United States District Court
`District of Massachusetts
`Dion Quinn ,
`Plaintiff,
`v .
`Lloyd J . Austin et al.,
`Defendants.
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`Civil Action No.
`24-10285-NMG
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`MEMORANDUM & ORDER
`GORTON, J.
`Plaintiff, Dion Quinn ("plaintiff" or "Q uinn" ), has filed a
`discrimination action based upon allegations that he was treated
`unequally, retaliated against and subjected to a hostile work
`environment during his employment at the Military Entrance
`Processing Station in Boston , Massachusetts. Now pending before
`the Court is the motion to dismiss of defendants, Lloyd Aust in ,
`the Secretary of Defense , and Christine Wormouth , the Secretary
`of the Department of the Army (collectively, "defendants" ) For
`the reasons set forth below , the motion wi ll be allowed .
`I . Background
`In May , 2016 , plaintiff began employment by for the federal
`government as a clerk at the Military Entrance Processing
`Station in Boston , Massachusetts . During that employment , he
`was allegedly subject to an inconsistent work schedule, had some
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`of his assignments transferred to co-workers and did not receive
`certain overtime pay owed to him . He also claims that he was
`subject to discriminatory conduct by other employees , who made
`demeaning comments , questioned his need to take breaks and
`displayed a Confederate flag near his work area. In July, 2016 ,
`Quinn contacted a counselor at the Equal Opportunity Employment
`Commission ("EEOC " ) to report the alleged discrimination and , in
`October , 2016 , he submitted the first of two EEOC complaints
`restating those allegations.
`Plaintiff later requested to amend his first EEOC complaint
`to include additional allegations of conduct that occurred later
`in 2017 but the Administrative Law Judge ("ALJ " ) assigned to the
`case denied his request to amend . The United States Army , as
`plaintiff's employer , moved for summary judgment on all of
`plaintiff's claims which was allowed . Quinn appealed but the
`EEOC issued a final agency action affirming dismissal, and his
`motion for reconsideration was denied.
`In March , 2020 , while plaintiff's first EEOC case remained
`pending , he filed a second complaint with the EEOC that alleged
`hostility and discrimination based upon his race as well as
`retaliation against him based upon his decision to file the
`first complaint . His second complaint was ultimately dismissed.
`Acting prose, Quinn filed suit in May , 2023 , in the United
`States District Court for the Eastern District of Washington .
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`As a result of a motion to transfer venue in February, 2024 , the
`case was transferred to this Court and petitioner filed a f irst
`amended complaint. Defendants moved to dismiss and , in
`opp o sition, plaintiff attempted to raise new factual
`allegations. In light of his prose status, the Court
`authorized plaintiff to file a second amended complaint which he
`did. Although the complaint does not articulate specific counts
`against defendants, plaintiff appears to make allegations that
`defendants violated Title VII of the Civil Rights Act of 1964
`("Title VII " ) and the Age Discrimination Emp loyment Ac t ( "A DEA " )
`by discriminating based upon plaintiff's race and age .1
`Defendants now move to dismiss for failure to state a claim. In
`his opposition to defendant's m otion to dismiss, plaintiff
`a ttempts to state a c laim under the Americans with Disabilities
`Act ("ADA " ) which is procedurally improper and will not be
`addressed further. See Decoulos v . Town of Aquinnah , No . 17 -cv -
`11532 -ADB , 2018 WL 3553351 , at *12 (D . Mass . July 2 4 , 20 18 )
`(recognizing that even a prose plaintiff "cannot bolster" his
`complaint "through the late addition of new facts in opp o sing a
`m otion to dism iss" ) .
`1 Plaintiff refe rs, in p assing, to t he e qua l p rotection c lause o f the Fifth
`and Fou r teenth Amendme n ts bu t doe s no t further e labo rate on those claims,
`rendering them inviable at this stage . See Forte v . Sullivan , 1992 WL 135709 ,
`at *l (1st Cir. 1992) ("Eve n pro se comp laints based on civil rights statutes
`mu st do m o re than sta te simple conclusions ." (a l teration omi tted )) .
