Alexander v. Compass Group USA, Inc.

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MEEKELIA ALEXANDER,
Plaintiff,
v.
COMPASS GROUP USA INC.,
Defendant.
No. 25-cv-10983-DLC
MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION TO DISMISS
CABELL, U.S.M.J.
I. 	INTRODUCTION
Plaintiff Meekelia Alexander, an African American, worked as
a 	café 	manager 	of 	various 	dining 	halls 	at 	the 	Massachusetts
Institute 	of 	Technology 	(“MIT”). 	She 	asserts 	that 	her 	former
employer, defendant Compass Group USA Inc., failed to transfer her
to 	MIT’s 	New 	Vassar 	dining 	hall 	(“New 	Vassar”) 	as 	promised 	and
paid 	her 	less 	than 	white 	café 	managers 	because 	of 	her 	race.
Thereafter, the defendant constructively discharged her or so she
contends.
The 	complaint 	sets 	out 	three 	race 	discrimination 	claims 	all
brought under 42 U.S.C. § 1981 (“section 1981”): 	(1) a failure to
promote 	the 	plaintiff 	to 	café 	manager 	of 	New 	Vassar 	(“first
claim”); 	(2) 	disparate 	pay; 	and 	(3) 	constructive 	discharge. 	The
defendant 	moves 	to 	dismiss 	the 	first 	two 	claims 	on 	statute 	of
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limitations 	grounds 	under 	Federal 	Rule 	of 	Civil 	Procedure
12(b)(1).1 	It 	seeks 	to 	dismiss 	the 	constructive 	discharge 	claim
under 	Rule 	12(b)(6). 	(D. 	16). 	For 	the 	reasons 	explained 	below,
the court will deny the motion.
II. 	LEGAL STANDARD
To withstand a Rule 12(b)(6) motion to dismiss, the complaint
must 	contain 	“enough 	facts 	to 	state 	a 	claim 	to 	relief 	that 	is
plausible 	on 	its 	face” 	even 	if 	actual 	proof 	of 	the 	facts 	is
improbable. 	Bell 	Atlantic 	v. 	Twombly, 	550 	U.S. 	544, 	570 	(2007);
Miller 	v. 	Town 	of 	Wenham, 	833 	F.3d 	46, 	51 	(1st 	Cir. 	2016). 	The
“standard 	is 	not 	akin 	to 	a 	probability 	requirement,” 	but 	it”
requires “more than a sheer possibility that a defendant has acted
unlawfully.” 	Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(citations and internal quotation marks omitted). 	In order for a
party 	to 	“survive 	a 	motion 	to 	dismiss, 	a 	complaint 	must 	include
‘enough facts to state a claim to relief that is plausible on its
face.’” 	In 	re 	ARIAD 	Pharms. 	Sec. 	Litig., 	842 	F.3d 	744, 	756 	(1st
Cir. 	2016) 	(quoting 	Twombly, 	550 	U.S. 	at 	570). 	Reasonable
1 Because the statute of limitations in section 1981 is not jurisdictional, the
Rule 12(b)(1) motion is properly treated as a Federal Rule of Civil Procedure
12(b)(6) motion. 	See K.O. by and through E.O. v. United States, 651 F. Supp.
3d 	331, 	342 	(D. 	Mass. 	2023) 	(stating 	defendant 	moves 	to 	dismiss 	claims 	as
untimely under Rule 12(b)(1) but motion “should be treated as a 12(b)(6) motion
because the statute of limitations in the FTCA is not jurisdictional.”) (citing
Morales-Melecio v. United States, 890 F.3d 361, 367 (1st Cir. 2018)); Samuel v.
Ports Am. Chesapeake, LLC, Civil Action No. DKC 19-0400, 2020 WL 4748542, at *6
(D. Md. Aug. 17, 2020) (“[T]he fact that the statute of limitations may have
expired 	on 	[a] 	§ 	1981 	claim 	is 	a 	defense 	to 	the 	claim 	. 	. 	. 	and 	not 	a
jurisdictional defect.”) (citation omitted).
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inferences 	from 	the 	facts 	alleged 	in 	the 	complaint 	are 	drawn 	in
the plaintiff’s favor. 	Deangelis v. Hasbro, Inc., 165 F.4th 646,
649 (1st Cir. 2026) (citation omitted).
III. 	THE PARTIES’ ARGUMENTS
The 	defendant 	argues 	that 	the 	first 	claim 	is 	a 	failure 	to
hire claim and, contrary to the plaintiff’s position, not a failure
to 	transfer 	claim.2 	As 	such, 	it 	is 	subject 	to 	a 	three-year
limitations 	period 	and 	therefore 	time 	barred, 	according 	to 	the
defendants. 	(D. 	17, 	33). 	Next, 	the 	defendant 	asserts 	that 	the
disparate pay claim is subject to a three-year limitations period
and, even if subject to a four-year period, is untimely. 	(D. 17,
33). 	The 	constructive 	discharge 	claim, 	the 	defendant 	maintains,
is deficient because the facts fail to show: 	(1) causation given
the attenuated timing between the alleged discriminatory acts and
the 	purported 	constructive 	discharge; 	(2) 	a 	hostile 	work
environment, 	specifically, 	that 	the 	plaintiff’s 	work 	environment
was 	“so 	pervaded 	by 	racial 	harassment 	as 	to 	alter 	the 	terms 	and
conditions 	of 	her 	employment”; 	and 	(3) 	a 	constructive 	discharge,
namely, that the plaintiff’s working conditions were so unpleasant
2 The defendant does not characterize or address the first claim as a failure
to promote the plaintiff. 	As discussed infra, the complaint pleads a failure
to promote claim.
