Belyakov v. Henry M. Jackson Foundation
Filing
22
MEMORANDUM OPINION (c/m to Plaintiff 3/6/15 sat). Signed by Judge Deborah K. Chasanow on 3/6/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
IGOR BELYAKOV
:
v.
:
Civil Action No. DKC 13-3656
:
HENRY M. JACKSON FOUNDATION
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case is a motion to dismiss filed by
Defendant
Henry
M.
Jackson
Foundation.
(ECF
No.
15).
The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, Defendant’s motion to dismiss will be denied.
I.
Background1
A.
Factual Background
Plaintiff Igor Belyakov alleges that he is 53 years old,
and a United States citizen of Russian origin.
10).
(ECF No. 4 ¶¶ 4,
From 1996 until 2006, Plaintiff worked at the National
Institutes of Health (“NIH”), which is part of the United States
Department of Health and Human Services (“DHHS”).
No. 4-3).
1
(Id. ¶ 7; ECF
Between 2004 and 2010, Plaintiff filed three Equal
The following facts are either set forth in the amended
complaint, evidenced by documents referenced or relied upon in
the complaint, or are matters of public record of which the
court may take judicial notice.
Employment Opportunity Commission (“EEOC”) charges against DHHS.
(ECF No. 4 ¶ 8).
Plaintiff’s employment with NIH as a staff
scientist ended on November 17, 2006.
(Id. ¶ 7).
According to
the complaint, “DHHS is constantly preventing the Plaintiff’s
employment.
On
September
26,
2013,
the
Equal
Employment
Opportunity Commission found that Dr. Belyakov was discriminated
against based on age and retaliated against by DHHS during his
previous search for employment.”
(ECF No. 4 ¶ 8).
Plaintiff
also alleges that, “[a]t the time of the events giving rise to
this case [] Plaintiff was unemployed.”
(Id. ¶ 4).
Defendant Henry M. Jackson Foundation for the Advancement
of Military Medicine, Inc. (“the Foundation”) is a “private,
non-profit organization [located in Bethesda, Maryland that is]
dedicated to supporting medical research and education.”
5; ECF No. 4-5).
(Id. ¶
Plaintiff asserts that in 2012 the Foundation
advertised the following position:
HJF seeking a Senior Science Adviser —
Mucosal Immunology to work at HJF-DAIDS, an
operational division of the Henry M. Jackson
Foundation (HJF), that provides scientific
and operations support for the National
Institute of Allergy and Infectious Diseases
(NIAID), Division of Aids (DAIDS), located
in
Bethesda,
Maryland.
HJF
provides
scientific,
technical
and
programmatic
support services to DAIDS.
The individual
will provide support to the Vaccine Research
Program (VRP) Vaccine Clinical Research
Branch (VCRB).
2
(ECF Nos. 4 ¶ 11 and 4-2).
On December 17, 2012, Plaintiff
submitted an online job application to Defendant in response to
its advertisement for a Senior Science Adviser to support the
NIH.2
(ECF No. 4 ¶ 11).
Upon submission, Plaintiff received an
email confirmation from Defendant, stating, inter alia, “[y]our
online application has been successfully submitted” and “[w]e
will review your background to determine if your qualifications
are commensurate with the posting requirements.”
(ECF No. 4-4).
In February 2013, Defendant informed Plaintiff that he was not
selected for the position.
(ECF No. 1-1).
B.
Procedural Background
On
March
discrimination
discrimination.
1,
with
2013,
the
(Id.).
Plaintiff
EEOC,
alleging
filed
a
charge
retaliation
and
of
age
Plaintiff’s EEOC charge asserted that:
In or about December 2012, I applied for a
vacant,
advertised
position
with
[Defendant].
The position to which I
applied was Senior Science Advisor.
On
February 4, 2013, I received notice that I
was not selected for the position.
I
believe my denial of hire and non-selection
was due to my age (52) and in retaliation to
my filing of previous complaints and whistle
blowing activities with my former employer,
National Institutes of Health (NIH).
As a
result of these previous actions, I believe
I
have
been
subjected
to
continuous
retaliation
regarding
denial
of
any
employment opportunities in which NIH is
affiliated.
