United States District Court, D. Rhode Island
MEMORANDUM OF DECISION
WILLIAM E. SMITH, CHIEF JUDGE
March 20, 2019, the parties appeared before the Court for a
hearing on the Defendants' Motion to Dismiss Plaintiff's
Amended Complaint, ECF No. 6 (“Defs.' Mot.”).
The Court subsequently entered an order that granted
Defendants' motion. See 3/28/2019 Text Order.
This memorandum explains why. I. Background The Amended
Complaint presents a farrago of factual allegations,
conclusory assertions, and subjective characterizations
across forty-three pages and more than 250 paragraphs. The
Court has tried its utmost to understand the pleading's
jumbled narrative. The recitation that follows accepts as
true the Amended Complaint's well-pled facts while
according its conclusory assertions and vituperations no
weight. See A.G. ex rel. Maddox v. Elsevier, Inc.,
732 F.3d 77, 80 (1st Cir. 2013); Barrington Cove Ltd.
P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246
F.3d 1, 5 (1st Cir. 2001).
Sheryl Cohen pleads twelve claims under three statutes: the
Rhode Island Civil Rights Act (“RICRA”), R.I.
Gen. L. § 42-112-1 et seq.; the Rhode Island
Whistleblowers' Protection Act (“RIWPA”),
R.I. Gen. Laws § 28-50-1 et seq.; and the Federal Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
215 et seq. The claims under each statute are premised on
substantially same set of factual allegations. These include
that the Defendants: (1) subjected Cohen to discriminatory
terms and conditions of employment (Count I); (2) created an
unlawful hostile work environment (Counts II, VI-VIII); (3)
retaliated against Cohen for making protected complaints
about compensation by denying her pay raises (Counts III-V);
and (4) unlawfully terminated her employment by forcing her
to resign, i.e. constructive discharge (Counts IX-XII).
Cohen's claims arise out of her work for Defendant FGX
International, Inc. See generally Am. Compl. The
company employed Cohen an executive assistant for nearly a
decade. See Am. Compl. ¶ 8. In March 2014,
Cohen's supervisors required her to take on the duties of
another executive assistant who left the company.
Id. ¶¶ 70-72. To cope with the increased
workload, Cohen requested that FGX hire a replacement for her
colleague or otherwise provide support from a temporary
employment agency. Id. ¶ 72. The Defendants
opted for the latter measure. Id. ¶¶ 91,
94-95. Cohen nevertheless found that training temporary
workers further strained her capacity. Id.
months after FGX expanded Cohen's role, she asked for a
merit-based raise. Id. ¶ 122. Her request was
denied. Id. Cohen met with the company's general
counsel, Jeffrey Giguere, to discuss concerns related to
FGX's decision. Id. ¶ 108. She expressed
frustration with the refusal of her supervisor, Defendant
John Flynn, Jr., to address her rationale for a merit-based
raise and her belief that she was entitled to premium pay for
overtime hours. Id. ¶¶ 108-111. According
to Cohen, Giguere and a human resources executive vice
president, Joanne Morelli, independently admitted that she
was entitled to overtime pay. Id. ¶¶ 112,
114. Both promised to take corrective action. Id.
¶¶ 112, 114. Around this same time, Cohen made a
presentation to FGX's Chief Executive Officer, Anthony
DiPaola, in support of her merit-based raise request.
Id. ¶¶ 135-36. DiPaola listened to the
presentation, thanked Cohen, and indicated he needed time to
consider her request. Id. ¶¶ 135.
waited until July 1, 2014 before making a second request for
a raise. Id. ¶ 123. She made her request
directly to DiPaola; it was again denied. Id.
¶¶ 137-140. This time, however, she alleges that
DiPaola, “threw up his hands, glared at [her], and
yelled loudly . . . ‘I am not giving you more money. Go
find another job.'” Id. ¶ 140.
Fearing what she described as “more intense retaliatory
anger or rage, ” id. ¶ 158, Cohen
responded by writing a note that she hand-delivered to
Morelli that same day. Id. ¶¶ 177, 185;
Defs.' Mem. of Law In Support of Mot. to Dismiss Am.
Compl., Ex. A, ECF No. 6-3 (“7/1/2014
Letter”). The note, which Cohen addressed to Flynn
and DiPaola, stated:
I would like to inform you that I am resigning from my
position as Executive Assistant, effective July 15, 2014.
Thank you for the opportunities that you have provided me
during the last 9 years. I have enjoyed working for FGX &
appreciate the support provided me during my tenure with the
7/1/2014 Letter at 1. Morelli took the note and said,
“I understand. If they make you feel uncomfortable let
me know.” Id. at ¶ 186. “I will
look into this, ” she added. Id. Cohen alleges
that, despite her missive's language, her exchange with
Morelli “made clear . . . that [she] needed [Morelli]
to help save her job, ” and that she “really did
not want to leave FGX.” Id. ¶ 185.
claims colleagues largely stopped communicating with her
after her interaction with Morelli. Id. ¶ 196.
For example, she perceived that employees ceased greeting her
as they passed her desk, which she found “very
insulting and very cruel . . . .” Id.
¶¶ 194, 198. Similarly, in contrast with prior
years, she was largely ignored on her birthday. Id.
¶¶ 204-207. Cohen concludes from the uniformity of
her colleagues' behavior that Defendants in fact ordered
employees to ostracize her. Id. ¶ 198. She
tolerated this atmosphere for eight days before she alleges
it started taking a physical toll; she left at mid-day on
July 8, 2014. Id. ¶¶ 212, 215. She
characterizes her departure as a constructive discharge.
See, e.g., id. ¶ 215.
later, on July 10, 2017, Cohen filed the first iteration of
this action in the Rhode Island Superior Court. Compl. ¶
17, ECF No. 1-1. The Complaint brought claims under RICRA and
RIWPA Id. The Superior Court conditionally dismissed
the action on the grounds that (1) the Complaint
“contain[ed] no factual assertions that stat[ed] a
claim”; and (2) Cohen failed to serve two of the named
defendants, but nevertheless granted Cohen leave to amend.
Order, Cohen v. FGX Int'l, Inc., Civil Action
No. PC-2017-3209 (R.I. Super. Ct. June 22, 2018). Cohen
re-filed, adding a claim under FLSA. Defendants seized this
opportunity to remove the action to this Court and again
moved to dismiss.
survive a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must allege
“sufficient factual matter . . . to ‘state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A two-step analysis governs such a determination.
First, the Court must “distinguish the complaint's
factual allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Cardigan Mountain Sch. v. N.H. Ins.
Co., 787 F.3d 82, 84 (1st Cir. 2015) (quoting
García- Catalán v. United States, 734
F.3d 100, 102 (1st Cir. 2013) (quotation marks omitted)).
Second, the Court must “determine whether the factual
allegations are sufficient to support the reasonable
inference that the defendant is liable . . . .”
press many grounds for dismissal. The Court, however, need
only address three: (1) whether any of Cohen's claims are
barred by the applicable statutes of limitations; (2) whether
Cohen's FLSA claim relates back to her filing of her July
2017 pleadings; and (3) whether Cohen plausibly state claims
under RICRA and RIWPA. See Defs.' Mot. 3.
Application of the Statutes of Limitation
Cohen's RICRA Hostile Work Environment and ...