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that a reasonable person would have been compelled to resign. 	(D.
17, 33).
The 	plaintiff 	counters 	that 	she 	pled 	a 	failure 	to 	transfer
claim 	rather 	than 	a 	failure 	to 	hire 	claim.3 	In 	that 	regard, 	she
submits 	that 	a 	four-year 	limitations 	period 	applies 	and 	renders
the 	claim 	timely. 	She 	similarly 	contends 	that 	her 	disparate 	pay
claim 	carries 	a 	four-year 	limitations 	period. 	Anent 	the
constructive 	discharge 	claim, 	the 	plaintiff 	identifies 	the
following 	facts 	as 	sufficient 	to 	avoid 	dismissal: 	(1) 	the
defendant’s refusal to transfer her to New Vassar; (2) her learning
that the defendant hired two white café managers for the New Vassar
position; 	and 	(3) 	the 	defendant 	paying 	the 	plaintiff 	less 	than
white café managers for the same work.
IV. 	BACKGROUND
MIT 	has 	five 	dining 	halls, 	and 	each 	is 	staffed 	by 	a 	café
manager. 	The 	plaintiff 	began 	working 	in 	MIT’s 	dining 	halls 	in
2002. 	(D. 1, ¶¶ 5, 8). 	Throughout her tenure, she “performed her
job well.” 	(D. 1, ¶ 12). 	Afterall, she had more than twenty-one
years 	of 	experience 	in 	the 	food 	service 	industry 	including 	more
than thirteen years as a café manager. 	(D. 1, ¶ 20). 	During the
last seven years of her employment at MIT, she was a café manager
3 Like the defendant, the plaintiff eschews pleading a failure to promote section
1981 claim. 	(D. 30, plaintiff’s opposition stating, “Although Plaintiff did
state the word promote in paragraph 26 of the complaint this was not a promotion
but a transfer . . . [T]his case is not a failure to promote case but a failure
to transfer case.”).
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and 	had 	an 	employment 	contract 	with 	the 	defendant. 	(D. 	1, 	¶¶ 	5,
10-11).
In 	January 	2020, 	the 	defendant 	asked 	her 	to 	be 	the 	café
manager 	of 	the 	Maseeh 	Hall 	dining 	hall 	(“Maseeh 	Hall”), 	MIT’s
largest 	dining 	hall. 	(D. 	1, 	¶ 	16). 	In 	that 	regard, 	Maseeh 	Hall
needed a strong manager to bring the hall “up to standards”. 	(D.
1, 	¶¶ 	16-17). 	The 	plaintiff 	and 	the 	defendant 	agreed 	that 	the
defendant 	would 	appoint 	the 	plaintiff 	café 	manager 	of 	New 	Vassar
when 	she 	accomplished 	getting 	Maseeh 	Hall 	up 	to 	standards.4 	(D.
1, ¶ 17).
The 	plaintiff 	succeeded 	in 	the 	task. 	Indeed, 	in 	only 	one
week’s 	time, 	she 	brought 	Maseeh 	Hall 	up 	to 	standards. 	The
defendant was pleased with her efforts.
In 	January 	2021, 	and 	despite 	the 	plaintiff’s 	success, 	the
defendant did not appoint her café manager of New Vassar. 	Further,
during 	this 	time, 	the 	defendant 	hired 	two 	white 	individuals 	as
café managers and appointed one of them café manager of New Vassar.5
4 Under a Rule 12(b)(6) standard, the above constitutes a contract. 	The court
takes no position as to whether the agreement was a contract on a more developed
record. 	The parties do not explicitly address the matter.
5 The complaint does not unequivocally state that the defendant appointed one
of these two white individuals as café manager of New Vassar. 	The complaint
reasonably infers this fact from the following allegations:
In January of 2021, . . . [Plaintiff] did not get the New Vassar position
. . . During this time . . . there [were] two white people hired for the
positions as Café Managers . . . .
(D. 1, ¶¶ 18-19).
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The 	plaintiff 	subsequently 	discovered 	this 	hiring. 	(D. 	1, 	¶ 	19)
(“Plaintiff 	found 	out 	later 	that” 	the 	defendant 	hired 	two 	white
café managers.). 	She also knew that, unlike her, these individuals
did 	not 	have 	twenty-one 	years 	of 	“experience 	in 	the 	food 	service
industry” and thirteen years of experience as a café manager. 	(D.
6, ¶ 20).
In 	addition, 	the 	defendant 	paid 	the 	plaintiff 	substantially
less than other white café managers. 	Moreover, she had “the same,
if 	not 	more, 	responsibilities” 	than 	white 	café 	managers. 	(D. 	6,
¶ 14).
In March 2021, the plaintiff took a medical leave precipitated
by 	these 	conditions 	at 	work. 	By 	this 	time, 	she 	was 	experiencing
a considerable amount of stress, anxiety, and depression. 	At some
point 	thereafter, 	the 	defendant 	“officially 	terminated” 	her
employment. 	(D. 1, ¶ 23).
On January 3, 2025, the plaintiff filed this action in state
court. 	The 	defendant 	thereafter 	removed 	the 	case 	to 	this 	court.
For 	statute 	of 	limitations 	purposes, 	the 	plaintiff 	filed 	this
action on January 3, 2025 notwithstanding the subsequent removal.
See McElrath v. City of Cleveland, Case No. 1:19-CV-00332, 2019 WL
6170564, 	at 	*1 	& 	*4 	n.35 	(N.D. 	Ohio 	Nov. 	20, 	2019) 	(using 	date
filed 	in 	state 	court 	as 	filing 	date 	to 	assess 	limitations 	period
in removed action).
