United States District Court, D. Massachusetts
LESTER M. RINGLER, Plaintiff,
LEIDOS, INC. and DAVID DARKOW, Defendants.
OPINION AND ORDER
A. O’Toole, Jr. United States District Judge.
plaintiff, Lester M. Ringler, originally filed this action
against the defendants Leidos, Inc. and David Darkow in
Massachusetts Superior Court. Counts I, II, and III of the
complaint are against Leidos for discrimination in violation
of Massachusetts General Laws Chapter 151B on the basis of
disability, perceived disability, and unlawful retaliation.
Counts IV, V, VI present the same three claims against Darkow
as an individual. Count VII is against Darkow for the state
law tort of intentional interference with contractual and
advantageous relationships. Before the Court are
Leidos’s motion to compel arbitration and dismiss (dkt.
no. 12) and Darkow’s motions to substitute the United
States as a party (dkt. no. 18) and to dismiss (dkt. no. 20).
Motion to Compel Arbitration and Dismiss
seeking to compel arbitration must demonstrate “that a
valid agreement to arbitrate exists, that the movant is
entitled to invoke the arbitration clause, that the other
party is bound by that clause, and that the claim asserted
comes within the clause’s scope.” Intergen
N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 2003). In
assessing whether an agreement to arbitrate exists, courts
“should apply ordinary state-law principles that govern
the formation of contracts.” First Options of Chi.,
Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
seeks to enforce an arbitration agreement that the plaintiff
signed on November 14, 2008. Leidos submitted a copy of the
signed agreement. There is no dispute that Ringler’s
claims against Leidos fall within the scope of the proffered
arbitration agreement. Ringler instead argues that Leidos may
not enforce the agreement because it is not a signatory to
the agreement, which was made with Science Applications
International Corporation (“SAIC”).
argument is meritless. Leidos’s exhibits supporting its
motion show that SAIC changed its name to Leidos, Inc. in
2013. It did not change its corporate existence or form.
the corporate existence has begun, even though the
stockholders, directors and corporate name may change, the
corporation retains the same rights, liabilities and
responsibilities until dissolved.” Seagram
Distillers Co. v. Alcoholic Beverages Control
Comm’n, 519 N.E.2d 276, 281 (Mass. 1988)
(quotation omitted); see also Roach v. Navient Sol.
Inc., 165 F.Supp. 3d 343, 349 (D. Md. 2015) (allowing
motion to compel arbitration where Navient Solutions, Inc.
(NSI) was formerly known as Sallie Mae, Inc. (SMI) because
“[w]hatever rights SMI may have held necessarily accrue
to NSI” as “they are one and the same”).
The corporation now named Leidos has the same contract rights
that were held by it when it was named SAIC. The arbitration
agreement binds Ringler.
plaintiff also opposes the motion to compel arbitration
because Leidos did not make any demand for arbitration in the
administrative proceedings that occurred prior to the
commencement of this litigation. He argues it therefore
should be barred from compelling arbitration for equitable
reasons including estoppel and laches. Those issues are for
the arbitrator to decide. Sleeper Farms v. Agway,
Inc., 506 F.3d 98, 103 (1st Cir. 2007) (citing Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 24–25 (1983)). Ringler’s arguments
against enforcing the agreement to arbitrate are not
Motion to Substitute and Motion to Dismiss
Westfall Act protects federal employees from civil suits
“for injury or loss of property, or personal injury or
death arising or resulting from the negligent or wrongful act
or omission of any employee of the Government while acting
within the scope of his office or employment.” 28
U.S.C. § 2679(b)(1). “Upon certification by the
Attorney General that the defendant employee was acting
within the scope of his office or employment at the time of
the incident out of which the claim arose, ” the action
“shall be deemed an action against the United States .
. . and the United States shall be substituted as the party
defendant.” Id. § 2679(d)(1). A plaintiff
challenging such a certification bears the burden to prove
under state law that the defendant acted outside the scope of
his employment during the alleged misconduct. See Day v.
Mass. Air Nat’l Guard, 167 F.3d 678, 685 (1st Cir.
1999); Lyons v. Brown, 158 F.3d 605, 609–10
(1st Cir. 1998). “If the certification stands, the
defendant federal employee is immune from suit on claims
arising from certified conduct, and the United States is
substituted as the defendant with regard to those
claims.” Lyons, 158 F.3d at 606–07.
Massachusetts law, an employee’s conduct is within the
scope of employment if it (1) “is of the kind he is
employed to perform”; (2) “occurs substantially
within the authorized time and space limits”; and (3)
“is motivated, at least in part, by a purpose to serve
the employer.” Wang Lab., Inc. v. Bus. Incentives,
Inc., 501 N.E.2d 1163, 1166 (Mass. 1986).
United States, through the United States Attorney for this
district, filed a certification pursuant to 28 U.S.C. §
2679 stating that Darkow was “acting within the scope
of his employment with the federal government at the time of
the incidents alleged in plaintiff’s complaint.”
(Reply Br., Ex. A (dkt. no. 26-1).) Ringler does not
challenge that general proposition, but rather argues that
harmful tortious behavior cannot be considered to be acts
within the legitimate scope of employment. He contends that
intentional discrimination and retaliation actions could
never legitimately serve an employer and therefore must be
considered outside the scope of his duties. Accepting this
would essentially negate the Westfall Act’s purpose in
substituting the federal employer for the alleged tortfeasor
employee. “The scope of employment is ‘not
construed restrictively’ and intentional torts lie
within the scope of employment in a ‘variety of
situations.’” Gindi v. Norton, 216
F.Supp. 3d 199, 204 (D. Mass. 2016) (quoting Com. v.
Jerez, 457 N.E.2d 1105, 1108 (Mass. 1983)).
Darkow’s actions were done within the scope of his
employment as one of Ringler’s supervisors.
VII, a tort claim, is not actionable against Darkow because
of the valid certification that Darkow’s actions were
within the scope of his employment, so the United States is
the proper defendant. See 28 U.S.C. §
2679(d)(2). The employee defendant for whom the United States
is substituted is absolutely immune from a tort claim arising
out of his employment, even if suit is also precluded against
the United States by statutory proscription. Suits for
interference with contract rights constitute one categorical
exclusion. Id. § 2680(h); see Strunk v.
Odyssey Consulting Grp., Ltd., Civil Action No.
10-cv-12174-DJC, 2011 WL 3567025, at *6 (D. Mass. Aug. 11,
2011) (dismissing a tortious interference with advantageous
relationships and contractual relations claim against the
United States, as substituted for its employee, because the
United States is immune). “When the United States
retains immunity from suit, certification disarms plaintiffs.
They may not proceed against the United States, nor may they
pursue the employee shielded by the certification.”
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427
the employment discrimination claims alleged in Counts IV, V,
and VI purport to be brought under Massachusetts Gen. Laws
ch. 151B. These claims cannot be pursued against the United
States because it has not consented to suit under state-law
discrimination statutes. “A waiver of the Federal
Government’s sovereign immunity must be unequivocally
expressed in the ...