December 20, 2018



                                                                       Supreme Court

                                                                       No. 2017-155-Appeal.
                                                                       (PC 16-3967)

                Augustina Mokwenyei                  :

                            v.                       :

                Rhode Island Hospital.               :




                    NOTICE: This opinion is subject to formal revision before
                    publication in the Rhode Island Reporter. Readers are requested to
                    notify the Opinion Analyst, Supreme Court of Rhode Island, 250
                    Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
                    3258 of any typographical or other formal errors in order that
                    corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2017-155-Appeal.
                                                                     (PC 16-3967)

            Augustina Mokwenyei                  :

                      v.                         :

            Rhode Island Hospital.               :

                   Present: Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Chief Justice Suttell, for the Court. This appeal presents the issue of whether a

plaintiff’s request for a right-to-sue letter from the Rhode Island Commission for Human Rights

(the commission) can be timely made only when submitted in the form requested by the

commission. This case came before the Supreme Court pursuant to an order directing the parties

to appear and show cause why the issue raised in this appeal should not be summarily decided.

After considering the parties’ written and oral submissions and reviewing the record, we

conclude that cause has not been shown and that this case may be decided without further

briefing or argument. For the reasons set forth in this opinion, we vacate the judgment of the

Superior Court.

                                                 I

                                        Facts and Travel

       On August 23, 2016, the plaintiff, Augustina Mokwenyei, filed a complaint alleging that

the defendant, Rhode Island Hospital, terminated her employment in 2013 “because of her race,

ancestral origin, and age[,]” in violation of the Fair Employment Practices Act, G.L. 1956

chapter 5 of title 28 (FEPA), and the Rhode Island Civil Rights Act, G.L. 1956 chapter 112 of

title 42 (RICRA). The plaintiff alleged that she had been employed by defendant from 1989

                                               -1-
until March 15, 2013, when she “was forced, under threat of being fired, to sign a resignation

letter which she did not write.”

       The defendant moved to dismiss the complaint on the basis that neither of plaintiff’s

claims were timely initiated in Superior Court—the RICRA claim because it was filed more than

three years after plaintiff’s termination, and the FEPA claim because she had not properly and

timely requested a right-to-sue letter from the commission as required by § 28-5-24.1. The

defendant attached three exhibits to its motion: a copy of plaintiff’s complaint; a September 20,

2013 letter from the commission to defendant requesting a full response to the charge of

discrimination that plaintiff had filed with the commission on September 11, 2013; and a March

30, 2015 letter from the commission to Rhode Island Hospital advising it that no probable cause

had been found to support plaintiff’s charge of discrimination. The latter letter included a one-

page insert entitled “Options for Complainant Following a No Probable Cause Ruling – Co-Filed

Cases.”

       The commission moved to intervene in the case as a party defendant pursuant to Rule

24(a)(2) and Rule 24(b) of the Superior Court Rules of Civil Procedure. At the same time, the

commission filed a motion to dismiss plaintiff’s FEPA claim on the basis that plaintiff had

neither appealed from the commission’s finding of no probable cause nor complied with the

required timeframe for requesting a right-to-sue letter. The commission attached one exhibit to

its motion: its faxed response to plaintiff’s request for the right-to-sue letter, including a form for

plaintiff’s signature and a request that it be signed and returned to the commission.

       The plaintiff’s objection to the motions to dismiss simply stated that plaintiff had timely

requested a right-to-sue letter from the commission and, once she received the letter,




                                                 -2-
subsequently timely filed a complaint in Superior Court.1 The plaintiff attached one document to

her objection: a copy of her counsel’s April 10, 2015 letter to the commission requesting the

issuance of a right-to-sue letter, which was accompanied by an affidavit signed by plaintiff

stating that she wanted her counsel to prepare a right-to-sue letter.

       A hearing on these motions was held in Superior Court on December 15 and 16, 2016,2

and focused primarily on defendant’s and intervenor’s arguments that plaintiff’s FEPA claim

must be dismissed because plaintiff had failed to properly and timely request the right-to-sue

letter on the form prepared by the commission for plaintiff’s signature. The plaintiff argued that

the right-to-sue letter was timely requested from the commission on April 10, 2015, but that the

request had not been submitted in the form preferred by the commission, so the commission

faxed the proper form to plaintiff’s counsel for plaintiff’s signature. The plaintiff’s attorney

admitted that plaintiff had not returned this completed form because this task “fell through the

cracks” at the attorney’s office.   After plaintiff’s first attempt to initiate litigation in Superior

Court was dismissed by stipulation (see footnote 1, supra), plaintiff received a right-to-sue letter

from the commission on July 22, 2016. In addition, plaintiff conceded that she did not have a

tenable objection to defendant’s argument that the statute of limitations had expired on her

RICRA claim.




