UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Brown Massaquoi

v. Civil No. 18-cv-296-LM Opinion No.

20 Maitland Street Operations LLC et al.

O R D E R

Plaintiff Brown Massaquoi brings suit against his former

employer 20 Maitland Street Operations LLC, d/b/a Harris Hill

Center, (“Harris Hill”) and its affiliate Genesis Healthcare LLC

(“Genesis”), alleging race, color, and national origin

discrimination and retaliation claims under both Title VII of

the Civil Rights Act of 1964 (“Title VII”) and the New Hampshire

Law Against Discrimination, N.H. Rev. Stat. Ann. (“RSA”) 354-A,

(Count I) and a defamation claim (Count II). Massaquoi alleges

that defendants discriminated against him while he was employed

at Harris Hill and ultimately terminated him because he is a

“Black, African American from Liberia.” He also alleges that

defendants subsequently defamed him and retaliated against him

for filing a complaint about the alleged discrimination.

Before the court is defendants’ motion to dismiss Count I

to the extent it is based on claims of national origin

discrimination and retaliation (doc. no. 16). Defendants’ motion rests on one argument: Massaquoi failed to exhaust his

administrative remedies for those two claims because he did not

report either in an Equal Employment Opportunity Commission

(“EEOC”) charge.1

STANDARD OF REVIEW

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, construe reasonable

inferences in the plaintiff's favor, and determine whether the

factual allegations in the complaint set forth a plausible claim

upon which relief may be granted. Medina-Velazquez v.

Hernandez-Gregorat,

(1st Cir. 2014). A claim

is facially plausible “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,

(2009). A “plaintiff who does not

plausibly allege that she successfully exhausted administrative

remedies cannot state a claim under Title VII . . . and her

claims [are] therefore . . . subject to dismissal pursuant to

1 The court notes that the structure of Massaquoi’s complaint makes it difficult to discern what facts support each discrimination claim. Massaquoi describes all facts as common to all counts. All discrimination claims are then merged together into one count. See Fed. R. Civ. P. 10(b) (requiring that, for clarity’s sake, a plaintiff state separate and distinct claims in separate counts).

2 Rule 12(b)(6).” Harris v. Bd. of Trs. Univ. of Ala.,

(N.D. Ala. 2012); see also Mercado v. Ritz-

Carlton San Juan Hotel, Spa & Casino,

, 46 n.6 (1st

Cir. 2005).

With their motion to dismiss, defendants submit a copy of

Massaquoi’s EEOC charge (doc. no. 16-2). When the moving party

presents matters outside the pleadings to support a motion to

dismiss, the court must either exclude those matters or convert

the motion to one for summary judgment. Fed. R. Civ. P. 12(d).

An exception to Rule 12(d) exists “for documents the

authenticity of which [is] not disputed by the parties; for

official public records; for documents central to the

plaintiffs’ claim; or for documents sufficiently referred to in

the complaint.” Rivera v. Centro Medico de Turabo, Inc.,

(1st Cir. 2009) (internal quotation marks and

citations omitted). Because Massaquoi’s EEOC charge is central

to Massaqoui’s claims and neither party disputes its

authenticity, the court may consider it without converting the

motion to one for summary judgment.

BACKGROUND

The following facts are taken from Massaquoi’s complaint

(doc. no. 14) and, where specifically noted, his EEOC charge.

Massaquoi is an African American from Liberia. He is a licensed

3 nursing assistant who began employment at Harris Hill on January

14, 2014. Massaquoi alleges that his supervisors at Harris Hill

treated him differently than his white co-workers. Throughout

his employment, they gave him more difficult work assignments,

did not give him necessary assistance when he requested it, and

failed to investigate complaints he brought to them. At some

point, certain residents complained to one of Massaquoi’s

superiors, Linda Janowicz, that they “did not want African

Americans or other minorities caring for them.” Rather than

address the racism, Janowicz accommodated the residents and

advised Massaquoi that he should not enter their rooms.

In addition, Janowicz accused Massaquoi of abusing

residents on five separate occasions. Company policy required

an investigation into allegations of resident abuse, including a

written statement from the accused employee and suspension of

the employee for the duration of the investigation. After each

of the first four accusations, Massaquoi was permitted to give a

written statement and, after investigation, each was determined

to be without merit.

