United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
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.
A. Factual Background
Plaintiff Igor Belyakov alleges that he is 53 years old, and a United States citizen of Russian origin. (ECF No. 4 ¶¶ 4, 10). 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"). (Id. ¶ 7; ECF No. 4-3). Between 2004 and 2010, Plaintiff filed three Equal 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." (Id. ¶ 5; ECF No. 4-5). 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).
(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. (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 1, 2013, Plaintiff filed a charge of discrimination with the EEOC, alleging retaliation and age discrimination. (Id. ). 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. (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 hiring decision - she didn't even know who [Plaintiff] was." (ECF No. 4-5). 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." (ECF No. 4 ¶ 18). Plaintiff cites, at considerable length, his qualifications for the position and compares them with those of the successful candidate, Dr. Cesar Boggiano, who he asserts was much younger than himself and unqualified for the position. (Id. ¶¶ 20-22). 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. 2), which was granted on December 18, 2013. (ECF No. 3). Plaintiff filed an amended complaint on December 23. (ECF No. 4). In his amended complaint, Plaintiff alleges age discrimination in violation of the Age Discrimination 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. (ECF No. 10). Defendant has since been properly served. (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 ...