]" in part because "the ADA's definition of employer mirrors Title VITs [and] [u]nder both, an employer is 'a person engaged in an industry affecting commerce who has fifteen or more employees].)" For the same reasons that Title VII did not provide for individual liability - 7 4846-4604-5514.4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 7 of 11 PageID #: 44 namely that it would be "inconceivable" for Congress to allow civil liability to run against individuals but protect small entities with limited resources from liability - the First Circuit held that the ADA similarly did not provide for such liability. Id This analysis applies here with equal force. The Rhode Island General Assembly clearly meant to protect smaller employers from CRPDA liability. Although there is a general prohibition against discrimination towards individuals with disabilities, set forth in R.I.G.L. §42- 87-2 ("No otherwise qualified person with a disability shall... be subject to discrimination by any person or entity doing business in the state"), the employment discrimination prohibition in the CRPDA applies, as one would expect, only to covered employers. Section §42-87-3, entitled "Discriminatory acts" specifically incorporates the ADA's definition of "employer" into its own statutory scheme: "No qualified individual with a disability... shall be... "[s]ubject to discrimination in employment by a[n]... employer covered by the Americans with Disabilities Act[.]" §42-87-3(5)(iii). 4. R1CRA In 2014, individually named defendants asked this Court to hold that RICRA does not provide for individual liability. See Reilly v. Cox Enters., Inc., 2014 U.S. Dist. LEXIS 128452 *31 (D.R.I. Apr. 16,2014). Despite the fact that there were cases holding in favor of individual liability, this Court noted that the Supreme Court's response in Mancini to the certified question of whether FEPA provides for individual liability was "overwhelmingly likely to be relevant to claims against individuals under RICRA." Id. (citing lacampo v. Hasbro. Inc.. 929 F. Supp. 562, 571 (D.R.I. 1996) (interpreting RICRA and FEPA in tandem with respect to the question of individual liability)). Defendants agree with this Court that the Mancini decision is relevant to the question of individual liability under RICRA (and as already noted herein, other state law employment 8 4846-4604-5514.4 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 8 of 11 PageID #: 45 claims). In Mancini, the Supreme Court described the "chilling effect" individual liability would have on managers if supervisors could be held liable under FEPA. That same chilling effect would occur with respect to RICRA. Further, it would produce incongruous results if the same individual, whom the Supreme Court wanted to protect, could be held liable for the same exact conduct under RICRA especially because Rhode Island courts have consistently held that the two statutes should be read in harmony with one another. See Horn v. S. Union Co. 927 A.2d 292, 294 (R.I. 2007) (citing Reed Dickerson, The Interpretation and Application of Statutes 233 (1975)) (holding that FEPA and RICRA are duplicative in many respects, they are complementary employment discrimination statutes and should therefore be read "in pari materia - i.e. as necessitating that they 'be read in relation to each other.' ") Defendants acknowledge that the statutory scheme of RICRA is different than that of FEPA and that courts have previously held that RICRA allows for individual liability. These cases were decided before the Mancini decision. Although Rhode Island courts construe RICRA broadly, the goal has been to extend RICRA's reach to a broad variety of employment (and other) contexts. Specifically courts have read RICRA to provide broad protection "against all forms of discrimination in all phases of employment." Mayale-Eke v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 754 F. Supp. 2d 372, 384 (D.R.I. 2010) (citing Ward v. City of Pawtucket Police Dep't, 639 A.2d 1379, 1381 (R.I. 1994)). The Supreme Court has noted that the General Assembly passed RICRA in response to the United States Supreme Court decision in Patterson v. McLean Credit Union, 491 U.S. 164, (1989), in which the Court narrowly interpreted Section 1981 to protect against racial discrimination in contract formation only - thereby holding that on- the-job harassment and discrimination did not involve contract formation and were therefore not actionable under Section 1981. Ward, 639 A.2d at 1381. 