2
NIAID is an institute of the NIH, and DAIDS is a division
of NIAID.
3
(Id.).
In
response
to
the
charge,
Defendant
submitted
a
“position statement” to the EEOC investigator, asserting that
Plaintiff’s application “was received so late in the recruitment
process that it was never even seen by [the] hiring manager”
prior to selection of the successful applicant and that, in any
event,
the
hiring
manager
was
unaware
of
Plaintiff’s
age,
“having never met him,” and “did not know anything about [his]
complaints
regarding
the
[NIH]
at
the
time
of
the
decision – she didn’t even know who [Plaintiff] was.”
4-5).
hiring
(ECF No.
According to Plaintiff, these statements are belied by
the confirmation email he received from Defendant, suggesting
that his application would be reviewed, when, in fact, he “was
passed over for an interview because of illegal discrimination
and
retaliation.”
considerable
(ECF
length,
his
No.
4
¶
18).
qualifications
Plaintiff
for
the
cites,
position
at
and
compares them with those of the successful candidate, Dr. Cesar
Boggiano,
who
he
asserts
was
unqualified for the position.
much
younger
(Id. ¶¶ 20-22).
than
himself
and
On September 20,
2013, the EEOC dismissed the charge and advised Plaintiff of his
right to sue.
(ECF No. 4-1).
Plaintiff,
proceeding
pro
se,
commenced
this
employment
discrimination action against the Foundation in this court on
December 4, 2013.
(ECF No. 1).
Along with the complaint, he
filed a motion for leave to proceed in forma pauperis (ECF No.
4
2),
which
was
granted
on
December
18,
2013.
(ECF
Plaintiff filed an amended complaint on December 23.
4).
In
his
discrimination
amended
in
complaint,
violation
of
Plaintiff
the
Age
No.
3).
(ECF No.
alleges
Discrimination
age
in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”) and
retaliation in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq. (“Title VII”).
On February 4, 2014, Defendant filed a motion to dismiss
for
insufficient
service
of
process
pursuant
to
Fed.R.Civ.P.
12(b)(5), because Plaintiff failed to serve Defendant with his
operative pleading, the amended complaint.
(ECF No. 7).
The
court construed Defendant’s motion as a motion to quash service,
and
granted
it.
properly served.
(ECF
No.
10).
Defendant
has
since
been
(ECF No. 14).
Defendant filed the instant motion to dismiss for failure
to state a claim under Fed.R.Civ.P. 12(b)(6) on March 11, 2014.
(ECF No. 15).
The motion is fully briefed.
(ECF Nos. 18 and
19).
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
5
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff.
See
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events.
United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
Finally,
pleadings
“to
while
courts
less
stringent
generally
standards
should
than
hold
formal
pro
se
pleadings
drafted by lawyers,” they may nevertheless dismiss complaints
6
that
lack
a
cognizable
legal
theory
or
that
fail
to
sufficient facts under a cognizable legal theory.
allege
Haines v.
Kerner, 404 U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d
391, 398 (D.Md. 2002), aff’d, 121 F.App’x. 9 (4th Cir. 2005).
III. Analysis
A.
Age Discrimination (Count I)
Plaintiff
has
alleged
that
the
Foundation
discriminated
against him by failing to hire him due to his age, and instead
hiring
someone
Boggiano.
much
younger
and
less
qualified,
Dr.
Cesar
(ECF No. 4 ¶¶ 20-22).
The Age Discrimination in Employment Act (“ADEA”) makes it
“unlawful for an employer . . . to fail or refuse to hire . . .
any individual . . . because of [his] age.”
29 U.S.C. § 623(a).
To state a claim for a failure to hire under the ADEA, Plaintiff
must allege that:
(1) he was in the age group protected by the
ADEA, (2) he was qualified for the job for which the employer
was seeking applicants, (3) Plaintiff was rejected for the job
despite
position
being
under
qualified,
and
circumstances
unlawful discrimination.
(4)
he
giving
was
rise
rejected
to
an
for
inference
the
of
Reeves v. Sanderson Plumbing Prods.,
Inc., 430 U.S. 133, 142 (2000).