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V. 	DISCUSSION
A. 	UNTIMELINESS
As 	noted, 	the 	defendant 	maintains 	that 	the 	section 	1981
failure to hire claim is subject to a three-year limitations period
and therefore untimely. 	The defendant similarly submits that the
disparate 	pay 	claim 	is 	untimely 	because 	it 	also 	carries 	a 	three-
year 	limitations 	period. 	The 	plaintiff, 	in 	turn, 	characterizes
the 	failure 	to 	hire 	claim 	as 	a 	failure 	to 	transfer 	claim 	and
therefore 	subject 	to 	a 	four-year 	limitations 	period.6 	The
disparate 	pay 	claim, 	the 	plaintiff 	contends, 	is 	likewise 	subject
to 	a 	four-year 	limitations 	period. 	Further, 	per 	the 	plaintiff,
the disparate pay claim survives for each paycheck received after
January 	3, 	2021, 	and 	is 	barred 	for 	each 	paycheck 	issued 	before
January 	3, 	2021. 	(D. 	30) 	(plaintiff’s 	opposition 	stating,
“Defendant’s 	Motion 	to 	dismiss 	should 	be 	granted 	for 	paychecks
issued 	prior 	to 	January 	3, 	2021, 	and 	denied 	for 	paychecks 	issued
after January 3, 2021.”).
1. 	TIMELINESS OF FIRST CLAIM
The 	initial 	issue 	is 	whether 	the 	first 	claim 	constitutes 	a
failure 	to 	hire, 	promote, 	or 	transfer 	claim. 	Once 	properly
construed as raising a failure to promote claim, the issue reduces
6 A 	section 	1981 	failure 	to 	transfer 	claim 	carries 	a 	four-year 	limitations
period. 	Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 383 (2004).
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to 	what 	limitations 	period 	applies 	to 	such 	a 	claim. 	The 	court
addresses these two issues seriatim.
a. 	FAILURE TO HIRE, PROMOTE, OR TRANSFER CLAIM
The structure and substance of a complaint govern the analysis
of 	whether 	the 	complaint 	raises 	a 	claim. 	Cortés-Rivera 	v. 	Dep’t
of Corrs. and Rehab. of Commonwealth of Puerto Rico, 626 F.3d 21,
28 	(1st 	Cir. 	2010) 	(examining 	“plain 	language” 	of 	complaint 	and
its structure to determine if it raised a claim); accord Clapp v.
Fanning, Civil 	Action 	No. 	18-cv-10426-ADB, 	2022 	WL 	827404, 	at 	*6
(D. Mass. Mar. 18, 2022) (citing Cortés-Rivera, 626 F.3d at 28).
Here, the plain language and structure of the complaint plead
a 	failure 	to 	promote 	claim. 	To 	explain, 	the 	structure 	of 	the
complaint 	sets 	out 	the 	factual 	allegations 	in 	one 	section 	of 	the
complaint. 	(D. 	1, 	¶¶ 	8-24). 	The 	next 	section 	of 	the 	complaint
lists the causes of action and is aptly titled “Cause of Action[,]
Section 	1981.” 	(D. 	1, 	¶¶ 	25-27). 	More 	precisely, 	paragraph
twenty-six in this section lists the three causes of action. 	The
plain 	language 	of 	that 	paragraph 	identifies 	one 	of 	the 	causes 	of
action 	as 	being 	“denied 	an 	opportunity 	for 	a 	promotion.” 	(D. 	1,
¶ 26) (emphasis added).
The defendant nevertheless submits that the complaint pleads
a failure to hire claim. 	(D. 17, pp. 3-4) (D. 33). 	It does not.
Nowhere 	does 	the 	complaint 	use 	the 	word 	“hire” 	or 	any 	version 	of
that word, such as “hiring.” 	Further, the factual assertions in
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the 	complaint 	do 	not 	support 	the 	construction. 	Of 	note, 	the
plaintiff was already working for the defendant as a café manager
when 	“she 	did 	not 	get” 	the 	promotion 	to 	be 	café 	manager 	of 	New
Vassar. 	(D. 	1, 	¶¶ 	11, 	18, 	26). 	As 	such, 	she 	was 	not 	“hired” 	to
a 	position 	she 	already 	occupied 	(café 	manager), 	notwithstanding
the different dining hall.
The plaintiff, in turn, denotes the first claim as a failure
to 	transfer. 	(D. 	30, 	pp. 	2-3) 	(opposition 	brief 	asserting 	she
pled a failure to transfer claim). 	The characterization fails to
persuade. 	First 	and 	foremost, 	the 	plaintiff’s 	“subsequent
references 	to 	[the] 	purported” 	claim 	in 	her 	opposition 	brief 	do
not 	change 	the 	complaint 	as 	pled. 	Cortés-Rivera, 	626 	F.3d 	at 	28
(Cortés–Rivera 	“cannot 	raise 	a 	federal 	retaliation 	claim 	if 	that
claim 	was 	not 	present 	in 	his 	complaint” 	and 	“[h]is 	subsequent
references to a purported . . . claim do not alter this result.”).
Second, 	the 	paragraph 	in 	the 	complaint 	that 	lists 	the 	causes 	of
action identifies the denial of “a promotion” rather than a denial
of a transfer. 	(D. 1, ¶ 26). 	Third, the complaint does not refer
to a “transfer” or another form of that word.7
To 	be 	sure, 	the 	plaintiff 	quotes 	various 	paragraphs 	in 	the
complaint as raising a failure to transfer claim. 	(D. 30, p. 2).
