Opinion
C.A. NC-2017-0330
06-13-2018
JOHN FERREIRA, Plaintiff, v. CHILD AND FAMILY SERVICES OF RHODE ISLAND, and AGENTS THEREOF, Defendants.
Thomas E. Folcarelli, Esq. For Plaintiff: Matthew R. Plain, Esq.; Kristen M. Whittle, Esq. For Defendant:
Thomas E. Folcarelli, Esq. For Plaintiff:
Matthew R. Plain, Esq.; Kristen M. Whittle, Esq. For Defendant:
DECISION
VAN COUYGHEN, J.
This matter is before the Court on Defendant Child and Family Services of Rhode Island's (CFS) Motion to Dismiss Plaintiff John Ferreira's (Mr. Ferreira or Plaintiff) Amended Complaint. CFS argues that Mr. Ferreira's Amended Complaint should be dismissed pursuant to Rule 12(b)(6) due to his failure to state a claim for which relief may be granted. For the reasons articulated more fully below, CFS's Motion to Dismiss is granted and Mr. Ferreira's Amended Complaint is dismissed with prejudice. Jurisdiction is pursuant to Super. R. Civ. P. 12(b)(6).
I BACKGROUND
On August 3, 2017, Mr. Ferreira filed his original complaint alleging claims purportedly founded in gender-based hostile work environment, age and gender discrimination, defamation, false light and wage theft. Orig. Compl. ¶¶ 22, 24-25. Subsequently, on November 20, 2017, CFS moved to dismiss the original complaint pursuant to Rule 12(b)(1) based on jurisdictional grounds and Rule 12(b)(6) for failure to state a claim for which relief can be granted. In a written decision issued on February 15, 2018, this Court dismissed Mr. Ferreira's original complaint with leave to amend within twenty days from the date of that decision. The decision set forth the fundamental pleading requirements of the claims alleged by Mr. Ferreira and why his original complaint was deficient. The Court held that, although it had subject matter jurisdiction to consider Mr. Ferreira's discrimination claims arising under G.L. 1956 § 42-112-1, the Rhode Island Civil Rights Act of 1990, the original complaint failed to provide a modicum of facts to support the allegations made as they related to Mr. Ferreira's claims of gender-based hostile work environment, gender and age discrimination, defamation, false light and wage theft.
The Court held that the original complaint was deficient on both jurisdictional and substantive grounds. See Ferreira v. Child and Family Services of Rhode Island, NC-2017-0330 (R.I. Super. Feb. 15, 2018) (unpublished).
The Rhode Island Civil Rights Act provides for "broad protection against all forms of discrimination in all phases of employment." Ward v. City of Pawtucket Police Dep't, 639 A.2d 1379, 1381 (R.I. 1994).
Following the Court's decision, Mr. Ferreira filed his Amended Complaint on March 5, 2018. The Amended Complaint alleged claims purportedly founded in defamation, false light, constructive discharge, disparate treatment based on gender and age, and breach of the covenant of good faith and fair dealing. Am. Compl. ¶¶ 26-29. CFS again moved to dismiss the Amended Complaint for failure to state a claim for which relief can be granted. On May 7, 2018, the Court heard oral arguments and granted CFS's motion to dismiss from the bench as it related to Mr. Ferreira's claims of defamation, including libel and slander, false light and breach of the covenant of good faith and fair dealing. The Court reserved its judgment as to Mr. Ferreira's claims of gender and age discrimination.