4846-4604-5514.4 9 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 9 of 11 PageID #: 46 Construing RICRA to preclude individual liability does not contradict the broad construction the statue requires. As the Supreme Court noted in Mancini regarding FEPA, an individual who believes he or she has been treated unlawfully by a supervisor still has recourse against the employer to remedy the harm done. Mancini. 155 A.3d at 166. The same holds true for claims under RICRA.4 For the reasons set forth above, Defendants request that this Court dismiss Count Six against Defendant World. V. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court dismiss all but Count Seven as to Defendant World, and portions of Count Two as discussed herein as to Hodges Badge. HODGES BADGE COMPANY, INC. and LEE WORLD /s/ Andrew B. Prescott Andrew B. Prescott (#3758) Jessica S. Jewell (#8432) NIXON PEABODY LLP One Citizens Plaza, Suite 500 Providence, Rhode Island 02903 (401)454-1000 (401) 454-1030 (Facsimile) aprescott@nixonpeabody.com jsjewell@nixonpeabody.com Dated: July 3, 2017 4 Like the other statutes discussed herein, RICRA similarly provides for injunctive relief, a factor that also disfavors individual liability. 4846-4604-5514.4 10 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 10 of 11 PageID #: 47 CERTIFICATION I hereby certify that on the 3rd day of July, 2017,1 filed and served this document electronically through the Court's CM/ECF system. /s/ Andrew B. Prescott 4846-4604-5514.4 11 Case 1:17-cv-00061-M-PAS Document 12-1 Filed 07/03/17 Page 11 of 11 PageID #: 48 jL^kJnlAJLjJL JL i\ Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 1 of 13 PageID #: 49 Case l:17-cv-00061-M-(^S Document 1 Filed 02/16/17 Pay*/1 of 12 PagelD #: 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ANGEL MERCED, Plaintiff C.A. No. HODGES BADGE COMPANY, INC. and LEE WORLD, alias, Defendants COMPLAINT I. Introductory Statement This action is brought by the Plaintiff seeking declaratory and injunctive relief, attorney's fees and litigation expenses and other equitable relief, including back pay, as well as compensatory and punitive damages to remedy unlawful discrimination in employment the Plaintiff suffered in violation of Title VH of the Civil Rights Act of 1964,42 U.S.C. §2000e, etseg. ("Title VII"), 42 U.S.C. §1981, the Rhode Island Civil Rights of People with Disabilities Act, R.I.G.L. §42-87-1, elseq. ("CRPD"), the Americans with Disabilities Act of 1990, 42 U.S.C. §12101, et seq. ("ADA"), the Rhode Island Fair Employment Practices Act, R.I.G.L. §28-5-1, et seq. ("FEPA"), the Rhode Island Civil Rights Act of 1990, R.I.G.L. §42-112-1, et seq. ("RICRA"), the Family and Medical Leave Act, 29 U.S.C. §2601, et seq. ("FMLA"), and the Rhode Island Parental and Family Medical Leave Act, R.I.G.L. §28-48-1, et seq. ("RIPFMLA"). II. Parties 1. The Plaintiff is a resident of the Town of Portsmouth, County of Newport, State of Rhode Island. Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 2 of 13 PageID #: 50 Case 1:17-CV-00061-M-FAS Document 1 Filed 02/16/17 Paye 2 of 12 PagelD #: 2 2. Defendant Hodges Badge Company, Inc. ("HBC") is a cotporation duly organized pursuant to the laws of the state of Rhode Island with its principal place of business located in the Town of Portsmouth, County of Newport, State of Rhode Island. 