WILLIAM E. SMITH, District Judge.
The Report and Recommendation of United States Magistrate Judge David L. Martin filed on September 29, 2010, in the above-captioned matter is hereby accepted pursuant to Title 28 United States Code § 636(b)(1). No objection having been filed to the Report & Recommendation, Defendants' Motion to Dismiss the Plaintiff's Amended Complaint is hereby GRANTED as to Count VI of the Complaint and DENIED in all other respects.
DAVID L. MARTIN, United States Magistrate Judge.
Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Request for Hearing (Docket ("Dkt.") # 8) ("Motion to Dismiss" or "Motion") for failure to state a claim upon which relief may be granted. The Motion has been referred to me for preliminary review, findings, and recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the filings, listening to oral argument, and performing independent research, I recommend that the Motion be granted in part and denied in part.
Plaintiff Abdul-Giyath O. Mayale-Eke ("Plaintiff" or "Mayale-Eke") is a resident of Providence, Rhode Island. Amended Complaint (Dkt. # 5) ¶ 1.
Defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch"), is a Delaware corporation with headquarters in Charlotte, North Carolina. Id. ¶ 5. It is in the business of investment counseling and management. Id. ¶ 8. Merrill Lynch was acquired by Bank of America Corporation ("Bank of America") in 2009 and is now a wholly-owned subsidiary of Bank of America. Id. ¶ 5.
In 2007, Merrill Lynch interviewed Mayale-Eke for employment as an investment specialist at its Lincoln, Rhode Island, location. Id. ¶ 9. At that time,
Plaintiff began taking customer calls. Id. ¶ 15. Due to his accent, some customers asked him where he was born, if he was Muslim, or what he thought of Osama Bin Laden and terrorists. Id. ¶¶ 15-18. Additionally, some customers expressed dislike for Muslims or asked to be transferred to someone who spoke "American English." Id. ¶¶ 19-20. Some customers also complained to Merrill Lynch about Mayale-Eke. Id. ¶ 21. All calls between Mayale-Eke and Merrill Lynch customers were recorded, and some were monitored by supervisors and/or quality assurance ("QA") evaluators. Id. ¶ 22.
On April 29, 2008, within several weeks of customers' complaints to Merrill Lynch, Plaintiff received a written warning ("First Written Warning") that his performance was not meeting expectations. Id. ¶ 23. The First Warning was issued by Joseph Kelly ("Kelly"), Plaintiff's immediate supervisor who reported directly to Misiano. Id. ¶ 24. Merrill Lynch uses an objective quality assurance score ("QA score") on a scale of zero to 100% to grade the performance of its customer service agents, and the First Written Warning noted that Mayale-Eke's QA score was 77.47% for the first quarter of 2008. Id. ¶¶ 26-27. According to the Merrill Lynch handbook governing Plaintiff's employment (the "Handbook"), investment specialists who receive a QA score of 70% or greater are eligible to participate in the company's incentive system, and specialists who receive a QA score of 75% or greater receive a bonus. Id. ¶¶ 28-29. Mayale-Eke's QA score of 77.47% made him eligible for a bonus. Id. ¶ 29. After the First Written Warning, Plaintiff was informed that he received a bonus for his performance in the first quarter of 2008, the first quarter he was eligible for a bonus. Id. ¶¶ 29-30. In Plaintiff's First Written Warning, Kelly wrote that Mayale-Eke had to "improve his Quality scores immediately, to be in line with the ... average of 87.49." Id. ¶ 31 (alteration in original). A requirement that specialists attain the average score for their team
Plaintiff was issued a second and final written warning ("Final Written Warning") by Kelly two weeks after receiving the First Written Warning. Id. ¶ 33. The Final Written Warning was temporally proximate to customers' inquiries regarding Plaintiff's country of origin and religion and customers' complaints about him. Id. ¶ 34. The Final Written Warning indicated that Mayale-Eke's QA score for April 2008 through May 2008 had increased
Two weeks after the Final Written Warning, Misiano terminated Plaintiff. Id. ¶ 38. Misiano told Plaintiff that he was a "business risk" and was causing clients to take their business away from Merrill Lynch. Id. ¶ 39.