The Court found that Mr. Ferreira's Amended Complaint again failed to satisfy the heightened standard of pleading with respect to his claim for defamation. See Leddy v. Narragansett Television, L.P., 843 A.2d 481, 489 (R.I. 2004) (explaining that statements that are "too imprecise and vague [cannot] support a plaintiff's defamation claim because such a statement cannot be proven true or false"). In addition, Mr. Ferreira's Amended Complaint again failed to allege an unprivileged publication to a third party. Marcil v. Kells, 936 A.2d 208, 213 (R.I. 2007) (explaining that plaintiff must demonstrate that defamatory statement was uttered or published). With respect to his claim for false light, the Amended Complaint failed to allege that CFS published any facts concerning Mr. Ferreira's character, conduct or beliefs that were false, nor were there any allegations that would imply an objectionable association or objectionable publicity. See G.L. 1956 § 9-1-28.1(a)(4)(i)(A)(B). Finally, the Court found that Mr. Ferreira's claim for breach of the covenant of good faith and fair dealing failed to state a claim for which relief can be granted because Mr. Ferreira was an at-will employee. It is axiomatic that such a covenant only comes into existence ancillary to a binding contract. See Centerville Builders, Inc. v. Wynne, 683 A.2d 1340, 1342 (R.I. 1996) (per curiam). Mr. Ferreira's Amended Complaint again failed to assert a breach of contract claim regarding any employment contract with CFS, nor did Mr. Ferreira's Amended Complaint assert a breach of implied contract claim regarding any established CFS employment policy. Bader v. Alpine Ski Shop, Inc., 505 A.2d 1162, 1167 (R.I. 1986).
With the procedural posture of the case in mind, the following facts are derived from the Amended Complaint, the allegations of which are taken as true for the purposes of evaluating the pending motion to dismiss. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014). The Amended Complaint alleges that Mr. Ferreira, a male over the age of forty, was employed by CFS for nine years prior to this controversy. Am. Compl. ¶¶ 2, 4. Mr. Ferreira alleges that previous to the disciplinary meeting at issue in this case, he never had a negative evaluation during the years he worked at CFS. Id. at ¶ 5. The Amended Complaint also alleges that a "young female clinician" (the Clinician) was hired by CFS in the summer of 2016. Id. at ¶ 6. The Amended Complaint states that the Clinician "was just out of school and not experienced in the care of [CFS] clients." Id. at ¶ 9. Next, the Amended Complaint alleges that the Clinician "undermined the Plaintiff" and "accused the Plaintiff of inappropriate communication and incompetence." Id. at ¶¶ 10, 11.
Upon receipt of the Clinician's accusations, CFS summoned Mr. Ferreira to a disciplinary meeting where he was presented with the Clinician's statements and where Mr. Ferreira alleges CFS "exaggerated the Plaintiffs [sic] work history and rendered misleading descriptions of long prior work events that the Plaintiff had never been disciplined or warned about." Id. at ¶¶ 13, 14. Mr. Ferreira alleges that he was presented with a "last written warning, " which he refused to sign. Id. at ¶ 15. Subsequently, Mr. Ferreira resigned. He attempted to rescind his resignation within hours of tendering it but the Amended Complaint alleges that CFS refused to accept Mr. Ferreira's rescission, even though, he alleges, CFS received the resignation and rescission at the same time. Id. at ¶¶ 19, 24. Mr. Ferreira alleges that he suffered stress, embarrassment and financial hardship, and sought relief from his physician for the stress related to these incidents. The physician also "placed the Plaintiff on stress leave." Id. at ¶¶ 21- 23. Based upon these allegations, Mr. Ferreira asserts that CFS's actions constituted age and gender discrimination, in violation of G.L. 1956 §§ 28-5-1 et seq., the Rhode Island Fair Employment Practices Act (RIFEPA) and § 42-112-1, the Rhode Island Civil Rights Act of 1990 (RICRA). He also alleges, in a separate count, constructive discharge.
As will be discussed, infra, Rhode Island does not recognize constructive discharge as an independent cause of action.
II STANDARD OF REVIEW
Rule 12(b)(6) and Rule 8(a)
"'[T]he sole function of a motion to dismiss is to test the sufficiency of the complaint[.]"' Audette v. Poulin, 127 A.3d 908, 911 (R.I. 2015) (quoting Ho-Rath v. R.I. Hosp., 115 A.3d 938, 942 (R.I. 2015)). In testing the complaint's sufficiency, the Court's "review is confined to the four corners of that pleading, " id. at 911 (citation omitted), and the Court "'assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiff[]."' R.I. Emp't Sec. Alliance, Local 40, S.E.I.U., AFL-CIO v. State, Dep't of Emp't & Training, 788 A.2d 465, 467 (R.I. 2002) (hereinafter R.I. Emp't) (per curiam) (quoting St. James Condo. Ass'n v. Lokey, 676 A.2d 1343, 1346 (R.I. 1996)). Phrased another way, "'[w]hen ruling on a Rule 12(b)(6) motion, the [Court] must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor."' Pellegrino v. R.I. Ethics Comm'n, 788 A.2d 1119, 1123 (R.I. 2002) (quoting R.I. Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I. 1989)); see also Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008). Accordingly, a motion to dismiss "should not be granted 'unless it appears to a certainty that the plaintiff[] will not be entitled to relief under any set of facts which might be proved in support of [its] claim."' R.I. Emp't, 788 A.2d at 467 (internal alterations omitted) (quoting St. James Condo. Ass'n, 676 A.2d at 1346).
