OPINION & ORDER
On April 1, 2013, pro se Plaintiff Chuan Wang (“Plaintiff’) filed a Complaint against Samuel J. Palmisano (“Palmisa-no”), Martin Schroeter (“Schroeter”), Mark Loughridge (“Loughridge”), and J. Randall MacDonald (“MacDonald”) (collectively “Defendants”), who at the relevant times were, respectively, the President, Chief Executive Officer, and Chairman; the Treasurer; the Chief Financial Officer and a Senior Vice President; and another Senior Vice President of International Business Machines Corp. (“IBM”). (See Compl. ¶¶2-5 (Dkt No. 1); Am. Compl. ¶¶ 2-5 (Dkt. No. 28).)
I. Background
A. Factual History
The following facts come from Plaintiffs Amended Complaint and, for purposes of resolving Defendants’ Motion, will be accepted as true. Plaintiff, who is Chinese American, is a 56-year-old American citizen. (See Am. Compl. ¶ 12.) Plaintiff was educated in China through his undergraduate degree and also holds a PhD degree. (Id. ¶¶ 13, 100.) In addition, Plaintiff holds two U.S. patents that are relevant to “storage-area-networked computer storage technology.” (Id. ¶ 100.)
On February 1, 2008, Plaintiff received an email from Vishwadeep Sharma on behalf of Defendants soliciting Plaintiff for work. (See id. ¶ 14.) Artech Information Systems (“Artech”) arranged for Plaintiff to be interviewed by a team from IBM, and that interview occurred on February 22, 2008. (See id. ¶ 15.) Artech informed Plaintiff that he had the IBM job offer, and, “as requested [by] the employer,” Plaintiff provided a copy of his passport, which shows his birthdate of March 7, 1956, thereby indicating Plaintiffs age. (Id. ¶¶ 16-17.) Artech told Plaintiff that his position would be full time, exclusively for IBM, and would last for at least one year. (See id. ¶ 18.) In addition, Artech forwarded Plaintiff a proposed employment, agreement, under which Plaintiff would be required to “surrender his ’rights to civil litigation’ and agree [to a] proposed Arbitration provision [under which] Plaintiff must agree to resolve employment disputes in New Jersey by the provisions of New Jersey Permanent Statutes Section 2A:24-1.” (Id. ¶¶ 16-17.) In addition, the employment agreement provided that:
If employee is terminated by the client for cause or employee- departs this assignment for any reason prior to the expiration of the probationary trial period or end of the project, Employee shall reimburse Artech for the amounts paid to employee as a draw during the probationary trial period. In that connection, employee acknowledges and understands that Artech will receive no payment for services performed hereunder by Employee from the proposed client if the proposed client terminates Employee during the probationary trial period.
(Id. ¶ 17.)
Plaintiff refused to enter into the agreement, contending that it would violate his rights under various employment laws, including the Massachusetts Wage Act (“Wage Act”) and the Fair Labor Standards Act (“FLSA”). (Id.) With regard to overtime, Plaintiff was told that any overtime work would be deemed as voluntary work without .pay, unless it were approved in advance by his IBM supervisor. (Id. ¶ 18.) Artech told Plaintiff that he was an “exempt employee” because his work was “computer related” and that, as a result, he was not entitled to overtime pay for any overtime work performed. (Id. ¶ 19.)
Between February and April 2008, Plaintiff provided more than 158 hours of service to Artech. (Id. ¶ 20.) From March 11 to March 28, 2008, Plaintiff worked full-time and exclusively for IBM under its direction and control, reviewing and evaluating more than a thousand of Novartis
On; March 28, 2008, Plaintiff alleges, that his work was terminated by Defendants because he refused to give up his rights under the Wage Act and FLSA. (Id. ¶¶ 23-24.) On April 4, 2008, Plaintiff submitted an unpaid wages request to Artech via email for the 112 regular-hour services that he performed. (Id. ¶ 23.) Plaintiffs request did not seek pay for the overtime hours that he worked “[b]ecause he relied. on Artech’s representations and the fact that his overtime works, [sic] were not approved in advance.” (See id.). Plaintiff alleges that Defendants, Artech, and/or IBM repeatedly refused to pay Plaintiff the wages that he earned, despite Plaintiff filing complaints against Defendants with government agencies and writing a demand letter to Defendants for unpaid wages. (See id. ¶¶ 27-29.) •
Plaintiff has been unemployed and has received no unémployment compensation since April 2008 because Defendants made no contribution to unemployment insurance for Plaintiff. (See id. ¶¶ 25-26.) Between- sometime thereafter and 2012, Plaintiff submitted applications for “about a hundred” jobs with IBM. (See, e.g., id. ¶¶ 30, 40,)
Plaintiff maintains that, of the job applications he submitted, “IBM repeatedly rejected each and every [one] ... for more than [four] years until 2012.” (Id. ¶ 34.) For instance, on January 21, 2009, Alonna Ferris of CDI told Plaintiff via e-mail that IBM did not ask CDI to extend a job offer to Plaintiff. (Id) On another occasion, on November 29, 2011, after receiving Plaintiffs job applications, Kelli Jordan, on behalf of Defendants, sent Plaintiff an e-mail with a subject line that read “[y]our correspondence to Sam Palmisano of IBM” which did not include a job offer and which effectively rejected Plaintiffs applications. (Id. ¶ 31.) On yet another occasion, Plaintiff — presumably unsuccessfully — interviewed for five separate positions with IBM managers Stephen Wheatley, Gina Koppel, Ramakrishna Talkad, Janet Hamilton, and Linda Foster, all of which had similar job requirements as the work that Plaintiff had performed for IBM in March 2008 and for which Plaintiff consequently believed he was well qualified. (See id ¶¶ 32-33.) Decisions to reject Plaintiffs work applications were made by IBM, rather than CDI. (Id ¶ 34.)