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`II. Legal Standard
`To survive a motion to dismiss, a plaintiff's complaint
`must contain factual matter sufficient to state a claim for
`relief that is actionable as a matter of law and "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 claim
`is plausible if, after accepting as true all non -conclusory
`factual allegations, the Court can draw the reasonable inference
`that the defendant is liable for the misconduct alleged. Ocasio -
`Hernandez v . Fortuno-Burset, 640 F .3d 1 , 12 (1st Cir. 2011) . In
`considering the merits of a motion to dismiss, the Court must
`accept all factual allegations in the complaint as true and draw
`all reasonable inferences in the plaintiff's favor. R .G . Fin .
`Corp . v . Vergara -Nunez , 446 F .3d 178 , 182 (1st Cir. 2006) .
`When a complaint is filed prose, the Court will construe
`it more liberally. Facey v . Dickhaut , 892 F . Supp . 2d 347 , 351
`(D . Mass. 2012) . Prose status does not, however , relieve a
`party from the need to comply with procedural rules and present
`sufficient facts to state a viable claim. Brown v . Dep 't of
`Veteran Affs ., 451 F . Supp . 2d 273 , 277 (D . Mass . 2006) .
`III. Application
`a. Exhaustion of Title VII Claim
`In their motion to dismiss, defendants first argue that
`this Court should dismiss most of plaintiff's allegations
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`because he did n ot properly raise them in his complaint before
`the EEOC and thus failed to exhaust them .
`It is well settled that federal courts cannot entertain
`claims under Title VII , including claims brought by federal
`employees , unless all "adm inistrative remed ies have first been
`exhausted." Rodriguez v . United States, 852 F .3d 67 , 78 (1st
`Cir. 2017) (citing Fantini v . Salem State Coll., 557 F .3d 22 , 26
`(1st Cir. 2009)) ; Velazq uez -O rtiz v . Vilsack, 657 F .3d 64 , 71
`(1st Cir. 2011) . To meet the exhaustion requirement, an
`employee must first ''seek relief in the agency that has
`allegedly discriminated against him " before filing suit in
`federal court. Id. at 78 -79 (citing Br ow n v . Gen . Servs . Admin .,
`425 U .S . 820 , 832 (1976)) .
`If an employee files a complaint con taining unexhausted
`allegations, his relief is "limited to the allegations of
`discrimination first presented in the EEO compla int ." Id. at 79 ;
`see Morales -Vallellanes v . Potter, 339 F .3d 9 , 18 (1st Cir.
`2003) (" [A] Title VII cause of action is limited to those
`discrimination and retaliation allegations . that were
`previously the subject of a forma l EEO complaint ."); Velazquez ­
`Ortiz, 657 F .3d at 71 (" [A]n EEO complaint does not open the
`courthouse door to all [other] claims of discrimination." ) .
`Relevant to the EEOC , an employee who believes he was subjected
`to a discriminatory employment practice und er Title VII must
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`exhaust his claim by contacting an EEOC counselor within 45 days
`"of the date of the matter alleged to be discriminatory." 29
`C .F .R . §1614 .1 05(a)(l).
`The purpose of the exhaustion requirement is to provide
`employers , including the federal government , with "prompt notice
`of the claim [and to] create an opportunity for early
`conciliation." Id. at 78. As applied to the federal go vernm ent,
`exhaustion is a condition t o the waiver of sovereign immunity ,
`under which the government would otherwise b e imm un e from suits
`against it. Vazquez-Rive ra v . Figueroa, 759 F .3d 44 , 47-48 (1st
`Cir. 20 14) (internal quotations omitted); see Bar rett ex rel.
`Est. of Barrett v . United States, 462 F .3d 28 , 36 (1st Cir.