1
  The plaintiff’s objection to the motions was filed in error in a previously dismissed case. The
plaintiff apparently had filed the same complaint prior to receiving the right-to-sue letter from
the commission, and that case was docketed in the Superior Court as No. PC-2016-3095. After
defendant filed a motion to dismiss in that case based on plaintiff’s failure to obtain a right-to-
sue letter from the commission before initiating litigation in Superior Court, the parties submitted
a stipulation agreeing to dismiss that case, without prejudice.
2
  The plaintiff has only provided us with the transcript from the second day of the hearing,
December 16, therefore the record on appeal does not include a transcript from the first day of
the hearing.
                                                -3-
       After reviewing the submitted written communications between the parties pertaining to

the processing of plaintiff’s charge of discrimination with the commission and plaintiff’s request

for a right-to-sue letter from the commission, the hearing justice granted Rhode Island Hospital’s

and the commission’s motions to dismiss. The hearing justice reasoned that plaintiff had not

timely requested the right-to-sue letter because plaintiff had allowed more than one year to

elapse between receiving the proper form for the request of the right-to-sue letter from the

commission and returning the form so she could obtain the letter and proceed to file her

complaint in Superior Court. Final judgment entered in favor of defendant on January 3, 2017,

and plaintiff timely filed a notice of appeal to this Court.

                                                  II

                                        Standard of Review

       A threshold issue before us is the appropriate legal standard under which to consider the

issue presented to us. The hearing justice granted defendant’s and intervenor’s motions to

dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. It is well

settled that a Rule 12(b)(6) motion has a narrow and specific purpose: “to test the sufficiency of

the complaint.” Multi-State Restoration, Inc. v. DWS Properties, LLC, 61 A.3d 414, 416 (R.I.

2013) (quoting Laurence v. Sollitto, 788 A.2d 455, 456 (R.I. 2002)). When a hearing justice

rules on such a motion, he or she is to “look no further than the complaint, assume that all

allegations in the complaint are true, and resolve any doubts in a plaintiff’s favor.” Id. (quoting

Laurence, 788 A.2d at 456). If “it is clear beyond a reasonable doubt that the plaintiff would not

be entitled to relief from the defendant under any set of facts that could be proven in support of

the plaintiff’s claim[,]” then the motion to dismiss may be granted. Rein v. ESS Group, Inc., 184

A.3d 695, 699 (R.I. 2018) (quoting Goddard v. APG Security–RI, LLC, 134 A.3d 173, 175 (R.I.


                                                 -4-
2016)). However, if “matters outside the pleading are presented to and not excluded by the

court, the motion shall be treated as one for summary judgment and disposed of as provided in

Rule 56 * * *.” Multi-State Restoration, Inc., 61 A.3d at 417 (emphasis added) (quoting Super.

R. Civ. P. 12(b)(6)); see also DeSantis v. Prelle, 891 A.2d 873, 876 (R.I. 2006).

       When the hearing justice granted the motions to dismiss brought by defendant and the

commission, she considered several documents attached to each motion, as well as an exhibit

attached to plaintiff’s objection to the motions. She relied on the information provided in these

documents to establish the timeline of the communications between plaintiff and the commission

so that she could determine whether plaintiff had timely requested the required right-to-sue letter.

However, the only relevant date explicitly provided within the four corners of the complaint was

July 22, 2016, the date on which plaintiff obtained the right-to-sue letter. The hearing justice

also relied exclusively on federal district court cases in which district court judges had

considered federal agency charges, dismissals, and right-to-sue notices when they decided

whether to grant motions to dismiss based on failure to comply with statutory timeframes in

cases alleging discrimination.

