RINGLER v. DARKOW
Filing
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Judge George A. OToole, Jr: OPINION AND ORDER entered granting 12 Motion to Compel; granting 18 Motion to Substitute Party. ; granting 20 Motion to Dismiss for Failure to State a Claim; granting 20 Motion to Dismiss for Lack of Jurisdiction (Lyness, Paul)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-10926-GAO
LESTER M. RINGLER,
Plaintiff,
v.
LEIDOS, INC. and DAVID DARKOW,
Defendants.
OPINION AND ORDER
September 24, 2019
O’TOOLE, D.J.
The plaintiff, Lester M. Ringler, originally filed this action against the defendants Leidos,
Inc. and David Darkow in Massachusetts Superior Court. Counts I, II, and III of the complaint are
against Leidos for discrimination in violation of Massachusetts General Laws Chapter 151B on
the basis of disability, perceived disability, and unlawful retaliation. Counts IV, V, VI present the
same three claims against Darkow as an individual. Count VII 1 is against Darkow for the state law
tort of intentional interference with contractual and advantageous relationships. Before the Court
are Leidos’s motion to compel arbitration and dismiss (dkt. no. 12) and Darkow’s motions to
substitute the United States as a party (dkt. no. 18) and to dismiss (dkt. no. 20).
I.
Motion to Compel Arbitration and Dismiss
A party seeking to compel arbitration must demonstrate “that a valid agreement to arbitrate
exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by
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The plaintiff’s complaint has two counts listed as “Count VI.” The first listed Count VI is for
retaliation and I will refer to it as Count VI. The second Count VI is for intentional interference
and I will refer to it as Count VII.
that clause, and that the claim asserted comes within the clause’s scope.” Intergen N.V. v. Grina,
344 F.3d 134, 142 (1st Cir. 2003). In assessing whether an agreement to arbitrate exists, courts
“should apply ordinary state-law principles that govern the formation of contracts.” First Options
of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
Leidos seeks to enforce an arbitration agreement that the plaintiff signed on November 14,
2008. Leidos submitted a copy of the signed agreement. There is no dispute that Ringler’s claims
against Leidos fall within the scope of the proffered arbitration agreement. Ringler instead argues
that Leidos may not enforce the agreement because it is not a signatory to the agreement, which
was made with Science Applications International Corporation (“SAIC”).
The argument is meritless. Leidos’s exhibits supporting its motion show that SAIC changed
its name to Leidos, Inc. in 2013. It did not change its corporate existence or form.
“Once the corporate existence has begun, even though the stockholders, directors and
corporate name may change, the corporation retains the same rights, liabilities and responsibilities
until dissolved.” Seagram Distillers Co. v. Alcoholic Beverages Control Comm’n, 519 N.E.2d 276,
281 (Mass. 1988) (quotation omitted); see also Roach v. Navient Sol. Inc., 165 F. Supp. 3d 343,
349 (D. Md. 2015) (allowing motion to compel arbitration where Navient Solutions, Inc. (NSI)
was formerly known as Sallie Mae, Inc. (SMI) because “[w]hatever rights SMI may have held
necessarily accrue to NSI” as “they are one and the same”). The corporation now named Leidos
has the same contract rights that were held by it when it was named SAIC. The arbitration
agreement binds Ringler.
The plaintiff also opposes the motion to compel arbitration because Leidos did not make
any demand for arbitration in the administrative proceedings that occurred prior to the
commencement of this litigation. He argues it therefore should be barred from compelling
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arbitration for equitable reasons including estoppel and laches. Those issues are for the arbitrator
to decide. Sleeper Farms v. Agway, Inc., 506 F.3d 98, 103 (1st Cir. 2007) (citing Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983)). Ringler’s arguments against
enforcing the agreement to arbitrate are not persuasive.
II.
