
    Deborah A. BUTLER, Plaintiff, v. ADECCO USA INC., Sun Life Financial (U.S.) Services Company Inc., and Diane M. Bassett, Defendants.
    CIVIL ACTION NO. 4:15-CV-13478-TSH
    United States District Court, D. Massachusetts.
    Signed May 24, 2016
    
      Deborah A. Butler, Framingham, MA, pro se.
    Peter G. Goodman, Smith, Gambrell & Russell, LLP, New York, NY, Sean T.C. Phelan, Smith, Gambrell & Russell LLP, Washington, DC, Richard C. Van Nost-rand, Amanda M. Baer, Mirick, O’Connell, Demallie & Lougee, LLP, Westborough, MA, for Defendants.
   MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS (Docket Nos. 33 and 35)

TIMOTHY S. HILLMAN, DISTRICT JUDGE

Deborah Butler brought this employment discrimination action against Adecco USA, Inc. (Adecco), Sun Life Financial (U.S.) Services Company, Inc. (Sun Life), and Diane Bassett after she was terminated from a temporary employment position, allegedly because of her age and race. All Defendants move to dismiss. I find that Plaintiff has alleged plausible claims of discrimination but has failed to allege a plausible claim of defamation. For the reasons set forth below, Bassett and Sun Life’s motion to dismiss (Docket No. 33) is granted in part and denied in part. Adec-co’s motion to dismiss (Docket No. 35) is denied.

Background

The following facts are taken from Plaintiff’s amended complaint (the complaint) and assumed true for the purposes of this motion. Deborah Butler (Plaintiff) is an African-American female of Native American Indian descent, who is at least forty years old. She holds two law degrees, has passed the Pennsylvania bar examination, and holds a GE Six Sigma Quality Control Green Belt certification. In 2000, Plaintiff registered with Adecco, which is a temporary employment agency. Between 2008 and June of 2012, Adecco assigned Butler periodic temporary job assignments with various employers in the Massachusetts area. One of these assignments was with Sun Life in 2009.

Plaintiff was given another assignment with Sun Life in 2012. On or about August 20, 2012, Adecco employee Matthew Clay-man emailed Butler to confirm a two-month “Underwriting Administrative” assignment. Plaintiff reported to the job assignment, where she was joined by five other temporary staff members. She was immediately separated from these other staff members and assigned to Diane Bas-sett, who was Sun Life’s Senior Manager of Stop Loss Underwriting. Cassandra Callow, who was a nineteen-year-old Sun Life employee, began to train Butler. Butler eonsideréd Callow’s training to be substandard. Among other problems, many of Butler’s questions went unanswered. Callow also told Butler that she and Bassett were friends and that they carpooled to work. During her four days of training, Butler took initiative and drafted a decision tree detailing the steps to completing her tasks as part of the “Renewal Team.” She left the decision tree on her desk on the evening of Thursday, August 30, 2012.

That evening, she received a call from dayman, instructing her not to return to her assignment at Sun Life. Also on August 30, 2012, Bassett sent an email to dayman, with another Sun Life employee, James Moriarty, cc’ed. This email contained Bassett’s statement that “it is too time consuming to train her [Butler] for this process.” (Docket No. 34-1 at 1.) The process was the “renewal process,” which was Butler’s assignment, and which Butler describes ⅛ the complaint as “entering data relating to Sun Life customers.” (Docket No. 25 at ¶ 18.) dayman emailed Butler apologizing for the news that she had been terminated, stating “we will find something new to transition you into.” (Docket No. 25 at ¶ 20.) No such assignment at Sun Life has occurred. Butler alleges that, because of' Bassett’s email, she was unable to secure any subsequent temporary assignments from Adecco until May of 2013.

