Stark v. Bunch
| Decision Date | 30 July 2020 |
| Docket Number | Civil Action No. 19-cv-12109-ADB |
| Parties | ANTONY STARK, Plaintiff, v. LONNIE G. BUNCH, Secretary of the Smithsonian Institute in his official capacity, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
BURROUGHS, D.J.
On October 11, 2019, Dr. Antony Stark ("Plaintiff") filed a complaint against Lonnie G. Bunch ("Defendant") in his official capacity as the Secretary of the Smithsonian Institute in which he alleged age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") and breach of the implied covenant of good faith and fair dealing. [ECF No. 1 ("Compl.")]. Currently before the Court is Defendant's motion to dismiss Plaintiff's ADEA claim for failure to state a claim and to dismiss Plaintiff's contract claim for lack of subject matter jurisdiction. [ECF No. 8]. In the alternative, Defendant asks that the Court find that Plaintiff is not entitled to compensatory or punitive damages on his ADEA claim. [ECF No. 9]. For the reasons set forth below, Defendant's motion, [ECF No. 8], is GRANTED in part and DENIED in part.
For purposes of this motion, the relevant facts are drawn from the complaint, [Compl.], and viewed in the light most favorable to the plaintiff. See Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir. 2014) (citations omitted).
Plaintiff was hired by the Smithsonian Astrophysical Observatory ("the SAO") in 1991. [Compl. ¶ 7]. At that time, Plaintiff held a grant from the National Science Foundation ("NSF"), which he had received to build the Antarctic Submillimeter Telescope and Remote Observatory. [Id. ¶¶ 9-10]. When Plaintiff first sought employment at the SAO in 1991, he was told he should not apply as a General Schedule ("GS") employee because of "a policy that federal scientists could not hold NSF grants." [Id. ¶ 10]. Instead, the then-Director Irwin Shapiro ("Shapiro") offered Plaintiff a position as a "Smithsonian Trust" employee, telling him it would offer "parallel requirements and benefits (including job security) to federal GS scientists." [Id.]. The Director told Plaintiff that if his NSF funding ran out in the future, Plaintiff "could either be transitioned to a federal GS position or fully funded by the Smithsonian Trust." [Id.]. Plaintiff alleges that he only accepted the position because of this promise. [Id.].
Plaintiff continued as a Smithsonian Trust employee for twenty-four years, during which time he "consistently received the highest possible Annual Performance Review ratings," and was promoted from "Astronomer" to "Senior Astronomer." [Id. ¶¶ 7, 11]. While at the SAO, Plaintiff was a co-investigator and designer of the optics on the South Pole Telescope and he "collaborated in the optical design of a third-generation detector system." [Id. ¶ 11(d)].
Sometime in the late 2000s, grant opportunities for building instruments became more difficult to secure. [Id. ¶ 12]. Though Plaintiff sought salary support to continue using theobservational instruments that he had helped create, the SAO declined to pay him a salary and instead instructed him to apply for a GS position, [id. ¶¶ 12-13]. Plaintiff applied for an open GS-13 position but was rejected. [Id.]. In March 2016, Plaintiff applied for two more positions at the GS-14 and GS-15 levels. [Id. ¶ 14]. He was sixty-two years old when he applied and "more than qualified" for both positions. [Id. ¶¶ 14-15]. With regard to one of the positions, despite his experience and qualifications, Plaintiff was not selected as a finalist. [Id. ¶ 14].1 Instead, six other candidates in their forties and fifties were selected as finalists. [Id.]. After Plaintiff complained to the SAO's director about not being a finalist, the SAO ended up not filling the position. [Id. ¶ 16].
Plaintiff timely initiated a charge of discrimination with the Equal Employment Opportunity Commission ("the EEOC"). [Id. ¶ 2]. After more than 180 days passed without a final action from the EEOC, on October 11, 2019, Plaintiff filed this complaint against Defendant alleging a violation of the ADEA (Count I) and the state-law contract claim (Count II). [Id.]. On January 27, 2020, Defendant moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1). [ECF No. 8]. Plaintiff opposed, [ECF No. 12], and Defendant replied, [ECF No. 15].
In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw allreasonable factual inferences in favor of the plaintiff. See Gilbert v. City of Chicopee, 915 F.3d 74, 80 (1st Cir. 2019) (citations omitted). "[D]etailed factual allegations" are not required, but the complaint must set forth "more than labels and conclusions," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must contain "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory," Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)). The alleged facts must be sufficient to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570.
"To cross the plausibility threshold a claim does not need to be probable, but it must give rise to more than a mere possibility of liability." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44-45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A determination of plausibility is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 44 (quoting Iqbal, 556 U.S. at 679). "[T]he complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible . . . ." Hernandez-Cuevas v. Taylor, 723 F.3d 91, 103 (1st Cir. 2013) (quoting Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011)). "The plausibility standard invites a two-step pavane." A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Grajales, 682 F.3d at 45). First, the Court "must separate the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited)." Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Secondly, the Court "must determine whether the remaining factual content allows a 'reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Morales-Cruz, 676 F.3d at 224).
In evaluating a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court must determine whether the facts as alleged in the complaint, "taken at face value," support subject matter jurisdiction. Gordo-González v. United States, 873 F.3d 32, 35 (1st Cir. 2017). The Court "appl[ies] a standard of review 'similar to that accorded to a dismissal for failure to state a claim' under subsection 12(b)(6)." Rodriguez v. Mass. Parole Bd., No. 16-cv-11113, 2017 U.S. Dist. LEXIS 24705, at *5-6 (D. Mass. Feb. 22, 2017) (quoting Menge v. N. Am. Specialty Ins. Co., 905 F. Supp. 2d 414, 416 (D.R.I. 2012)). The Court must "accept the factual averments of the complaint as true, and construe those facts in the light most congenial to [Plaintiff's] cause." Royal v. Leading Edge Prods., 833 F.2d 1, 1 (1st Cir. 1987). "Dismissal can be justified only if it clearly appears that no colorable hook exists upon which subject matter jurisdiction can be hung." Id.
Defendant argues that Plaintiff's ADEA claim should be dismissed for failing to plead an essential element of an age discrimination claim: that the position for which he applied was filled. [ECF No. 9 at 5-6]. Plaintiff maintains that he is not required to prove this element. [ECF No. 12 at 4-5].
"The ADEA makes it unlawful for an employer 'to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.'" Velez v. Thermo King de P. R., Inc., 585 F.3d 441, 446 (1st Cir. 2009) (quoting 29 U.S.C. § 623(a)(1)). Because Plaintiff has not alleged any "direct evidence of discriminatory animus . . . , the burden of producing evidence is allocated according to the now-familiar McDonnell Douglasframework." Greenberg v. Union Camp Corp., 48 F.3d 22, 26 (1st Cir. 1995) ().
First, the plaintiff must make out a prima facie case of discrimination. The burden then shifts to the defendant to present a legitimate, non-discriminatory reason, sufficient to raise a genuine issue of material fact as to whether it discriminated against the employee, for the employment decision. Finally, the burden is placed on the plaintiff to demonstrate that the non-discriminatory reason is mere pretext and that the real reason was discrimination.
Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006) (citing McDonnell Douglas, 411 U.S. at 802).
The Supreme Court has held, however, that "an employment discrimination plaintiff need not plead a prima facie case of discrimination . . . to survive [a] motion to dismiss." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002); see Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir. 2013) ( ....
To continue reading
Request your trial