Stern v. Haddad Dealerships of the Berkshires
| Decision Date | 26 February 2007 |
| Docket Number | C.A. No. 05-30160-MAP. |
| Parties | Scott STERN, Plaintiff v. HADDAD DEALERSHIPS OF THE BERKSHIRES, INC., et al, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Scott Stern, North Adams, MA, pro se.
John C. Barker, Paul Michienzie, Richard A. Sawin, Jr., Michienzie & Sawin, LLC, Boston, MA, Jerrold S. Levinsky, Massachusetts Commission Against Discrimination, Springfield, MA, Erin N. Norris, U.S. Equal Opportunity Commission Office of Legal Counsel, Washington, DC, for Defendants.
MEMORANDUM AND. ORDER REGARDING REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONS TO DISMISS (Docket Nos. 28, 48 & 82)
In this employment discrimination case, Plaintiff has named as Defendants two employees of the EEOC, Alvarado and Sanders, ("the EEOC Defendants"), as well as the Massachusetts Commission Against Discrimination ("MCAD"), and its employees, Tucker, Borges, Levinsky, and Rivera (the "MCAD Defendants"). The EEOC and MCAD Defendants filed separate Motions to Dismiss, which were referred to Chief Magistrate Judge Kenneth P. Neiman for report and recommendation.
On October 27, 2006, Judge Neiman issued his Report and Recommendation, to the effect that both Motions to Dismiss be allowed. Plaintiff filed no objection to the Report and Recommendation.
Upon de novo review, the court hereby ADOPTS the Report and Recommendation of Chief Magistrate Judge Kenneth P. Neiman based both upon its obvious merit and the fact that Plaintiff has failed to file any opposition to it.
Having adopted the Magistrate's Judge's Report and Recommendation, the court hereby ALLOWS Defendants' Motions to Dismiss (Dkt. Nos. 28 & 48). The case will proceed only against Haddad Motor Group, Inc. and individual Defendants Cardillo, Salvie and Coggins.
This case is hereby referred to Chief Magistrate Judge Kenneth P. Neiman for a status conference regarding the schedule for the remaining defendants leading to trial or other final disposition.
It is So Ordered.
REPORT AND RECOMMENDATION WITH REGARD TO CERTAIN DEFENDANTS' MOTIONS TO DISMISS (Documents No. 28 and 48)
NEIMAN, United States Chief Magistrate Judge.
Now before the court are two motions to dismiss the complaint of Scott Stern ("Plaintiff'), proceeding pro se. The first, filed by Joseph Alvarado and Robert Sanders, both of whom are employees of the Equal Employment Opportunity Commission ("EEOC") (together the "EEOC Defendants"), seeks dismissal pursuant to Fed.R.Civ.P. 12(b)(1), (5) and (6). The second motion, filed by the Massachusetts Commission Against Discrimination ("MCAD"), Cynthia Tucker, Crystal Borges, James Levinsky and Migdalia Rivera, all of whom are connected with the MCAD, (together the "MCAD Defendants"), seeks dismissal under Fed.R.Civ.P. 12(b)(6). The remaining defendants, Haddad Motor Group, Inc. ("Haddad, Inc."), Timothy Cardillo, James Salvie, and Michael Coggins (all of whom are managers at Haddad, Inc.) (together the "Haddad Defendants"), have not filed dispositive motions and, but for a partial opposition to the two motions to dismiss, remain on the sidelines.
The EEOC Defendants' and the MCAD Defendants' motions to dismiss have been referred to this court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court will recommend that both motions be allowed.
Rule 12(b)(1) entitles a party to seek dismissal of an action for "lack of jurisdiction over the subject matter." Rule 12(b)(5) provides for dismissal based on insufficient service of process. And Rule 12(b)(6) allows a defendant to seek dismissal of an action for "failure to state a claim upon which relief can be granted." On a motion to dismiss under these rules, the court is required to construe the allegations in favor of the plaintiff, the non-moving party. See Scheuer v. Rhodes, 416 U.S. 232, 236; 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Moreover, as applicable here, a pro se plaintiff is entitled to liberal construction of his allegations, no matter how inartfully pled. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
The following allegations come from Plaintiffs amended complaint, filed on January 5, 2006, and "modified" on January 12, 2006.1 Plaintiff was employed as a sales and lease representative with Haddad, Inc. from approximately May 1, 2002, through February 3, 2003. (Amended Complaint ¶¶ 2, 3.) Coggins, Salvie and Cardillo, too, were employed by Haddad, Inc., respectively, as General Manager, General Sales Manager, and Sales Manager at its Pittsfield dealership. (Id. ¶¶ 4-6.) In these capacities, each exercised a supervisory role over Plaintiff. (Id.) Liberally construed, Plaintiff's complaint alleges that the Haddad Defendants subjected him to unfair and unequal treatment, emotional distress, and wrongful termination because of his disability, i.e., a bipolar disorder. (See generally id. at 4-26.)
