Edsall v. Assumption College, Civil Action No. 04-40106-FDS.

• Decision Date: 31 March 2005
• Docket Number: Civil Action No. 04-40106-FDS.
• Parties: Dr. Thomas EDSALL and Grisel Edsall, Plaintiffs, v. ASSUMPTION COLLEGE, Dr. Thomas R. Plough, Dr. Joseph F. Gower, and Dr. John F. McClymer, Defendants.
• Court: U.S. District Court — District of Massachusetts

367 F.Supp.2d 72

Dr. Thomas EDSALL and Grisel Edsall, Plaintiffs, v. ASSUMPTION COLLEGE, Dr. Thomas R. Plough, Dr. Joseph F. Gower, and Dr. John F. McClymer, Defendants.

Civil Action No. 04-40106-FDS.

United States District Court, D. Massachusetts.

March 31, 2005.

COPYRIGHT MATERIAL OMITTED

James B. Krasnoo, Paul J. Klehm, Law Offices of James B. Krasnoo, Andover, MA, Karim Kamal, New York City, for Plaintiffs.

Douglas F. Seaver, Hinckley, Allen and Snyder, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND MOTIONS TO AMEND

SAYLOR, District Judge.

This is a claim of reverse discrimination, arising out of a decision by Assumption College not to hire the plaintiff, Dr. Thomas Edsall, for a position in the College's History Department. Dr. Edsall is a white male who contends that he was unfairly passed over for a tenure-track position in favor of a Hispanic female. Dr. Edsall alleges claims for unlawful race and sex discrimination, violation of the equal-protection provisions of the United States and Massachusetts Constitutions, and various common-law torts. His wife, Grisel Edsall, also alleges a claim for loss of consortium.

Pending before the Court are two motions to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. One, filed by defendant John F. McClymer individually, seeks to dismiss all claims against him, and the other, filed by the defendants collectively, seeks to dismiss six of the nine counts in their entirety and parts of two others. Also pending are motions by defendants to amend the answer and to amend the motion to dismiss, both of which seek to assert the defense of failure to exhaust administrative remedies.

I. Background

The following facts are as alleged in the complaint.¹

Assumption College is a private four-year institution located in Worcester, Massachusetts. Between 2000 and 2003, plaintiff Thomas Edsall taught in the History Department at Assumption. Beginning in fall 2000, Dr. Edsall taught European and United States History on a part-time basis, and, for the academic year 2002-03, he was a full-time visiting Assistant Professor of Latin American History. During his three years at the College, Dr. Edsall's classes were well-attended by students, and he received exceptional student evaluations. He also received a prestigious book prize.

During the relevant period, Dr. Thomas R. Plough was the President of the College; Dr. Joseph P. Gower was the Provost and Dean of Faculty; and Dr. John F. McClymer was a Professor of History at the College.

In October 2002, the College announced a vacancy for a tenure-track position in the History Department to teach Latin American History. Dr. McClymer served as the chair of the search committee assigned to interview candidates and fill the vacancy.

Dr. Edsall applied for the vacant position, for which he was qualified. Nevertheless in late November 2002, Dr. McClymer informed Dr. Edsall that he should seek employment elsewhere because "[Drs.] Plough and Gower were intent on hiring a minority candidate in an effort to increase diversity at [the College]." Dr. Edsall is a white male who was born in the United States.

Sometime before February 2003, Dr. Edsall learned that he was one of three finalists for the position. The other two finalists were a woman of Hispanic descent, Rosa Carrasquillo, and a woman of German descent.

In February 2003, the History Department formally recommended Dr. Edsall for the position at an annual salary with full benefits. Drs. Plough and Gower, however, rejected the search committee's recommendation and instead selected Rosa Carrasquillo. According to Dr. Edsall, the "true motivation" for the decision was the fact that Dr. Edsall is a white male.

The teaching position held by Dr. Edsall during the 2002-03 academic year was a one-year position that apparently expired by its terms in spring 2003. Dr. Edsall desired the tenure-track position and would have accepted it if it had been offered to him. Instead, Dr. Edsall was offered a part-time position for fall 2003 at a salary of approximately $6,000 for the semester, with no benefits. He declined the offer and relocated to New York City, where he continued to search for an academic position.

