NANCY TORRESEN, Chief District Judge.
Before me are the Defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF Nos. 9, 10) and the Plaintiff's motion for leave to amend his Complaint pursuant to Rule 15(a). (ECF No. 15). For the reasons stated below, the Defendants' motions to dismiss are
The Proposed Amended Complaint ("
The interviews did not go well. Landry interviewed Brandt twice; both ended shortly after they began with Brandt being "escorted out of the office without any explanation." PAC ¶ 11. Nash interviewed Brandt multiple times. PAC ¶¶ 10-11. During one interview, Nash "was extremely offensive and argued with [Brandt] when he began sharing his background and qualifications." PAC ¶ 13. Although he has a master's degree, Brandt later received letters explaining that "he did not meet the minimum qualifications." PAC ¶ 10; MHRC Invest. Report 2 (ECF No. 1-1).
Landry and Nash are both white. PAC ¶ 10. At each interview, the other applicants waiting to be interviewed in the waiting area were all younger white men and women. PAC ¶ 14. Brandt was the only African-American around the age of 40 waiting to be interviewed. PAC ¶ 14. Younger white applicants who were not current MDOC employees were eventually hired for the positions. PAC ¶ 1. Other African-American MDOC employees told Brandt that they were made to feel inferior and unqualified because of their race when they interviewed with Landry and Nash. PAC ¶ 15. One African-American MDOC officer informed Brandt "that he had personally interviewed with Scott Landry and Lisa Nash ten times and was never offered a position." PAC ¶ 15. Another co-worker told Brandt that the MDOC "sought to hire younger employees and recent college graduates because they would be more likely to stay on the job longer." MHRC Invest. Report 2.
Because of his treatment at these interviews, Brandt wrote a letter to former-MDOC Commissioner Joseph Ponte. PAC ¶ 12. The letter specifically mentioned Landry. PAC ¶ 12. Ponte informed Brandt that he would look into the matter. PAC ¶ 12. Brandt also filed a complaint against the MDOC with the Maine Human Rights Commission ("
Later on, Landry became the Warden of the Maine Correctional Center. PAC ¶ 16. "Fearing further hostility, [Brandt] resigned from his position at the Maine Correctional Center to pursue a position with the Federal Bureau of Prisons." PAC ¶ 16. But two weeks after his resignation, Brandt reapplied for several positions at the Maine Correctional Center. PAC ¶ 16. He subsequently received a letter from Landry stating that "you will not be considered further for the correctional officer position because you lied on your employment application." PAC ¶ 16. Brandt claims that he did not lie on his employment application. See PAC ¶ 18. He also later learned that he was the only applicant who was subjected to a background investigation for that job. PAC ¶ 17.
On November 16, 2015, Brandt filed a four-count federal Complaint. Compl. (ECF No. 1). The named Defendants are Landry, Nash, and MDOC Commissioner Joseph Fitzpatrick.
The Defendants moved to dismiss the Complaint. Nash's Mot. to Dismiss (ECF No. 9); Me. Dept. Of Corrections & Landry's Mot. to Dismiss ("
Under Federal Rule of Civil Procedure 15(a), a plaintiff seeking to amend his complaint more than "21 days after service of a motion under Rule 12(b)" must obtain the written consent of the opposing party or leave of court.
In order to survive a motion to dismiss under Rule 12(b)(6), the "complaint `must contain sufficient factual matter . . . to state a claim to relief that is plausible on its face.'" Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The plausibility inquiry consists of two steps:
Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013) (citation omitted). Ultimately, the court "must `determine whether the factual allegations are sufficient to support `the reasonable inference that the defendant is liable.'" Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015) (quoting García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)).
Brandt is proceeding pro se, which weighs "in favor of a liberal reading" of his Complaint. Rodi v. S. New England Sch. Of Law, 389 F.3d 5, 13 (1st Cir. 2004). Accordingly, I interpret his pleadings in light of his supplemental submissions in order "to understand the nature and basis of his claims against these defendants." Wall v. Dion, 257 F.Supp.2d 316, 318 (D. Me. 2003).