On September 9, 2008, Plaintiff filed a charge of discrimination based on race, color, national origin, and religion with the Rhode Island Commission for Human Rights ("Commission"), which on December 31, 2009, issued him a right to sue letter. Id. ¶¶ 7-8. Plaintiff commenced the instant action on or about January 5, 2010. See Notice of Removal, Exhibits ("Exs.") 1-2 (Complaint). He filed his Amended Complaint on February 15, 2010. See Amended Complaint. Defendants filed the instant Motion to Dismiss on March 1, 2010. See Dkt. The Court conducted a hearing on the Motion on April 14, 2010, and thereafter took the matter under advisement.
In 2007, the Supreme Court altered the Rule 12(b)(6) standard in a manner which gives it more heft. ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008). "In order to survive a motion to dismiss a complaint must allege `a plausible entitlement to relief.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This pleading standard applies to all civil actions, including discrimination suits. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Id. at 1949 (quoting Rule 8(a)(2)). The pleading standard Rule 8 announces does not require "detailed factual allegations," id., but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation, id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Id. (citing Twombly at 555, 127 S.Ct. 1955). Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. (citing Twombly at 557, 127 S.Ct. 1955).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. (citing Twombly at 570, 127 S.Ct. 1955). 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. Id. (citing Twombly at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a "probability requirement," id., but it asks for more than a sheer possibility that a defendant has acted unlawfully, id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" Id. (citing Twombly at 557, 127 S.Ct. 1955).
In Iqbal, the Supreme Court explained that two working principles underlay its decision in Twombly. Id. First, the tenet
A court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. Id. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Id. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. The Iqbal court cited its analysis in Twombly as illustrating this "two-pronged approach." Id.
The Supreme Court held in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), that a complaint in an employment discrimination lawsuit does not have to contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Swierkiewicz appears to remain good law. See Lindsay v. Yates, 498 F.3d 434, 440 (6th Cir.2007) ("Because the Supreme Court majority [in Twombly] distinguished Swierkiewicz and nowhere expressed an intent to overturn it, we have no basis for concluding that Swierkiewicz is no longer good law."); Westmoreland v. Prince George's County, Maryland, Civil Action No. 09-CV-2453 AW, 2010 WL 3369169, at *3 n. 5 (Aug. 23, 2010) ("The Twombly Court made clear that its holding did not contradict the Swierkiewicz rule that a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.") (internal quotation marks omitted); Goodman v. Merrill Lynch & Co., 716 F.Supp.2d 253, 259 (S.D.N.Y.2010) ("Twombly itself held that Swierkiewicz remains good law."); see also Desrouleaux v. Quest Diagnostics, Inc., No. 09-61672-CIV, 2009 WL 5214964, at *2 (S.D.Fla. Dec. 29, 2009) (holding that Twombly and Iqbal "did not necessarily overturn Swierkiewicz" and stating "this Court will continue to follow Swierkiewicz in the employment discrimination context"). But see Kleehammer v. Monroe Cnty., No. 09-CV-6177-CJS, 2010 WL 3609707, at *6 (W.D.N.Y. Sept. 8, 2010) (stating that "some courts and commentators have concluded that Twombly and Iqbal repudiated Swierkiewicz, at least to the extent that Swierkiewicz relied upon pre-Twombly pleading standards").
At least two courts have reconciled Swierkiewicz, Twombly, and Iqbal by holding that a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss, but the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim. Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010); see also Kleehammer, 2010 WL 3609707, at *6 (finding reasoning in Barbosa persuasive and applying that standard). The standard stated in Barbosa appears to this Court to be an accurate distillation of the principles stated in Swierkiewicz, Twombly, and Iqbal. Accordingly, this Court will review Plaintiff's Amended Complaint to determine whether it is facially plausible and gives fair notice to Defendants as to the basis for Plaintiff's claim.