B. Procedural History
Plaintiff has filed a number of claims against Defendants in both state and federal court as well as with various state agencies. First, on April 14, 2008, Plaintiff filed a wage complaint with the Office of
Plaintiff brought his first lawsuit in connection with his work for IBM the following month, when, on Fébruary 12, 2009, he filed a complaint against IBM and Artech for unpaid wages and retaliatory termination against Defendants in Massachusetts state court. (See Am. Compl. ¶ 36; Defs.’ Mem. 6; Defs.’ Mem. Ex. 9 (Mar. 18, 2009 State Court Am. Compl.).)
On November 25, 2009, Plaintiff returned to the courts to file another complaint, which he amended on January 10, 2010, against IBM, Palmisano, Lough-ridge, as well as Artech and its president, Ranjini Poddar (“Poddar”), in Massachusetts Superior Court. (See Am. Compl. ¶42; Am. Compl. Attach. 2 (State Court Docket); Defs.’ Mem. 7; Defs.’ Mem. Ex. 10 (Jan. 21, 2010 Am. Compl.) ¶¶ 1-6.) That complaint alleged 11 causes of action arising out of the same events that form the basis for Plaintiffs current Complaint. (See Defs.’ Mem. Ex. 10 (Jan. 21, 2010 Am. Compl.) ¶¶ 50-126.) On September 30, 2010, the court granted defendants’ motion to dismiss for lack of personal jurisdiction with respect to all claims against the individual defendants but denied the motion with respect to IBM and Artech. (See Am. Compl. If 43; Defs.’ Mem. 7; Defs.’ Mem. Ex. 11 (Superior Court Docket), at unnumbered 7-8 (indicating that the defendants’ motion to dismiss was granted as to Palmi-sano, Loughridge, and Poddar).) On October 19, 2010, Plaintiff filed a notice of his intent to file a motion to request a separate and final judgment with respect to the individual defendants. (See Am. Compl. ¶ 43; Am. Compl. Attach. 1 (Suppl. to Mem. in Opp’n to Defs.’ Mot. To Dismiss Compl. (“Pl.’s Suppl. Mem.”)) 5.)
After the remand, the defendants proposed a settlement of $17,500 to Plaintiff, in exchange for which Plaintiff would dismiss the action with prejudice. (See Defs.’ Mem. Ex. 14 (Oct. 1, 2014 Appeals Court Decision), at 2.)
On January 4, 2011, after the Massachusetts state court dismissed Plaintiffs claims against Palmisano, Loughridge, and Poddar, but before it granted summary judgment to IBM and Artech, Plaintiff filed yet another lawsuit — this one, in the United States District Court for the District of Massachusetts — asserting 19 causes of action arising out of his employment relationship with IBM, Artech, and CDI. (See Am. Compl. ¶ 44; Defs.’ Mem. 8; Defs.’ Mem. Ex. 15 (PL’s District of Massachusetts Second Am. Compl.) ¶¶ 45-193.) In addition to Palmisano, Loughridge, and Poddar, Plaintiffs amended complaint in the District of Massachusetts action named Schroeter, MacDonald, Robert C. Weber, Jesse J. Greene, Jr., and CDI as defendants. (See Defs.’ Mem. Ex. 15 (PL’s District of Massachusetts Second Am. Compl.) ¶¶ 2-9.) On December 9, 2011, the District Court dismissed all claims against the defendants and denied Plaintiffs motion to file a fourth amended complaint naming IBM and Artech as defendants. (See Defs.’ Mem. 9; Defs.’ Mem. Ex. 16 (Dec. 9, 2011 D. Mass. Order), at 4, 13.) Plaintiff appealed, and, on December 10, 2012, the United States Court of Appeals for the First Circuit affirmed. (See Am. Compl. ¶ 46; Defs.’ Mem. 9; Defs.’ Mem. Ex. 17 (Judgment of First Circuit).)