`2006) ("The United States, as a sovereign, cannot be sued absent
`an exp ress waiver of its immunity .") . The requirement of
`exha ustion mus t therefore be strictly construed. Irwin v . Dep 't
`of Veterans Affairs, 498 U .S . 89 , 94 (1990) .2
`In this case, plaintiff alleges that, although he did not
`file his first EEOC com plaint until October , 2016 , he contacted
`an EEO counselor on July 15 , 2016 . As such , the Court ought to
`consider any claims arising 45 days before July 15 as part of
`plaintiff's complaint, as well as those incidents that occurred
`2 Although defendants assert that exhaustion is a jurisdictional requirement ,
`it is more aptly addressed as a ground for dismissal based upon failure to
`state a claim. See Newman v . Lehman Bros . Holdings , Inc., 901 F .3d 19 (1st
`Cir. 2018) (indicating that exhaustion is "not jurisdictional in nature" ) .
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`up to and including March , 2017 , that were included in
`plaintiff's first EEOC complaint. See 29 C .F .R . §1614 .105(a) (1)
`Plaintiff's complaint, however , also includes allegations of
`nume rous events that occurred from April, 2017 , to September ,
`2019 , that were not raised before the EEOC and which must
`therefore be disregarded now . See Morales -Vallellanes, 339 F .3d
`at 18 .
`Nevertheless, Quinn suggests that he should be permitted to
`bring unexhausted claims because his request to amend his
`compla int before the EEOC was denied for failure to timely do
`so . Plaintiff contends that this Court shou ld disregard that
`untimeliness under Fed.R .Civ.P . 60(b) but nothing in that rule
`for relief from a judgment permits a federal court to alter the
`decisioG of an administrative agency to deny a p laintiff's
`untimely request to amend his complaint . Because numerous
`allegations in plaintiff's complaint are beyond the scope of his
`EEOC complaint and were no t properly added thereto, the Court
`will not consider such unexhausted claims here.
`Nor is plaintiff entitled to a wai v er of the exhaustion
`requirement under a theory of equitable tolling. T hat doctrine
`will extend a statutory time limit, including Title VII
`exhaustion limitation, see Farris v . Shineki, 660 F.3d 557 , 563
`(1st Cir. 2011) , if the plaintiff demonstra tes 1) that he has
`been pursuing his rights diligently and 2) tha t some
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`extraordinary circumstance prevented him from timely filing his
`claim. Menominee Tribe of Wis . v . United States, 577 U .S . 250 ,
`255 (2016) (quoting Holland v . Florida, 560 U .S . 631 , 649
`( 2010)) .
`As grounds for "extraordinary circumstances," plaintiff
`tacitly cites his medical conditions but fails to indicate how
`any specific condition directly con tributed to his inability to
`file a timely claim. Cf . Harper v . Ercole, 648 F .3d 132 , 137 (2d
`Cir. 2011) (agreeing that a lengthy hospital stay including six
`surgeries, bed confinement and heavy medication constituted an
`extraordinary circumstance making it impossible for plaintiff to
`file a timely claim) . Plaintiff's case is therefore
`undistinguishable from most other discrimination cases, in which
`courts "take a narrow approach to granting equitable exceptions"
`that would excuse the necessity of exhaustion. Rodriguez v .
`Putnam Invs., No . 06 - 108 1 9-MLW , 2007 WL 9798216 , at *3 (D . Mass .
`Sept . 15 , 2007) ; see Chico -Velez v . Roche Prods ., Inc., 139 F .3d
`56 , 58-59 (1st Cir. 1998) .
`b. Timeliness of the Title VII Claim
`Defendants next contend that, even as to plaintiff's
`exhausted allegations, the Court sh ould disregard any of those
`that occurred after 2019 because plaintiff did not timely raise
`them before this Court .