Plaintiff's discrimination claims are set forth in Counts I through V. Count I alleges that Merrill Lynch violated Title VII of the Civil Rights Act of 1964. Count II charges Merrill Lynch and Misiano with violating 42 U.S.C. § 1981. Counts III and IV allege, respectively, that Merrill Lynch and Misiano violated the Rhode Island Fair Employment Practices Act ("RIFEPA").
Following the approach described in Iqbal, the Court begins its analysis by identifying the allegations in the Amended Complaint that are not entitled to the assumption of truth. Iqbal, 129 S.Ct. at 1950. Defendants contend that there are seven such allegations:
Defendants' Mem. at 7.
The Court agrees that the third, fourth, sixth, and seventh allegations are not entitled to the assumption of truth because they "amount to nothing more than a `formulaic recitation of the elements' of a constitutional discrimination claim." Iqbal, 129 S.Ct. at 1951 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). However, the remaining allegations on their face do not appear to be conclusory. Rather, they seem to allege specific facts.
The first allegation that Defendants knew Plaintiff's race and place of birth, see
With respect to the allegation that Defendants knew Petitioner's religion, see Amended Complaint ¶ 3, it is admittedly more difficult to identify specific averments in the Amended Complaint which support an inference that Defendants possessed this knowledge. Unlike race and one's country of origin, a person's religion cannot normally be ascertained merely by looking at him, listening to him speak, and interacting with him. Nigeria has a sizeable Christian population.
On the other hand, Plaintiff alleges that some customers asked him if was a Muslim, id. ¶ 17, that some customers asked him what he thought of Osama Bin Laden and terrorists, id. ¶ 18, and that some customers expressed their dislike for Muslims, id. ¶ 19. He attributes the inquiries about his religion and national origin to three circumstances: his accent which "suggests foreign birth," Memorandum in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Request for Hearing ("Plaintiff's Mem.") at 11; his name (Abdul-Giyath O. Mayale-Eke) which "seems foreign," id.; and the fact that "`Abdul' is a typical Muslim name," id. The Court agrees that it is plausible that a person from Nigeria would likely have an accent suggesting foreign birth, that Plaintiff's name suggests foreign birth, and that many Americans would associate the name "Abdul" with a person of Arab or Muslim descent.
With regard to the second allegation, i.e., that Merrill Lynch employs few Muslims or African-Americans as investment specialists, it is reasonably plausible that Plaintiff, having been hired, trained, and employed by Merrill Lynch as an investment specialist for a total of eight months, would have some basis for this belief based at least on his own observations. Therefore, it is not a conclusory allegation.
The fifth allegation, i.e., that similarly-situated investment specialists with lower or comparable QA scores not in Plaintiff's protected classes were not terminated, see Amended Complaint ¶ 43, on its face is factual. However, Plaintiff admits in his memorandum that he is not privy to the QA scores of fired and retained investment specialists. See Plaintiff's Mem. at 12. Despite this admission, Plaintiff argues that there is a reasonable basis to infer that this is true because it is highly improbable that Merrill Lynch would fire everyone who had not attained the group average QA score. See id. Plaintiff notes that such a policy would be contrary to the plain written terms of the Handbook and the incentive program, which promises a reward—not termination—to any investment specialist who achieves a 75% score. See id. at 12-13. Plaintiff also argues that he does not need to plead this allegation to survive the Motion to Dismiss. See id. at 13.
Given Plaintiff's admission that he lacks direct knowledge, the Court finds that it is a stretch to say the fifth allegation can be reasonably inferred from the factual averments in the Amended Complaint. Thus, I find that it is a conclusory statement. However, this determination is not fatal to the sufficiency of Plaintiff's Amended Complaint. As the Seventh Circuit has noted:
Tamayo v. Blagojevich, 526 F.3d 1074, 1084-85 (7th Cir.2008).