These paragraphs, however, simply depict the parties’ agreement to
7 It is therefore not necessary to address the defendant’s argument that the
failure to transfer claim does not withstand dismissal because the facts fail
to show that the plaintiff suffered an impairment to her employment contract.
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appoint the plaintiff café manager of New Vassar once she brought
Maseeh 	Hall 	up 	to 	standards. 	They 	also 	set 	out 	the 	plaintiff’s
failure 	to 	get 	the 	New 	Vassar 	position 	and 	the 	hiring 	of 	the 	two
individuals 	for 	café 	manager 	positions. 	Against 	the 	backdrop 	of
the 	impactful 	reasons 	in 	the 	preceding 	paragraph, 	the 	paragraphs
cited by the plaintiff lack force. 	Accordingly, they do not raise
a failure to transfer claim.
b. 	FAILURE TO PROMOTE CLAIM
A 	multifaceted 	analysis 	applies 	to 	determining 	the 	correct
limitations period of a section 1981 failure to promote claim. 	To
begin, 	section 	1981 	does 	not 	contain 	its 	own 	statute 	of
limitations. 	Jones 	v. 	R.R. 	Donnelley 	& 	Sons 	Co., 	541 	U.S. 	369,
382 (2004). 	Borrowing the analogous statute of limitations in the
forum state, however, does not necessarily apply. 	Rather, a four-
year limitations period applies to “civil action[s] arising under
an 	Act 	of 	Congress 	enacted 	after 	the” 	December 	1, 	1990 	enactment
of 28 U.S.C. § 1658 (“section 1658”). 	28 U.S.C. § 1658.
Interpreting 	section 	1658, 	the 	Court 	in 	Jones 	held 	that 	a
“cause of action ‘aris[es] under an Act of Congress enacted’ after
December 	1, 	1990—and 	therefore 	is 	governed 	by 	§ 	1658’s 	4–year
statute 	of 	limitations—if 	the 	plaintiff’s 	claim 	against 	the
defendant 	was 	made 	possible 	by 	a 	post–1990 	enactment.” 	Jones,
U.S. 	at 	382. 	In 	that 	regard, 	section 	1981 	was 	amended 	in 	1991
(“the 	1991 	amendment”) 	to 	include 	post-contract-formation
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discriminatory 	conduct. 	Jones, 	541 	U.S. 	at 	372, 	382-383; 	see
Mercado 	v. 	Puerto 	Rico, 	814 	F.3d 	581, 	586 	(1st 	Cir. 	2016) 	(1991
amendment “‘enlarged the category of conduct that [was previously]
subject 	to 	section 	1981 	liability’ 	to 	include 	post-contract-
formation 	discriminatory 	conduct 	. 	. 	. 	.”) 	(quoting 	Jones, 	514
U.S. at 383).
Notably, 	prior 	to 	December 	1990 	the 	Court 	decided 	Patterson
v. 	McLean 	Credit 	Union, 	491 	U.S. 	164 	(1989), 	which 	ruled 	that 	Ҥ
1981 	‘did 	not 	protect 	against 	conduct 	that 	occurred 	after 	the
formation 	of 	the 	contract.’”8 	Mercado, 	814 	F.3d 	at 	586 	(quoting
Jones, 	541 	U.S. 	at 	372-373, 	citing 	Patterson, 	491 	U.S. 	164); 	see
Andrews v. Freemantlemedia N.A., Inc., No. 13 Civ. 5174(NRB), 2014
WL 	6686590, 	at 	*5 	(S.D.N.Y. 	Nov. 	19, 	2014) 	(Patterson 	“held 	that
Section 	1981’s 	provision 	for 	the 	right 	to 	‘make 	and 	enforce
contracts’ 	covered 	only 	conduct 	at 	the 	initial 	formation 	of 	the
contract and conduct impairing the contract’s enforcement through
8 At that time, section 1981 read “that ‘all persons [within the jurisdiction
of the United States] shall have the same right, in every State and Territory
. . . to make and enforce contracts . . . as is enjoyed by white citizens.’”
Jones, 541 U.S. at 372 (quoting pre-1990 version of 1981) (emphasis added).
The 1991 amendment added a subsection that defined the term “make and enforce
contracts.” 	It reads as follows:
(b) “Make and enforce contracts” defined
For 	purposes 	of 	this 	section, 	the 	term 	“make 	and 	enforce 	contracts”
includes 	the 	making, 	performance, 	modification, 	and 	termination 	of
contracts, 	and 	the 	enjoyment 	of 	all 	benefits, 	privileges, 	terms, 	and
conditions of the contractual relationship.
42 U.S.C. § 1981(b).
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legal 	process.”). 	Further, 	the 	Jones’ 	plaintiffs’ 	section 	1981
hostile 	work 	environment, 	wrongful 	termination, 	and 	failure 	to
transfer claims were not actionable by virtue of Patterson because,
as 	noted, 	that 	case 	“did 	not 	protect 	against 	. 	. 	. 	conduct 	that
occurred after the formation of the contract.” 	Jones, 541 U.S. at
372-373 	(citing 	Patterson, 	491 	U.S. 	164). 	As 	a 	result, 	those
“claims ‘were made possible by’ the 1991 amendment to section 1981,
as 	their 	suit 	to 	recover 	for 	defendants’ 	post-contract 	formation
conduct 	could 	succeed 	only 	by 	virtue 	of 	that 	amendment 	and 	thus
‘necessarily depend[ed]’ on it.” 	Mercado, 814 F.3d at 586 (quoting
Jones, 541 U.S. at 383).