3. During all relevant time periods. Defendant Lee World, alias, ("World") was employed by Defendant HBC and was my supervisor. III. Jurisdiction 4. This Court has jurisdiction over Plaintiffs claims under Title VII pursuant to 42 U.S.C. §2000e-5(f){3), jurisdiction over the Plaintiffs claims under 42 U.S.C. §1981 pursuant to 28 U.S.C. §1331, jurisdiction over the Plaintiffs claims under the ADA pursuant to 42 U.S.C. §12117, jurisdiction over the Plaintiffs claims under the FMLA pursuant to 29 U.S.C. §2617, and supplemental jurisdiction over the Plaintiffs claims under the CRPD, the FEPA, the RICRA, and the RIPFMLA pursuant to 28 U.S.C. § 1367. IV. Venue 5. Venue is proper in this Court insofar as a substantial portion of the events or omissions giving rise to the within claim occurred in the State of Rhode Island in compliance with the requirements set forth in 28 U.S.C. § 1391. V. Exhaustion of Administrative Remedies 6. On or about October 16,2014, the Plaintiff timely co-filed a charge of discrimination against the Defendants with the Rhode Island Commission for Human Rights ("RICHR"), RICHR No. 15 HMD 079-31/31 and the United States Equal Employment Opportunity Commission ("EEOC"), EEOCNo. 161-2015-00014. 2 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 3 of 13 PageID #: 51 Case l:17-cv-00061-M-PAS Document 1 Filed 02/16/17 Page 3 of 12 PagelD #: 3 7. On or about October 3, 2016, more than one hundred twenty (120) days, but less than two (2) years after the charge was co-filed, the Plaintiff requested that the RICHR and the EEOC issue a right to sue letter. 8. On or about December 2, 2016, Plaintiff was issued a notice of right to sue by the RICHR and has timely instituted suit thereon. 9. On or about January 26,2017, Plaintiff was issued a notice of right to sue by the EEOC and has timely instituted suit thereon. 10. The RICHR failed to act upon the Plaintiffs charge of discrimination within sixty (60) days of the filing of the charge and thus the Plaintiffs CRPD claim is properly before this Court pursuant to R.I.G.L. §42-87-4(b). 11. There is no requirement under 42 U.S.C. §1981, the RICRA, the FMLA, and the RIPFMLA relative to the exhaustion of administrative remedies. V I. Material Facts 12. On January 30, 2008, the Plaintiff was hired by Defendant HBC as a printer. On September 10, 2012, the Plaintiff transferred to the position of stock clerk. 13. During all relevant times, the Plaintiffs work performance was satisfactory and met Defendants' legitimate expectations. This is evidenced, in part, by the Plaintiffs merit-based pay increases and bonuses and positive performance evaluations. A. Race, Color and/or Ancestral Origin Discrimination 14. The Plaintiff is Hispanic. 15. During his employment at Defendant HBC, the Plaintiff was subjected to discriminatory and derogatory comments due to his race, color and/or ancestral origin by his co- workers and supervisors. 3 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 4 of 13 PageID #: 52 Case l;17-cv-00061-M-FAS Document 1 Filed 02/16/17 Page 4 of 12 PagelD #: 4 16. One employee told the Plaintiff, "You're smarter than the average black guy." 17. In addition, the wife of Defendant HBC's owner told the Plaintiff that her dog was the PlaintifTs daughter because the animal was black. 18. On several occasions, the Plaintiff was verbally reprimanded by management-level employees regarding work performance issues that were not caused by him; however, similarly- situated Caucasian employees were not subjected to such treatment. B. Disability, FMLA and RIPFMLA Discrimination 19. During all relevant times, the Plaintiff suffered from alcoholism. 20. On July 14,2014, the Plaintiff contacted Defendant World to inform her that he would be absent from work for a period of time because he was seeking treatment at a rehabilitation facility. 21. Defendant World stated that she would send the Plaintiff medical leave documentation pursuant to the FMLA and/or RIPFMLA. 22. That during all relevant times, the Plaintiff was eligible for and entitled to a medical leave pursuant to the FMLA and/or the RIPFMLA. 23. On July 15, 2014, because of his conversation with Defendant World regarding a medical leave on July 14, 2014, the Plaintiff did not report to work or contact Defendant HBC regarding his absence. 24. OnJuly 15,2014, the Plaintiffpresented at Sstar rehabilitation center, located in North Kingstown, Rhode Island. The Plaintiff learned, however, that he did not meet the criteria for the facility and was referred for outpatient treatment at Clinical Services of Rhode Island, Inc. ("CSRI"). 