This Court agrees that to survive dismissal at this stage Plaintiff need not plead evidence supporting the allegation that similarly situated investment specialists with lower or comparable QA scores not in Plaintiff's protected classes were not terminated. Indeed, a comparison of the complaint found sufficient in Tamayo to the instant Amended Complaint reveals essentially equivalent allegations.
Id. at 1085 (internal citations omitted).
In summary, Defendants' contention that the first and second allegations listed on page 11 are legal conclusions is rejected. Those allegations are entitled to the presumption of truth. The remaining allegations (3 through 7) are conclusory.
Having identified the allegations that are not entitled to the assumption of truth, the Court now considers the remaining factual allegations to determine if they plausibly suggests an entitlement to relief. See Iqbal, 129 S.Ct. at 1951. Defendants acknowledge that the "Amended Complaint alleges facts sufficient to establish that Plaintiff is in a protected class—he was born in Nigeria, has a dark brown skin color, is Muslim[,] and is of African descent—and that Defendants took an adverse employment action against him by terminating his employment," Memorandum in Support of Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Request for Hearing ("Defendants' Mem.") at 9. What is lacking, according to Defendants, is any factual allegation that Plaintiff "was terminated because of his protected status," id. at 9 (citing O'Connor v. Northshore Int'l Ins. Servs., 61 Fed. Appx. 722, 734-24 (1st Cir.2003)) (bold omitted). However, Plaintiff's Amended Complaint explicitly states that Defendants
Defendants posit that "Plaintiff will likely argue that this Court can infer discrimination based on comments to him by some customers, complaints against him by some customers[,] and the temporal proximity of those complaints to his warnings and termination." Defendants' Mem. at 9. Defendants challenge this argument by pointing out that Plaintiff does not allege that the customers who made comments to him regarding his "protected statuses," id., were the same customers who complained about him to Defendants and that these customers referred to Plaintiff's race, country of origin, and/or religion when they made such complaints, see id. While this is true, virtually the only way Plaintiff would know such information at this juncture would be if Defendants had told him that he was being disciplined and terminated because customers had complained about his race, national origin, and religion. It is unrealistic to think that in the 21st century any sophisticated employer would make such a statement to an employee. See Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir.2001) ("After over three and a half decades of laws prohibiting discrimination in one form or another, employers are fairly unlikely to be caught making statements such as, `I fired Judy because she was an old woman.'"); Marcy v. Delta Airlines, 166 F.3d 1279, 1284 (9th Cir.1999) ("[A]n employer is unlikely ever to offer such a reason for discharging an employee."); Norton v. Sam's Club, 145 F.3d 114, 119 (2nd Cir. 1998) ("[P]laintiffs in discrimination suits often must rely on the cumulative weight of circumstantial evidence since `[a]n employer who discriminates is unlikely to leave a "smoking gun," such as a notation in an employee's personnel file, attesting to a discriminatory intent.'") (quoting Rosen v. Thornburgh, 928 F.2d 528, 533 (2nd Cir.1991)) (second alteration in original); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2nd Cir.1994) ("In assessing the inferences that may be drawn from the circumstances surrounding a termination of employment, the court must be alert to the fact that [e]mployers are rarely so cooperative as to include a notation in the personnel file that their actions are motivated by factors expressly forbidden by law.") (alteration in original) (internal quotation marks omitted); id. ("In reality... direct evidence of discrimination is difficult to find precisely because its practitioners deliberately try to hide it.") (alteration in original) (internal quotation marks omitted).
Defendants further argue that even if the customers who complained to Defendants referred to Plaintiff's race, national origin, and/or religion in the process, this only suggests inappropriate motives on the part of those customers and does "not plausibly establish that Defendants terminated Plaintiff because of his protected status." Defendants' Mem. at 10. Thus, Defendants contend that Plaintiff's allegations "do not satisfy the plausibility standard articulated in [Iqbal] and Twombly, which asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955); see also id. ("Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlements to relief.") (quoting Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citations omitted)).