Based on those facts, Dr. Edsall and his wife, Grisel Edsall, filed a nine-count complaint in this Court on June 4, 2004, alleging the following claims against the four defendants: (1) race and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; (2) race discrimination under 42 U.S.C. § 1981; (3) denial of equal protection under the Fourteenth Amendment to the United States Constitution and Part I, Article 10 of the Massachusetts Constitution; (4) race and sex discrimination under the Massachusetts Fair Employment Practices Act, Mass. Gen. Laws ch. 151B, and violation of Mass. Gen. Laws ch. 214, § 1C, which provides a right to freedom from sexual harassment; (5) breach of the implied covenant of good faith and fair dealing; (6) intentional and negligent infliction of emotional distress; (7) race and sex discrimination under the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 102; (8) tortious interference with prospective business advantage; and (9) loss of consortium.

On July 6, 2004, defendants filed the two pending motions to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Dr. McClymer has moved to dismiss all claims against him individually, and all defendants collectively have moved to dismiss various claims.

II. Standard of Review

A court may not dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering the merits of a motion to dismiss, the court may look only to the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint, and matters of which judicial notice can be taken. Nollet v. Justices of Trial Court of Mass., 83 F.Supp.2d 204, 208 (D.Mass.2000), aff'd, 248 F.3d 1127, 2000 WL 1803320 (1st Cir.2000). Furthermore, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v American Airlines, Inc., 199 F.3d 68, 69 (1st Cir.2000).

III. Analysis

A. The Claims Against Dr. McClymer

Dr. McClymer has moved to dismiss all claims against him on the grounds that the complaint does not make any specific allegations that he engaged in wrongful conduct. Plaintiffs oppose the motion on the grounds that (1) their complaint is sufficient under liberal notice-pleading standards, and (2) the motion is premature, inasmuch as discovery may reveal further facts to bolster their claims against Dr. McClymer.

A court may properly dismiss a complaint under Rule 12(b)(6) only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66 (1st Cir.2004) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The Federal Rules of Civil Procedure "do not contain a heightened pleading standard for employment discrimination cases." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Thus, a complaint alleging discrimination under Title VII need not include specific facts establishing a prima facie case, but "instead must contain no more than `a short and plain statement of the claim showing that the pleader is entitled to relief.' Fed. Rule Civ. Proc. 8(a)(2)." Id. at 508, 122 S.Ct. 992.

Nevertheless, a liberal pleading standard is not the same as no standard at all. A complaint must still "set forth minimal facts as to who did what to whom, when, where, and why." Educadores Puertorriquenos, 367 F.3d at 68. And a court may not uphold a complaint based solely on "bald assertions, unsupportable conclusions, and opprobrious epithets." Id. (internal quotation omitted).

The complaint contains the following factual allegations concerning Dr. McClymer: (1) Dr. McClymer was a professor in the History Department and the chair of the search committee organized to interview candidates and fill the tenure-track position, ¶¶ 6, 11; (2) in or around late November 2002, McClymer told Dr. Edsall that he "should seek employment elsewhere because defendants Plough and Gower were intent on hiring a minority candidate in an effort to increase diversity" at Assumption College, ¶ 12; and (3) the search committee recommended Dr. Edsall for the tenure-track position, ¶ 15. Paragraph 15 of the complaint further alleges that Drs. Plough and Gower rejected the search committee's recommendation of Dr. Edsall and selected Rosa Carrasquillo for the position. And Paragraph 16 alleges that Drs. Plough and Gower — i.e., not Dr. McClymer — were the ones who, motivated by race and gender discrimination, decided not to offer the tenure-track position to Dr. Edsall.

The complaint thus contains no factual allegations that Dr. McClymer was involved, directly or indirectly, in any wrongdoing. In fact, the complaint suggests the opposite: Dr. McClymer chaired the search committee that recommended Dr. Edsall for the tenure-track position, and he advised Dr. Edsall that others intended to hire a minority candidate. Under the most generous view of notice pleading, that is simply not enough.

It is true that the complaint, in multiple instances, characterizes the conduct of Dr. McClymer as unlawful or discriminatory in conclusory terms. See Complaint, ¶¶ 21, 27, 32, 33, 37 42, 45, 49, 53, 54. For example, Paragraph 27 states, "By refusing to hire Dr. Edsall for the tenure track...