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`Once an aggrieved federal employee has exhausted his
`remedies with the EEOC , he can appeal the dismissal of his
`complaint by filing a civil action in federal court. See 29
`C .F .R . §§1614 .401 , 407 . That action must be filed within " 90
`days of receipt of the agency[ 's] final action." 29 C .F .R .
`§1614 .407(a) ; see 42 U .S .C . § 2000e -16(c) (stating that federal
`employees have 90 days from the " receipt of notice of final
`action taken" to file a civil action in federal court); Loubriel
`v . Fondo del Seguro del Estado , 694 F .3d 139 , 142 (1st Cir.
`2012) (" If the claim does not bring [the Title VII] suit within
`the prescribed 90 -day period, the action is time-barred.") . If
`the EEOC does not issue a final agency decision, the decision of
`the ALJ becomes the agency 's final decision within 40 days of
`receipt and is subject to the same 90 -day limitations period.
`See 29 C .F .R . §1614 .109(i); see also 29 C .F .R . §1614 .407(a) .
`The parties do not dispute that, with respect to Quinn 's
`first EEOC complaint, he timely filed his claim in federal
`court. As to plaintiff's second EEOC complaint, however ,
`plaintiff failed to amend his complaint within the required time
`to challenge dismissal. In relevant part, his second EEOC
`complaint addressed conduct occu rring between October , 2019 , and
`June , 2020 . The EEOC issued its decision in that case in
`September , 2023 , at which time the EEOC notified plaintiff that
`if it did not issue a final order within 40 days of plaintiff
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`receiving the decision, the order would become final, sub ject to
`appeal or to a claim in federal court. Plaintiff did not,
`however , appeal that decision or seek to amend his ongoing
`federal case to add those add itional allegations until ten
`months later. That aspect of p laintiff's complaint is therefore
`untimely, see 42 U .S .C . §2000e - 16(c) , and , for the same reasons
`articulated previously, plaintiff is not entitled to equitable
`tolling, see Rodriguez , 2007 WL 9798216 , at *3 ; Chico -Velez , 139
`F .3d at 58-59 .
`Quinn suggests that, nevertheless, his claim shou ld be
`considered because he misunders t ood the requirements to seek
`relief from that order. His prose status does not, however ,
`relieve him of the obligation to abide by procedural
`requirements. See Brown , 451 F . Supp. 2d at 277 ; Decoulos , 2018
`WL 3553351 , at *12 .
`Plaintiff also contends that, because his allegations
`represent a continuing practice of Title VII violations, his
`otherwise untimely allegations should be considered. Under the
`continuing violation doctrine, a plaintiff can seek recovery for
`time-barred acts of discrimination "so long as a related act
`fell within the limitations period." Ayala v . Shinseki, 780 F .3d
`52 , 57 (1st Cir. 2015) (internal quotation marks omitted) .
`is not the case, however , when some acts fell outside the
`limitations period and others did not. Instead, none o f
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`plaintiff's allegations was brought within the requisite 90 -day
`period provided by §1614 .407(b) . As such , plaintiff's
`allegations of conduct occurring after 2019 are untimely and
`will not be credited.
`c. Allegations with Respect to the Title VII Claim
`In essence, the claims which Quinn both exhausted and
`timely raised are those allegations of discrimination arising
`between July, 2016 , and March , 2017 , that he raised in his first
`complaint before the EEOC . According to defendants, those
`limited allegations fail to state a claim under Title VII which
`provides, in relevant part, that
`[a]ll personnel [working for the] executive agencies [of
`the federal government] shall be made free from any
`discrimination based on race, color, religion, sex, or
`national origin.
`42 U .S .C . §2000e -16 .
`Because plaintiff does not specify the kind of Title VII
`claim he raises and , out of an abundance of caution for his pro
`se status, the Court will address, in turn, three possible
`variations of Title VII claims: 1) discrimination, 2) hostile
`work environment and 3) retaliation. According to defendants,
`plaintiff has failed to state a claim with respect to any of
`those grounds .