Rhode Island Rules of Civil Procedure 8(a) sets forth the minimum requirements of a complaint. Our Rhode Island Supreme Court has declared that "[a] pleading need not include 'the ultimate facts that must be proven in order to succeed on the complaint" or "set out the precise legal theory upon which his or her claim is based.'" Gardner v. Baird, 871 A.2d 949, 953 (R.I. 2005) (quoting Haley v. Town of Lincoln, 611 A.2d 845, 848 (R.I. 1992)). Instead, the complaint must set forth a modicum of information to satisfy the requirements of Rule 8. The Court's consideration of a motion to dismiss is as follows:
[The Court] require[s] more than conclusions or subjective characterizations. [Our jurisdiction has] insisted on at least the allegation of a minimal factual setting. It is not enough to allege a general scenario which could be dominated by unpleaded facts . . . . Therefore, although [the Court] must ask whether the 'claim' put forward in the complaint is capable of being supported by any conceivable set of facts, [the Court] insist[s] that the claim at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why. Dewey v. Univ. of N.H., 694 F.2d 1, 3 (1st Cir. 1982).
Accordingly, when this Court considers a motion to dismiss for failure to state a claim, it remains cognizant that "one drafting a compliant [sic] in a civil action is not required to draft the pleading with a high degree of factual specificity." Hyatt v. Vill. House Convalescent Home, Inc., 880 A.2d 821, 824 (R.I. 2005) (citing Bragg v. Warwick Shoppers World, Inc., 102 R.I. 8, 12, 227 A.2d 582, 584 (1967). "That is not to say, however, that the drafter of a complaint has no responsibilities with respect to providing some degree of clarity as to what is alleged." Butera v. Boucher, 798 A.2d 340, 353 (R.I. 2002). Rather, Rule 8(a) requires that the complaint "provide the opposing party with 'fair and adequate notice of the type of claim being asserted.'" Gardner, 871 A.2d at 953.
III PARTIES' ARGUMENTS
In support of its motion to dismiss, CFS contends that despite certain amendments to the original complaint, the factual assertions within the Amended Complaint remain conclusory and fail to establish a causal link to the legal theories asserted therein. See DiLibero v. Mortg. Elec. Registration Sys., Inc., 108 A.3d 1013, 1016 (R.I. 2015) (explaining that while the Court is required to assume all allegations contained in the complaint as true, legal conclusions rather than factual assertions are not necessarily assumed to be true). As such, CFS argues that Mr. Ferreira's Amended Complaint should be dismissed due to his failure to state a cause of action upon which relief may be granted. Mr. Ferreira objects, claiming that he has satisfied the pleading requirements necessary to give CFS notice of the facts relevant to his discrimination claims.
IV ANALYSIS
A Statutory Background
The RIFEPA was enacted by the Rhode Island General Assembly in order to "assure equal employment opportunities for all persons by eliminating discriminatory practices." Folan v. State/Department of Children, Youth, and Families, 723 A.2d 287, 290 (R.I. 1999). Subsequently, the General Assembly enacted the RICRA, which provides (inter alia) "broad protection against all forms of discrimination in all phases of employment." Ward, 639 A.2d at 1381; see also Folan, 723 A.2d at 290. "The protections against discrimination afforded by the RICRA are in many respects duplicative of those afforded by the [RIFEPA]; in many instances, an aggrieved party may assert the same employment discrimination allegations as the basis for both a [RIFEPA] claim and for a RICRA claim." Horn v. S. Union Co., 927 A.2d 292, 293 (R.I. 2007). Both statutes parallel each other in that they prohibit discrimination based on race, color, religion, sex, disability, age or national origin.