25. On July 16, 2014, the Plaintiff contacted Defendant World and his direct supervisor, Vicky Gomes ("Gomes") and notified them that he was receiving treatment at CSRI and would be unable to report to work. 4 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 5 of 13 PageID #: 53 Case 1:17-CV-00061-M-PAS Document 1 Filed 02/16/17 PaP 5 of 12 PagelD #: 5 26. On July 17, 2014, the Plaintiff spoke with Ms. Gomes. During this conversation, Ms. Gomes asked the Plaintiff why he needed counseling and told him that he needed to return to work. 27. The Plaintiff informed Ms. Gomes that his counselor advised him to remain out of work until the following Monday, July 21, 2014. 28. Ms. Gomes, again, insisted that the Plaintiff immediately return to work. 29. Based on the foregoing, the Plaintiff requested a reasonable accommodation due to his disability or perceived disability in the form of a brief medical leave of absence. 30. At all relevant times, the Defendants were aware that the Plaintiff had need of a reasonable accommodation due to his disability or perceived disability. 31. The Defendants refused to offer the Plaintiff a reasonable workplace accommodation. 32. On July 18, 2014, at the instruction of Ms. Gomes, the Plaintiff reported to work at 7:30 a.m. 33. When he arrived, Ms. Gomes and "Mike," a supervisor, told the Plaintiff that he could not return to work until he was cleared by his physician. The Plaintiff then left the work facility. 34. Later that morning, Peter Letendre, LMHC, LCDP, the Plaintiffs counselor, e-mailed a letter to Defendant World indicating that the Plaintiff was receiving outpatient services at CSRI and that he was able to return to work. 35. On July 18, 2014, at 12:45 p.m., the Plaintiff returned to work at Defendant HBC. 36. On July 18, 2014, approximately one (1) hour after his return to work, the Plaintiff met with Defendant World, Ms. Gomes and "Mike." 37. During this meeting, the Plaintiffs employment was terminated purportedly due to failing to follow the proper absenteeism procedure. Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 6 of 13 PageID #: 54 Case LlT-cv-OOOei-M-^AS Document 1 Filed 02/16/17 Palp 6 of 12 PagelD #: 6 38. Later that same day, the Plaintiff received the FMLA and/or the RIPFMLA documentation from Defendant World. Enclosed with the documentation was a letter, dated July 16, 2014, from Defendant World which indicated that the Plaintiff had fifteen (15) days to provide Defendant HBC with the required documentation relative to his protected medical leave. 39. Defendants failed and/or refused to engage in an open and ongoing dialogue with the Plaintiff to determine a reasonable workplace accommodation. 40. As a result. Defendants failed and/or refused to provide the Plaintiff a reasonable accommodation for his disability or perceived disability. 41. That during all relevant time periods. Defendants knew that the Plaintiff suffered from a disability or regarded him as being disabled. 42. That despite the Plaintiffs disability or perceived disability, the Plaintiff was still qualified to perform the essential functions of his job with or without reasonable accommodation. 43. That despite the Plaintiffs need for a reasonable accommodation under the law, including, but not limited to, a brief medical leave. Defendants unreasonably determined that the Plaintiff was disabled and refused to allow him a reasonable accommodation under the circumstances and thereafter terminated the Plaintiffs employment. 44. That Defendants' rationale for the Plaintiffs termination was a pretext for workplace discrimination. 45. The Plaintiff was terminated, in whole or in part, due to his race, color, ancestral origin, disability or perceived disability, and/or because the he requested an FMLA and RIPFMLA medical leave. Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 7 of 13 PageID #: 55 Case l:17-cv-00061-M-PAS Document 1 Filed 02/16/17 Page 7 of 12 PagelD #: 7 46. That the facts of this matter clearly establish that the Defendants discriminated against the Plaintiff in violation of Title VII, 42 U.S.C. §1981, the CRPD, the ADA, the FEPA, the RICRA, the FMLA and the RIPFMLA. 