On June 24, 2013, Butler filed an administrative complaint in a dual filing with the Massachusetts Commission Against Discrimination (MCAD) and the Equal Employment Opportunity Commission (EEOC), asserting discrimination based on age and race. On August 21, 2015, Butler received a Dismissal and Notice of Appeal letter from the MCAD, stating that the “Investigation reveals that Sun Life replaced Complainant with Mr. Drop, a current temp who had been fully trained and working for Sun Life for a month prior to Complainant’s hire.” (Docket No. 25 at ¶30.) This MCAD letter also stated that “Adecco continues to give complainant temporary assignments.” (Docket No. 25 at ¶ 31.) However, Butler alleges that she has not received a work assignment from Adecco since March 30, 2014. Butler pursued an appeal of the MCAD’s initial determination, but the appeal was later dismissed because she brought the instant suit during its pendency.

Butler initiated this lawsuit, pro se, in state court on August 28, 2015. The case was removed to this Court, and she filed her amended complaint on November 18, 2015. The complaint contains the following counts: race discrimination in violation- of Mass. Gen. Laws ch. 151B (count I); age discrimination in violation of Mass. Gen. Laws ch. 151B (count II); race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000c et seq. (count III); age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 (count IV); and defamation (count V). Butler seeks compensatory and punitive damages. All defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Sun Life and Bassett filed a joint motion, and Adecco filed separately.

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 'action will not do.” Id. at 555, 127 S.Ct. 1955. In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and cjraw. all reasonable inferences in the plaintiffs favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir.2000). In addition to the complaint, the court may consider “documents the authenticity of which are not disputed by the parties; .... documents central to plaintiffs’ claim; [and] documents sufficiently referred to in the complaint.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993)).

It is a “context-specific task” to determine “whether a complaint states a plausible claim for relief,” one that “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). “[W]here 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 ‘show[n]’ — that the pleader is entitled to relief.” Id. (quoting Fed. R. Civ. P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556, 127 S.Ct. 1955. When a plaintiff is proceeding pro se, the plaintiffs complaint and other filings are “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (citation omitted) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”). “However, pro se status does not insulate a party from complying with procedural and substantive law.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997).

Discussion

A. Failure to Exhaust Administrative Remedies under Title VII

All three Defendants argue that Plaintiff has failed to exhaust her administrative remedies as required by Title VII of the Civil Rights Act of 1964 (Title VII). Under Title VII, an aggrieved individual is not permitted to bring suit in federal court until he or she receives a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). In her initial filings, Plaintiff did not include this letter or allege that she had received one. However, she has since submitted a letter from the EEOC, giving her notice that the EEOC has terminated the proceedings and that she may bring a civil lawsuit. Thus, I find that she has properly exhausted her administrative remedies.

B. Discrimination Based on Race and Age

As a threshold matter, Bassett argues that Plaintiffs federal discrimination claims cannot be maintained against her because these statutes do not apply to individual employee defendants. Bassett is correct. See Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir.2009) (Title VII); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.1994) (ADEA). Accordingly, counts III and IV are dismissed as to Bassett.

All three Defendants argue that Plaintiff has failed to state plausible claims for race- and age-based discrimination. Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race [or] color.” 42 U.S.C. § 2000e-2(a)(l). Likewise, Chapter 151B makes it unlawful for an employer, “because of the race [or] color ... of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Mass. Gen. Laws ch. 151B, § 4(1). In the age context, the ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation,- terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Chapter 151B makes it unlawful for an employer, “because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Mass. Gen. Laws ch. 151B, § 4(1B).

This Court uses the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze claims of employment discrimination. This framework applies to both state and federal claims. See Sisco v. DLA Piper LLP, 833 F.Supp.2d 133, 148 (D.Mass.2011); McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 541 N.E.2d 325, 327 (1989). It applies to claims for racial discrimination under Title VII, as well as age-based discrimination under the ADEA. Cham v. Station Operators, Inc., 685 F.3d 87, 93 (1st Cir.2012) (Title VII); Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir.1979) (ADEA). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Once established, this “creates a presumption that the employer unlawfully discriminated against the employee.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). “Generally, a plaintiff establishes a prima facie case by showing that (1) [she] is a member of a protected class; (2) [she] was qualified for the job; (3) the employer took an adverse employment action against [her]; and (4) the position remained open or was filled by a person with similar qualifications.” Cham, 685 F.3d at 93 (quoting Kosereis v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003)).

