Sogbuyi-Whitney et al v. Caremark PHC LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
CECILA SOGBUYI-WHITNEY and
ALIZA WHITESIDE, individually and
on behalf of all others similarly
situated,
Plaintiffs,
v.
CAREMARK PHC LLC, CVS HEALTH
SOLUTIONS LLC, CORAM
ALTERNATE SITE SERVICES INC.,
Defendants.
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C.A. No. 23-cv-00055-MSM-LDA
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
The plaintiffs, Cecilia Sogbuyi-Whitney and Aliza Whiteside, filed this action
on behalf of themselves and all others similarly situated, alleging that they were
terminated or otherwise discriminated against on account of their race, color,
national origin, or gender and seek relief pursuant to Title VII of the Civil Rights Act
of 1964. Before the Court is the Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
of the defendants, Caremark PhC LLC, CVS Health Solutions LLC, and Coram
Alternate Site Services, Inc. (ECF No. 13.)
I. 	BACKGROUND
The named plaintiffs, Ms. Sogbuyi-Whitney and Ms. Whiteside were Quality
Assurance 	Consultants 	(“QAs”) 	employed 	by 	Gardner 	Resources 	Consulting
(“Gardner”), a staffing agency for IT and Life Sciences companies. As QAs, their job
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duties primarily involved testing electronic medical recordkeeping systems. 	In the
fall of 2021, Gardner arranged for Ms. Whiteside, Ms. Sogbuyi-Whitney, and others
to assist CVS with the testing of its electronic medical recordkeeping systems. 	Ms.
Whiteside and Ms. Sogbuyi-Whitney were paid by Gardner, but their work was
directed by CVS employees who dictated what tasks they were assigned and how
many hours they could bill per week. Ms. Whiteside and Ms. Sogbuyi-Whitney were
issued CVS email addresses and had to enter their hours and the results of their work
on CVS’s internal systems for approval by both CVS and Gardner.
CVS divided the QAs, including Ms. Whiteside and Ms. Sogbuyi-Whitney, into
five teams of as many as ten. All QAs performed the same primary job duties. CVS
also assigned a team lead to each team; all five team leads were of Indian national
origin 	or 	otherwise 	of 	South 	Asian 	ethnicity. 	Ms. Sogbuyi-Whitney 	and 	Ms.
Whiteside are both Black women.
Ms. Sogbuyi-Whitney and Ms. Whiteside allege that over the course of their
time working for CVS, the team leaders “routinely convened work meetings with
team members of Indian national origin and/or South Asian descent … [where]
Plaintiffs 	and 	other 	non-Indian/South 	Asian 	team 	members 	were 	excluded.”
(ECF No. 1 at 5.) Ms. Sogbuyi-Whitney and Ms. Whiteside allege that “[d]uring these
meetings, team leaders frequently communicated work directions, decisions, and
opportunities to the South Asian team members, from which Plaintiffs and other
non-Indian/South Asian team members were excluded.”
Id. 	Despite assurances that
their employment would last at least a year, Ms. Sogbuyi-Whitney, Ms. Whiteside,
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and at least twelve other QAs were laid off between late May and early June 2022.
Id. at 6.
Ms. Whiteside and Ms. Sogbuyi-Whitney allege that the exclusively South
Asian team leads who had previously excluded them from work-related meetings
were directed by CVS to personally select which individuals would be included in the
layoffs.
Id. They complain that the majority of the fourteen selected employees were
Black, and none were of Indian or South Asian descent.
Id. at 6. Ms. Whiteside and
Ms. Sogbuyi-Whitney now sue alleging that they and others similarly situated were
excluded and ultimately terminated because of their protected characteristics.
II. 	DISCUSSION
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper if the complaint
fails to satisfy Rule 8(a)(2)’s requirement of “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal,
556 U.S. 662, 677 (2009);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 	A
“short and plain” statement must provide a defendant with “fair notice of what the ...
claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555. To show an
entitlement to relief, a complaint must contain enough factual material “to raise a
right to relief above the speculative level on the assumption that all the allegations
in the complaint are true (even if doubtful in fact).”