RIFEPA additionally prohibits discrimination based on sexual orientation, gender identity or expression. See § 28-5-7.
"The RICRA and the [RIFEPA] reflect the General Assembly's very explicit determination that those statutes are necessary to militate against 'grave injury to public safety, health, and welfare."' Weeks v. 735 Putnam Pike Operations, LLC, 85 A.3d 1147, 1158 (R.I. 2014) (citing § 28-5-2). The General Assembly has clearly manifested intent to root out discrimination in employment in view of its injurious effect on individuals and on society as a whole. See Horn, 927 A.2d at 293 (explaining that the RICRA was enacted to provide "'broad protection against all forms of discrimination in all phases of employment'") (quoting Ward, 639 A.2d at 1381); Folan, 723 A.2d at 290 (explaining that the RIFEPA was enacted to "assure equal employment opportunities for all persons by eliminating discriminatory practices"). The General Assembly specifically declared that the RIFEPA was designed to address "matter[s] of state concern . . . [which] foment [ ] domestic strife and unrest . . . and undermine[ ] the foundations of a free democratic state." Sec. 28-5-2. With these principles in mind, the Court proceeds to its analysis below.
B Disparate Treatment Based Upon Gender
In a claim asserting disparate treatment based upon gender, our jurisdiction has adopted the three-part, burden-shifting paradigm set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Newport Shipyard, Inc. v. R.I. Comm'n for Human Rights, 484 A.2d 893, 898 (R.I. 1984) (adopting the McDonnell Douglas framework). For the purposes of determining the sufficiency of Mr. Ferreira's claim of disparate treatment based upon gender, he must only allege sufficient facts necessary to establish a prima facie case. Ctr. For Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 686 (R.I. 1998) (finding that the plaintiff had established a prima facie case of discrimination at the pleading stage under the burden-shifting analysis). In order to establish a prima facie case of gender discrimination, Mr. Ferreira must demonstrate he was a victim of intentional discrimination. Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995). Specifically, Mr. Ferreira must allege facts, that if true, demonstrate:
Once the plaintiff has established a prima facie case of discrimination, a rebuttable presumption arises that the employer unlawfully discriminated against the plaintiff and the burden of production then "shifts" to the employer to articulate a nondiscriminatory reason for the adverse employment action at issue. Neri v. Ross-Simons, Inc., 897 A.2d 42, 49 (R.I. 2006). If the employer satisfies this burden of production, the above-referenced presumption of discrimination "disappears." McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012). At that point, the burden of proof then "fall[s] . . . upon the plaintiff to demonstrate that [the employer's] tendered explanation is only a pretext and that discrimination was the true motive underlying the hiring decision." Id. at 280-81.
(1) []he is a member of a protected class; (2) []he was performing [his] job at a level that rules out the possibility that []he was fired for inadequate job performance; (3) []he suffered an adverse job action by [his] employer [e.g., actual or constructive]; and (4) [his] employer sought a replacement for [him] with roughly equivalent qualifications. Neri, 897 A.2d at 49 (quotation omitted).
Disparate treatment claimants bear the burden of proving they were "subjected to different treatment than persons similarly situated in all relevant aspects." Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995) (citing Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994)) (alteration omitted). A complaint must be more than "merely conclusory regarding the characterization of the defendant's motives, " and allege facts that give "rise to an inference of discriminatory animus." Johnson v. General Electric, 840 F.2d 132, 138 (1st Cir. 1988). Put differently, at the pleadings stage, the plaintiff must "outline specific facts, which if proven would entitle him to relief." Christensen v. Lawrence F. Quigley Memorial Hosp., 656 F.Supp. 14, 16 (D. Mass. 1985).