       To be sure, this Court often looks to federal jurisprudence for guidance or interpretation

of our own rules of civil procedure, especially when the state rule and federal rule are

substantially similar. Chhun v. Mortgage Electronic Registration Systems Inc., 84 A.3d 419, 422

(R.I. 2014). But this Court was clear in Chhun that it was not adopting the federal courts’

recently “altered” interpretation of the legal standard employed with respect to a Rule 12(b)(6)

motion to dismiss. Chhun, 84 A.3d at 422 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, we have repeatedly held

that, when a motion to dismiss includes documents as exhibits that were either mentioned or


                                               -5-
referred to in a complaint but not expressly incorporated, and the hearing justice does not

“explicitly exclude them from * * * consideration,” the motion “automatically” converts to one

for summary judgment. Pontarelli v. Rhode Island Department of Elementary and Secondary

Education, 176 A.3d 472, 477 (R.I. 2018) (citing Bowen Court Associates v. Ernst & Young,

LLP, 818 A.2d 721, 726 (R.I. 2003)); see also Leone v. Mortgage Electronic Registration

Systems, 101 A.3d 869, 873 (R.I. 2014); Multi-State Restoration, Inc., 61 A.3d at 418; DeSantis,

891 A.2d at 876.

        We have previously noted, however, the First Circuit Court of Appeals’ “narrow

exception 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.” Chase v. Nationwide Mutual Fire Insurance Company, 160 A.3d 970, 973

(R.I. 2017) (quoting Alternative Energy, Inc. v. St. Paul Fire & Marine Insurance Co., 267 F.3d

30, 33 (1st Cir. 2001)); see Goodrow v. Bank of America, N.A., 184 A.3d 1121, 1126 (R.I.

2018). To be more precise, if “a complaint’s factual allegations are expressly linked to—and

admittedly dependent upon—a document (the authenticity of which is not challenged), [then]

that document effectively merges into the pleadings and the trial court can review it in deciding a

motion to dismiss under Rule 12(b)(6).” Jorge v. Rumsfeld, 404 F.3d 556, 559 (1st Cir. 2005)

(quoting Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir. 1998)). In the

context of employment discrimination claims, these documents have included correspondence

between an attorney and an administrative agency as well as from a claimant to an employer. See

id.   In Jorge, the court identified a notice-of-intent-to-sue letter to the Equal Employment

Opportunity Commission and a notice of retirement from a claimant to her employer as

documents that could be considered without converting the motion to dismiss to a motion for


                                               -6-
summary judgment because the first notice showed that the claimant had failed to exhaust the

required administrative remedies for one of her claims, and the second notice informed the

court’s analysis of the actual accrual date for the other claim asserted in the complaint. Id. at 559,

561-62, 564-65.

       In the case at bar, the correspondence attached to the motions to dismiss were relied on

exclusively to support defendant’s and intervenor’s arguments that the form of plaintiff’s request

for the right-to-sue letter was inadequate. The plaintiff’s complaint refers explicitly to two

letters: plaintiff’s letter of resignation, which she alleges she was forced to sign, and the right-to-

sue letter from the commission that she had “received” on July 22, 2015. There is no allegation

in the complaint that plaintiff timely requested the letter; the complaint simply alleges that she

received it on a particular date. At the hearing on the motions to dismiss and in the hearing

justice’s subsequent decision rendered from the bench, the hearing justice specifically considered

and relied on other correspondence attached as exhibits to the motions to dismiss, including the

no-probable-cause letter from the commission to Rhode Island Hospital, plaintiff’s counsel’s

letter to the commission requesting the right-to-sue letter, and the commission’s faxed response

requesting plaintiff’s signature on a prepared form. These items of correspondence are not

central to plaintiff’s claims or ones that the complaint’s factual allegations are “expressly linked

to” or “dependent upon.” Jorge, 404 F.3d at 559 (quoting Beddall, 137 F.3d at 17). Because the

documents considered by the hearing justice are not ones that fall squarely within one of the

narrow exceptions discussed above, see id.; Beddall, 137 F.3d at 17, the hearing justice should




                                                 -7-
have expressly converted the motions to dismiss to motions for summary judgment. See Multi-

State Restoration, Inc., 61 A.3d at 418; DeSantis, 891 A.2d at 876.3

       In these situations, we treat the judgment dismissing the complaint as an entry of

summary judgment for defendant, and we employ the standard for reviewing a grant of summary

judgment when we review the hearing justice’s grant of the motion. See Multi-State Restoration,

Inc., 61 A.3d at 418; DeSantis, 891 A.2d at 876. This Court reviews the grant of a summary

judgment motion de novo and “affirm[s] a [trial] court’s decision only if, after reviewing the

admissible evidence in the light most favorable to the nonmoving party, we conclude that no

genuine issue of material fact exists and that the moving party is entitled to judgment as a matter

of law.” Correia v. Bettencourt, 162 A.3d 630, 635 (R.I. 2017) (second alteration in original)