Janowicz made the fifth accusation against Massaquoi at a

meeting on June 15, 2015. Contrary to Harris Hill’s policy,

Janowicz took no statement from Massaquoi and terminated him

immediately. After Massaquoi’s termination, the New Hampshire

Department of Health and Human Services (“DHHS”) investigated

4 the fifth accusation and concluded it was “unfounded.” Despite

this finding, Harris Hill did not offer Massaquoi reemployment.

In response to his termination, Massaquoi, acting pro se,

filed an EEOC charge with the New Hampshire Commission for Human

Rights (“NHCHR”) under both Title VII and RSA 354-A on August

26, 2015. The EEOC charge form includes a section with

checkboxes for complainants to indicate the categories of

discrimination they are challenging,2 and a section for

complainants to provide a written statement of their

allegations.

Defendants point to two aspects of Massaquoi’s EEOC charge

material to their exhaustion argument. First, Massaquoi did not

check the boxes for either national origin discrimination or

retaliation; he checked only the boxes for race and color

discrimination.3 Second, although Massaquoi disclosed in his

written statement that he was from Liberia, he alleged Harris

Hill terminated him because of his race and color; he did not

mention being terminated due to his national origin.

2 The available bases of discrimination on the form are: race, color, sex, religion, national origin, retaliation, disability, genetic information, and “other.”

3 Massaquoi also checked the box for “other” but in his explanation next to that box he wrote only “NH State Statute, 354-A, et seq.”

5 Massaquoi also alleges that defendants continued to take

negative actions against him after Harris Hill terminated him.

The first negative action involved Harris Hill. Specifically,

Massaquoi alleges that, after he filed his EEOC charge, Janowicz

wrote a letter to DHHS accusing him of attempting to rape a

Harris Hill resident. Janowicz wrote this letter before

completing an internal investigation. After she did fully

investigate the accusation, Janowicz determined that it had no

merit. The second negative action involved Genesis.

Specifically, Massaquoi alleges that, at some point after Harris

Hill terminated him, he sought and gained employment at another

Genesis-affiliated facility, Laconia Rehabilitation. At

Genesis’s instruction, Laconia Rehabilitation terminated

Massaquoi despite his satisfactory performance.

DISCUSSION

Defendants argue that Massaquoi failed to exhaust his

administrative remedies for his national origin discrimination

and retaliation claims. Defendants assert this argument with

respect to both the Title VII and RSA 354-A claims. The court

applies Title VII standards to RSA 354-A claims “unless New

Hampshire precedent or the statutory language of RSA 354-A

warrant otherwise.” Carney v. Town of Weare, No. 15-cv-291-LM,

, at *6 (D.N.H. Feb. 21, 2017) (applying Title VII

6 standard in analysis of exhaustion issue under RSA 354-A). As

there is nothing in RSA 354-A or New Hampshire case law

precluding a joint analysis, the court will address the state

and federal claims together using the Title VII standard. See,

e.g.,

Under Title VII, a claimant may not bring suit in federal

court until he “has first unsuccessfully pursued certain avenues

of potential administrative relief.” Love v. Pullman Co.,

(1972). “Title VII requires an employee to file

an administrative charge as a prerequisite to commencing a civil

action for employment discrimination.” Fantini v. Salem State

Coll.,

(1st Cir. 2009). “The requirement of

administrative exhaustion serves to provide the employer with

prompt notice of the claim and to create an opportunity for

early conciliation.” Rodriguez v. United States,

(1st Cir. 2017) (internal quotations omitted). “That purpose

would be frustrated if the employee were permitted to allege one

thing in the administrative charge and later allege something

entirely different in a subsequent civil action.” Lattimore v.

Polaroid Corp.,

(1st Cir. 1996).

“Consequently, . . . in employment discrimination cases, the

scope of the civil complaint is . . . limited by the charge

filed with the EEOC[.]”

(internal quotations omitted).