First, Plaintiff's job performance for the first quarter, as measured by Merrill Lynch's own objective QA score, was sufficient to make him eligible to participate in the company's incentive system.
The Court is persuaded that the above facts are sufficient to cast doubt on Defendants' claim that Plaintiff was fired for poor performance. See Chambers, 43 F.3d at 37 ("Circumstances contributing to a permissible inference of discriminatory intent may include ... the sequence of events leading to the plaintiff's discharge."); Few v. Yellow Freight Sys., Inc., 845 F.2d 123, 124 (6th Cir.1988) (affirming verdict in favor of plaintiff where trial judge found that defendant "deliberately built a file against her in order to be able to terminate her"); Hatcher-Capers v. Haley, 786 F.Supp. 1054, 1063 (D.D.C. 1992) (finding plaintiff proved she was victim of unlawful discrimination in the form of disparate treatment on the basis of her race and gender in part because "the reason proffered by the defendant for its failure to promote the plaintiff, namely, a policy of limiting the availability of promotions which was never publicized and not adopted out of financial necessity or budgetary constraints, is a mere pretext for discrimination");
Defendants assert that Plaintiff cannot rest his discrimination claims solely on the unbelievability of Defendants' reason. See Defendants' Reply Memorandum in Support of Their Motion to Dismiss Plaintiff's Amended Complaint ("Defendants' Reply") at 4 (citing St. Mary's Honor Ctr., 509 U.S. at 514-15, 113 S.Ct. 2742; Sellers v. U.S. Dep't of Defense, 654 F.Supp.2d 61, 68 (D.R.I.2009)). While this is true at the summary judgment and trial stages, see St. Mary's Honor Ctr., 509 U.S. at 505, 113 S.Ct. 2742 (stating that the challenged finding was made "[a]fter a full bench trial"); Sellers, 654 F.Supp.2d at 65 (noting standard for summary judgment), the Court is unpersuaded that disbelief of the reason stated by an employer for an employee's termination when combined with the other circumstances previously described, see Discussion section IV. B. supra at 22-24, is insufficient to nudge a plaintiff's claim of purposeful discrimination across the line from conceivable to plausible, see Iqbal, 129 S.Ct. at 1952; see also Patterson v. U.P.S., Inc., Civil Action No. 07-00857-CGB, 2009 WL 481901, at *11 (S.D.Ala. Feb. 23, 2009) ("Although the Supreme Court in Hicks rejected the position
In sum, Plaintiff's Amended Complaint, like the complaints in Swierkiewicz and Tamayo, satisfies the requirements of Rule 8(a) because it gives Defendants fair notice of the basis for Plaintiff's claims. See Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992; Tamayo, 526 F.3d at 1085. Plaintiff alleges that he was terminated because of his race, color, national origin, and religion in violation of Title VII, RIFEPA, RICRA, and 42 U.S.C. § 1981. Amended Complaint ¶¶ 44, 46-65; see also Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992; Tamayo, 526 F.3d at 1085. His Amended Complaint details the events leading to his termination, provides relevant dates, and includes the race of at least one of the relevant persons involved with his termination, Amended Complaint ¶ 9; see also Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992; Tamayo, 526 F.3d at 1085. These allegations give Defendants fair notice of what Plaintiff's claims are and the grounds on which they rest. See Swierkiewicz, 534 U.S. at 514, 122 S.Ct. 992; Tamayo, 526 F.3d at 1085. In addition, they state claims upon which relief could be granted under Title VII, RIFEPA, RICRA, and 42 U.S.C. § 1981.
In Fantini v. Salem State College, 557 F.3d 22 (1st Cir.2009), the First Circuit held that there is no individual employee liability under Title VII. See id. at 29-30. Defendants note that in accord with Fantini this Court has determined that RIFEPA's definition of employer does not provide a basis for individual liability. See Defendants' Mem. at 11 (citing Johnston v. Urban League of Rhode Island, Inc., No. C.A. 09-167 S, 2009 WL 3834129, at *1-2 (D.R.I. Nov. 13, 2009)).