Importantly, Patterson also addressed a section 1981 failure
to 	promote 	claim. 	See 	Patterson, 	491 	U.S. 	at 	185. 	Under
Patterson, a failure to promote claim is actionable under section
1981 	“[o]nly 	where 	the 	promotion 	rises 	to 	the 	level 	of 	an
opportunity 	for 	a 	new 	and 	distinct 	relation 	between 	the 	employee
and the employer . . . .” 	Id. (citing Hishon v. King & Spalding,
467 	U.S. 	69 	(1984)). 	In 	other 	words, 	a 	section 	1981 	failure 	to
promote 	claim 	existed 	prior 	to 	the 	December 	1990 	enactment 	of
section 	1658 	when 	“the 	promotion 	[rose] 	to 	the 	level 	of 	an
opportunity 	for 	a 	new 	and 	distinct 	relation.” 	Dunston 	v. 	Gray
Television, 	Inc., 	Civil 	Action 	File 	No. 	1:21-CV-05032-MLB-JEM,
2024 	WL 	4224176, 	at 	*13 	(N.D. 	Ga. 	Apr. 	30, 	2024) 	(addressing
failure to promote claim) (citing case citing Patterson, 491 U.S.
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at 	185). 	The 	case 	example 	in 	Patterson 	of 	a 	new 	and 	distinct
relation 	was 	refusing 	to 	promote 	an 	associate 	at 	a 	law 	firm 	to 	a
partner. 	Patterson, 491 U.S. at 185-186 (citing Hishon, 467 U.S.
69 (1984)).
Unlike the refusal to promote an associate to the level of a
partner in Hishon, the defendant refused to promote the plaintiff
from 	one 	café 	manager 	to 	another 	café 	manager, 	albeit 	from 	one
dining hall to another. 	This is not the kind of denied promotion
that was actionable under Patterson. 	See Harrison v. Assocs. Corp.
of 	North 	Am. 	N., 	917 	F.2d 	195, 	196 	(5th 	Cir. 	1990) 	(change 	from
“C.R.T. operator” to “lead C.R.T. operator” did not result in “new
and distinct relationship”); Thompson v. Hendrickson USA, LLC, No.
3:20-cv-00482, 	2021 	WL 	848694, 	at 	*12 	(M.D. 	Tenn. 	Mar. 	5, 	2021)
(noting 	that 	“‘mere 	advancement’ 	or 	otherwise 	minor 	transfer
between 	one 	management 	position 	and 	another 	is 	not 	the 	type 	of
significant contractual change that the pre-1991 version of § 1981
anticipated”) (discussing Aaron Malone v. State of Tenn., No. 03-
2869 B, 2005 WL 2671343, at *6 (W.D. Tenn. Oct. 19, 2005)).
The 	promotion 	claim 	was 	therefore 	made 	possible 	under 	the
1991 	amendment 	which, 	as 	noted, 	carries 	a 	four-year 	statute 	of
limitations. 	Indeed, caselaw in this circuit firmly supports this
conclusion. 	See 	Buntin 	v. 	City 	of 	Boston, 	813 	F.3d 	401, 	404-405
(1st Cir. 2015) (finding section 1981 claim, which “allege[d] the
Defendants 	discriminatorily 	terminated” 	the 	plaintiff, 	“was
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brought 	within 	the 	applicable 	four-year 	statute 	of 	limitations”)
(citing 	Jones, 	541 	U.S. 	at 	382); 	accord 	Garmon 	v. 	Nat’l 	R.R.
Passenger 	Corp., 	844 	F.3d 	307, 	318 	n.8 	(1st 	Cir. 	2016) 	(citing
Buntin, 	813 	F.3d 	at 	404-405, 	and 	stating 	“Section 	1981
discrimination 	claims 	are 	subject 	to 	a 	four-year 	statute 	of
limitations”). 	Moreover, 	the 	facts 	reflect 	ongoing, 	post-
contract-formation conduct. 	As stated in the complaint, in January
2020, the parties agreed to promote the plaintiff to the New Vassar
position once she accomplished getting Maseeh Hall up to standards.
A 	year 	later 	in 	January 	2021, 	and 	despite 	her 	“performance 	at
Maseeh 	Hall, 	she 	did 	not 	get 	the 	New 	Vassar 	position.” 	(D. 	6, 	¶
18).
In 	sum, 	the 	failure 	to 	promote 	claim 	is 	subject 	to 	a 	four-
year 	limitations 	period. 	Hence, 	the 	motion 	to 	dismiss 	the 	claim
as untimely lacks force.
2. 	TIMELINESS OF DISPARATE PAY CLAIM
The 	disparate 	pay 	claim 	alleges 	that 	the 	defendant 	paid 	the
plaintiff 	“substantially 	less 	than 	similarly 	situated 	white 	café
managers.” 	(D. 1, ¶ 26). 	Relatedly, as stated in the complaint,
the 	plaintiff 	had 	“the 	same, 	if 	not 	more, 	responsibilities” 	than
“white café managers.” 	(D. 1, ¶ 14). 	She also “performed her job
well” 	during 	her 	employment 	with 	the 	defendant. 	(D. 	1, 	¶ 	12).
Lastly, 	she 	had 	an 	employment 	contract 	with 	the 	defendant 	and,
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construing the complaint in the plaintiff’s favor, the employment
contract included her pay. 	(D. 1, ¶¶ 5-6, 14).
Of 	note, 	“discriminatory 	pay 	raises, 	cuts, 	or 	other
modifications involve post-contract formation conduct that was not
actionable under Section 1981 until the 1991 amendment.” 	Barr v.
