Davis v. The Commonwealth of Massachusetts et al
Filing
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District Judge Timothy S Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 15 Motion to Dismiss. (Castles, Martin)
United States District Court
District of Massachusetts
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v.
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THE COMMONWEALTH OF MASSACHUSETTS,
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STEVE GROSSMAN, TREASURER AND
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RECEIVER GENERAL, STATE BOARD OF
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RETIREMENT,
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Defendants.
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________________________________________________)
GORDON T. DAVIS,
Plaintiff,
CIVIL ACTION
14-40003-TSH
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO
DISMISS (Docket No. 15)
August 12, 2014
HILLMAN, D.J.
Background
Plaintiff, Gordon T. Davis (“Davis”) has filed a Complaint against the Commonwealth of
Massachusetts (“Commonwealth”) and State Treasurer Steve Grossman (“Grossman”)1 alleging
claims for retaliation for having filed discrimination claims on the basis of age, race and
disability, in violation of the Civil Rights Act. 42 U.S.C. §19832, the Age Discrimination in
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Grossman is being sued in both his individual and official capacities.
Davis’s Complaint is not a model of clarity and it is unclear whether he intends to assert a claim under
the Civil Rights Act of 1964, §701, et seq., 42 U.S.C. §2000e et seq. (“Title VII”) or the Civil Rights Act, 42 U.S.C.
§1983. The Defendants presumed that Davis is asserting a claim under Section 1983 and focused their arguments
accordingly. Because Davis is proceeding pro se, the Court is required to construe his pleadings liberally. See Prall
v. City of Boston, 985 F.Supp.2d 115, 120 (D.Mass. 2013). Reading Davis’s allegations liberally, I find that the
Complaint could be fairly read to assert Title VII claims against the Defendants rather than claims under Section
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Employment Act, 29 U.S.C. §§621 et seq. (“ADEA”), and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12112. This Memorandum and Order of Decision addresses the
Defendants Commonwealth of Massachusetts and State Treasurer Steve Grossman’s Motion to
Dismiss (Docket no. 15)(“Defs’ Mot. To Dismiss”). For the reasons set forth below, that motion
is granted.
Facts3
Davis was terminated from his position with Massachusetts Commission Against
Discrimination (“MCAD”) in April 2010. Subsequently, he filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”) and MCAD. Sometime in 2010, Davis made a
request to the Massachusetts State Retirement Board for the return of his contributions to the
State of Massachusetts pension system in which he is not vested. The request was denied by the
Defendants and had not been paid as of the date that Davis filed his Complaint. 4 In October of
2012, Davis was told by an unidentified representative of the Defendants that he could not
receive a lump sum distribution if he was appealing his termination because of the possibility
that he could be rehired. However, during a mediation between the parties in the fall of 2012,
the Commonwealth stated that it had no intention of rehiring Davis, and Davis stated he was not
seeking to be reinstated. In the spring of 2013, Davis filed a second charge with the EEOC
1983. However, in his opposition to the motion to dismiss, Davis does not cite to any cases or present any legal
argument regarding his alleged civil rights claims. Moreover, he does not dispute the Defendants’ contention that he
has asserted the following three causes of action: violation of his rights under ADA, violation of his rights under the
ADEA and violation of his civil rights pursuant to Section 1983. See Defs’ Mot. To Dismiss, at p. 1. For these
reasons, I will assume that Davis intended to assert Section 1983 claims against the Defendants rather than claims
for violation of Title VII.
3
The Court, as its obligation, has presumed the truthfulness of all well pleaded facts, and made all
reasonable inferences in favor of Davis. At the same time, the Complaint is rife with legal conclusions which are
not presumed true and have been disregarded by the Court. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 10
(1st Cir. 2011).
4
While the Court does not consider extrinsic evidence when deciding a motion to dismiss, I will note that
the Defendants have provided evidence that Davis did receive a check representing the lump sum payment of his
retirement contributions on February 14, 2014, and it appears that Davis either cashed or deposited the check. See
Defs’ Mot. To Dismiss, at Exs. C&D.