Plaintiff filed a charge of discrimination with the MCAD against the Haddad Defendants on May 2, 2003. (Id. ¶ 49.) Just over one year later, on May 27, 2004, the MCAD issued a Lack of Probable Cause determination, essentially finding that there was insufficient evidence to justify pursuing Plaintiff's charge further. . Plaintiff sought review of this determination within the MCAD; a preliminary hearing was held, but the lack of probable cause finding was affirmed. Plaintiff thereafter sought to have the EEOC review the MCAD's decision. (Amended Complaint ¶ 61.) On or about April 20, 2005, however, Plaintiff apparently received a letter from Robert Sanders stating that, under the, EEOC's worksharing agreement with the MCAD, the MCAD has initial responsibility for investigating the charge and, as such, the EEOC would not conduct a duplicate investigation. .
Plaintiff filed, the instant action on July 7, 2005. Rather than proceeding solely against the Haddad Defendants, however, Plaintiff also named the above-noted employees of both the EEOC and the MCAD, as well as the MCAD itself. In response, the EEOC Defendants and the MCAD Defendants filed the motions to dismiss presently before the court.
Applying the liberal pleading interpretation for pro se, complaints, Plaintiffs grievance against the EEOC Defendants and the MCAD Defendants is, in essence, that they failed to do their respective jobs. Thus, Plaintiff asserts both sets of defendants ignored what was, in his view, overwhelming evidence of the unlawful employment practices of the Haddad Defendants. By not giving this evidence the weight it deserved, Plaintiff continues, the MCAD and the EEOC Defendants failed to uphold their statutory mandates, thereby causing further deprivation of his rights under both federal and state law.
Plaintiff purportedly asserts his claims against the EEOC Defendants and the MCAD Defendants pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Articles I, V, X, XI and XIV of the Massachusetts Constitution. The court will separately address the EEOC Defendants' and MCAD Defendants' motions to dismiss and conclude with a discussion of the Haddad Defendants'"partial opposition" with respect thereto. In the end, the court will recommend that both motions to dismiss be allowed.
As indicated, The EEOC Defendants seek dismissal of Plaintiff's complaint for lack of subject matter jurisdiction, failure to state a claim on which relief can be granted, and insufficient service of process. For its part, the court has determined that the statutes and constitutional provisions Plaintiff invokes simply do not create a cause of action against the EEOC Defendants for individuals in Plaintiff's position. Accordingly, the court will confine its analysis to that part of the EEOC Defendants' motion arising under Rule 12(b)(6).2
A statutory right of action may be created by Congress either expressly or impliedly. Whether a cause of action in fact exists is a matter of statutory construction. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979).
As applicable here, Title VII, 42 U.S.C. § 2000e-5(f), expressly provides for three types of civil actions with respect to EEOC matters. First, the EEOC itself "may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge [of discrimination]." 42 U.S.C. § 2000e-5(f)(1). Second, in cases involving governmental respondents, the EEOC can "refer the case to the Attorney General who may bring a civil action against such respondent in the, appropriate United States district court." Id. Third, in addition to having the option of intervening as a plaintiff in either of the two aforementioned actions, an aggrieved employee may file suit in his own right against an allegedly discriminating employer. Id. The employee's right to sue ripens only after (a) the EEOC dismisses the charge, or (b) one hundred and eighty days go by from the filing of the charge without the EEOC or the Attorney General commencing a civil action. See id.
As is evident, there is no mention in this statutory scheme of any right of an aggrieved employee to sue the EEOC itself in the event the employee does not like the way in which the claim against his employer has been handled. In other words, the statute provides a federal vehicle for aggrieved employees to proceed against their employers directly, not a means to proceed against the enforcement authority itself as Plaintiff attempts to do...
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