Bd. of Regents of Univ. Sys. of Ga., Civil Action No. 4:17-cv-203,
2019 	WL 	1099791, 	at 	*8 	(S.D. 	Ga. 	Mar. 	8, 	2019). 	Claims 	based 	on
such 	“acts 	are 	[therefore] 	subject 	to 	the 	four-year 	statute 	of
limitations” 	in 	section 	1658. 	Id.; 	see 	Dandy 	v. 	United 	Parcel
Serv., 	Inc., 	388 	F.3d 	263, 	269 	(7th 	Cir. 	2004) 	(“[D]isparate
treatment 	in 	terms 	of 	compensation” 	was 	“subject 	to 	§ 	1658’s 	4–
year statute of limitations because” conduct “took place after the
formation 	of 	[plaintiff’s] 	employment 	contract.”) 	(citations
omitted); 	see 	also 	Garmon, 	844 	F.3d 	318 	n.8 	(citing 	Buntin, 	813
F.3d at 404-405).9
Here, 	the 	foregoing 	allegations 	reflect 	that 	the 	defendant
paid the plaintiff less than her white counterparts on an ongoing
basis 	after 	the 	parties 	entered 	into 	the 	employment 	contract.
Given this post-contract formation conduct, the four-year statute
of 	limitations 	in 	section 	1658 	applies. 	Concomitantly, 	the
9 	The 	parties 	dispute 	the 	findings 	made 	by 	the 	court 	in 	Lewis 	v. 	City 	of
Shreveport, 	Civil 	Action 	No. 	16-11152018, 	2028 	WL 	752362 	(W.D. 	La. 	Feb. 	7,
2018). 	(D. 30, p. 4) (D. 33, p. 3). 	Regardless, Lewis does not warrant applying
a different limitations period. 	See Lewis, 2018 WL 752362, at *10 (“Section
1981 claims for racially motivated disparities in pay are subject to a four-
year statute of limitations.”) (citing case citing section 1658 and White v.
BFI Waste Servs., LLC, 375 F.3d 288, 291-292 (4th Cir. 2004)).
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plaintiff’s 	position 	that 	the 	disparate 	pay 	claim 	is 	viable 	“for
each 	paycheck 	[the 	plaintiff] 	received 	after 	January 	3, 	2021” 	is
correct.
As a final matter, the defendant’s argument that the disparate
pay 	claim 	is 	untimely 	even 	if 	a 	four-year 	limitations 	period
applies 	is 	misguided. 	The 	defendant 	cites 	Rodriguez-Garcia 	v.
Mun. of Caguas, 354 F.3d 91 (1st Cir. 2004), as the basis for the
argument. 	As stated therein, “Under federal law, the limitations
period 	begins 	to 	run 	when 	the 	plaintiff 	‘knows 	or 	has 	reason 	to
know of the injury which is the basis for his claim.’” 	Id. at 354
F.3d 	96–97 	(citation 	omitted). 	The 	defendant 	asserts 	that 	the
plaintiff knew about the pay disparity before the 2020 transfer to
Maseeh 	Hall. 	In 	fact, 	the 	defendant 	asserts 	that 	the 	disparate
pay 	claim 	accrued 	in 	2014 	because 	the 	plaintiff 	began 	to 	work 	as
a café manager at that time.
The 	facts 	do 	not 	intimate 	when 	the 	plaintiff 	knew 	or 	had
reason 	to 	know 	about 	the 	wages 	of 	her 	white 	counterparts. 	To 	be
sure, 	the 	plaintiff 	filed 	the 	complaint 	on 	January 	3, 	2025 	and
therefore knew at that time she was paid substantially lower wages.
(D. 1, ¶ 14) (complaint stating “Plaintiff was paid substantially
less in wages [than] her similarly situated white” café managers.).
She 	also 	knew 	the 	amount 	she 	was 	paid 	as 	a 	café 	manager 	for 	the
seven 	years 	prior 	to 	filing 	the 	complaint. 	But, 	construing 	the
facts in the plaintiff’s favor, she did not know or have reason to
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know that white café managers were paid substantially higher wages
until she filed the complaint or shortly before that date.
Per the above, the motion to dismiss the disparate pay claim
as untimely fails to persuade.
B. 	CONSTRUCTIVE DISCHARGE CLAIM
As 	noted, 	the 	defendant 	seeks 	to 	dismiss 	the 	constructive
discharge 	claim 	on 	multiples 	fronts: 	(1) 	the 	attenuated 	timing
between 	the 	purported 	discriminatory 	acts 	and 	the 	alleged
constructive discharge fails to show causation; (2) a hostile work
environment 	is 	lacking 	because 	it 	was 	not 	“so 	pervaded 	by 	racial
harassment” 	such 	that 	it 	altered 	the 	terms 	and 	conditions 	of 	the
plaintiff’s 	employment; 	and 	(3) 	the 	absence 	of 	a 	constructive
discharge 	because 	the 	working 	conditions 	were 	not 	so 	unpleasant
that 	a 	reasonable 	person 	would 	have 	been 	compelled 	to 	resign.
After 	setting 	out 	the 	elements 	of 	a 	race 	discrimination 	section
1981 	hostile 	work 	environment 	claim, 	the 	court 	addresses 	the
defendants’ arguments in numerical order.
To 	begin, 	“[t]he 	elements 	of 	a 	hostile 	racial 	environment
claim under section 1981” require the plaintiff to
establish: 	(1) 	that 	she 	is 	a 	member 	of 	a 	protected 	class;
(2) that she was subjected to unwelcome harassment; (3) that
the harassment was based on her race; (4) that the harassment
was sufficiently severe or pervasive so as to alter the terms
or 	conditions 	of 	her 	employment; 	(5) 	that 	the 	conduct
complained 	of 	was 	both 	objectively 	and 	subjectively
offensive; and (6) that some basis for employer liability has
been established.