47. As a proximate result of Defendants' unlawful and/or discriminatory employment practices, including, but not limited to, those described herein, the Plaintiff suffered and will continue to suffer loss of income, including past and future salary, pension benefits, damage to his business and personal reputation, severe mental and physical anguish, pain and suffering, and other great harm. 48. The Plaintiff incorporates in the counts below the allegations contained in paragraphs 1 -47 above. 49. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, constitute unlawful discrimination against the Plaintiff in employment on account of his race, color and/or ancestral origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq.. causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under Title VII. 50. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, violated Plaintiffs right to make and enforce contracts free from discrimination based on race, color, and/or ancestral origin in violation of Plaintiffs rights secured under 42 U.S.C. §1981, causing the Plaintiff to suffer damages as aforesaid, for which he is entitled to relief 42 U.S.C. §1988. VII. Claims For Relief Count One Unlawful Discrimination-42 U.S.C. §2000e, et sea. Count Two Violation of 42 U.S.C. S1981 7 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 8 of 13 PageID #: 56 Case l:17-cv-00061-M \S Document 1 Filed 02/16/17 P 8 of 12 PagetD #: 8 Count Three Unlawful Discrimination-R.I.G.L. §42-87-1. et sea. 51. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, engaged in unlawful discrimination against the Plaintiff in employment on account of his disability or perceived disability in violation of the Rhode Island Civil Rights of People with Disabilities Act, R.I.G.L. §42-87-1, et seq., causing the Plaintiff to suffer damages as aforesaid and thereby deprived the Plaintiff of rights secured under the CRPD. 52. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, constitute unlawful discrimination against the Plaintiff in employment on account of his disability or perceived disability in violation of the Americans with Disabilities Act of 1990,42 U.S.C. §12101, etseq. causing the Plaintiff to suffer damages as aforesaid and thereby deprived Plaintiff of rights secured under the ADA. 53. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, engaged in unlawful discrimination against the Plaintiff in employment on account of his race, color, ancestral origin, disability or perceived disability in violation of the Rhode Island Fair Employment Practices Act, R.I.G.L. §28-5-1, et seq., causing the Plaintiff to suffer damages as aforesaid and thereby deprived the Plaintiff of rights secured under the Count Four Unlawful Discrimination-42 U.S.C. §12101. et sea. Count Five Unlawful Discrimination-R.I.G.L. §28-5-1, etseq. FEPA. 8 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 9 of 13 PageID #: 57 Case l:17-cv-00061-M-ros Document 1 Filed 02/16/17 Pap^g of 12 PagelD #: 9 Count Six Unlawful Discrimination-R.I.G.L. §42-112-1. et sea. 54. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, engaged in unlawful discrimination against the Plaintiff in employment on account of his disability or perceived disability insofar as said actions and/or omissions resulted in the termination of an employment contract and the loss of benefits, terms and conditions of a contractual relationship existing between the Plaintiff and Defendant HBC in violation of the Rhode Island Civil Rights Act of 1990, R.I.G.L. §42-112-1, et seq., causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under the RICRA. Count Seven Violation of FMLA-29 U.S.C. §2601. etsea. 55. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, discriminated against the Plaintiff and violated the Plaintiffs statutory rights in violation of the Family and Medical Leave Act, 29 U.S.C. §2601, et seq., causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under the FMLA. 56. Defendants, by their individual and/or concerted acts and/or omissions, including but not limited to, those described herein, interfered with, restrained and/or denied the Plaintiff his statutory rights in violation of the Family and Medical Leave Act, 29 U.S.C. §2601, et seq., causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under the FMLA. Count Eight Violation of RIPFMLA-R.I.G.L. §28-48-1, etsea. 