Next, on January 9, 2013, Plaintiff filed a second complaint in the District of Massachusetts, this time, against IBM, Artech, and CDI. (Defs.’ Mem. 9; see also Defs.’ Mem. Ex. 18 (Plaintiffs second District of Massachusetts complaint).) Plaintiff brought seven causes of action, all relating to Plaintiffs relationship with IBM, Ar-tech, and CDI. (See Defs.’ Mem. Ex. 18 (Plaintiffs second District of Massachusetts complaint) ¶¶ 46-115.) The District Court granted IBM’s and Artech’s motion to dismiss. (Defs.’ Mem. 9; see also Defs.’ Mem. Ex. 19 (Docket from Second District of Massachusetts action) at no. 26). The First Circuit affirmed, and the United States Supreme Court denied Plaintiffs petition for a writ of certiorari. (Defs.’ Mem. 9; see also Defs.’ Mem. Exs. 20-21.)
II. Discussion
A. Standard of Review
Defendants move to dismiss Plaintiffs Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
Lastly, because Plaintiff is proceeding pro se, the’ Court must construe his pléadings liberally and “interpret them to raise the strongest arguments that they suggest.” Maisonet v. Metro. Hosp. & Health Hosp. Corp.,
B. Analysis
As with its predecessor, Defendants move to dismiss Plaintiffs Amended .Complaint on several grounds, including that some of Plaintiffs claims are time barred and that the remaining causes of action fail to state claims upon which relief can be granted., (See Defs.’ Mem. 12-20.) Defendants aiso argue that Plaintiffs claims are barred by the doctrines of claim and issue preclusion. (See id. at 21-23.)
1. Claims That Accrued in March 2008
As with Plaintiffs original Complaint, most of the claims in the Amended Complaint relate to . the work that Plaintiff performed for IBM and his subsequent termination, all of which occurred in or before March .2008. (See Amended Compl. ¶¶20-23.)
a. Applicable Limitations Periods and Accrual Dates
Plaintiffs claims brought under the FLSA are subject to, at most, a thnee-year statute of limitations. See Parada v. Banco Indus. De Venez., C.A., 753 F.3d 62, 70 (2d Cir.2014) (“The FLSA provides a two-year statute of limitations on actions to enforce its provisions, ’except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.’” (quoting 29 U.S.C. § 255(a))). This two-year — or, in the ease of willful violations, three-year— statute of limitations applies to Plaintiffs FLSA wage-payment claim, see D’Arpa v. Runway Towing Corp., No. 12-CV-1120,
For the reasons that follow, as before, a three-year statute of limitations applies to Plaintiffs state-law wage-payment and retaliatory-discharge claims and a two-year statute of limitations to Plaintiffs state overtime-wage claims. Where, as here, a federal court exercises diversity jurisdiction over a claim, that court “applies the forum state’s statute of limitations provisions, as well as any provisions that govern the tolling of the statute of limitations.” See Vincent v. Money Store,
As in its last Opinion and Order, the Court finds that, under New York law, Plaintiffs claim accrued in Massachusetts because Massachusetts was where Plaintiff resided at the time his injuries, which were economic, occurred. See Landesbank Baden-Württemberg v. RBS Holdings USA Inc.,
Finally, for purposes of calculating the timeliness of Plaintiffs Complaint, the Court notes that Plaintiffs wage claims accrued each time Defendants allegedly failed to pay him at the end of’a pay period. See Nakahata v. N.Y.-Presbyterian Healthcare Sys., Inc.,
b. Equitable Tolling
“The lapse of a limitations period is an affirmative defense that a defendant must plead and prove,” but “a defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion if the defense appears on the face of the complaint.” Staehr v. Hartford Fin. Servs. Grp., Inc.,
Plaintiff argues that his claim is, in fact, tolled under the doctrine of equitable tolling. (See Pl.’s Mem. 3-5; Pl.’s Suppl. Mem. 3-8.) Equitable tolling “allows a district court to toll the statute of limitations where, inter alia, a plaintiff initially asserted his rights in the wrong forum.” Polanco v. U.S. Drug Enf't Admin.,
Here, Plaintiff asserts a number of supposedly extraordinary circumstances that allegedly prevented him from asserting his complaint in the correct forum. To begin, Plaintiff stresses that he is a “pro se” plaintiff with “no legal training: [or] relevant knowledge.” (See Pl.’s Mem. 4; PL’s Suppl. Mem. 4 (“[A]s a pro se [plaintiff, [Plaintiff] has no legal knowledge and training in laws.”).) Additionally, Plaintiff argues that “Defendants intentionally and purposefully opposed Plaintiffs Motion for Separate and Final Judgment as to dismiss the Defendants on ground of lack of personal jurisdiction that prevented him from filing his appeal on time.” (See Pl.’s Mem. 4 (brackets and internal quotation marks omitted).) Next;- Plaintiff argues that the fact that “Plaintiff asserted his rights in the ’wrong’ forums was an ’extraordinary circumstance’ .... ” (See PL’s Suppl. Mem. 3.) Plaintiff also argues that he had to “to commence his complaint with the Massachusetts Attorney-General office, rather [than] the court,” and that he “had to file his complaint 90 days after the. filing of a complaint with the attorney general.” (See id. (internal quotation marks omitted).) In addition, Plaintiff argues, that the costs of asserting his claims in New York were “unaffordable”, and that his limited financial resources constitute an extraordinary circumstance. (See id. at 4.) Relatedly, Plaintiff argues that Defendants took advantage of their greater financial resources to delay the proceedings in court as. long as possible, for instance, by forcing Plaintiff to serve them twice in the Massachusetts state court proceedings. (See-id.) Finally, Plaintiff argues that he could not assert his rights in a New York court given that “Plaintiffs home is over 200 miles away from the New York” and that “[t]here is no direct public transportation from his home to the court.” (See id.)