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against the Defendants as the result of the denial of the return of his cash contributions. The
EEOC issued a right to sue letter.
Discussion
Davis asserts that the Defendants have retaliated against him for filing claims with the
EEOC and MCAD regarding his wrongful termination by the Commonwealth in violation of
Section 1983, the ADA and the ADEA. More specifically, he asserts that because he appealed
his termination on the grounds that the adverse employment action taken against him violated the
aforementioned statutes, the Defendants have wrongfully withheld his lump sum pension
distribution. The Defendants assert that Davis’s claims against the Commonwealth for monetary
damages (including the claims against Grossman in his official capacity) are barred by Eleventh
Amendment to the Constitution. Additionally, the Defendants assert that Davis’s claims against
Grossman in his individual capacity are barred for lack of subject matter jurisdiction (the
statutory schemes do not permit actions against individuals), or failure to assert sufficient facts to
state a claim.
Standard of Review
On a Rule 12(b)(6) motion to dismiss, the Court “must assume the truth of all wellplead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v.
Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that
is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007).
That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level
... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Id. at 555 (internal citations omitted). “The plausibility standard is not akin to a ‘probability
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requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if plaintiff’s well-pleaded facts do not “possess enough heft to show that
plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008)
(internal quotations and original alterations omitted). “The relevant inquiry focuses on the
reasonableness of the inference of liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.” Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir.
2011).
Whether Plaintiff’s Claims Against the Commonwealth and Grossman, in His Official Capacity,
Are Barred by the Eleventh Amendment
The Eleventh Amendment to the Constitution states that “[t]he Judicial power of the
United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” U.S. Const. Amend. XI. “The Supreme Court ‘has consistently
held that an unconsenting State is immune [under the Eleventh Amendment] from suits brought
in federal courts by her own citizens as well as by citizens of another State.’ ” Torres-Alamo v.
Puerto Rico, 502 F.3d 20, 24 (1st Cir. 2007)(quoting Edelman v. Jordan, 415 U.S. 651, 662–63,
94 S.Ct. 1347(1974)). When enacting legislation, however, Congress has the authority “to
abrogate the States’ Eleventh Amendment immunity when it unequivocally intends to do so ‘and
acts pursuant to a valid grant of constitutional authority.’ ” Torres-Alamo, 502 F.3d at 24
(citation to quoted case omitted). Unless Congress has properly abrogated the Eleventh
Amendment State immunity or the State has consented to being sued, a suit against State
officials in their official capacity would be similarly barred. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304 (1989).
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ADA Claim
Davis argues that his ADA claims survive because in Tennessee v. Lane, 541 U.S. 509,
124 S.Ct. 1978 (2004), the Supreme Court held that Congress had expressly abrogated State
immunity under the ADA. Davis is partially correct-- in Tennessee, the Supreme Court held that
Congress constitutionally abrogated the States’ Eleventh Amendment immunity for purposes of
Title II of the ADA. Id., at 534. However, in Board of Trustees of the University of Alabama v.
Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), the Supreme Court held that the Eleventh
Amendment does bar actions under Title I of the ADA for money damages. Initially, therefore,
the Court must determine the nature of Davis’s ADA claim.
Title I of the ADA prohibits the States and other employers from “discriminat[ing]
against a qualified individual with a disability because of th[at] disability ... in regard to ... terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Title II provides that “no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefit of the services, programs or activities of a public entity.”
42 U.S.C. §12132. Davis does not allege in his Complaint (nor given the nature of his claims
could he) that he was denied access to any programs or services offered by a public entity and
therefore, his claim does not fall within Title II of the ADA. Instead, his allegations bring his
claim within the ambit of Title I of the ADA and therefore, such claim is barred by the Eleventh
Amendment. Furthermore, to the extent that Davis is asserting a claim under Title V of the
ADA for retaliation, because that claim would be based on a Title I predicate, the Eleventh
Amendment bars it as well. See Demshski v. Montieth, 255 F.3d 986, 988-989 (9th Cir. 2001).