Defendants do not acknowledge the McDonnell Douglas framework, nor do they mention the requirements of the pri-ma facie case. Instead, they argue that Plaintiffs complaint does not contain facts to suggest race- or age-based discrimination because, apart from stating that she is of African-American and Native American lineage and over forty years old, she makes no mention of race or age. This argument overlooks the well-established burden-shifting framework that' governs employment discrimination cases, which is designed for situations in which a plaintiff lacks direct evidence of discrimination.

Plaintiff has satisfied the first and third elements of the prima facie case by stating that she is of African-American and Native American lineage and is over forty, and that Sun Life and Adecco took an adverse action against her by terminating her position. The second and fourth elements present closer questions but also weigh against dismissal. In support of her qualifications for the underwriting administrative assignment, Plaintiff alleges that: Sun Life had previously engaged her for a temporary assignment in 2009; during her four-day training period in 2012, she took the initiative to draft a decision tree detailing the steps for completing her tasks; she holds two law degrees; she has passed the Pennsylvania bar examination; and she holds a GE Six Sigma Quality Control Green Belt certification. The details of the assignment and its requisite duties are not entirely clear, described as “entering data relating to Sun Life customers.” (Docket No. 25 at ¶ 18.) Plaintiff alleges that she was replaced by another temporary employee who had been working with Sun Life for one month.

Considering that Plaintiffs pro se filings should be liberally construed, I find that the factual allegations in her complaint state a plausible claim that she was a member of a protected class; that she was qualified for the Sun Life position; that she was terminated; and that she was replaced by someone with similar qualifications. Sun Life’s and Adecco’s motions to dismiss are denied with regard to counts I-IV.

C. Defamation

This claim is against Bassett only, Bassett argues that Plaintiff has failed to allege a defamatory statement of fact. The statement at issue is contained in the email that Bassett sent to Moriarty and Clay-man: “Please let Deb Butler know that we will not need her services, and her last day will be today. We have made a decision to pull someone from my team to assist in the renewal process, as it is too time consuming to train her for this process.” (Docket No. 34-1 at 1.)

“To prevail on a claim of defamation, a plaintiff must establish that the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiffs reputation in the community, which either caused economic loss or is actionable without proof of economic loss.” White v. Blue Cross & Blue Shield of Massachusetts, Inc., 442 Mass. 64, 809 N.E.2d 1034, 1036 (2004). “[T]o be actionable, the statement must be one of fact rather than of opinion.” Scholz v. Delp, 473 Mass. 242, 41 N.E.3d 38, 45 (2015). Although “[a] statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ ... a statement that does not contain objectively verifiable facts is not actionable.” Id. (internal citations omitted). Moreover, a statement of opinion can be actionable if the “opinion ‘implies the allegation of undisclosed defamatory facts as’ ” as its basis. Yoke v. Nugent, 321 F.3d 35, 41 (1st Cir.2003) (quoting Nat’l Ass’n of Gov’t Employees, Inc. v. Central Broad. Corp., 379 Mass. 220, 396 N.E.2d 996, 1000-01 (1979)). “To determine whether or not a statement is an opinion, a court ‘must examine the statement in its totality and in the context in which it was uttered or- published,’ ” giving “ ‘weight to cautionary terms used by the person publishing the statement,’” and considering “‘all of the circumstances surrounding the statement.’ ” Id. (quoting Lyons v. Globe Newspaper Co., 415 Mass. 258, 612 N.E.2d 1158, 1162 (1993)) (citation omitted).