Although Plaintiff identifies a number of obstacles which may well render pursuing his claim in New York more challenging than in Massachusetts, none is sufficiently “extraordinary” to justify invoking the doctrine of equitable tolling. First, by itself, a plaintiffs “pro se status . ¡. does not merit equitable tolling.” See Smith v. McGinnis,
Next, Plaintiffs suggestion that asserting claims in the wrong forum can, itself, amount to sufficiently extraordinary circumstances to warrant equitable tolling fails; otherwise, equitable tolling would be a “cure-all for an entirely common state of affairs” rather than “a rare remedy to be applied in unusual - circumstances.” See Amendola v. Bristol-Myers Squibb Co.,
Even if Plaintiff could establish that extraordinary circumstances militate in favor of equitable tolling, Plaintiff still did not “pass with reasonable diligence through the period [he] seeks to have tolled.” See Patraker,
Plaintiffs argument misses the mark ori both factual' and legal grounds. First, Plaintiff had notice that he filed his claims in the wrong court when the superior court dismissed his claims for lack of personal jurisdiction on September 30, 2010. See DeGrate v. Broad. Music; Inc., No. 12-CV-1700,
Moreover, even if the Court applied equitable tolling to exclude from the limitations period the time during which Plaintiffs state and federal actions in Massachusetts were pending, the Complaint would still be untimely. As discussed, Plaintiff filed the instant Complaint approximately five years after his claims accrued. Within that period, approximately 10 months elapsed between
Plaintiff, for his part, submits a few alternative calculations which purport to show that his claims would be timely if equitable tolling did apply to this case. (See Pl.’s Suppl. Mem. 7-8.)
c. Other Tolling Arguments
In addition to his argument that he is entitled to equitable tolling, Plaintiff seems to , suggest his Complaint is timely because he filed suit earlier in Massachusetts’ state and federal courts. (See Pl.’s Mem. 3-4 (arguing that Defendants’ argument. that Plaintiffs claims are time barred “has no merit” and that “the complaint against the ■ Defendants has essentially not stopped in the ’wrong’. forum until this case was filed oh April 1, 2013”).) To the extent Plaintiff intends to
With regard to Plaintiffs state-law claims, “New York’s ’savings’ statute allows 'a plaintiff to refile claims within six months of a timely prior action’s termination for reasons cither than the merits or a plaintiffs unwillingness to prosecute the claims in ¿ diligent manner.” Norex Petroleum Ltd. v. Blavatnik,
2. Retaliatory Refusal-To-Hire Claims
In addition to the six previously discussed counts, Plaintiff brings two claims — one under FLSA (Count Five), the other under Massachusetts’ Wage Act (Count Six) — alleging that Defendants refused to hire Plaintiff in retaliation for exercising his rights under those laws. (See Am. Compl. ¶¶ 71-93.) Defendants argue that these counts fail to state claims upon which relief can be granted for two , reasons: First, because they are not Plaintiffs “employer” within the meaning of the relevant statutes; and, second, because no well-pleaded factual allegations plausibly suggest retaliation. (See Defs.’ Mem. 15-20.) Because the Court agrees with the latter proposition, there is no need to reach the question of whether Defendants are Plaintiffs employer.
