United States District Court, D. Maine
ORDER ON DEFENDANTS' MOTION TO DISMISS
Torresen United States Chief District Judge
me is the Defendants' motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and (6). (ECF No.
12). For the reasons stated below, the motion is DENIED.
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss for “failure to state a claim upon which relief
can be granted.” In reviewing a 12(b)(6) motion, the
court must “construe all factual allegations in the
light most favorable to the non-moving party to determine if
there exists a plausible claim upon which relief may be
granted.” Flock v. U.S. Dep't of Transp.,
840 F.3d 49, 54 (1st Cir. 2016) (citation
a “district court may properly consider only facts and
documents that are part of or incorporated into the
complaint; if matters outside the pleadings are considered,
the motion must be decided under the more stringent standards
applicable to a Rule 56 motion for summary judgment.”
Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,
524 F.3d 315, 321 (1st Cir. 2008). However, the First Circuit
recognizes “exceptions for documents the authenticity
of which are not disputed by the parties; for official public
records; for documents central to plaintiffs' claim; or
for documents sufficiently referred to in the
complaint.” Watterson v. Page, 987 F.2d 1, 3
(1st Cir. 1993).
Cary DePaolo was employed at the Marriott Hotel in South
Portland, Maine for 16 years until his resignation in April
of 2015. Compl. ¶ 1 (ECF No. 1). The Defendants in this
matter are GHM Portland MAR LLC (“GHM”) and Ocean
Properties, LTD (“OPL”). Compl. ¶¶ 2-3.
GHM is a limited liability company based in South Portland,
Maine, and OPL is a Delaware corporation that owns and
operates over 100 hotels throughout North America. Compl.
¶¶ 2-3. The Portland Marriott at Sable Oaks is one
of the hotels that OPL owns and operates. Compl. ¶ 2.
September of 2015, DePaolo filed a pro se complaint with the
Maine Human Rights Commission (“MHRC”), naming
“Portland Marriott” as his employer. Pl.'s
Ex. 1 (ECF No. 18-1). On September 15, 2016, DePaolo brought
suit against both GHM and OPL alleging violations of federal
and state law. In Count One, DePaolo asserts claims for
discrimination, hostile work environment, and retaliation
under the Maine Human Rights Act (“MHRA”),
Americans with Disabilities Act (“ADA”), and
Maine Whistleblowers Protection Act (“MWPA”).
Count Two asserts claims for interference and retaliation
under the Family Medical Leave Act (“FMLA”). This
motion to dismiss followed.
argues that Count One must be dismissed because the Plaintiff
did not name OPL as a respondent in his administrative
charge. Defs.' Mot. to Dismiss as to Def. OPL 4
(“Defs.' Mot. to Dismiss”) (ECF No. 12). In
order to bring an action under the ADA, an employee must
first exhaust his administrative remedies. See Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 277 (1st Cir.
1999) (“We hold that the ADA mandates compliance with
the administrative procedures specified under Title VII . .
., and that, absent special circumstances . . . such
compliance must occur before a federal court may entertain a
suit that seeks recovery for an alleged violation of Title I
of the ADA.”). This requirement provides “notice
to both the employer and the agency of an alleged violation
and affords an opportunity to swiftly and informally take any
corrective action necessary to reconcile the
violation.” Thornton v. United Parcel
Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009).
to Title VII, which applies to claims brought under Title I
of the ADA, a plaintiff “may not maintain a suit
against a defendant in federal court if that defendant was
not named in the administrative proceedings and offered an
opportunity for conciliation or voluntary compliance.”
McKinnon v. Kwong Wah Rest., 83 F.3d 498, 504 (1st
Cir. 1996). But as is the case with most general rules, there
are exceptions. Id. The parties' briefing
focuses on the identity of interest exception. Although the
parties have not cited a First Circuit case addressing this
exception, lower courts within this Circuit commonly follow
the Third Circuit's four-part test to determine whether
an identity of interest exists between the named and the
unnamed party. See, e.g., Ashley v. Paramount Hotel Grp.,
Inc., 451 F.Supp.2d 319, 327-28 (D.R.I. 2006). Relevant
1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at the
time of the filing of the EEOC complaint; 2) whether, under
the circumstances, the interests of a named are so similar as
the unnamed party's that for the purpose of obtaining
voluntary conciliation and compliance it would be unnecessary
to include the unnamed party in the EEOC proceedings; 3)
whether its absence from the EEOC proceedings resulted in
actual prejudice to the interests of the unnamed party; 4)
whether the unnamed party has in some way represented to the
complainant that its relationship with the complainant is to
be through the named party.
Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3rd Cir.
1977) (cited in McKinnon, 83 F.3d at 504). The
Glus test is a fact-intensive inquiry. See EEOC
v. Simbaki, Ltd., 767 F.3d 475, 485 n.16 (5th Cir.
contends that the Plaintiff has failed to “allege any
facts to show that an ‘identity of interest' exists
between the two entities” and cites non-binding cases
where courts dismissed claims under similar circumstances.
Defs.' Mot. to Dismiss 5-7; see also Defs.'
Reply 2-4 (ECF No. 20). The Plaintiff has alleged that OPL is
the parent company of GHM and that, through its subsidiaries,
OPL owns and operates the Portland Marriott at Sable Oaks
where he was employed for sixteen years. Compl. ¶¶
1, 2. At this early stage, the Plaintiff's allegations
are sufficient. Whether the identity of interest exception
applies requires a more developed factual record than I have
before me and is better suited for resolution at summary
judgment. See, e.g., Lockhart v. Holiday Inn Exp.
Southwind, 531 F. App'x 544, 547 (6th Cir. 2013)
(reversing district court for dismissing Title VII claim on
exhaustion grounds and noting that “discovery is
necessary before it may be determined whether Defendants have
a ‘clear identity of interest' with the party named
in Plaintiff's ...