It is true, as Defendants note, that the analytical framework developed in federal Title VII cases is "routinely applied" by Rhode Island courts to claims brought pursuant to RIFEPA and RICRA. See Horn v. Southern Union Co., C.A. No. 04-434S, 2008 WL 2466696, at *7 n. 5 (D.R.I. June 18, 2008) (quoting Kriegel v. Rhode Island, 266 F.Supp.2d 288, 296 (D.R.I. 2003)). This Court, however, is unpersuaded that Fantini and Johnston have undermined the continuing validity of Judge Lagueux's conclusion that individual liability exists under RICRA.
It is important to remember that RICRA "was enacted as a reaction to the United States Supreme Court decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), in which the Court narrowly interpreted 42 U.S.C. § 1981," Ward v. City of Pawtucket Police Dep't, 639 A.2d 1379, 1381 (R.I.1994), and that the Rhode Island Supreme Court has described RICRA as "provid[ing] broad protection against all forms of discrimination in all phases of employment," id. Indeed, Judge Lagueux based his finding of individual liability primarily on these two facts. See Wyss, 24 F.Supp.2d at 211 ("The decision in Ward mandates that courts read the RICRA as broadly as possible-which means that if individuals discriminate in ways that violate the statute, then they must be liable under it."); id. ("Therefore, both the statute's broad language and the Ward opinion make it clear that RICRA contemplates individual liability.").
In short, this Magistrate Judge sees no reason to revisit the holdings in Wyss and Iacampo regarding RICRA when those holdings are based on an interpretation of state law which appears consistent with general view of the statute as expressed by the state supreme court. See Allen v. Attorney Gen. of Maine, 80 F.3d 569, 575 n. 6 (1st Cir.1996) (noting "the general proposition that federal courts must defer to a state supreme court's interpretation of a statute of the state"); see also Evans v. Rhode Island Dep't of Bus. Regulation, No. Civ.A. 01-1122, 2004 WL 2075132, at *2 (R.I.Super. Aug. 21, 2004) (finding that defendant "may be individually liable for conduct constituting a violation under RICRA").
Count 6 of the Amended Complaint charges Merrill Lynch and Misiano with intentional infliction of emotional distress. Amended Complaint ¶¶ 57-59. However, it is clear that Plaintiff cannot prevail on this claim because "the Rhode Island Workers' Compensation Act provides the sole avenue of redress for employees who have suffered intentional infliction of emotional distress as a result of workplace sexual harassment and other discrimination." Iacampo, 929 F.Supp. at 581; cf. Censullo v. Brenka Video, Inc., 989 F.2d 40, 43 (1st Cir.1993) (stating that "[t]he district court correctly found that the workmen's compensation statute bars employees from suing their employers for personal injuries arising out of the employment relationship") (applying New Hampshire law).
Plaintiff apparently recognizes that this claim is barred because he states in his memorandum that he "voluntarily dismisses
For the reasons explained above, I recommend that the Motion to Dismiss be granted as to Count VI. I further recommend that the Motion be granted to the extent that Plaintiff asserts a religious discrimination claim based on an alleged violation of 42 U.S.C. § 1981 (Count II) as such claim is not cognizable under that statute. In all other respects, I recommend that the Motion be denied.
Any objections to this Report and Recommendation must be specific and must be filed with the Clerk of Court within fourteen (14) days of its receipt. See Fed. R.Civ.P. 72(b); DRI LR Cv 72(d). Failure to file specific objections in a timely manner constitutes waiver of the right to review by the district court and of the right to appeal the district court's decision. See United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).
September 29, 2010
Bureau of Democracy, Human Rights, and Labor, International Religious Freedom Report 2009 (Oct. 26, 2009), available at http://www. state.gov/g/drl/rls/irf/2009/127249.htm
