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