As for the first element of Mr. Ferreira's prima facie case, neither party disputes that Mr. Ferreira was a member of a protected class because every person is a member of a protected class. See Neri, 897 A.2d at 49. With respect to the second element of the test elucidated above, the Amended Complaint alleges, prior to the disciplinary meeting in question, that Mr. Ferreira "never had a bad evaluation in the time he worked at [CFS] and always had good evaluations." Am. Compl. ¶ 5. The Amended Complaint also alleges that Mr. Ferreira was presented with a "last written warning" after his disciplinary meeting with CFS. Id. at ¶ 15. While these two allegations would seem to contradict one another, at this stage of the pleadings and resolving any doubts in Mr. Ferreira's favor, the Amended Complaint alleges facts, which if true, demonstrate that his performance met CFS's legitimate expectations.
In order for Mr. Ferreira to establish the third element, he must allege that he suffered an adverse employment action by CFS. The Amended Complaint includes several allegations with respect to this element. They are:
19. The Plaintiff rescinded his resignation within hours of tendering it.
24. [CFS] refused to accept the Plaintiffs [sic] rescission of his resignation despite receiving the resignation and rescission at the same time.
25.[CFS] terminated the Plaintiff's service while he was on stress leave citing his resignation. Am. Compl. ¶¶ 19, 24, 25.
The facts alleged describe Mr. Ferreira's separation from CFS. Mr. Ferreira alleges that he resigned from CFS and that CFS refused to accept his rescission of the resignation. However, employers are not required to allow their employees to rescind their resignations, and have no "duty to permit" rescission, and so, the failure to do so is not an adverse employment action. Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 946 (5th Cir. 2015) (quotation and citation omitted). Mr. Ferreira was an at-will employee and in Rhode Island, an at-will employee can be fired without cause as long as the basis for firing is not prohibited by law. See Neri, 897 A.2d at 47. Just as an at-will employer can fire an employee at-will, an employer does not have to accept an employee's rescission of his resignation. To hold otherwise would effectively force employers to rehire employees who have quit their jobs. To sanction this type of conduct as establishing an adverse employment action would inhibit an employer's ability to conduct its business and it would be inconsistent with the employment at-will doctrine, which is the law of the state. Accordingly, CFS's failure to accept Mr. Ferreira's rescission of his resignation does not amount to an adverse employment action. See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 481 (1st Cir. 1993) (explaining that an employee could otherwise rescind a resignation and claim constructive discharge as an adverse employment action with impunity); Mendez-Martinez v. Caribbean Alliance Ins. Co., 851 F.Supp.2d 336, 344 (D.P.R. 2012) (explaining that there was no adverse employment action where an employee attempted to rescind his voluntarily tendered resignation letter, which the employer had already accepted).
The Amended Complaint also alleges "Constructive Termination" as one of the counts for which relief is sought; however, Rhode Island does not recognize constructive discharge as an independent cause of action. See Am. Compl. ¶ 27. Rather, the concept of constructive discharge can satisfy the adverse employment action element, if plaintiff does in fact resign, to demonstrate employment discrimination or retaliation. See Neri, 897 A.2d at 49. Thus, while resignation is not considered an adverse employment action, the constructive discharge doctrine contemplates a situation in which an employer discriminates against an employee to the extent that his "working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign." Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004); see Wellborn v. Spurwink/Rhode Island, 873 A.2d 884, 891 (R.I. 2005). Therefore, the constructive discharge doctrine constitutes an exception to the general rule that voluntary resignation is not considered an adverse employment action. See Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 554-55 (6th Cir. 2008) (explaining that when an employee voluntarily resigns, she cannot claim that she suffered an adverse employment decision unless discriminated against by her employer to the point where a reasonable person in her position would have felt compelled to resign).
The majority of the States, as well as the federal government, do not recognize constructive discharge claims as independent causes of action. See, e.g., Levesque v. Androscoggin County, 56 A.3d 1227 (Me. 2012) (neither Maine nor federal law recognizes a separate cause of action for constructive discharge independent of proof of some form of unlawful conduct giving rise to constructive discharge) However, several jurisdictions have come to recognize independent causes of action for constructive discharge. See, e.g., Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 614 (Pa. 2009), aff'd, 608 Pa. 45, 10 A.3d 267 (2010).