The ADEA’s protections only
apply to individuals at least forty (40) years of age, 29 U.S.C.
§
631(a),
and
does
discrimination claim.”
not
permit
“a
mixed-motives
age
Gross v. FBL Fin. Servs., Inc., 557 U.S.
7
167, 175 (2009).
Instead, Plaintiff must “establish that age
was the ‘but-for’ cause of the employer’s adverse action.”
Id.
at
of
age
suit
is
177.
In
the
discrimination,
absence
“the
of
plaintiff
any
in
direct
a
evidence
failure-to-hire
generally required to show that the employer took adverse action
against an applicant who was qualified for employment, ‘under
circumstances
which
give
rise
to
an
inference
of
unlawful
discrimination.’”
Krpan v. Bd. of Educ. of Howard County, No.
ELH-12-2789,
WL
2013
4400475,
at
*11
(D.Md.
Aug.
15,
2013)
(quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981)).
Defendant
contends
that
Plaintiff’s
complaint
does
not
allege facts showing that he was qualified for Senior Science
Adviser
position
Plaintiff’s
or
providing
rejection
was
a
plausible
to
due
inference
discrimination.
age
that
Specifically, Defendant argues that Plaintiff has not alleged
that he met the specific requirements for the position at issue,
summarily alleging that he is “highly qualified,” but failing to
allege
that
knowledgeable
he
was
about
proficient
“Federal
in
grant
Microsoft
and
Office
contract
or
laws,
regulations and policies” all of which were required by the
position.
(ECF
No.
15-1,
at
5-6).
In
addition,
Defendant
argues that Plaintiff has not alleged facts showing that “butfor” his age, he would have been selected for the position.
8
Despite Plaintiff’s allegation that he received an auto-reply
response
indicating
that
the
Foundation
would
review
his
application, Defendant contends that he does not allege facts
showing that the Foundation actually reviewed or even considered
his application.
Plaintiff
(ECF No. 15-1, at 6).
argues
in
response
that
the
Foundation’s
statements that it never reviewed his application because it was
a “late submission” is merely pretext.
application
with
the
Foundation,
When he submitted his
Plaintiff
contends
that
the
application process was still open and that the Foundation was
still reviewing applications, and screened him out due to his
age rather than his “late submission.”
(ECF No. 18, at 3).
Additionally,
complaint
Plaintiff
argues
that
his
“presented
detailed evidence (five pages) why he is highly qualified[.]”
(Id. at 5).
Taking
Plaintiff’s
allegations
as
true,
Plaintiff
has
sufficiently alleged a prima facie case of age discrimination.
Defendant does not challenge Plaintiff’s allegations as to the
first and third prongs of the prima facie case — that Plaintiff
was in a protected age group and that he was rejected for the
job
despite
being
qualified.
Instead,
Defendant
challenges
whether Plaintiff has sufficiently alleged that he was qualified
as Senior Science Adviser, an argument that will be rejected.
Plaintiff has alleged that he was qualified for the position and
9
provided an extensive listing of his qualifications to support
this
assertion.
proficient
in
Plaintiff’s
Microsoft
failure
Office
or
to
allege
that
was
about
knowledgeable
he
the
Federal grant and contract laws, does not undercut his broad
allegation that he was qualified for Defendant’s job posting,
especially considering the crux of the requirements listed in
Defendant’s
job
experience.
posting
related
(ECF No. 4-2).
to
scientific
expertise
and
Moreover, the requirements that
Plaintiff has supposedly failed to allege – proficiency with
Microsoft Office and knowledge of Federal grants – could be
inferred
from
the
accomplishments
listed
in
Plaintiff’s
application to Defendant, which is attached to the complaint.
(ECF No. 4-3).
Plaintiff need not technically plead compliance
with each qualification in a job posting in order to broadly
allege that he is qualified for the position.
In addition, Plaintiff’s allegations that Defendant hired a
much younger and less qualified scientist for the Senior Science
Adviser position, are sufficient to raise a plausible inference
that he was not hired due to his age.