Under the FLSA’s anti-retaliation provision, “it- [is] unlawful for any person ... to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” See 29 U.S.C. § 215(a)(3). Similarly, Massachusetts’ Wage Act provides that “[n]o employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under [the Wage Act].” See Mass. Gen. Laws ch. 149, § 148A. To allege a claim under the FLSA, “a plaintiff must plead facts showing a prima facie case of retaliation, namely: (1) participation in protected activity known to the defendant^]; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Salazar v. Bowne Realty Assocs., L.L.C.,
With respect to the causal connection requirement, Plaintiff may specifically allege such a connection either “directly, by alleging facts of a retaliatory animus against him,” or “indirectly, either by showing a temporal relationship in which the protected activity was followed closely in time by discriminatory treatment, or by other circumstantial evidence.” McManamon v. Shinseki, No. 11-CV-7610,
“FLSA retaliation claims are subject to the three-step burden-shifting framework established by [McDonnell Douglas Corp. v. Green,
In this sense, and in the context of the causation element of the prima facie ease, Plaintiff specifically “must allege facts that could establish a causal connection between [his] protected activity and Defendant[s’] refusal to interview or to hire [him].” Ayazi,
Here, it., appears that Plaintiff rests his entire argument concerning causal connection on the basis of temporal proximity. (Pl.’s Mem. 6-8 (arguing that, because “Plaintiffs job applications were made continuously without ... stop - between 2008 and 2011” but “were rejected each and every [time] by ... Defendants,” “’protected activity’ and ’adverse actions’ quali[f]y [as] ’temporally proximate’ as to causal connection”); PL’s Suppl'. Mem. 11 (arguing that Defendants’ rejections of his job applications “show, at least indirectly, a temporal relationship between ... Defendants[’] refus[al] to hire Plaintiff and ... Plaintiff’s] complain[ts] [that] his rights' were violated under the Massachusetts Wage Act and the FLSA in the state courts”). Such an argument, if made at the-summary judgment stage, might prove unavailing. See, e.g., El Sayed v. Hilton Hotels Corp.,
Rather than specifying which protected activities are supposed to be temporally proximate to which adverse employment actions, Plaintiff instead reasons that, because (1) his “protected activities ... were continued without stop since 2008” and (2)
Unfortunately, it is not particularly clear when Plaintiff set out on his multi-year quest to supposedly secure a job with IBM. Apparently, however, he began at least as early as May 2008. (See Am. Compl. ¶ 34 (“IBM repeatedly rejected each and every work application made by [Pjlaintiff ... for more than 4 years until 2012.”); id. ¶ 40 (“Plaintiff made many job applications to IBM and Defendants for about a hundred works sought by IBM, repeatedly for more than 4 years until 2012.”); Pl.’s Suppl. Mem. 11 (“A few examples of the dates of said job applications
With regard to the first proposition, there is a strong case to be made that Plaintiff has, in essence, claimed to have applied for jobs earlier than April 14. First, Plaintiff says that he applied to “over a dozen [jobs] a year[ ] from 2008 to 2012.” (Pl.’s Suppl. Mem. 11.) Among the examples of job applications he submitted, Plaintiff lists just one for 2012, which he says he submitted on January 11, 2012. (Pl.’s Suppl. Mem. 11; PL’s Mem. 7.) Assuming, therefore, as seems implicit in Plaintiffs statements, that he concluded his job search in early 2012, and crediting his assertion that he applied for jobs “repeatedly for more than 4 years until 2012,” it is reasonable to infer that Plaintiff began his job search promptly after his March 28, 2008 termination. (See Am. Compl. ¶ 30.)
But even if Plaintiffs very first re-application were his May 6, 2008 submission, the April 14 complaint still could not adequately ground Plaintiffs retaliatory failure-to-hire claims. That is so because Plaintiff must establish “participation in protected activity knowm to the defendants],” Salazar,
a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.