Nash and Landry contend that the claims in the PAC are futile and must be dismissed because they fail to state plausible claims for relief. The MDOC does not oppose Counts One and Three of the PAC, but contends that the remaining claims fail.
These claims fail to state a claim because none of the statutes provide for individual liability. The First Circuit has held that "there is no individual employee liability under Title VII."
The MDOC contends that Brandt has failed to state a plausible claim under the ADEA. In order to make out a prima facie case of age discrimination in a failure to hire claim, a plaintiff must establish:
Brandt has alleged that he is over 40 years old and holds a master's degree. PAC ¶ 4; MHRC Invest. 2. He is also a minority, a veteran, and, at the time he was turned down for these positions, he was employed by the MDOC as a corrections officer. PAC ¶¶ 4, 7, 14. The MDOC encouraged applicants with these characteristics to apply for job openings. PAC ¶ 9. All of the other applicants that Brandt observed, however, were younger men and women who were not employed by MDOC. PAC ¶14. And these younger applicants were eventually hired for the positions Brandt sought. PAC ¶ 1. In addition, Brandt learned from a co-worker that the MDOC "sought to hire younger employees and recent college graduates because they would be more likely to stay on the job longer." MHRC Invest. 2. These allegations, taken as true and mindful that the Plaintiff is proceeding pro se, state a plausible claim under the ADEA.
The MDOC cites two cases where similar ADEA claims were dismissed. MDOC's Mot. to Dismiss 7-8 (citing cases). These cases, however, are distinguishable as neither involved a pro se litigant. It is well-established that "a pro se complaint `can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Mackenzie v. Nelson, No. 13-13081-DJC, 2015 WL 1308800, at *1 (D. Mass. Mar. 23, 2015) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Accordingly, the MDOC's motion to dismiss this claim is denied.
Turning to disability discrimination, in order to state a claim under the ADA or the Rehabilitation Act,
PAC ¶ 14. The PAC is devoid of any allegations regarding the nature of the Plaintiff's alleged disability. And the PAC neither alleges nor suggests that the Defendants discriminated against him on the basis of his alleged disability.
As the Defendants point out, the Plaintiff's VEOA claim fails because the statute only applies to federal agencies. The VEOA was enacted to "provide preference eligible veterans with a method for seeking redress where their veterans' preference rights have been violated in hiring decisions made by the federal government." Kirkendall v. Dep't of Army, 479 F.3d 830, 837 (Fed. Cir. 2007) (emphasis added). The VEOA provides that "[a] preference eligible [veteran] who alleges that an agency has violated such individual's rights . . . may file a complaint with the Secretary of Labor." 5 U.S.C. § 3330a(a)(1)(A). "[T]he term `agency' means an Executive agency . . . ." 5 U.S.C. § 3330(a). Because none of the Defendants are federal agencies, the VEOA is inapplicable.
Brandt seeks to amend his Complaint to add a claim under 42 U.S.C. § 1983 for "racial discrimination" against all of the Defendants. PAC ¶¶ 29-30. The Defendants insist that the PAC fails to state a plausible § 1983 claim because: (1) the Plaintiff has failed to plausibly allege causation, and (2) even if he had plausibly alleged causation, he has failed to link their conduct to race. MDOC Opp'n 9-10; Nash Opp'n 7-9.
Section 1983 provides remedies for individuals deprived of federal rights by state officials acting under color of state law. 42 U.S.C. § 1983. Unlike Title VII, the ADA, and the ADEA, which apply only to employers, § 1983 permits suit against persons in their individual capacities.