Motion to Substitute and Motion to Dismiss
The Westfall Act protects federal employees from civil suits “for injury or loss of property,
or personal injury or death arising or resulting from the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office or employment.” 28
U.S.C. § 2679(b)(1). “Upon certification by the Attorney General that the defendant employee was
acting within the scope of his office or employment at the time of the incident out of which the
claim arose,” the action “shall be deemed an action against the United States . . . and the United
States shall be substituted as the party defendant.” Id. § 2679(d)(1). A plaintiff challenging such a
certification bears the burden to prove under state law that the defendant acted outside the scope
of his employment during the alleged misconduct. See Day v. Mass. Air Nat’l Guard, 167 F.3d
678, 685 (1st Cir. 1999); Lyons v. Brown, 158 F.3d 605, 609–10 (1st Cir. 1998). “If the
certification stands, the defendant federal employee is immune from suit on claims arising from
certified conduct, and the United States is substituted as the defendant with regard to those claims.”
Lyons, 158 F.3d at 606–07.
Under Massachusetts law, an employee’s conduct is within the scope of employment if it
(1) “is of the kind he is employed to perform”; (2) “occurs substantially within the authorized time
and space limits”; and (3) “is motivated, at least in part, by a purpose to serve the employer.” Wang
Lab., Inc. v. Bus. Incentives, Inc., 501 N.E.2d 1163, 1166 (Mass. 1986).
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The United States, through the United States Attorney for this district, filed a certification
pursuant to 28 U.S.C. § 2679 stating that Darkow was “acting within the scope of his employment
with the federal government at the time of the incidents alleged in plaintiff’s complaint.” (Reply
Br., Ex. A (dkt. no. 26-1).) Ringler does not challenge that general proposition, but rather argues
that harmful tortious behavior cannot be considered to be acts within the legitimate scope of
employment. He contends that intentional discrimination and retaliation actions could never
legitimately serve an employer and therefore must be considered outside the scope of his duties.
Accepting this would essentially negate the Westfall Act’s purpose in substituting the federal
employer for the alleged tortfeasor employee. “The scope of employment is ‘not construed
restrictively’ and intentional torts lie within the scope of employment in a ‘variety of situations.’”
Gindi v. Norton, 216 F. Supp. 3d 199, 204 (D. Mass. 2016) (quoting Com. v. Jerez, 457 N.E.2d
1105, 1108 (Mass. 1983)). Darkow’s actions were done within the scope of his employment as
one of Ringler’s supervisors.
Count VII, a tort claim, is not actionable against Darkow because of the valid certification
that Darkow’s actions were within the scope of his employment, so the United States is the proper
defendant. See 28 U.S.C. § 2679(d)(2). The employee defendant for whom the United States is
substituted is absolutely immune from a tort claim arising out of his employment, even if suit is
also precluded against the United States by statutory proscription. Suits for interference with
contract rights constitute one categorical exclusion. Id. § 2680(h); see Strunk v. Odyssey
Consulting Grp., Ltd., Civil Action No. 10-cv-12174-DJC, 2011 WL 3567025, at *6 (D. Mass.
Aug. 11, 2011) (dismissing a tortious interference with advantageous relationships and contractual
relations claim against the United States, as substituted for its employee, because the United States
is immune). “When the United States retains immunity from suit, certification disarms plaintiffs.
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They may not proceed against the United States, nor may they pursue the employee shielded by
the certification.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427 (1995).
Additionally, the employment discrimination claims alleged in Counts IV, V, and VI
purport to be brought under Massachusetts Gen. Laws ch. 151B. These claims cannot be pursued
against the United States because it has not consented to suit under state-law discrimination
statutes. “A waiver of the Federal Government’s sovereign immunity must be unequivocally
expressed in the statutory text and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996)
(citation omitted).
Counts IV, V, and VI are dismissed because there has not been any waiver or consent to
be sued by the United States for claims under Mass. Gen. Laws ch. 151B. Count VII is barred
under the FTCA.
III.
Conclusion
For the foregoing reasons, Leidos’s Motion to Compel Arbitration and to Dismiss
Plaintiff’s Claims (dkt. no. 12) is GRANTED and Darkow’s Motion to Substitute Defendants (dkt.
no. 18) and Motion to Dismiss (dkt. no. 20) is GRANTED.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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