Plaintiff Sutton, a fifty-four year-old, filed a complaint with the EEOC, alleging race and age discrimination, after being denied a promotion to the positions of Supervisory Correctional Treatment Specialist and Correctional Programs Officer. The EEOC issued him a right-to-sue letter on September 25, 1991.
Plaintiff Richard Lamb, a thirty-six year-old, applied for a promotion to Correctional Program Officer in March of 1990, "and was not selected while black males were." Complaint at 3, P 3(b). He was also denied a promotion to Supervisory Correctional Treatment Specialist on September 21, 1990. He filed an EEOC complaint and the EEOC issued him a right-to-sue letter on September 25, 1991.
Plaintiff Alex Theriault, a forty-two year old, "applied for promotion to Correctional Program Officer . . . and was not selected while black males were." Complaint at 4, P 3(d). He also was denied a promotion to Supervisory Correctional Treatment Specialist. He filed a complaint with the EEOC and the EEOC issued him a right-to-sue letter on September 25, 1991.
As to plaintiffs' claims under § 1981, Title VII, and the ADEA, the Court finds that plaintiffs have failed to allege facts sufficient to support a prima facie case. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), the Supreme Court established a framework allocating the burdens of proof in Title VII cases. This same framework is also used for cases under § 1981, see Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1232 (D.C. Cir. 1984), and the ADEA, see, e.g., Coburn v. Pan American World Airways, Inc., 711 F.2d 339, 342 (D.C. Cir.) (citing Cuddy v. Carmen, 694 F.2d at 857), cert. denied, 464 U.S. 994 (1983). Under the McDonnell Douglas framework, the prima facie case for alleging discrimination in promotion is a showing that (1) plaintiff "belongs to a protected group," (2) plaintiff "was qualified for and applied for" the promotion, (3) plaintiff "was considered for and denied the promotion," and (4) "other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff's request for promotion was denied." Daye v. Harris, 655 F.2d 258, 262 n.11 (D.C. Cir. 1981) (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)).
All four plaintiffs have alleged facts sufficient to survive a motion to dismiss as to prong three of the McDonnell Douglas test; all plaintiffs have alleged that they were considered for promotions and denied. Plaintiffs have arguably also alleged facts sufficient to establish prong one.
However, as to prongs two and four, plaintiffs' complaint fails to state a prima facie case.
As to prong two, only plaintiff Murray alleges facts sufficient to satisfy McDonnell Douglas. He alleges that he was found "highly qualified." Complaint at 2, P 3(a). However, as to prong four, neither Murray nor Sutton allege that someone outside the allegedly protected group was promoted.
Therefore, plaintiffs' complaint fails to allege a prima facie case and can be dismissed for failure to state a claim. Cf. Whitacre v. Davey, 890 F.2d 1168, 1170 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 3301 (1990) ("If a plaintiff alleges a prima facie case, the complaint may not be dismissed for failure to state a claim.").
For the reasons stated, the Court finds that the complaint fails to state a claim on which relief can be granted and dismisses the complaint without prejudice. Fed. R. Civ. P. 12(b)(6). The Court will allow plaintiffs 28 days from the date of this Order in which to file an amended complaint to attempt to correct the deficiencies in the original complaint, if such an amended complaint can be made in good faith. See C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 360-61 (2d. ed. 1990) ("A dismissal under Rule 12(b)(6) generally is not final or on the merits and the court normally will give plaintiff leave to file an amended complaint.").
Accordingly, it hereby is
ORDERED, that the complaint is dismissed without prejudice. It hereby further is
ORDERED, that plaintiffs may file an amended complaint within 28 days of the date of this Order, if plaintiffs can allege the necessary elements in good faith.
Stanley S. Harris
United States District Judge
Date: OCT 26 1992