Taite v. Bridgewater State Univ.

236 F.Supp.3d 466

Brenda TAITE, Plaintiff,

v.BRIDGEWATER STATE UNIVERSITY, Board of Trustees, and Erin DeBobes, Defendants.

No. 16–CV–10221–PBS

United States District Court, D. Massachusetts.

Signed February 17, 2017

Brenda Taite Status, Pro se.

Thomas Vincent DiGangi, Massachusetts Attorney General's Office, Boston, MA, for Defendant.

REPORT AND RECOMMENDATION REGARDING DEFENDANTS' MOTION TO DISMISS (Dkt. No. 19)

DONALD L. CABELL, U.S.M.J.

Brenda Taite ("the plaintiff") interviewed for a position with Bridgewater State University ("Bridgewater") but was passed over in favor of an applicant who reportedly was less qualified. Proceeding pro se , the plaintiff alleges age and race discrimination and has brought a six-count complaint against Bridgewater and one of its administrators, Erin DeBobes ("DeBobes") (collectively "the defendants"). The defendants have moved to dismiss the complaint; the plaintiff opposes the motion. (Dkt. Nos. 19, 21). For the reasons discussed below, I recommend that the motion to dismiss be allowed.

I. RELEVANT BACKGROUND

A. The Job Interview ¹

On or about March 30, 2015, the plaintiff applied for the position of Staff Associate, Equal Opportunity/Title IX Investigator with Bridgewater State University. (Compl. ¶ 6). The qualifications for the position included an undergraduate or graduate degree in a relevant discipline, and a minimum of three years of experience in complaint, incident, and/or grievance investigation and resolution. (Compl. ¶ 7). A Juris Doctorate or advanced degree was preferred, as was experience in a higher education setting. (Compl. ¶ 7). The plaintiff satisfied these requirements; she has a Bachelor of Arts degree, a Master of Science degree, and a Juris Doctorate. She also at the time had over seven years of experience investigating complaints and allegations of violations of Title IX and other federal programs. She also had over eight years of experience working in higher education settings, including in particular several years in the field of equal employment opportunity. (Compl. ¶ 8).

On or about April 7, 2015, Bridgewater briefly interviewed the plaintiff by telephone. Following the interview Bridgewater invited the plaintiff to come to the campus for an in-person interview. That interview took place on May 7, 2015. Conducted in segments, the plaintiff presented a writing sample, gave a presentation on national origin discrimination, and participated in a mock investigation interview. (Compl. ¶¶ 9–10). Following the interview, DeBobes told the plaintiff that she would hear from them in two weeks. In or around the middle of June 2015, Bridgewater's Human Resources Office sent the plaintiff a letter informing her that the university had selected someone else for the position. (Compl. ¶ 11).

The plaintiff is African–American and over the age of 50.² By contrast, all of the members of the selection committee were Caucasian and under 40. Similarly, the candidate Bridgewater selected for the position was Caucasian and aged 25 or less. Moreover, unlike the plaintiff, the selected applicant did not have relevant work experience and had never before worked in the field of Affirmative Action. (Compl. ¶¶ 10–13).

B. The Administrative Discrimination Complaint

In June of 2015 the plaintiff filed an administrative charge with the Massachusetts Commission Against Discrimination ("MCAD"). (Compl. ¶ 16). By virtue of a work sharing agreement between the MCAD and the Equal Employment Opportunity Commission (EEOC), the complaint was also filed automatically with the EEOC. (Dkt. No. 21, p. 9).

On January 19, 2016, the plaintiff submitted a form letter to the MCAD requesting that her complaint be withdrawn so that she could bring a "private right of action in civil court." Her letter referred to her complaint by both its respective MCAD and EEOC docket numbers. On January 28, 2016, The MCAD responded in what appears to also be a form letter, to the plaintiff and counsel for Bridgewater, as follows:

Dear Parties:

The Commission has received notice that the Complainant intends to file a civil action in Superior Court in the above-referenced matter. Pursuant to M.G.L. Chapter 151B, § 9..., the complaint before the Commission is hereby dismissed without prejudice as to the merits.

Please be advised that pursuant to 804 CMR 1.15(2), the parties are required to serve upon the Commission's General Counsel a copy of any final order obtained in court. In addition, any party filing an appeal of such final order is required to serve a notice of appeal upon the Commission's General Counsel.

Please be advised that the Complainant is barred from subsequently brining a complaint on the same matter before this Commission.

It is undisputed that the plaintiff did not seek or receive a comparable right-to-sue letter from the EEOC. The plaintiff initiated this action by way of complaint, on February 8, 2016, and filed an amended complaint on May 26, 2016. (Dkt. Nos. 1, 26).