(quoting Newstone Development, LLC v. East Pacific, LLC, 140 A.3d 100, 103 (R.I. 2016)). In

addition, “the nonmoving party bears the burden of proving by competent evidence the existence

of a disputed issue of material fact and cannot rest upon mere allegations or denials in the

pleadings, mere conclusions or mere legal opinions.” Id. (quoting Newstone Development, LLC,

140 A.3d at 103).




3
  We pause briefly to acknowledge that we have affirmed a hearing justice’s grant of a motion to
dismiss a complaint after he explicitly considered a document not attached to the complaint but
necessary to the resolution of the argument presented without converting the motion to one for
summary judgment. See Pontarelli v. Rhode Island Department of Elementary and Secondary
Education, 176 A.3d 472, 478 (R.I. 2018). We were clear in our reasoning, however, that,
despite our general rule for automatic conversion, the hearing justice in that case had explicitly
and reasonably justified his decision not to convert the motion, and we limited our holding in
that case to the narrow circumstances presented therein. Id. at 476-77, 478.

                                               -8-
                                                III

                                            Discussion

       The plaintiff argues that the hearing justice’s dismissal of her FEPA claim was in error

because she timely requested the right-to-sue letter from the commission pursuant to both § 28-5-

24.1 and Rule 17 of the commission’s Rules and Regulations.4 Even though almost fifteen

months elapsed between plaintiff’s initial request for the letter and the commission’s issuance of

the letter, plaintiff emphasizes that the commission did in fact issue the letter and plaintiff then

timely filed her complaint in Superior Court. The plaintiff asserts it was the commission that

failed to comply with the statute because the letter was not issued within the thirty days

prescribed by § 28-5-24.1 and required by Rule 17.

       The defendant argues that the dismissal of plaintiff’s complaint should be affirmed

because plaintiff failed to satisfy a statutory prerequisite to her FEPA claim. The defendant

contends that plaintiff’s April 10, 2015 letter was not a valid request because it was not made

personally by plaintiff and did not include an acknowledgment that she understood her request

for the letter would terminate all proceedings before the commission on the charge she filed.

According to defendant, the commission advises complainants that they must contact their

investigator to obtain the proper forms for requesting the right-to-sue letter and that the

commission has a standard form for complainants to complete and sign. The defendant asserts

(and plaintiff agrees) that the commission’s response to plaintiff’s April 10, 2015 request for the

letter was to fax the standard forms to plaintiff’s counsel for signature, and request that the




4
  The plaintiff does not argue that the hearing justice erred by dismissing her RICRA claim for
failure to initiate the claim within three years of the alleged violation in accordance with G.L.
1956 chapter 112 of title 42. We therefore contend only with the dismissal of plaintiff’s FEPA
claim.
                                               -9-
signed form be returned to the commission. There is no dispute that plaintiff did not complete

and return these forms to the commission within the statutorily prescribed timeframe.

          The commission, as intervenor, filed a prebriefing statement arguing that the dismissal of

plaintiff’s complaint should be affirmed because she did not properly request a right-to-sue letter

within the required timeframe. The commission asserts that its requirements—that the request

for a right-to-sue letter include an original signature from the complainant and an

acknowledgment of the consequences of the request—are a reasonable exercise of the authority

bestowed on it by § 28-5-13(5) to formulate policies that effectuate the purposes of FEPA.

          The timing requirement for the right-to-sue letter is provided in § 28-5-24.1(a), which

states:

                 “A complainant may ask for a right to sue in state court if not less
                 than one hundred and twenty (120) days and not more than two (2)
                 years have elapsed from the date of filing of a charge, if the
                 commission has been unable to secure a settlement agreement or
                 conciliation agreement and if the commission has not commenced
                 hearing on a complaint. The commission shall grant the right to sue
                 within thirty (30) days after receipt of the request. This shall
                 terminate all proceedings before the commission and shall give to
                 the complainant the right to commence suit in the superior court
                 within any county as provided in § 28-5-28 within ninety (90) days
                 after the granting of the request. Any party may claim a trial by
                 jury.”