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Bhatti v. Tr. of Boston Univ., Civil Action No. 08–11343–RGS, 2010
WL 	4068732, 	at 	*8 	(D. 	Mass. 	Oct. 	19, 	2010) 	(citing 	Prescott 	v.
Higgins, 538 F.3d 32, 41 (1st Cir. 2008)) (emphasis added).
1. 	CAUSATION
The defendant submits that a matter of months is insufficient
to 	show 	causation. 	In 	that 	regard, 	the 	defendant 	relies 	on
Quintana-Dieppa v. Dep’t of Army, 130 F.4th 1, 17 (1st Cir. 2025)
(“doubt[ing] 	that 	the 	three-or 	four-month 	period 	between 	the 	two
events 	would 	suffice 	to 	establish 	the 	causal 	link 	required 	for
even 	a 	prima 	facie 	showing 	of 	retaliation”) 	(citation 	omitted).10
The 	defendant 	postulates 	that 	several 	months 	passed 	between 	the
purported discriminatory acts (the January 2021 denied promotion)
and 	the 	purported 	constructive 	discharge 	(the 	March 	2021 	medical
leave).11 	Construing 	the 	complaint 	in 	the 	plaintiff’s 	favor, 	the
“January 2021” denial took place at the end of the month. 	By like
token, 	the 	“March 	2021” 	leave 	of 	absence 	took 	place 	at 	the
beginning of the month. 	The complaint therefore plausibly alleges
10 Whereas Qintana-Dieppa involved a race discrimination claim in violation of
Title VII, 42 U.S.C. § 2000e, Title VII cases alleging hostile work environment
claims are germane to section 1981 cases alleging hostile racial discrimination
claims. 	See Bhatti, 2010 WL 4068732, at *8 (“The elements of a hostile racial
environment claim under Section 1981 are identical to those under Title VII.”);
Thomas 	v. 	Cook 	Children's 	Health 	Care 	Sys., 	Civil 	Action 	No. 	4:20-CV-01272,
2021 WL 4796679, at *9 (N.D. Tex. July 28, 2021) (“To state a claim for hostile
work environment under Title VII, Plaintiff must show the same elements required
of a Section 1981 claim.”).
11 The defendant does not expressly identify the January 2021 denied promotion
and the March 2021 medical leave as the respective alleged discriminatory act
and purported constructive discharge. 	The three-month period between these two
events, however, comports with the defendant’s argument that a three or four
month time frame is too attenuated to support causation.
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that only one month transpired before the March 2021 constructive
discharge. 	This 	plaintiff-favorable 	reasonable 	construction 	of
the 	complaint 	jettisons 	the 	defendant’s 	attenuated 	timing
argument.
2. 	HOSTILE WORK ENVIRONMENT
Anent the defendant’s second argument, establishing “a claim
of 	‘hostile 	work 	environment’” 	requires 	a 	plaintiff 	to
“demonstrate 	‘that 	the 	harassment 	was 	sufficiently 	severe 	or
pervasive 	so 	as 	to 	alter 	the 	conditions 	of 	the 	plaintiff’s
employment and create an abusive work environment.’” 	Lima v. City
of 	East 	Providence, 	17 	F.4th 	202, 	205, 	208 	(1st 	Cir. 	2021)
(addressing 	section 	1981 	hostile 	work 	environment 	claim)
(citations omitted). 	This standard “must be both objectively and
subjectively offensive.” 	Rosario v. Dept. of Army, 607 F.3d 241,
246 (1st Cir. 2010) (citation omitted). 	The defendant’s argument
implicates 	the 	objectively 	offensive 	component. 	As 	to 	this
component, 	the 	environment 	must 	be 	“one 	that 	a 	reasonable 	person
would 	find 	hostile 	or 	abusive.” 	Id. 	(addressing 	hostile 	work
environment 	based 	on 	sexual 	harassment) 	(citation 	omitted); 	see
Eswarappa 	v. 	Comty. 	Action 	Inc./Head 	Start, 	Civil 	No. 	14-14255-
FDS, 2017 WL 3202724, at *8 (D. Mass. July 7, 2017) (“Hostile work
environment 	claims 	based 	on 	racial 	harassment 	are 	reviewed 	under
the 	same 	standard 	as 	those 	based 	on 	sexual 	harassment” 	(citing
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Nat’l 	R.R. 	Passenger 	Corp. 	v. 	Morgan, 	536 	U.S. 	101, 	116 	n.10
(2002)).
Whether a reasonable person would perceive the environment as
hostile 	or 	abusive 	involves 	examining 	“all 	the 	attendant
circumstances.” 	Rosario, 	607 	F.3d 	at 	246 	(citations 	omitted).
Those 	circumstances 	include 	“the 	frequency 	of 	the 	discriminatory
conduct; 	its 	severity; 	whether 	it 	is 	physically 	threatening 	or
humiliating, 	or 	a 	mere 	offensive 	utterance; 	and 	whether 	it
unreasonably interferes with an employee’s work performance.” 	Id.
(citations 	omitted); 	see 	González-Santos 	v. 	Torres-Maldonado,
Civil No. 09-1850 (FAB/BJM), 2012 WL 13170504, at *12 (D.P.R. Jan.