See Agelli v. Sebelius,
No. 13-0497, 2014 WL 347630, at *4 (D.Md. Jan. 30, 2014) (noting
that the fourth element of the prima facie case requires the
plaintiff to show that he “was rejected for the position in
favor
of
someone
circumstances
not
giving
a
member
rise
to
10
of
an
a
protected
inference
group
of
under
unlawful
discrimination”);
see
also
Nelson
v.
State
Employees
Credit
Union of Maryland, Inc., No. RDB-12-3230, 2013 WL 3700984, at
*5-6
(D.Md.
“satisfie[d]
July
the
12,
2013)
fourth
(noting
requirement
that
the
because
plaintiff
she
alleges
had
that
[d]efendant [] hired a much younger, less experienced man to
fill the new position”); see also Tusing v. Des Moines Indep.
Cmty.
Sch.
Dist.,
639
F.3d
507,
515
(8th
Cir.
2011)
(“To
establish a prima facie case of age discrimination based on a
failure to hire, a plaintiff must prove . . . [as part of the
fourth element that] the employer hired a younger person to fill
the position.”); see also LeBlanc v. Hill School, No. 14-1674,
2015 WL 144135 (E.D.Pa. Jan. 12, 2015) (noting that a plaintiff
may “plausibly allege the fourth element” by “alleg[ing] that
similarly situated employees who . . . were not members of the
same protected class . . . were treated more favorably under
similar circumstances”) (internal quotation marks and citations
omitted).
Plaintiff has alleged that Defendant hired a much
younger (nearly twenty years younger) scientist outside of the
protected
scientist
class,
and
who
had
was
far
a
substantially
less
less
qualified
experience
than
himself.
Specifically, Defendant alleges that Dr. Boggiano obtained his
Ph.D. in 2003, while Plaintiff obtained his M.D. in 1983, twenty
years earlier.
has
more
(ECF No. 4, at 8-9).
publications,
more
Plaintiff alleges that he
accomplishments,
11
and
far
more
leadership experience that Dr. Boggiano, all of which he alleges
are important qualities for Senior Science Adviser to possess.
(ECF
No.
4
¶¶
21-22).
Defendant
contends
that
it
had
a
legitimate non-discriminatory reason for not hiring Plaintiff:
due
to
Defendant’s
late
submission
it
never
saw
Plaintiff’s
application, and therefore could not have discriminated against
him due to his age.
At this stage in the proceedings, however,
Plaintiff’s allegations must be taken as true.
Plaintiff has
alleged that he submitted his application while Defendant was
still interviewing candidates and that there was no deadline
attached to the application process, suggesting that Plaintiff’s
application was not “late” and Defendant was simply not selected
for the position.
At summary judgment or trial, Defendant will
have the opportunity to provide evidence to counter Plaintiff’s
allegations and support its argument that it had legitimate,
non-discriminatory reasons for not hiring Plaintiff.
B.
Retaliation (Count II)
Plaintiff alleges that Defendant retaliated against him by
not hiring him for a position that would ultimately support the
NIH, due to EEOC complaints he filed against the NIH when he was
previously employed there.
Title
VII
makes
(ECF No. 4, at 12).
it
unlawful
for
“an
employer
to
discriminate against any of [its] employees . . . because he has
opposed
any
practice
made
an
12
unlawful
practice
by
this
subchapter,
or
because
he
has
made
a
charge,
testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
2000e–3(a).
42 U.S.C. §
To allege a prima facie case of retaliation under
Title VII, a plaintiff must show that:
(1) he engaged in a
protected activity, (2) an adverse employment action was taken
against
him,
and
(3)
the
protected
connected to the adverse action.
activity
was
causally
See Holland v. Washington
Homes, Inc., 487 F.3d 208, 218 (citing Beall v. Abbott Labs.,
130 F.3d 614, 619 (4th Cir. 1997)).
Defendant
contends
that
the
retaliation
claim
should
be
dismissed because Plaintiff has not alleged facts showing that
the Foundation had any knowledge of Plaintiff’s previous EEOC
complaints against the NIH.
he
has
not
Plaintiff’s
alleged
previous
a
Accordingly, Defendant argues that
plausible
protected
“causal
activity
Defendant’s eventual refusal to hire him.
connection”
at
the
DHHS
is
constantly
discriminating
and
retaliating against Plaintiff during his
search for employment. [] [O]n September
25[,] 2013, the EEOC Judge David Norken
found
that
Plaintiff
was
discriminated
against based on age and retaliated against
by the DHHS during his search for employment
(EEOC NO. 531-2010-00415X).
