United States District Court, D. Massachusetts
PHILIP R. GINDI, Plaintiff,
RONALD B. NORTON, Defendant.
MEMORANDUM & ORDER
NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE
Philip Gindi (“Gindi” or “plaintiff”)
alleges that defendant Ronald Norton (“Norton” or
“defendant”) committed, inter alia,
intentional and/or negligent infliction of emotional distress
and assault upon him. Norton's motion to dismiss and
Gindi's motion to remand are now pending before the
Court. For the reasons that follow, the motion to dismiss
will be allowed and the motion to remand will be denied as
Factual and Procedural Background
is a civilian employee of the United States Air Force at the
Hanscom Air Force Base (“Hanscom”) in Bedford,
Massachusetts. Norton was Gindi's branch chief and
supervisor during the time period at issue. Gindi's
claims arise from interactions that occurred while he was at
work. He alleges that Norton became very upset after he
responded to a work- related email. According to Gindi,
Norton “shouted” and “sh[ook] his
finger” in Gindi's face in an intimidating manner
and “threatened to . . . give him a bad review.”
This purportedly resulted in Gindi becoming “physically
ill” and requiring “medical intervention”.
October, 2015 Gindi filed a complaint in Massachusetts
District Court alleging 1) violation of the Massachusetts
Discrimination Statute, M.G.L. c. 151B, 2) discrimination
under the Civil Services Reform Act, 5 U.S.C. § 2301(b),
3) retaliation for whistle blowing and 4) eight common law
torts. Defendant subsequently removed the case to the United
States District Court for the District of Massachusetts.
Thereafter, defendant filed a statement of Carmen Ortiz, the
United States Attorney for the District of Massachusetts,
(“U.S. Attorney”) certifying that Norton was
acting within the scope of his employment during the events
at issue and substituting the United States as the defendant
for the common law tort claims.
has filed a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6) on the grounds that plaintiff has failed to state
claims upon which relief can be granted. Plaintiff has, in
turn, filed a motion to remand the case to state court and an
opposition to Norton's substitution of the United States
as a defendant. Those motions are the subject of this
Motion to Dismiss
survive a motion to dismiss for failure to state a claim
under Fed.R.Civ.P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for
relief that is actionable as a matter of law and
“plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 667 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible if,
after accepting as true all non-conclusory factual
allegations, the court can draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A
court may not disregard properly pled factual allegations
even if actual proof of those facts is improbable.
Id. Rather, the relevant inquiry focuses on the
reasonableness of the inference of liability that the
plaintiff is asking the court to draw. Id. at 13.
rendering that determination, a court may not look beyond the
facts alleged in the complaint, documents incorporated by
reference therein and facts susceptible to judicial notice.
Haley v. City of Boston, 657 F.3d
39, 46 (1st Cir. 2011).
moves to dismiss all 12 counts in the complaint. Plaintiff
opposes only the dismissal of Count VIII, intentional
infliction of emotional distress, Count IX, negligent
infliction of emotional distress, and Count XII, assault.
Accordingly, this memorandum will address only the three
defendant's view, the remaining counts should be
dismissed because they are 1) preempted by the CSRA, 2)
unripe for review and 3) exempted from the sovereign immunity
waiver under the Federal Torts Claims Act
(“FTCA”). Finally, defendant contends that