`i ; Discrimination
`To establish a prima facie case of discrimination, the
`plaintiff must demonstrate that 1) he is a member of a protected
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`class, 2) he is qualified for the job, 3) he suffered an adverse
`employment action from his employer and 4) there is some
`evidence of a causal connection between his membership in a
`protected class and the adverse employment action. O 'Horo v .
`Bos . Med . Ctr. Corp ., 131 F .4th 1 , 13 (1st Cir. 2025)
`(quotations omitted) (citing Stratton v . Bentley Univ ., 113
`F .4th 25 , 38 (1st Cir. 2024) ; L u ceus v . Rhode Island, 923 F .3d
`255 , 258 (1st Cir. 2019)) .
`In this case, defendants do not dispute that plaintiff is a
`member of a protected class. Instead, they move to dismiss
`based upon the absence of an adverse employment action which
`typically involves acts of
`hiring, firing, failing to promote , reassignment with
`significantly different responsibilities, or a decision
`causing significant change in benefits
`by the employer . Burlington Indus ., Inc. v . Ellerth, 524 U.S.
`742 , 761 (1998) ; Morales -Vallellanes v . Potter, 605 F .3d 27 , 35
`(1st Cir. 2010) Plaintiff's allegations here fall short of
`that standard. Most of the events described between July, 2016 ,
`and March , 2017 , do not relate to his being fired, demoted or
`passed over for a promotion but instead articulate acts
`perceived to be reprimands , rude or demeaning . Such acts do not
`amount to an adverse employment action. See Bhatti v . Trs . of
`Bos. Univ ., 659 F .3d 64 , 73 (1st Cir. 2011) (recognizing that
`criticism and reprimands without tangible consequences are not
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`adverse employment actions); Pedicini v . United States, 480 F .
`Supp . 2d 438 , 451 (D . Mass . 2007) (indicating that mere rude
`behavior is not materially adverse) .
`At most , Quinn 's allegations of conduct between July, 2016 ,
`and March , 2017 , suggest that his employer altered his
`responsibilities by 1) requ iring h im to work evening shifts, 2)
`allowing a co-worker to perform duties assigned to him ; and
`3) failing to pay plaintiff overtime payments on two occasions.
`Minor changes in assignments and pay do not, however , amount to
`an adverse employment action. See Marrero v . Goya of P .R ., Inc.,
`304 F .3d 7 , 23 (1st Cir. 2002) (acknowledging that "transfer" of
`jobs or "reassignment" to different tasks are not adverse unless
`it amounts to an objectively material change) ; see also
`Burlington, 524 U .S . at 761 (defining adverse employment actions
`to include significantly different responsibilities or a
`substantial change in benefits). In the absence of any
`allegations of an adverse action that occurred during the time
`relevant to this case, plaintiff has failed to state a claim for
`discrimination under Title VII .
`ii. Hostile Work Environment
`A plaintiff can also assert a v iable Title VII claim when
`an emp loyer forces him "to work in a discriminatorily hostile
`. environment ." Valentin-A lmeyda v . Municipality of
`Aguadilla, 447 F .3d 85 , 94 (1st Cir. 2006) (quoting Harris v .
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`Forklift Sys ., 510 U .S . 17, 21 (1993)). To succeed on a hostile
`work environment claim, plaintiff must allege that 1) he is a
`member of a protected class, 2) he encountered unwelcome
`harassment , 3) the harassment was based upon race or national
`origin, 4) the harassment was sufficiently severe or pervasive
`so as to alter the conditions of her employment and create an
`abusive work environment and 5) the conduct was both objectively
`and subjectively offensive, such that a reasonable person would
`find it hostile or abusive and he subjectively perceived it to
`be so . Id.; see Harris v. Forklift Sys ., 510 U .S . 17 , 23 (1993)
`The factors courts consider when determining if an action
`is sufficiently severe and pervasive, and thus materially alters
`the conditions of employment , include the frequency of the
`conduct , whether the conduct is physically threatening or
`humiliating and whether it unreasonably interferes with the
`employee 's work performance. O 'Rourke v . City of Providence , 235
`F .3d 713 , 729 - 30 (1st Cir. 2001) . When evaluating the severity
`of the harassment alleged, courts consider the totality of the
`circumstances in each case. Id.; see Ortiz v . Fed . Bureau of
`Prisons, 290 F . Supp . 3d 96 , 104 (D. Mass . 2017) .