C.The Amended Complaint

The amended complaint alleges via its introduction that "Bridgewater State University and Erin DeBobes in her individual and official capacity" refused to hire the plaintiff because of her age and race.³

Count I alleges that the defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626e.

Count II alleges that the defendants violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.

Count III alleges that the defendants violated the plaintiff's constitutional right to "make and enforce contracts," in violation of 42 U.S.C. § 1981.

Count IV alleges that the defendants violated the Massachusetts Civil Rights Act ("MCRA").

Count V alleges that the defendants violated 42 U.S.C. § 1983.

Finally, Count VI alleges that the defendants violated the Fourteenth Amendment. The plaintiff does not articulate the underlying conduct, alleging only that she "incorporates the allegations of [the preceding 36 paragraphs] as if fully incorporated set forth [sic] herein."

II. ANALYSIS

"On a motion to dismiss, the court must view a pro se plaintiff's allegations liberally and apply a less stringent standard to a pro se pleading than to a complaint drafted by counsel." Woods v. Covidien LP , No.15–30094–MGM, 2016 WL 2733102, at *2 (D. Mass. May 10, 2016) citing Rodi v. Southern New England School of Law , 389 F.3d 5, 13 (1st Cir. 2004). Nevertheless, "pro se plaintiffs must still comply with the applicable procedural and substantive rules of law, and dismissal remains appropriate when the complaint fails to suggest an actionable claim." Woods v. Covidien LP , No.15–30094–MGM, 2016 WL 2733102, at *2 (D. Mass. May 10, 2016). Moreover, it bears noting here that the plaintiff has a law degree and some experience as an attorney.

The defendants advance various arguments supporting dismissal, some substantive, some procedural. Among them, they contend that all of the counts against DeBobes should be dismissed pursuant to Fed. R. Civ. P. 12(b)(4) because the plaintiff failed to properly serve her. They also contend that the six claims either fail to state a claim under Fed. R. Civ. P. 12(b)(6), or fail for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). The Court considers each argument and the appropriate legal standard in the context of the counts in which they are raised.

The Complaint Should be Dismissed Against DeBobes in Her Individual Capacity for Insufficient Process

DeBobes moves to dismiss the entire complaint against her for insufficient process, pursuant to Fed. R. Civ. P. 12(b)(4). She argues that the plaintiff failed to effect proper service because no one served her in hand, or at her home, or through someone authorized to accept service on her behalf. See Fed. R. Civ. P. 4(e)(2) ("[A]n individual...may be served by: delivering a copy of the summons and of the complaint to the individual personally [or] by leaving a copy of each at the individual's dwelling or usual place of abode...or delivering a copy of each to an agent authorized by appointment or by law to receive service of process.").

As a point of clarification, the proper vehicle to request dismissal for lack of compliance with Rule 4(e)(2) is Rule 12(b)(5). Rule 12(b)(4) attacks the form of the process, that is, the content of the summons, whereas Rule 12(b)(5) challenges the mode of the delivery of the process, or the lack of delivery of the summons and the complaint. See 5B Fed. Prac. & Proc. Civ. § 1353 (3d ed. 2016). In that regard, a return of service generally serves as prima facie evidence that service was validly performed. Blair v. City of Worcester , 522 F.3d 105, 111 (1st Cir. 2008). The defendant has the initial burden of showing service was improper, and must be specific in identifying the specific manner in which the plaintiff has failed to satisfy the service provision utilized. See 2 Moore's Federal Practice § 12.33[1] (3d ed.2013). Once challenged, the burden shifts to the plaintiff to prove proper service. Rivera–Lopez v. Municipality of Dorado , 979 F.2d 885, 887 (1st Cir. 1992).

The docket reflects that a summons was executed as to DeBobes on March 11, 2016. (Dkt. No. 8). The accompanying "Process Receipt and Return" reflects that the U.S. Marshal Service served a copy of the complaint on the "Office of General Counsel" at 131 Summer Street in Bridgewater, MA, which an Internet search of Bridgewater's official site reveals to be at least one official address for the university.⁴ (Dkt. No. 8). DeBobes does not articulate how this presumptively valid service fell short of the requirements of Rule 4(e)(2). DeBobes does not argue, for example, that Bridgewater's General Counsel was not authorized to accept service on her behalf, a proposition which does not a priori appear to be facially unreasonable. Moreover, as the plaintiff notes in her opposition, the law firm representing Bridgewater's Board of Trustees acknowledged receipt of the summons and complaint, indicated they had referred...