"Alleging constructive discharge presents a 'special wrinkle' that amounts to an additional prima facie element." Landrau-Romero v. Banco Popular De Puerto Rico, 212 F.3d 607, 613 (1st Cir. 2000) (quoting Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994)). "It is not enough that the plaintiff suffered 'the ordinary slings and arrows that workers routinely encounter in a hard, cold world.'" De La Vega v. San Juan Star Inc., 377 F.3d 111, 117 (1st Cir. 2004). Instead, a plaintiff must allege that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign. Pennsylvania State Police, 542 U.S. at 148 ("A constructive discharge involves both an employee's decision to leave and precipitating conduct . . ."). The test is an objective one, otherwise "an employee who quit, and thereafter thought better of it, could claim constructive discharge with impunity." Vega, 3 F.3d at 481. Therefore, a claim of constructive discharge by a plaintiff alleging employment discrimination must be dismissed as a matter of law unless the facts alleged are sufficient to permit a rational trier of fact to infer that the employer deliberately created working conditions that were so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign. See Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986); Rother v. NYS Dep't of Corrections and Cmty. Supervision, 970 F.Supp.2d 78, 93 (N.D.N.Y. 2013).
Here, the Amended Complaint does not allege sufficient facts to show "harassment so severe and oppressive that staying on the job while seeking redress . . . [wa]s 'intolerable.'" Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 33 (1st Cir. 2003) (citation omitted). Instead, the Amended Complaint alleges that CFS summoned Mr. Ferreira to a disciplinary meeting to present him with the "young female clinician['s]" accusations. See Am. Compl. ¶¶ 6, 13. At that meeting, Mr. Ferreira alleges CFS exaggerated his work history and "rendered misleading descriptions of long prior work events that [he] had never been disciplined about." Id. at ¶ 14. Mr. Ferreira was then issued a "last written warning, " which he refused to sign, and subsequently, resigned. Id. at ¶¶ 15, 19. As a result of this meeting and the issuance of a written warning, the Amended Complaint alleges that Mr. Ferreira suffered stress and embarrassment. Id. at ¶ 22. Constructive discharge, however, may not arise from a "[l]oss of prestige, humiliation, and embarrassment . . . unless extreme." Mahoney v. Driscoll, 727 F.Supp. 50, 52 (D. Mass. 1989) (citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114 (1st Cir. 1977)). "A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim" of constructive discharge. GTE Prods. Corp. v. Stewart, 653 N.E.2d 161, 169 (Mass. 1995).
In its first decision, this Court found that the original complaint failed to allege an adverse employment action taken by CFS. The Amended Complaint also fails in this regard. The Amended Complaint alleges that Mr. Ferreira was summoned to a disciplinary meeting. However, conducting a disciplinary hearing based upon a complaint from a coworker is simply not enough. See Gu v. Bos. Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002) (explaining that an adverse employment action must "materially change the conditions of plaintiff['s] employ" and be more disruptive than a mere inconvenience or an alteration of job responsibilities). The fact that Mr. Ferreira was summoned to a disciplinary meeting based upon the "young female clinician['s]" allegations of inappropriate communication, which resulted in a negative review, is insufficient to establish an adverse employment action for disparate treatment based upon gender. See Am. Compl. ¶ 6. There must be more. See Audette v. Town of Plymouth, MA, 858 F.3d 13, 24 (1st Cir. 2017) (officer's receipt of a reprimand letter was not an adverse employment action).
Even in the light most favorable to Plaintiff, he has again failed to allege a modicum of facts showing that the adverse working conditions were "ongoing, repetitive, pervasive, and severe." Porter v. City of Manchester, 849 A.2d 103, 117 (N.H. 2004); see Cherkaoui v. City of Quincy, 877 F.3d 14, 30 (1st Cir. 2017) ("In order to amount to a constructive discharge, adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable.") (citation omitted). This Court must apply an objective standard to its review and Mr. Ferreira's "personal, unreasonable sensitivities cannot be taken into account." Declude, Inc. v. Perry, 593 F.Supp.2d 290, 296 (D. Mass. 2008) (citing Calhoun, 798 F.2d at 561). Because the facts in the Amended Complaint do not allege an intolerable workplace that a reasonable person in Mr. Ferreira's position would have felt compelled to resign, Mr. Ferreira's constructive discharge allegation fails to constitute an adverse employment action, and thus fails to satisfy the third element of the prima facie test of disparate treatment based upon gender.
