United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Pamela Bond has filed a pro se complaint asserting that the New Hampshire Board of Nursing ("NH Board") discriminated against her in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213. Bond's complaint is before this magistrate judge for preliminary review, pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915(e)(2).
Preliminary Review Standard
Upon preliminary review, pro se complaints are to be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). After reviewing a complaint filed by a party such as Bond, the magistrate judge may "report and recommend to the court that the filing be dismissed because... the action... fails to state a claim upon which relief may be granted." LR 4.3(d)(2)(A); see also 28 U.S.C. § 1915(e)(2)(A)(ii). To state a claim, Bond's complaint "must contain enough factual material to raise a right to relief above the speculative level." Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780 (1st Cir. 2014) (citation omitted), cert. denied, 135 S.Ct. 2380 (2015).
The facts recited in this section are drawn from Bond's complaint and various documents attached thereto. See Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 72 (1st Cir. 2014). Bond was born in 1950. She is, or has been, a Registered Nurse ("RN"). She was granted a license to practice as a registered nurse in New Hampshire by the New Hampshire Board of Nursing in 1990. She last practiced nursing in New Hampshire in 1991. Her New Hampshire RN license expired on or about December 30, 2008.
Bond also holds, or has held, nursing licenses from Connecticut, New York, and Maryland. Her Maryland license was issued in 1976 and expired on December 28, 2010. The Maryland Board of Nursing ("MD Board") revoked Bond's license on May 21, 2012. The MD Board based its decision, in part, upon Bond's refusal to undergo a psychiatric evaluation it ordered pursuant to Maryland state law.
In 2013, Bond asked the NH Board to reinstate her New Hampshire RN license. It refused to do so. In 2014, Bond repeated her request. In response, and in light of the decision of the MD Board to revoke Bond's license to practice in that state, the NH Board "commence[d] an adjudicatory/disciplinary proceeding against Ms. Bond... to show cause why the [NH] Board should reinstate Ms. Bond's New Hampshire RN license." Compl., Attach. 1 (Doc. No. 1-1), at 41. The NH Board identified "[t]he specific issue to be determined at [Bond's hearing] [to] include, but... not [be] limited to, whether the [NH] Board should impose the same sanctions set forth in the Final Order of Revocation of Registered Nurse License from the State of Maryland." Id. at 42. Bond refused to attend the NH Board's show-cause hearing. While Bond has not attached the decision that presumably resulted from her hearing, the court infers from the facts alleged that her New Hampshire RN license was revoked and has not been reinstated, and that the MD Board's decision was a ground for the NH Board's decision.
This action followed. In it, Bond asserts claims against the NH Board under both the ADEA and the ADA.
I. Age Discrimination
Bond has not stated a claim upon which relief may be granted under the ADEA. "[A]bsent a covered employment relationship, ADEA liability does not attach." Camacho v. P.R. Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004) (citations omitted). In Camacho, the First Circuit held that, for the purpose of ADEA liability, a governmental licensing agency was not an employer of those it licensed. Id. at 578 (citing favorably cases holding that "state licensing and regulatory agencies generally are not regarded as employers vis-a-vis those whom they license and regulate" (footnote omitted)). Because the NH Board was not Bond's employer, she has not stated a claim for relief under the ADEA. Consequently, her ADEA claim should be dismissed.
II. Disability Discrimination
Bond's ADA claim stands on a different footing, as there is authority for finding certain government agencies liable for disability discrimination, in the absence of an employment ...