Id. (internal quotation marks omitted) (quoting Tuper v. N. Adams Ambulance Serv., Inc.,
With all that in mind, the Court must ask whether “there was a final judgment on the merits in the prior adjudication,” Kobrin,
Turning to the issue of privity, Massachusetts law provides some support for the idea that privity between a company and an officer could arise in a closely-held corporation. See Eight Arlington St., LLC v. Arlington Land Acquisition-99, LLC, No. 061928BLS1,
Lastly, with respect to the issue of the identity of the issues, intuition perhaps
With respect to the former, it simply defies logic that, if a court determined -one failure to hire was not retaliatory, a subsequent failure to reverse course and hire the former plaintiff would be'’retaliatory, not just in spite of but indeed because of the court’s decision, which did not — and, of course, could not — adjudicate future personnel decisions. The bar for finding identical issues may be high, but it is not impossibly so. Cf. Dugan,
Turning to the second point, the fact that Plaintiff now sues under- a second statute does not make the issue different. Indeed, Massachusetts case law suggests that this distinction does not compel the conclusion even that claims are different, much less that the issues are different. See McDonough v. City of Quincy,
All of this, however, is perhaps a detour, although one, which, hopefully, assures a pro se plaintiff that his claims have been thoroughly heard- and considered, even if ultimately found legally lacking. However, at its core, the fundaniental problem with Plaintiffs retaliatory failure-to-hire claim is that, as pled, it simply is not plausible. Tó be sure, at this stage, Plaintiffs claim need not establish the full elements of a prima facie claim. See McManamon,
3. Age Discrimination Claims
In addition to the foregoing claims, Plaintiff brings two claims for age discrimination — one under the ADEA and one under Massachusetts state law. With regard to the former, as discussed in the last Opinion, courts in the Second Circuit have consistently held that the ADEA does not impose liability on individuals. See Palumbo v. Carefusion 2200, Inc., No. 12-CV-6282,
With respect to Plaintiffs state age-discrimination claims, the Massachusetts statute Plaintiff invokes imposes civil liability on a private-sector employer who “refuse[s] to hire or employ ... [an] individual” “because of the age of [that] individual.” Mass. Gen. Laws ch. 151B, § 4(1B). This language is, in all relevant respects, nearly identical to the ADEA’s language making it “unlawful for an employer ... to
In this context, “[t]o survive a motion to dismiss” Plaintiff “must plausibly plead that the circumstances surrounding an adverse employment action give rise to an inference of age discrimination.” Kirkweg v. N.Y.C. Dep’t of Educ., No. 12-CV-2635,
As with Plaintiffs original complaint, the Amended Complaint offers only barebones and conclusory allegations. The Amended Complaint merely alleges that Plaintiff submitted “applications for ... more than a hundred [jobs]” with IBM. (See Am. Compl. ¶ 109.) Despite Plaintiffs qualifications, “IBM and Defendants rejected each and every [one of] Plaintiffs applications ....” (Id.) The Amended
With regard to Plaintiffs assertion that “[a] determining factor in the rejection of Plaintiff for each and every of more than a hundred jobs sought by IBM was his age,” (Am. Compl. ¶¶ 101, 111), this assertion is essentially the same as his assertion in the original complaint that “[a] determining factor in the rejection of Plaintiffs applications was his age,” (see Compl. ¶ 111), which this Court found was insufficient, see Wang v. Palmisano,
With respect to Plaintiffs claim that IBM offered these positions to “persons significantly younger and/or significantly less qualified tha[n] Plaintiff,” (see Am. Compl. ¶¶ 101, 111), the Court notes that Plaintiffs claim is utterly conclusory, “naked,” and “devoid of further factual enhancement.” See Iqbal,
III. Conclusion
For the above reasons, the Court grants Defendant’s Motion To Dismiss. This dismissal is with prejudice. While “[a] pro se complaint should not be dismissed without the Court granting leave to amend at least once,” here the Court has already granted Plaintiff leave to amend. Nielsen v. Rabin,
SO ORDERED.
Notes
. Plaintiff also names John Does 1-20 and Jane Does 1-20 as defendants. In the last Opinion in this case, the Court noted that "the Complaint does not otherwise refer to these defendants” and cautioned that "Plaintiff should be prepared to make specific allegations with regard to these defendants in future pleadings, or he may risk dismissal of all claims against them.” (Op. & Order 2 n.1 (Dkt. No. 25).) See also Wang v. Palmisano,
. As with his original Complaint, Plaintiff does not name IBM as a Defendant in the caption to the Amended Complaint, but he does list it — along with Artech Information Systems and CDI Corporation — as a party in the body of the Amended Complaint. (See Am. Compl. ¶¶ 6-8.)
. As will be discussed later, it is not exactly clear when Plaintiff began applying for these hundred-or-so jobs.
.The Court will draw Upon dockets and filings from Wang’s other actions as necessary to bring clarity to the. prior proceedings, because they are “documents [Wang] had either in [his]'possession or [of which Wang] had knowledge ... and upon which [he] relied in bringing suit” and, consequently, are appropriate for the Court to consider in deciding Defendants' Motion. See Cortec Indus., Inc. v. Sum Holding L.P.,
. Defendants, for their part, suggest that the complaint was filed with the Massachusetts Attorney General on August 18, 2008. (See Defs.' Mem. 6 n.3; see also Defs.' Mem. Ex 5 (Nonpayment of Wage and Workplace Complaint Form).)
. In his Amended Complaint, Plaintiff asserts that “[o]n [or] about February 12, 2009, a complaint for unpaid wages and retaliatory termination was filed against the Defendants in Massachusetts Concord District Court, and was dismissed later on ground [sic] of improper jurisdiction.” (See Am. Compl. ¶ 36.) Defendants attach an exhibit to their Memorandum in’ support of their Motion to Dismiss which they indicate is the amended complaint from that case. (See Defs.’ Mem. 6; Defs.' Mem, Ex. 9 (Mar. 18, 2009 State Court Am. Compl.).) However, as far as the Court can' tell from the exhibit, there is no indication that the original complaint from that action was filed on February 12, 2009, or that it was originally brought in Concord District Court. (See Defs.’ Mem. Ex.,9 (Mar. 18, 2009 State Court Am. Compl.).) Moreover, the Court notes that the Defendants in this Action were not actually parties to that case.