7 “However, Title VII does not say explicitly that the court

suit must be limited to just what was alleged in the agency

complaint.” Clockedile v. N.H. Dep’t of Corrections,

(1st Cir. 2001). The First Circuit has noted that “an

administrative charge is not a blueprint for the litigation to

follow” and that “the critical question is whether the claims

set forth in the civil complaint come within the scope of the

EEOC investigation which can reasonably be expected to grow out

of the charge of discrimination.” Fantini,

(quoting Powers v. Grinnell Corp.,

(1st Cir.

1990)). Therefore, the civil suit “may encompass acts of

discrimination which the . . . investigation could reasonably be

expected to uncover.” Thornton v. United Parcel Serv., Inc.,

(1st Cir. 2009). Especially in cases where,

as here, the employee filed the EEOC charge “pro se, the

administrative charge is liberally construed in order to afford

the complainant the benefit of any reasonable doubt . . . and an

employee is not required to comprehensively set forth with

literary exactitude all of the facts and theories upon which his

or her claim is based.” Lattimore,

(internal

quotations omitted).

The court now applies these principals to determine whether

Massaquoi exhausted his national origin and retaliation claims.

For the reasons explained below, the court concludes that

8 Massaquoi has put forth enough at this early stage to show that

he has properly exhausted both claims.

I. National Origin Discrimination

It is undisputed that Massaquoi failed to check the box for

national origin discrimination or expressly state in his EEOC

charge that the discrimination he suffered was the result of

national origin discrimination. Defendants argue that this

omission necessarily means that Massaquoi failed to exhaust his

administrative remedies for that claim and it must therefore be

dismissed. The court disagrees.

Viewed in a light most favorable to Massaquoi, it is likely

that national origin discrimination would have fallen within the

scope of a reasonable investigation into the race discrimination

he alleged in his EEOC charge. The First Circuit has recognized

that “race and national origin discrimination may present

identical factual issues when a victim is born in a nation whose

primary stock is one’s own ethnic group” and that “in certain

circumstances . . . national origin and race discrimination may

overlap.” Sinai v. New England Tel. and Tel. Co.,

(1st Cir. 1993). In an analogous case, this correlation led

the Second Circuit to hold that:

[B]ecause racial categories may overlap significantly with nationality or ethnicity, the line between discrimination on account of race and discrimination on account of national origin may be so thin as to be

9 indiscernible . . . or at least sufficiently blurred so that courts may infer that both types of discrimination would fall within the reasonable scope of the ensuing EEOC investigation for exhaustion purposes.

Deravin v. Kerik,

(2d Cir. 2003) (internal

quotations and citations omitted).

In his EEOC charge, Massaquoi stated that he is an African

American, that he is originally from Liberia, and that he

suffered from race discrimination at his place of employment.

The connection between Massaquoi’s race and Liberian origin

creates a reasonable inference that the NHCHR, while

investigating allegations of discrimination based on race, would

have uncovered, to the extent it existed, evidence of

discrimination based on Massaquoi’s national origin. This

generous inference is especially warranted here for two reasons.

First, Massaquoi’s disclosure of his Liberian origin in his EEOC

charge would likely have alerted the NHCHR to probe this

possibility from the start of its inquiry. Second, at the time

of filing, Massaquoi acted without a lawyer. Accordingly, the

court finds that, with respect to his national origin

discrimination claim, Massaquoi has exhausted his administrative

remedies.

10 B. Retaliation

Defendants also contend that Massaquoi, by not raising in

his EEOC charge that Janowicz accused him of attempted rape, has

failed to exhaust his administrative remedies for his

retaliation claim. The First Circuit has held that a plaintiff

may bring a retaliation claim not raised in an administrative

charge if “the retaliation is reasonably related to and grows

out of the discrimination complained of to the agency – e.g.,

the retaliation is for filing the agency complaint itself.”

Clockedile,

.

Massaquoi alleges that Janowicz reported the attempted rape

accusation to DHHS after he filed his EEOC charge. Construed

favorably to Massaquoi, this is sufficient to meet the

Clockedile test. Accordingly, the court finds Massaquoi has

exhausted his administrative remedies for this claim at this

early stage.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss

(doc. no. 16) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge November 28, 2018 cc: Counsel of Record

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