13
NIH
and
(ECF No. 15-1, at 2).
In response, Plaintiff argues that:
The
Defendant
provides
operations
support
for
between
scientific
and
the
National
Institute of Allergy and Infectious Diseases
(NIAID), Division of AIDS (DAIDS), located
in Bethesda, Maryland[.]
Obviously the
Division of AIDS had a major contribution in
the HJF’s selection process, because the
Selectee is going to support the DAIDS. For
[a] 10 year[] period, the Plaintiff []
participated
in
[an]
AIDS
vaccine
development program at the NIH. DAIDS had a
very good knowledge about the Plaintiff’s []
complaint against the NIH.
The DAIDS
previously retaliated against the Plaintiff
by preventing his previous DAIDS’s job
applications
and
preventing
Plaintiff’s
participation in AIDS conferences. Tak[ing]
in[to] consideration the facts that the DHHS
already discriminated and retaliated against
the
Plaintiff
during
his
search
for
employment (EEOC No. 531-2010-00415X) and
the DAIDS’s previous knowledge about the
Plaintiff’s complaints against the DHHS, it
is very likely that the DHHS had a major
contribution in the HJF decision of the
Plaintiff’s
non-selection
for
a
Senior
Science Advisor position.
(ECF No. 18, at 9-10) (emphasis added).
Taking
Plaintiff’s
allegations
as
true,
claim survives dismissal at this juncture.
his
retaliation
Plaintiff’s prior
EEOC complaints made against the NIH in 2004, 2006, and 2010
certainly constitute protected activity, and the failure to hire
a qualified applicant amounts to an adverse employment action
for
purposes
of
a
retaliation
claim.
See
E.E.O.C.
v.
PBM
Graphics, Inc., 877 F.Supp.2d 334, 346 (M.D.N.C. June 28, 2012).
In addition, Plaintiff has alleged enough facts to establish a
plausible causal connection between his protected activity and
the Foundation’s failure to hire him.
14
Although the NIH is a
separate employer, Plaintiff has alleged that DAIDS, a division
of NIH, had a “significant contribution” and control over the
Foundation’s hiring process considering that the selectee would
be supporting DAIDS.
Plaintiff has also alleged that persons at
DAIDS had knowledge of his protected activities at DHHS, and
that
they
had
discriminated
against
him
in
the
past
by
preventing him from applying to DAIDS and from participating in
AIDS
conferences.
Moreover,
because
Plaintiff’s
application
indicates that he had worked at NIH previously, the Foundation
would
certainly
be
on
notice
that
Plaintiff
had
a
previous
relationship with DHHS and might check with DHHS before hiring
him.
While Plaintiff’s EEOC complaints were submitted several
years prior to him applying for the Foundation’s position, which
ordinarily
would
weaken
the
causal
connection
between
the
protected activity and the retaliation, Plaintiff’s 2010 EEOC
charge appears to have still been pending at the time he applied
for the position with the Foundation, in as much as Judge Norken
purportedly
did
not
issue
a
decision
until
September
2013.
Taking Plaintiff’s allegations as true, it is plausible that the
Foundation, either on its own accord or at the direction of the
NIH,
refused
to
consider
Plaintiff’s
application
due
to
his
reputation for frequently filing EEOC complaints while working
at NIH.3
3
In Plaintiff’s amended complaint and in his opposition
15
IV.
Conclusion
For the foregoing reasons, the motion to dismiss filed by
Defendant
Henry
M.
Jackson
Foundation
will
be
denied.
A
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
(ECF Nos. 4, at 10 and 18, at 1), he requests that the court
order discovery in this case pursuant to Fed.R.Civ.P. 56(f),
which will be construed as a request to conduct discovery
pursuant to Rule 56(d).
Because Plaintiff’s case will not be
dismissed and will proceed to the discovery phase, Plaintiff’s
request will be denied as moot.
16
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