.Attached to Plaintiff's amended complaint is an additional document entitled “Supplement to Memorandum in Opposition to Defendants' Motion to Dismiss Complaint,” which appears to present additional arguments against the Defendant’s already-granted motion to dismiss. (See Am. Compl. Attach. 1.) To the •extent that this document raises arguments relevant to the instant Motion as well, the Court will consider them here.
. Plaintiff’s Amended Complaint indicates instead that summary judgment was granted on August 4, 2011, apparently because that is the date upon which the assistant clerk of court signed the notice of dismissal. (See Am. Compl. ¶ 43; Defs.’ Mem. Ex. 12 (Middlesex Superior Court Opinion) at unnumbered 13.)
. Exhibit 13 can also be found at Wang v. Int'l Bus. Machs. Corp.,
. "’Rescript’ is the term used for the appellate court’s order directing the lower court’s further conduct of the case.” Massachusetts Court System, Appeals Coun Decisions, http:// www.mass.gov/courts/court-info/appealscourt/ appeals-court-help-center/appeals-courtdecisions.html (last visited Jan. 2, 2016).
. Exhibit 14 can also be found at Wang v. Int’l Bus. Machs. Corp.,
. In one place, Plaintiff does say that/‘[i]n February, March, and April of 2008, Plaintiff provided services of more than 158 hours for Artech.” (Am. Comp. ¶ 20.) It does not appear, however, that Plaintiff alleges that he actually did additional work in April', after he was terminated.
. It is bears mentioning that, in 2014, Massachusetts amended its statute of limitations (i) to incorporate a provision into ch. 149, § 150 under which a plaintiffs claims for wage-payment violations under ch. 149, § 148 or for retaliatory discharge under ch. 149, § 148A are tolled from the date upon which the plaintiff files a complaint with the attorney general until the date upon which the plaintiff receives written authorization from the. attorney general that the plaintiff may sue, and (ii) to increase the statute of limitations under ch. 151, § 20A for overtime claims under ch. 151, § 1A from two to three years. See 2014 Mass. Legis. Serv. .Ch. 292. These changes in the law cannot save Plaintiff's claims, however, because the statutes of limitations had already lapsed when Plaintiff brought his Complaint in 2013, and this Court will not assume that the legislature intended to revive Plaintiffs already time-barred claims. See In re Enter. Mortg. Acceptance Co., LLC, Sec. Litig.,
. It appears that the March 7, 2013 date to which Plaintiff refers is, in fact, the date the superior court received the appeals court’s rescript remanding the case to the superior court. (See Pl.'s Mem. 4 (citing "Exhibit A, Docket Entry 44”); Pl.’s Mem. Ex. A, at 12 (reflecting that Paper No. 44 is the ”[r]escript received from Appeals Court”).)
. Even if equitable tolling applied because of these other filings, the Court finds that it would not run through Plaintiff's appeals to the Massachusetts Appeals Court and the First Circuit. "Equitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled.” Johnson,
. Plaintiff's calculations are not entirely clear to the Court; however, it appears that Plaintiff offers the following two scenarios: First, Plaintiff argues that, "[i]f the equitable tolling applies [to] this case, the total elapsed time would be less than 9 months ...,” including (1) a period of “less than 1 month from 28 March 2008 when the Defendants discharged Plaintiff to 14 April 2008 when Plaintiff filed his complaint in Massachusetts Attorney General Office,” plus (2) a period of less than seven months between April 14, 2008 and November 25, 2009, when Plaintiff filed suit in Massachusetts state court, less (3) “90 days required by the Massachusetts Wage Act, Massachusetts General Laws Chapter 149 § 148.” (See Pl.'s Suppl. Mem. 7.) Alternatively, Plaintiff argues that, "[e]ven only considering the Massachusetts Superior Court case that began on November 25, 2009 and ended on February 28, 2013 when the Massachusetts Supreme Judicial Court denied Plaintiff’s petition for Further Appellate Review ..., the total elapsed time would be less than 21 months_” (See. id.)