The Fourteenth Amendment provides that no State shall "deny to any person. . . the equal protection of the laws." U.S. Const. Amend. XIV. For pleading purposes, a plaintiff must "allege facts plausibly demonstrating that compared with others similarly situated, [he was] selectively treated . . . based on impermissible considerations such as race." Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 106 (1st Cir. 2015) (citation omitted); see also Rios-Colon v. Toledo-Davila, 641 F.3d 1, 4 (1st Cir. 2011). At this stage of the litigation, a plaintiff "need not establish causation." Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 111 (1st Cir. 2014) (citation omission). Because "`[s]moking gun' proof of discrimination is rarely available," a plaintiff need only show that causation is plausible as to each defendant. Id. (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 49 (1st Cir. 2012)); see also Ocasio-Hernández v. Fortuno-Burset, 640 F.3d 1, 16 (1st Cir. 2011).
Common law tort principles guide the causation inquiry under § 1983. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989). It is well established that "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead, "liability for public officials under section 1983 arises only if `a plaintiff can establish that his or her constitutional injury resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to condonation or tacit authorization.'" Grajales., 682 F.3d at 47 (quoting Ocasio-Hernández, 640 F.3d at 16). This standard can be satisfied by personal participation in the constitutional deprivation or "by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009).
With these background principles in mind, I turn to the allegations regarding each individual Defendant.
Landry first challenges causation, contending that the PAC does not allege that "[he] either made the decisions or was involved in the decisions not to hire Brandt for the probation officer and probation officer assistant positions." MDOC Opp'n 9. Landry supervised two of Brandt's interviews. Brandt was not offered either of these positions. PAC ¶ 10. Viewing the PAC in the light most favorable to Brandt, his allegations raise a plausible inference that Landry's conduct directly led to the alleged constitutional deprivation—the decision not to hire Brandt.
Even assuming that the PAC has plausibly alleged causation, Landry contends that "the PAC is devoid of any allegations that link his conduct to Brandt's race." MDOC Opp'n 10. But Brandt has alleged that he is African-American, holds a master's degree, and is a former veteran and MDOC employee. He was recommended to be interviewed by human resources seven times but all of his interviews went poorly. Both interviews with Landry ended shortly after they began. And although the MDOC encouraged minorities, veterans, and current employees to apply, white applicants who did not work for MDOC were eventually hired for these positions. At this early stage, the cumulative weight of these allegations, taken as true and drawing all reasonable inferences in Brandt's favor, support a plausible inference that Landry refused to hire Brandt because of his race.
Turning to Nash, in terms of causation, the PAC alleges that Nash was in charge of several of Brandt's interviews. See PAC ¶¶ 10-11. Brandt was not hired after any of these interviews. PAC ¶ 10. During one interview, Nash "was extremely offensive and argued with [Brandt] when he began sharing his background and qualifications with the interview panel." PAC ¶ 13. Like the allegations regarding Landry, it is similarly reasonable to infer that Nash was involved in the decision not to hire Brandt for these positions given her involvement in his interviews. And assuming the veracity of Brandt's well-pled allegations, they likewise support the reasonable inference that this decision was based upon race.
To the extent Brandt seeks monetary relief for his § 1983 claim against the MDOC, it is barred by the Eleventh Amendment because "[a] lawsuit against a state official in his official capacity is a lawsuit against the State, and is prohibited in federal court by the Eleventh Amendment." Nillson-Borrill v. Burnheimer, 505 F.Supp.2d 180, 181 (D. Me. 2007) (citing Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984)). Brandt, however, also seeks "[r]einstatement as a correctional officer at the Maine Correctional Center in Windham." PAC Prayer for Relief. Reinstatement is the type of prospective relief that is not barred by the Eleventh Amendment under Ex Parte Young, 209 U.S. 123 (1908). See Negrón-Almeda v. Santiago, 579 F.3d 45, 53-54 (1st Cir. 2009). Thus, Ex Parte Young allows Brandt to proceed with his § 1983 claim for prospective injunctive relief against Fitzpatrick in his official capacity. Accordingly, leave to amend is granted.
For the reasons stated above, the Court
The Defendants' motions to dismiss are otherwise
SO ORDERED.