20, 	2012) 	(“listing 	[these] 	factors 	in 	hostile 	environment 	race
discrimination” 	claim) 	(citation 	omitted). 	“‘Subject 	to 	some
policing at the outer bounds,’ it is for the jury to weigh [these]
factors 	and 	decide 	whether 	the 	harassment 	was 	of 	a 	kind 	or 	to 	a
degree 	that 	a 	reasonable 	person 	would 	have 	felt 	that 	it 	affected
the conditions of her employment.” 	Gorski v. N.H. Dep't of Corrs.,
290 F.3d 466, 474 (1st Cir. 2002); accord Rosario, 607 F.3d at 247
(same).
Here, 	the 	alleged 	conduct 	was 	sufficiently 	severe 	or
pervasive 	such 	that 	a 	reasonable 	café 	manager 	would 	perceive 	the
environment 	as 	hostile 	or 	abusive. 	To 	explain, 	experiencing
substantially 	less 	pay 	than 	similar 	white 	café 	managers 	occurred
with every paycheck and was therefore frequent. 	It also took place
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for 	a 	prolonged 	time-period. 	In 	addition, 	the 	circumstances
included 	the 	plaintiff 	taking 	on 	more 	responsibility 	by 	getting
the 	largest 	dining 	hall 	up 	to 	standards 	and 	then 	being 	denied 	a
promised 	promotion 	to 	another 	dining 	hall. 	The 	defendant 	then
awarded 	the 	position 	to 	a 	white 	café 	manager. 	Thus, 	the 	alleged
discrimination 	in 	being 	denied 	the 	promotion 	coupled 	with 	the
allegedly 	prolonged 	discrimination 	of 	being 	paid 	substantially
less 	than 	similar 	white 	café 	managers 	can 	be 	readily 	viewed 	as
frequent 	and 	severe. 	Plausibly, 	it 	would 	unreasonably 	interfere
with 	a 	reasonable 	café 	manager’s 	work. 	Whereas 	there 	were 	no
physically threatening or humiliating comments, the circumstances
as 	a 	whole 	sufficiently 	satisfy 	the 	objectively 	offensive
component 	of 	a 	section 	1981 	hostile 	work 	environment 	to 	avoid 	a
Rule 12(b)(6) dismissal.
3. 	CONSTRUCTIVE DISCHARGE
Turning to the defendants’ third ground for dismissal, “[a]n
employee’s 	resignation 	morphs 	into 	a 	constructive 	discharge 	when
‘the working conditions become so onerous, abusive, or unpleasant
that 	a 	reasonable 	person 	in 	the 	employee’s 	position 	would 	have
felt compelled to resign.’” 	Walsh v. HNTB Corp., 2026 WL 710036,
at *8, __ F.4th __, (1st Cir. Mar. 13, 2026) (citation and ellipses
omitted). 	The 	standard 	is 	rigorous 	such 	that 	an 	employee 	“must
endure 	the 	‘ordinary 	slings 	and 	arrows 	that 	workers 	routinely
encounter 	in 	a 	hard, 	cold 	world.’” 	Id. 	(citation 	omitted). 	The
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perspective 	of 	the 	reasonable 	person 	is 	viewed 	in 	the 	context 	of
the plaintiff’s position or, stated otherwise, in the plaintiff’s
shoes. 	See Morris v. Schroder Cap. Mgmt. Intern., 481 F.3d 86, 89
(2d 	Cir. 	2007) 	(stating 	that 	plaintiff 	“failed 	to 	plead 	that 	the
working 	conditions 	at 	his 	former 	place 	of 	employment 	were 	‘so
difficult 	or 	unpleasant 	that 	a 	reasonable 	person 	in 	[his] 	shoes
would have felt compelled to resign.’”).
The defendant’s argument is brief and consists of two points.
Examining each point, the defendant first asserts that the factual
allegations are based solely on the plaintiff’s subjective beliefs
and 	conjecture. 	(D. 	33, 	p. 	5). 	The 	legal 	principle 	is 	correct.
See Walsh, 2026 WL 710036, at *8 (“Walsh’s allegations depend more
on 	her 	‘subjective 	beliefs’ 	than 	objective 	facts 	and 	thus 	cannot
form the basis of her constructive discharge.”); id. (“[S]tandard
is based on objective reasonableness.”).
The 	objective 	facts, 	however, 	include 	paying 	the 	plaintiff
substantially less in wages than white café managers over time and
in 	the 	months 	immediately 	prior 	to 	the 	purported 	March 	2021
constructive discharge. 	Then, one month before the purported March
2021 	constructive 	discharge, 	the 	defendant 	denied 	the 	promotion.
Given 	these 	objective 	facts, 	the 	defendant’s 	assertion 	that 	the
plaintiff relies only on her subjective beliefs is misplaced.
Second, the defendant contends there is only a bald assertion
that 	the 	plaintiff 	was 	constructively 	discharged 	at 	an
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unidentified time after the March 2021 medical leave. 	(D. 17, pp.
6-7). 	This misreads the complaint. 	The plaintiff was officially
terminated 	at 	some 	point 	after 	the 	purported 	March 	2021
constructive 	discharge. 	(D. 	1, 	¶ 	23). 	She 	was 	allegedly
constructively discharged in March 2021 when “[she] had to go out
on 	medical 	leave” 	given 	the 	working 	conditions 	at 	issue. 	(D. 	1,
¶ 23) (emphasis added).
In 	sum, 	having 	rejected 	the 	defendant’s 	two 	points, 	both 	of
them 	brief, 	there 	is 	a 	plausible 	showing 	of 	a 	constructive
discharge.
VI. 	CONCLUSION
In 	accordance 	with 	the 	foregoing, 	the 	motion 	to 	dismiss 	(D.
16) is DENIED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: 	March 26, 2026
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