United States District Court, D. Rhode Island
ELAINE M. CARON, Plaintiff,
FEDEX FREIGHT, INC., Defendant.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN United States Magistrate Judge.
Elaine Caron alleges that she was discriminated against while
working for Defendant FedEx Freight, Inc.
(“FedEx”), on account of her gender, age,
disability or perceived disability and in retaliation for
earlier complaints of discrimination. While Plaintiff worked
for FedEx from 1996 until August 14, 2013, most of that time
falls into a period that is foreclosed from judicial scrutiny
by a binding settlement agreement; because of the settlement,
her claims are limited to employment practices that occurred
during a brief six-week period in the summer of 2013 after
she was reinstated and before she left because of a medical
condition that restricted her from working at all. In its
second motion to dismiss (ECF No. 20) brought pursuant to
Fed.R.Civ.P. 12(b)(6), FedEx seeks the dismissal of
Plaintiff's First Amended Complaint
(“Complaint”) (ECF No. 12), arguing that the
facts alleged to have occurred during the short period in
issue are insufficient to state a claim for which relief may
motion has been referred to me for report and recommendation.
Based on the determination that Plaintiff's claims have
enough heft to give rise to a plausible claim for relief, I
recommend that the motion be DENIED.
she filed her Complaint, Plaintiff was 58 years old. ECF No.
12 ¶ 11. She had been hired by FedEx in 1996 as a
part-time driver and transferred to the freight division as a
City Driver in 2007. ECF No. 12 ¶ 12. Since 2007,
despite her satisfactory performance, she alleges that she
has consistently been subjected to discriminatory treatment.
ECF No. 12 ¶ 13.
allegations regarding the events prior to the 2013 settlement
may be briefly summarized. She claims that younger, male
employees were permitted to bid on routes, vehicles and
shifts before Plaintiff was allowed to bid, despite her
seniority. ECF No. 12 ¶¶ 15-18. After she
complained to the human resources department in 2008 about
these adverse actions, the treatment got worse. ECF No. 12
¶¶ 19, 21. She was provided with broken and old
equipment, and given particularly onerous tasks. ECF No. 12
¶ 21. In September 2009, Plaintiff injured her elbow at
work and took a medical leave of absence. ECF No. 12 ¶
22. After she returned to work in April 2010, she bid on and
received a Road Driver position, but was assigned the oldest
equipment and the least desirable routes. ECF No. 12
¶¶ 23-24, 26-28. In at least one instance, a
coworker referred to her as “bitch.” ECF No. 12
¶ 28. In June 2010, Plaintiff injured her arm again and
went on medical leave. ECF No. 12 ¶ 29. On April 3,
2012, while she was still on medical leave, FedEx terminated
her. ECF No. 12 ¶ 31.
on these events, in December 2012, Plaintiff filed a charge
of discrimination with the Rhode Island Commission on Human
Rights and the Equal Employment Opportunity Commission,
alleging that she was terminated because of “her sex,
age and/or disability.” ECF No. 12 ¶ 32. On
February 25, 2013, Plaintiff and FedEx entered into the
settlement agreement. The settlement required FedEx to
reinstate her with full seniority and to refrain from
discriminating against her or retaliating against her for
bringing the complaint. ECF No. 12 ¶ 33. At the time of
the signing of the settlement agreement, Plaintiff was still
on medical leave, recovering from surgery on her arm. ECF No.
12 ¶ 34.
26, 2013, Plaintiff returned to work on light duty. ECF No.
12 ¶ 35. She was cleared for full duty work on July 24,
2013. ECF No. 12 ¶ 36. After she was reinstated and
despite having been cleared to work, Plaintiff alleges that
the injury to her arm constituted a disability of which FedEx
was aware and/or that FedEx perceived her as being disabled
as a result of her arm injury. ECF No. 12 ¶¶ 37-41.
Based on her perceived/actual disability, her sex and her
age, Plaintiff claims that FedEx resumed the pattern of
discriminatory actions against her, now coupled with
retaliatory actions based on the prior complaint. ECF No. 12
¶¶ 42-44. Specifically, Plaintiff alleges that her
hours were cut; her seniority was ignored; FedEx refused to
train her; her schedule and routes were changed at the last
minute; she was assigned less desirable routes than her male
colleagues; and, on a day when four younger male drivers with
less seniority were assigned shifts, she was told not to
report due to a lack of work. ECF No. 12 ¶ 43. In one
instance when she asked about a route change, her supervisor
told her that she was “so f**ked.” Id.
than two months after she was reinstated, on August 14, 2013,
Plaintiff again “was medically restricted from
working” because of her arm injury; she has not
returned to work since. ECF No. 12 ¶ 45. The Complaint
does not allege that the work stoppage in August 2013 was
caused by an actionable adverse employment action. She filed
this lawsuit on January 15, 2016.
Complaint sets forth six causes of action: Count I for
discrimination and retaliation in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; Count
II for discrimination and retaliation in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et
seq.; Count III for discrimination and retaliation on account
of disability or perceived disability in violation of the
Americans with Disabilities Act of 1990, 42 U.S. § 1201,
et seq.; Count IV for discrimination and retaliation based on
gender, age and/or disability or perceived disability in
violation of the Rhode Island Fair Employment Practices Act,
R.I. Gen. Laws § 28-5-1, et seq.; Count V for
discrimination and retaliation based on gender, age and/or
disability or perceived disability in violation of the Rhode
Island Civil Rights Act of 1990, R.I. Gen. Laws §
42-112-1, et seq.; and Count VI for discrimination and
retaliation in violation of the Rhode Island Civil Rights of
People with Disabilities Act, R.I. Gen. Laws § 42-87-1,
et seq. Plaintiff seeks a declaratory judgment that FedEx
discriminated against her, a permanent injunction preventing
it from discriminating in the future, compensatory and
punitive damages, and attorneys' fees. ECF No. 12.
Standard of Review
moves to dismiss the claims against it pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief may be granted. In considering a Rule 12(b)(6) motion,
a court must accept as true all allegations in the complaint
and draw all reasonable inferences in the plaintiff's
favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.
1996). The United States Supreme Court has recently restated
the review standard as follows: “[o]nce a claim has
been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the
complaint.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 546 (2007). Since Twombly, the Supreme
Court further refined its requirements in Ashcroft v.
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. 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. The
plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.
556 U.S. 662, 663 (2009). In applying this standard to facts
as pled in a complaint, the First Circuit recommends what it
calls “a two-step pavane.” Rodriguez-Reyes v.
Molina-Rodriguez, 711 F.3d 49, 53 (1st. Cir. 2013). The
Court must first identify and disregard the complaint's
conclusory legal allegations, and then determine whether or