`In support of a hostile work environment claim in this
`case, Quinn alleges, among other things, that he was
`1) reprimanded for using his cellphone at work , 2) questioned
`about his need to take breaks and use his allotted sick time, 3)
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`prevented from participating in certain meetings and 4)
`subjected to rude, offensive or profane behavior. As with
`plaintiff's discrimination claim, such allegations are
`insufficient. To be sure, plaintiff's complaint is rife with
`factual assertions that, if proven , would demonstrate a
`difficult and uncomfortable workplace but discomfort in one 's
`workplace , perceived slights and other de minimis offenses do
`not amount to an actionable hostile work environment claim. See
`Suarez v . Pueblo Int'l , Inc., 229 F . 3d 49 , 54 (1st Cir. 2000)
`(indicating that employees cannot bring an actionable Title VII
`claim merely because they feel slighted or offended) . Moreover ,
`plaintiff offers no indication that any of those acts, even if
`they were sufficiently severe, were done because of his race and
`not for some other factor unrelated to his ethnicity.
`Perhaps the most concerning allegation, if true, and one
`that is not addressed in defendant's motion , is that a coworker
`hung a Confederate flag near plaintiff's work area. Although
`undoubtedly disturbing and offensive to any reasonable person,
`the mere presence of a racially offensive symbol such as a
`Confederate battle flag, even in conjunction with potentially
`insensitive remarks , does not create a hostile work environment
`under Title VII . See Devers v . SNC-Lavalin Generation, Inc., No .
`12 CV 3747 RJD CLP , 20 14 WL 4954623 , at *5 (E .D .N .Y . Sept . 30 ,
`2014) (" [T]he presence of three Confederate flag stickers at a
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`worksite is not sufficient to support a hostile work environment
`claim, even in conjunction with the isolated insensitive remarks
`discussed in the preceding paragraph."); see also Flenaugh v .
`Airborne Express , Inc., No . 03 C 3687 , 2004 WL 407009 , at *10
`(N .D . Ill. Mar .1 , 2004) (finding that the display of a
`Confederate- flag tattoo was insufficient to create a hostile
`work environment) . Accordingly , plaintiff's complaint fails to
`state a viable claim of hostile work environment under Title
`VII.
`iii. Retaliation
`Finally, a plaintiff can succeed under Title VII if his
`employer discriminates against him because he previously opposed
`any practice that is an unlawful employment practice under Title
`VII. 42 C' .S .C . § 2000e - 3(a) . Employers cannot retaliate just
`because an employee brings a claim of discrimination before the
`EEOC . To present a viable retaliation claim, a plaintiff must
`allege that 1) he engaged in protected conduct , such as filing a
`discrimination complaint against the employer , 2) his employer
`took an adverse employment action against him and 3) the
`protected conduct and the adverse action were causally linked.
`See Kinzer v . Whole Foods Mkt. , Inc., 99 F .4th 105 , 115 (1st
`Cir. 2024) ; Planadeball v . Wyndham Vacation Resorts, Inc., 793
`F .3d 169 , 175 (1st Cir. 2015)) .
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`Demonstrating that the protected activity and the
`retaliatory acts are causally connected requires, at minimum ,
`some allegation that the employer knew of the plaintiff's
`protected activity. Alvarado v . Donahoe , 687 F .3d 453 , 459 (1st
`Cir. 2012) (citing Lewis v. Gillette Co ., 22 F .3d 22 , 24 (1st
`Cir. 1994)) If the alleged retaliator was wholly unaware of
`plaintiff's decision to engage in protected conduct , any actions
`attributable to him cannot plausibly be found to have been
`induced by retaliatory motives ." Id.; see Rodriguez -Se verino v .