Id.;
see also Iqbal, 556 U.S. at 679.
The defendants move to dismiss on three grounds.
	First, the defendants argue
that “Plaintiffs’ Complaint is a shotgun pleading that impermissibly lumps together
all Defendants without differentiation, and thus violates Federal Rule of Civil
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Procedure 8(a).” 	(ECF No. 13 at 1.)
	Second, the defendants assert that “Plaintiffs
failed to properly exhaust several of their now-pled claims.”
	Id.
	Finally, the
defendants argue that “Plaintiffs’ class allegations must be dismissed because
Plaintiffs’ allegations not only fail to permit a plausible, non-speculative inference
that Rule 23’s numerosity requirement may be satisfied, but in critical respects
preclude such an inference.”
Id. In this case, none of these arguments provide ground
for dismissal.
A. 	Shotgun Pleading
The defendants argue that “[a]s an initial matter, Plaintiffs’ Complaint is due
to be dismissed, in its entirety, because it is impermissible shotgun pleading.” (ECF
No. 13 at 2.) 	A “shotgun pleading” is a “pleading that fails to identify claims with
sufficient clarity to enable a defendant to frame a responsive pleading.”
U.S. ex rel.
Est. of Cunningham v. Millennium Lab. of Cal., Inc., 713 F.3d 662, 664 n.2 (1st Cir.
2013). 	“It [often takes] the form of multiple counts against multiple defendants
without adequately delineating which allegations of fact support each distinct cause
of action.”
K.B. v. Intern- Cont’l Hotels Corp., 2020 WL 8674188, at *8 (D.N.H. Sept.
28, 2020). Shotgun pleading is generally disfavored because it “puts the onus on the
court to cull through the allegations, identify the claims, and, as to each claim
identified, select the allegations that appear to be germane to that claim.”
Id.
Although shotgun pleading is disfavored, courts within the First Circuit have
routinely denied motions to dismiss complaints on shotgun pleading grounds unless
they find that the complaint was “calculated to confuse the enemy and the court.”
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See, e.g.,
Perrot v. Kelly, 2023 WL 2939277, at *15 (D. Mass. Feb. 15, 2023). 	A
complaint may be calculated to confuse when it intentionally “conflat[es] various
theories of relief” or otherwise renders it impossible for a defendant to respond to the
allegations.
	Id. 	Here, the Complaint is clearly not one designed to “overwhelm
defendants with an unclear mass of allegations.”
	Saad Maura v. Scotiabank P. R.,
2019 WL 13205043, at *17 (D.P.R. Sept. 30, 2019). Ms. Whiteside and Ms. Sogbuyi-
Whitney have brought a single count of discrimination against three CVS entities on
behalf of themselves and others similarly situated. Because the Complaint was not
designed to overwhelm or confuse the defendants, dismissal of the Complaint as
shotgun pleading is inappropriate.1
B. 	Exhaustion
The defendants allege that Ms. Sogbuyi-Whitney and Ms. Whiteside failed to
properly exhaust their Title VII claim.
See, e.g.,
Proper a Jorge v. Rumsfeld, 404 F.3d
556, 564 (1st Cir. 2005) (“[I]n a Title VII case, a plaintiff’s unexcused failure to
exhaust administrative remedies effectively bars the courthouse door.”). Exhaustion
has two key components: the timely filing of a charge with the Equal Employment
Opportunity Commission (“EEOC”) and the receipt of a right-to-sue letter from the
1 The defendants alternatively request that if this Court does not dismiss the matter
pursuant to Rule 12(b)(6), that the Court order the plaintiffs to file a more definite
statement pursuant to Rule 12(e). (ECF No. 13 at 1 n.1.) Because the Complaint does
not contain “such extraneous material as to render it impossible for the defendants
to answer,” that request is denied.