Furthermore, even if, arguendo, this Court were to find that CFS constructively discharged Mr. Ferreira, the Amended Complaint again fails to allege facts demonstrating that CFS sought a replacement for him with roughly equivalent qualifications. See Smith, 40 F.3d at 15. The Amended Complaint does not allege that CFS even sought a replacement for Mr. Ferreira. In fact, there is no allegation in the Amended Complaint that CFS hired anyone in his place. The Amended Complaint contains absolutely no link between the allegations of discrimination and Mr. Ferreira being replaced by another employee. Instead, the Amended Complaint alleges that CFS knew Mr. Ferreira was an "older male and knew that the clinician was [a] younger female, and treated the clinician better than they treated" Mr. Ferreira. Am. Compl. ¶ 20. This allegation amounts to nothing more than a workplace dispute and there are no allegations that relate it to any act of discrimination. See, e.g., Cardoso v. Robert Bosch Corp., 427 F.3d 429, 436 (7th Cir. 2005) (explaining that an aggrieved employee may seek recourse in federal court for discrimination only for the forbidden reasons set forth in the discrimination statute, "not for common workplace disputes or poor, nonsensical, or even heavy-handed management techniques or decisions"). As such, Mr. Ferreira has failed to satisfy the fourth element of disparate treatment gender discrimination as well. Accordingly, CFS's motion as to this claim is granted and Mr. Ferreira's claim for disparate treatment based upon gender is dismissed with prejudice.
C Disparate Treatment Based Upon Age
To prevail on his claim for disparate treatment based upon age, Mr. Ferreira must demonstrate that '"(1) [he] was at least forty years of age; (2) [his] job performance met the employer's legitimate expectations; (3) the employer subjected [him] to an adverse employment action (e.g., an actual or constructive discharge); and (4) the employer had a continuing need for the services provided by the position from which the claimant was discharged.'" Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1170 (R.I. 2014) (quoting Neri, 897 A.2d at 49). Again, neither party disputes the first or second element of the prima facie test. Specifically, neither party disputes that Mr. Ferreira has alleged that he was at least forty years of age nor do they dispute that his performance met CFS's legitimate expectations. Am. Compl. ¶¶ 2, 5.
Mr. Ferreira's original complaint failed to allege any age necessary to establish a prima facie case for age discrimination.
With respect to the third element of the prima facie case for disparate treatment based upon age, the Court's analysis and discussion regarding Mr. Ferreira's resignation and his allegation of constructive discharge, supra, also applies here. The facts in the Amended Complaint do not sufficiently show an intolerable workplace such that a reasonable person in Mr. Ferreira's position would have felt compelled to resign. Thus, Mr. Ferreira's constructive discharge allegations fail to constitute an adverse employment action. As for the final element of the prima facie case for disparate treatment based upon age, the Amended Complaint is factually silent in this regard. Therefore, Mr. Ferreira has failed, for the second time, to provide a modicum of facts to support his claim for disparate treatment based upon age and thus CFS's motion to dismiss is granted. See Dewey, 694 F.2d at 3.
V CONCLUSION
For the reasons stated herein, the Court grants CFS's Motion to Dismiss. Mr. Ferreira's Amended Complaint has failed to allege facts sufficient to support a claim for both disparate treatment gender or age discrimination and his Amended Complaint is dismissed. In light of the fact that the Court's initial decision dismissing Plaintiff's original complaint set forth the inadequacy of that pleading in detail, and that Plaintiff has failed to remedy those inadequacies in his Amended Complaint, it is clear that the facts alleged in the Amended Complaint constitute the totality of the pertinent facts involved in this case. The Court also finds that dismissing Plaintiff's Amended Complaint with leave to amend for a second time would be futile as Plaintiff has failed to cure the original complaint's deficiencies after amendment was previously allowed. See Rule 15(a); Lomastro v. Iacovelli, 56 A.3d 92, 95 (R.I. 2012). Therefore, the Court grants CFS's Motion to Dismiss with prejudice.