`UTC Aero . Sys ., 52 F .4th 448 , 462 (1st Cir. 2022) (" [O]ne cannot
`retaliate without any know ledge of the protected activity.") .
`Here , for the same reasons articulated above , Quinn has
`failed to allege any actionable adverse employment action,
`thereby vitiating his claim for retaliation. Even assuming he
`had presented sufficient allegations of an adverse emp loyment
`action, moreover , there is nothing in his complaint to suggest
`that his employer knew that plaintiff had engaged in protected
`conduct by contacting an EEOC counselor in July, 2016 , or by
`filing a complaint with the EEOC in October , 2016 . Absent any
`allegations that his employers were aware of those protected
`actions, there can be no plausible causal connection between
`plaintiff's contact with the EEOC and any purported adverse
`employment action taken by defendants. See Kinzer , 99 F .4th at
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`115 ; Alvarado , 687 F .3d at 459 . Plaintiff's retaliation claim
`therefore fails as a matter of law .
`iv. Allegations for ADEA Claim
`Finally, defendants contend that plaintiff's claim under
`the ADEA is unavailing because p laintiff did not plead
`sufficient facts that any action taken against him occurred
`because of his age . To state a claim for age discrimination
`under ADEA , a plaintiff must allege that 1) he is at least 40
`years old, 2) he met the legitimate expectations of his
`employer , 3) he suffered an adverse employment action and 4)
`either the employer a) hired a younger employee to replace the
`plaintiff orb) did not treat the plaintiff "age neutrally" in
`taking the adverse employ ment action. Santana-Vargas v . Banco
`Santander Puerto Rico , 948 F .3d 57 , 60 (1st Cir. 2020) (citing
`Del Valle-Santana v . Servicios Legales de P .R ., Inc ., 8 04 F .3d
`127 , 128 (1st Cir. 2015)) .
`Quinn 's allegations here cannot satisfy the requirements of
`an AEDA claim. He does not allege how old he is and , even
`assuming he is 40 years old, his complaint alleges no adverse
`employment action taken because of his age . At most , plaintiff
`contends that young employees were treated m ore favorably than
`he was by superiors which is insufficient to state a plausible
`ADEA claim. See Salomon v . Mass . Hous . Fin . Agency , No . 22 -cv-
`10181 -ADB , 2023 WL 2588334 , at *11 (D . Mass . Mar . 21 , 2023)
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`(dismissing age discrimination claim where plaintiff alleged
`that his employer "was more lenient with . younger
`employees " but did not plausibly connect that concern with any
`adverse employment action); Daniels v . Alvaria, Inc., No. 23 -CV -
`10419 - DJC , 2024 WL 758172 , at *9 (D . Mass . Feb . 23 , 2024)
`(similar); Roque v . MetroHealth , Inc., No . 21 - 1415 , 2023 WL
`3866922 , at *3 (1st Cir. June 7 , 2023) (similar) .3
`Because all three of plaintiff's Title VII claims, based
`upon allegations of relevant conduct between July, 2016 , and
`March , 2017 , as well as plaintiff's ADEA claim fail as a matter
`o f law , defendant's motion to dismiss will be allowed .
`ORDER
`For the foregoing reasons, the motion to dismiss of
`defendants, Lloyd J . Austin, III, the Secretary of United States
`Department of Defense , and Christine Wormu th, the Sec retary of
`the Department of the Army (Docket No . 70) is ALLOWED.
`So ordered.
`Nathaniel M . Gorton
`United States District Judge
`Dated : October 7 , 2025
`Because plaintiff has failed to state an ADEA claim, the Cour t need not
`address defendants' alternative argument that his claim is procedurally
`barred.
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