See MacKenzie v. Pfizer, Inc., 2021 WL 7451166,
at *4-5 (D. Mass. Jan. 11, 2021) (denying a motion for a more definite statement on
shotgun pleading grounds).
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agency.
	Id. 	Ms. Whitney and Ms. Whiteside filed charges with the EEOC on
November 2, 2022. The defendants challenge the timeliness of those filings.
Both Ms. Sogbuyi-Whitney and Ms. Whiteside are residents of “deferral
states,” which allow 300 days from the date of an alleged discriminatory employment
practice to file a charge with the EEOC. 	(ECF No. 13 at 5);
see, e.g.,
Nelson v.
Lockheed Missiles & Space Co., 131 F.3d 135, 135 (4th Cir. 1997) (“Normally, a
plaintiff has only 180 days from the alleged discriminatory action to file a charge.
However, in a deferral state, such as South Carolina, that time is extended to 300
days.”). 	Both women filed charges with the EEOC on November 2, 2022. 	Based on
this date, CVS alleges that their claims—and the claims of any putative class
members—can only extend back
at most to January 6, 2022.
While it is true that the failure to timely file a Title VII claim with the EEOC
effectively bars the courthouse doors, to the extent that any of the plaintiffs’
allegations regarding the defendants’ discriminatory conduct pre-date January 6,
2022, the plaintiffs may still bring a claim based on those allegations under the
“continuing violation” doctrine.
See generally Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002). The continuing violation doctrine enables a plaintiff to “obtain
recovery for discriminatory acts that otherwise would be time-barred so long as a
related act fell within the limitations period.”
	Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 130 (1st Cir. 2009). Although “the doctrine does not apply to discrete acts
of alleged discrimination that occur on a particular day … [such as] a termination, a
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refusal to transfer, or a failure to promote” it does apply to “discriminatory conduct
that takes places over a series of days or perhaps years.”
Id.
Ms. Whiteside and Ms. Sogbuyi-Whitney allege that non-South-Asian QAs
were 	repeatedly, 	over 	the 	course 	of 	their 	time 	working 	for 	CVS, 	subject 	to
discrimination on account of their protected characteristics, including by being
routinely excluded from meetings in which work opportunities were presented, and
that the defendants’ discriminatory conduct culminated in their termination between
May and June 2022. 	Because Ms. Whiteside and Ms. Sogbuyi-Whitney allege a
continuing violation, the Court will not at this stage limit them to recovering damages
only for conduct occurring on or after January 6, 2022.
C. 	Class Allegations
The defendants move to dismiss Ms. Sogbuyi-Whitney and Ms. Whiteside’s
class allegations. 	Motions to dismiss class allegations are highly disfavored at the
pleading stage.
See Manning v. Bos. Med. Ctr. Corp., 725 F.3d 34, 59 (1st Cir. 2013)
(“[C]ourts 	have 	repeatedly 	emphasized 	that 	striking 	class 	allegations 	… 	[is]
disfavored because it requires a reviewing court to preemptively terminate the class
aspects of … litigation, solely on the basis of what is alleged in the complaint, and
before plaintiffs are permitted to complete the discovery as to which they would
otherwise be entitled on questions relevant to class certification.”). While this Court
may, in its discretion, rule on a motion to dismiss class allegations at the pleading
stage, because the plaintiffs have alleged that numerous employees were subject to
discriminatory treatment during the relevant time period, dismissal of the class
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allegations solely on the pleadings is inappropriate.
See O’Leary v. N.H. Boring, Inc.,
176 F. Supp. 3d 4, 12–13 (D. Mass. 2016) (“[E]ven accepting that the Court may in its
discretion rule on a motion to strike or dismiss at this point, such motions are
disfavored and not calculated readily to invoke the Court’s discretion.”).
III. 	CONCLUSION
For all these reasons, the defendant’s Motion to Dismiss (ECF No. 13) is
DENIED.
IT IS SO ORDERED.
_________________________________
Mary S. McElroy
United States District Judge
January 29, 2024
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