Beyond establishing the timeframe for the request for permission to bring to the Superior Court

the claim alleged in a charge to the commission, § 28-5-24.1 is silent as to the form and content

of the request. Section 28-5-24.1 also does not provide any discretion on the part of the

commission—“[t]he commission shall grant the right to sue within thirty (30) days after receipt

of the request.” (Emphasis added.) Pursuant to § 28-5-13(4), the commission may, of course,

“promulgate * * * rules and regulations to effectuate * * * [its] policies and practice[s] * * *”;

but the commission’s corresponding rule governing right-to-sue-letter requests simply parrots the

                                                - 10 -
statutory language without adding any details regarding the required form or content of the

request. See Rule 17.5

       Because the motions to dismiss should have been automatically converted to motions for

summary judgment, the issue before us is whether a genuine issue of material fact exists

regarding whether plaintiff’s initial request to the commission for the right-to-sue letter was

sufficient to deem her request timely submitted, when the additional form required by the

commission—but not required by statute—was not submitted within the two years prescribed by

§ 28-5-24.1.

       A review of the documents filed with the motions to dismiss and plaintiff’s objection in

the Superior Court indicates that the commission advises complainants about its requirement for

an acknowledgment of the consequences for requesting the right-to-sue letter by way of an insert

with its letter advising the parties of its decision finding no probable cause to support a charge

filed by a complainant. Indeed, Rhode Island Hospital received this insert with its letter from the

commission advising it that the commission had not found probable cause in the discrimination



5
 The Rhode Island Commission for Human Rights publishes its rules and regulations on its
website, www.richr.ri.gov. Rule 17.01 states:

               “A complainant may ask for a right to sue in state court if not less
               than one hundred and twenty (120) days and not more than two (2)
               years have elapsed from the date of filing of a charge, if the
               Commission has been unable to secure a settlement agreement or
               conciliation agreement and if the Commission has not commenced
               hearing on a complaint. The Commission shall grant the right to
               sue within thirty (30) days after the receipt of such request. This
               shall terminate all proceedings before the commission and shall
               give to the complainant the right to commence suit in the Superior
               Court within any county as provided in Section 28-5-28 within
               ninety (90) days after the granting of the request. Any party may
               claim a trial by jury.”

http://www.richr.ri.gov/documents/Rule17.pdf (last visited December 19, 2018).
                                              - 11 -
charge filed by plaintiff. The one-page insert, entitled “Options for Complainant Following a No

Probable Cause Ruling – Co-Filed Cases,” includes a paragraph that reads, in part:

                 “If the complainant’s charge was filed with the Commission less
                 than two years ago, the complainant may request a notice of right
                 to sue in state court. The complainant must contact his/her former
                 investigator to get the request forms and the request forms must be
                 filed within two years of the date the charge was filed.” (Emphasis
                 in original.)

There is no indication in the record, however, as to whether plaintiff received the same insert.

We do know that, upon receipt of plaintiff’s request for the letter, the commission sent a fax with

a specific form for a right-to-sue letter, along with instructions in the fax transmittal sheet that

plaintiff’s counsel “return the original signed documents to the [c]ommission.”                 The

commission’s so-called “requirement” for an original signature, therefore, is only apparent in the

personal note on the fax transmittal sheet, and not in any of its regulations or on the one-page

insert.

          There is no dispute that § 28-5-24.1 mandates only the timeframe in which the request

must be made. The same can be said for the commission’s published Rules and Regulations.

There is also no dispute that the plaintiff did request a right-to-sue letter from the commission

within the two years prescribed by § 28-5-24.1 and that, most importantly, despite the

correspondence with the plaintiff, the commission eventually issued the right-to-sue letter. Once

this letter was in the plaintiff’s hand, she filed her complaint in Superior Court well within the

ninety days prescribed by § 28-5-24.1. Based upon our de novo review of the record, we

conclude that the plaintiff complied with the statutory requirements for commencing a FEPA

violation action in Superior Court, and that summary judgment was erroneously granted to the

defendant and the commission.



                                               - 12 -
                                                IV

                                          Conclusion

       For the reasons stated herein, we vacate the Superior Court’s judgment and remand the

case to the Superior Court for proceedings consistent herewith.

       Justice Goldberg did not participate.




                                               - 13 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Augustina Mokwenyei v. Rhode Island Hospital.
                                     No. 2017-155-Appeal.
Case Number
                                     (PC 16-3967)
Date Opinion Filed                   December 20, 2018

Justices                             Suttell, C.J., Flaherty, Robinson, and Indeglia, JJ.

Written By                           Chief Justice Paul A. Suttell

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Maureen B. Keough
                                     For Plaintiff:

                                     Bradley M. Orleck, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     James A. Musgrave, Esq.
                                     Francis A. Gaschen, Esq.




SU-CMS-02A (revised June 2016)
