The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
This matter comes before the Court on the District of Columbia's ("District") motion to dismiss or, alternatively, for summary judgment. Because the District did not include a "statement of material facts as to which the moving party contends there is no genuine issue"as required by Local Civil Rule 7.1(h) -- and did not attach any exhibits to its motion, the Court considers this only as a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn1 For the following reasons, the District's motion is granted in part and denied in part.
The plaintiffs in this case are six women and one man, all between the ages of forty and sixty-five, who lost their positions at the District's Department of Corrections as part of a reduction in force ("RIF") on September 28, 2001. In their complaint, Mses. Essie Jones, Alice Tolbert, Dana Garnett, Gradie McCray, Kahilta Miller and Leslie Hill claim discrimination on the basis of gender and age. Mr. Richard King claims that he was caught up in the RIF only to prevent an appearance of gender discrimination. He also advances a charge of age discrimination. The plaintiffs' lawsuit alleges violations of the United States Constitution, the Civil Rights Act -- specifically, Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 -- and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.
The District has filed a motion to dismiss. It argues that none of the plaintiffs has demonstrated exhaustion of administrative remedies under Title VII; that the plaintiffs have not sufficiently pled any municipal policy or practice to establish a prima facie violation of their constitutional rights; that the Fourteenth Amendment of the United States Constitution is not applicable to the District; and that the plaintiffs have not provided any comparative data to show a violation of the ADEA.
The plaintiffs have filed a memorandum in opposition to the District's motion to dismiss. They assert that the history of gender and age discrimination complaints against the Department of Corrections, without changes to the senior management of the department, demonstrates "both a formal, and an informal ad hoc policy of discrimination and retaliation with the Department of Corrections[.]" Plaintiffs' Opposition Brief at 3. They also attach "right to sue" letters from the Equal Employment Opportunity Commission ("EEOC") for Mses. Jones, McCray and Tolbert, which establish that those plaintiffs exhausted their administrative remedies.*fn2 The plaintiffs admit that the Fourteenth Amendment does not apply to the District. See Plaintiffs' Opposition Brief at 6; Bolling v. Sharpe, 347 U.S. 497 (1954).
Under Federal Rule of Civil Procedure 12(b)(1), the District may move the Court to dismiss this case for lack of subject matter jurisdiction. The plaintiffs bear the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). In deciding this 12(b)(1) motion, the Court may consider materials outside the pleadings as it deems appropriate to determine whether jurisdiction exists. See Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), on the other hand, challenges the adequacy of a complaint on its face, testing whether the plaintiffs have properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The plaintiffs need not plead the elements of a prima facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C. Cir. 2000). In deciding this 12(b)(6) motion, the Court "may only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191 (D.D.C. 2002).
There are two statutory prerequisites to filing a case under Title VII: (1) timely filing of a charge with the EEOC or a state agency, and (2) the EEOC's issuance of a "right to sue" letter with timely filing in court. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973); Kennedy v. Whitehurst, 690 F.2d 951, 961 (D.C. Cir. 1982). The District's motion to dismiss the plaintiffs' Title VII claims is based on the plaintiffs' failure to show that they exhausted their administrative remedies prior to filing this lawsuit (i.e., that they participated in the EEOC process culminating in the issuance of their respective "right to sue" letters). The plaintiffs have now submitted "right to sue" letters from the EEOC for Mses. Jones, McCray and Tolbert, which establish that those plaintiffs exhausted their administrative remedies. No evidence has been submitted for Mses. Garnett, Miller or Hill, or Mr. King, to show that they too exhausted their administrative remedies, and the letter submitted for Ms. Garnett is to the contrary.
Based on their newly-submitted "right to sue" letters, the Court finds that Mses. Jones, McCray and Tolbert have sufficiently demonstrated that they exhausted their administrative remedies. Accordingly, their Title VII claims will not be dismissed for lack of jurisdiction. Because Mses. Garnett, Miller and Hill, and Mr. King, have failed to make any showing of administrative exhaustion (i.e., a "right to ...