57. Defendants, by their individual and/or concerted acts and/or omissions, including, but not limited to, those described herein, discriminated against the Plaintiff and violated the Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 10 of 13 PageID #: 58 Case l:17-cv-00061-M-PAS Document 1 Filed 02/16/17 Page lO of 12 PagelD #: 10 Plaintiffs statutory rights in violation of the Rhode Island Parental and Family Medical Leave Act, R.I.G.L. §28-48-1, et seq., causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under the RIPFMLA. 58. Defendants, by their individual and/or concerted acts and/or omissions, including but not limited to, those described herein, interfered with, restrained and/or denied the Plaintiff his statutory rights in violation of the Rhode Island Parental and Family Medical Leave Act, R.I.G.L. §28-48-1, et seq., causing the Plaintiff to suffer damages as aforesaid, and thereby deprived the Plaintiff of rights secured under the RIPFMLA. VIII. Prayers for Relief WHEREFORE, the Plaintiff respectfully prays that this Court grant the following relief: 1. A declaratory judgment that the Defendants, in the manner described herein, unlawfully discriminated against the Plaintiff in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, etseq., 42 U.S.C. §1981, the Rhode Island Civil Rights of People with Disabilities Act, R.I.G.L. §42-87-1, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the Rhode Island Fair Employment Practices Act, R.I.G.L. §28-5-1, et seq., the Rhode Island Civil Rights Act of 1990, R.I.G.L. §42-112-1, etseq., the Family and Medical Leave Act, 29 U.S.C. §2601, et seq. and the Rhode Island Parental and Family Medical Leave Act, R.I.G.L. §28-48-1, et seq.-, 2. enjoining and permanently restraining the Defendants from violating Title VII of the Civil Rights Act of 1964,42 U.S.C. §2000e, etseq., 42 U.S.C. §1981, the Rhode Island Civil Rights of People with Disabilities Act, R.I.G.L. §42-87-1, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., the Rhode Island Fair Employment Practices Act, R.I.G.L. §28-5- 1, et seq., the Rhode Island Civil Rights Act of 1990, R.I.G.L. §42-112-1, et seq., the Family and 10 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 11 of 13 PageID #: 59 Case l:17-cv-00061-M-PAS Document 1 Filed 02/16/17 Page 11 of 12 PagelD #: 11 Medical Leave Act, 29 U.S.C. §2601, et seq.. and the Rhode Island Parental and Family Medical Leave Act, R.I.G.L. §28-48-1, et seq.; 3. award the Plaintiffback pay, including incremental increases and other benefits, plus prejudgment interest thereon; 4. award the Plaintiff compensatory damages for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses, plus prejudgment interest thereon; 5. award the Plaintiff punitive damages; 6. award the Plaintiff liquidated damages pursuant to 29 U.S.C. §2617(a)( 1); 7. award the Plaintiff reasonable attorney's fees and costs of litigation; and, 8. such other and further relief as the Court deems just and proper. The Plaintiff hereby designates V. Edward Formisano, Esquire and Michael D. Pushee, Esquire as trial counsel. IX. Demand for Jury Trial The Plaintiff hereby demands a trial by jury on all counts so triable. X. Designation of Trial Counsel PLAINTIFF, By his attorneys, Date: February 16, 2017 /s/ V. Edward Formisano V. Edward Formisano (#5512) Michael D. Pushee (#6948) Formisano & Company, P.C 100 Midway Place, Suite 1 Cranston, RI 02920 (401)944-9691 (401) 944-9695 (facsimile) 11 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 12 of 13 PageID #: 60 Case l:17-cv-00061-M-HrAS Document 1 Filed 02/16/17 Page 12 of 12 PagelD #: 12 CERTIFICATION I hereby certify that the within document has been electronically filed with the Court on this 16th day of February, 2017 and is available for viewing and downloading from the ECF system. /s/ V. Edward Formisano 12 Case 1:17-cv-00061-M-PAS Document 12-2 Filed 07/03/17 Page 13 of 13 PageID #: 61