Therefore, Defendants’ motion to dismiss Davis’s ADA claims against the Commonwealth and
Grossman in his official capacity is granted.
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ADEA Claim
The ADEA makes it unlawful for an employer to discriminate against an individual
regarding his/her compensation, terms conditions or privileges of employment because of such
individual’s age. In 1974, the ADEA was amended to apply its substantive provisions to the
States. See Kimel v. Forida Bd. of Regents, 528 U.S. 62, 67, 120 S.Ct. 631 (2000). However, in
Kimel the Supreme Court held that the ADEA did not validly abrogate the States’ sovereign
immunity. Id., at 91. Accordingly, Davis’s claims against the Commonwealth and Grossman in
his official capacity under the ADEA are barred by the Eleventh Amendment and must be
dismissed.5
Section 1983 Claim
A Section 1983 claim against the Commonwealth is barred on Eleventh Amendment
immunity grounds. See Fantini v. Salem State College, 557 F.3d 22, 33 (1st Cir. 2009)(it is well
settled that neither State nor its officials acting in their official capacity are subject to suit under
Section 1983). Therefore, Defendants’ motion to dismiss Davis’s Section 1983 claims against
the Commonwealth and Grossman in his official capacity is granted.
Whether Plaintiff Has Stated Claims Against Grossman in His Individual Capacity
ADA and ADEA Claims
Grossman argues that the claims against him individually must be dismissed because the
ADEA and ADA do not permit suits against officials in their individual capacities. In the
alternative, Grossman assert that Davis has failed to alleges sufficient facts to state a claim.
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In his opposition to the motion to dismiss, Davis cites to Kimel as authority for the proposition that
Congress abrogated the States’ sovereign immunity under the ADEA. Davis misreads the Supreme Court’s holding
in Kimel. What the Supreme Court actually found was that Congress’s attempt to amend the ADEA to abrogate the
States’ sovereign immunity was not a valid exercise of Congressional power. For that reason, the Court held that
“[t]he ADEA’s purported abrogation of the States’ sovereign immunity [was] accordingly invalid.” Kimel, 528 U.S.
at 91, 120 S.C.t 631.
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Davis simply asserts that Grossman’s arguments are “disputed.” He does not cite to any legal
authority or make any legal argument to counter Grossman’s position.
There is no individual liability under the ADA, see Roman-Oliveras v. Puerto Rico Elec.
Power Auth., 655 F.3d 43, 51 (1st Cir. 2011), or the ADEA, see Ventura v. Hanitchak, 719
F.Supp.2d 132 (D.Mass 2010). Therefore, Defendants’ motion to dismiss Davis’s ADA and
ADEA claims against Grossman is granted.
Section 1983 Claim
Supervisory officials may not be held liable under Section 1983 for acts of subordinates
on a theory of respondeat superior; they may be held liable only on the basis of their own acts or
omissions. Liability generally arises in one of two ways, (1) where the official is directly
involved in the violation of the plaintiff’s rights, or (2) where the “official supervises, trains, or
hires a subordinate with deliberate indifference towards the possibility that deficient performance
of the task eventually may contribute to a civil rights deprivation.” Camilo-Robles v. Zapata, 175
F.3d 41, 44 (1st Cir. 1999).
Simply put, Davis fails to allege that Grossman had any personal involvement in the
Massachusetts State Retirement Boards’ denial of the lump sum pension payment to which he
asserts he was entitled, nor has he alleged any facts to support a Section 1983 claim against
Grossman in his supervisory capacity. Therefore, he has failed to state a claim that is plausible
on its face. Defendants’ motion to dismiss Davis’s Section 1983 claim against Grossman in his
individual capacity is granted.
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Conclusion
Defendants Commonwealth of Massachusetts and State Treasurer Steven Grossman’s
Motion to Dismiss (Docket No. 15), is granted.
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
DISTRICT JUDGE
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