. It warrants stressing that this is a particularly logical outcome in the context of a failure-to-hire case, where, as courts have noted, the timing of when the defendant undertakes the relevant adverse action is very often a function of the plaintiff’s choice of when to apply. See Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1179 (10th Cir.2000) (noting that “[t]he decision not to hire an individual almost always occurs shortly after a job application has been received or an interview has been conducted,” and that "[a] close temporal proximity will almost always occur in failure-to-hire cases because employers naturally make hiring decisions soon after receiving applications and conducting interviews”); Alvarado v. Manhattan Worker Career Ctr., No. 01-CV-9288,
Although not currently the law of the Second Circuit and not necessary to resolve the instant Motion, there is much to recommend a rule of law providing that causation inferred from temporal proximity alone is insufficient to render a claim of retaliatory failure-to-hire plausible at the motion-to-dismiss stage. See Riddle v. Citigroup, No. 13-CV-6833,
. Plaintiff does say, in one place, that "after a complaint against the Defendants [was] filed in Massachusetts Superior Court on 11/25/2009, [he] made many job applications for about a hundred works [sic] sought by IBM, repeatedly for more than 4 years until 2012.” (See Am. Compl. ¶ 30.) However, in light of this sentence’s self-contradictory language and the other references in the Amended Complaint and elsewhere to Plaintiff having applied for over four years concluding at some point in 2012 (which would compel a start date in 2008 at the latest), it is fair to conclude that Plaintiff did not actually intend to suggest he waited until after November 25, 2009 to apply.
. It is likely that some references to Defendants in the Amended Complaint were not meant to refer to the Defendants, named in this case but Artech or others. (Compare Am. Compl. ¶ 11 (claiming Plaintiff "filed complaints against the Defendants ... with ... [the] Massachusetts Attorney General office on April 14, 2008”) and id. ¶ 83 (also referring to April 14, 2008 action as being brought against. Defendants) with Defs.' Mem. Ex. 4 (copy of letter that Plaintiff apparently sent to the Office of' the Attorney General but not specifically referring to any of the Defendants named in this .case).) In fact, in his letter to the Office of the Massachusetts Attorney General, Plaintiff stated that he was not lodging a complaint against IBM (because of a fear of retaliation). See Defs.’ Mem. Ex. 4. (April 14, 2008 Letter to Attorney General), at-2. But because the Court is mindful of its obligation to "interpret the[] [pleadings] to raise the strongest arguments that they suggest,” Maisonet,
Additionally, Plaintiff's assertions that Defendants became “involved” in or "aware” of, (see, e.g., Am. Compl. ¶¶ 72, 83, 95, 105), litigation growing out of his April 14, 2008 complaint cannot substitute for facts alleging that Plaintiff's complaint was "known” to them at the time that he filed it, cf. Turley v. ISG Lackawanna, Inc.,
. Of course, there is case law that indicates that general corporate knowledge is all that is required to satisfy the knowledge requirement. See Gordon v. N.Y.C. Bd. of Educ.,
. As an aside, some language in Plaintiff’s filings could be taken to suggest that he engaged in other protected activities beyond those specifically discussed in the Amended Complaint. (See Pl.’s Mem. 8 ("Plaintiff’s complaints, as 'protected activities’ at least under Section 148A, were continued without stop since 2008.”).) Without details as to what those protected activities were, to whom they were directed, and when they occurred, they are simply too conclusory .to factor in to the analysis. See supra note 19. By the same logic, Plaintiff’s stray assertion that he "wrote a demand letter, to Defendants for the unpaid wage,” .(Am. Compl. ¶ 28), is not enough.
Also, although Plaintiff indicates that his second complaint with the Office of the Mas
. Massachusetts law also has a claim preclusion doctrine, which "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action.” Kobrin,
. Additionally, case law makes clear that "the issue decided in the prior adjudication must have been essential to the earlier judgment,” Kobrin,
. It merits passing mention that Palmisano and Loughridge were parties to this Action; however, they were dismissed by the trial court for want of personal jurisdiction, a decision the Appeals Court upheld but modified to be without prejudice. (See Defs.’ Mem. Ex, 13, at 3 (July 25, 2012 Appeals Court Opinion).) Although “the question of what effect [an] earlier finding of lack of [personal] jurisdiction [over individual defendants] has on the application of res judicata” when those individual defendants seek to avail themselves of res judicata is, perhaps, “not ... easy,” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, No. 95-CV-12320,
. For that same reason, to the extent that Plaintiff also intends to support his retaliatory failure-to-hire claims with conclusions concerning Defendants’ intentions or motivations, (see Am. Compl. ¶¶ 78-80; 90-92), the Court similarly finds them insufficient for the reasons stated in the last Opinion in this case. Indeed, as then, the Amended Complaint’s allegations concerning Defendants' retaliatory motives are exactly the sort of conclusory, ‘ ‘the-defendant-unlawfully-harmed-me accusation” that the Court need not accept when evaluating the Defendants' Motion to Dismiss. See Iqbal,
. Defendants argue that, like the ADEA, the anti-age discrimination provisions of Mass. Gen. Laws, ch. 15IB, § 4(1B) do not impose liability on individuals. (See Defs.’ Mem. 14 (citing Welgoss v. Dep’t of Transp., Civil Action No. 2012-1549-C,