Bassett’s statement was one of opinion, not faict. The' statement reflected her opinion that the investment of time required to train Plaintiff was not warranted under the circumstances. Moreover, even if the statement were construed as fact, it would be protected by a conditional privilege. Employers are privileged to “disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer’s legitimate interest in the fitness of an employee to perform his or her job.” White, 809 N.E.2d at 1038 (quoting Bratt v. International Business Machs. Corp., 392 Mass. 508, 467 N.E.2d 126, 129 (1984)). This privilege promotes “the free flow of information in the workplace.” Id. (quoting Bratt, 467 N.E.2d at 129, 132 n. 11). The privilege generally applies when “the publisher and the recipient have a common interest, and the communication is of a kind reasonably calculated to protect or further it,” such as when an employer discloses the reasons for terminating an employee. Sheehan v. Tobin, 326 Mass. 185, 93 N.E.2d 524, 528 (1950) (citations omitted). The “privilege is lost if the defendant (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably, or excessively.” Sklar v. Beth Israel Deaconess Med. Ctr., 59 Mass.App.Ct. 550, 797 N.E.2d 381, 388 (2003).

Bassett’s statement was reasonably necessary to advise dayman and Moriarty of the change in staffing; and there are no facts to suggest that her publication was reckless or unnecessary, or that she knew or had reason to believe that the information was false. Accordingly, Bassett’s motion is granted with regard to count Y.

D. Timing of Motions to Dismiss

In response to the motions, Butler argues that they are untimely because they were filed more than twenty-one days after receipt of the summons and complaint. However, Defendants moved on November 30, 2015 for an extension of time to respond to Plaintiffs complaint. (Docket No. 29.) Plaintiff assented to this motion, and it was granted on December 1, 2015, giving Defendants until December 18, 2015 to file. (Docket No. 30.) Defendants’ motions were filed on December 18, 2015 and are, therefore, timely.

Conclusion

For the reasons set forth above, Bassett and Sun Life’s motion to dismiss (Docket No. 33) is granted in part and denied in part. Adecco’s motion to dismiss (Docket No. 35) is denied. Counts I and II remain against Bassett, Sun Life, and Adecco. Counts III and IV remain against Sun Life and Adecco. Count V is dismissed it its entirety.'

SO ORDERED. 
      
      . In her complaint, Butler quotes extensively from the position statements submitted during the MCAD proceedings. Sun Life and Bas-sett have submitted a copy of Bassett’s affidavit that was filed with a rebuttal statement. These documents, showing the arguments that the parties presented to the MCAD, do not bear on the present motion to dismiss.
     
      
      . Defendants also argued that she had failed to exhaust her administrative remedies under state law. Defendants withdrew this argument after the MCAD dismissed Plaintiff’s appeal in February of 2016.
     
      
      . After the plaintiff establishes her prima fa-cie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the employer is able to produce such a reason, the presumption created by the prima facie case is rebutted, and the plaintiff must establish that the stated reason is merely pretext for discrimination. Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742. At the motion»to-dismiss stage, the plaintiff needs to establish only a prima facie case. See Sisco, 833 F.Supp.2d at 148.
     
      
      . The McDonnell Douglas framework "addresses two problems that exist in most employment discrimination cases: (1) direct evidence of discrimination is likely to be unavailable, and (2) the employer has the best access to the reasons that prompted him to fire, reject, discipline or refuse to promote the complainant." Loeb, 600 F.2d at 1014. "To offset, to some degree, these difficulties, McDonnell Douglas affirms the right of a complainant to make a prima fa-cie showing of discrimination by establishing that [her] rejection did not result from ‘the two most common legitimate reasons,’ " which are "lack of qualifications” and the "absence of a job opening.” Id. (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n. 44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)). "Proof of the McDonnell Douglas-type prima facie case assures the plaintiff [her] day in court despite the unavailability of direct evidence, and entitles [her] to an explanation from the defendant-employer for whatever action was taken.” Id.
      
     
      
      . The ADEA protects individuals who are at least forty years old. 29 U.S.C. § 631(a).
     