The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff Sheila Gill has filed a lawsuit alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII, 42 U.S.C. § 2000e et seq. Pending before the Court is defendants' motion to dismiss the complaint. Upon consideration of the motion, response and reply thereto, and applicable law, the Court grants in part and denies in part defendants' motion.
Plaintiff was hired as a classroom teacher for the D.C. public schools in September 1979. Compl. ¶ 6. She became a school counselor in September 1998. Id.
In September 2003, plaintiff worked as a school counselor at Thurgood Marshall Extended Elementary School. Id. ¶ 7. At all times between September 2001 and June 2005, Eileen Susan Wilson was the principal of the school. Id. ¶ 8. In September 2003, plaintiff alleges that she was moved from her counseling office at the school into a common area that was not conducive to plaintiff's assigned duties of counseling students. Id. ¶¶ 9-10. Plaintiff further alleges that her office was given to a math resources teacher who left Montgomery County Schools after being cited for willful neglect and misconduct in office. Id. ¶ 9.
On June 30, 2004, plaintiff was terminated from her position as school counselor. Id. ¶ 17. Plaintiff was then reinstated as school counselor on January 14, 2005 without backpay and without compensation for lost benefits. Id. Defendants claimed budget shortfalls as a reason for firing plaintiff but plaintiff alleges that grant money separate from the school budget paid for the school counselor position. Id. ¶ 19.
Plaintiff claims that the school's actions were the result of age discrimination. Plaintiff was 54 years old at the time she filed her complaint in this Court. Id. ¶ 2. She indicates that Principal Wilson noted plaintiff's gray hair on several occasions and suggested that plaintiff go to the principal's stylist. Id. ¶ 11. Plaintiff also points to comments by the principal referring to the vice principal as "Grandma" because of her age and ideas. Id. ¶ 12. Finally, plaintiff alleges the hiring and retention of other individuals under 40 and indicates that experienced counselors in other schools were also terminated while younger, less experienced counselors kept their jobs. Id. ¶¶ 14-18.
Plaintiff filed her complaint in this Court on January 12, 2007. Plaintiff alleges age discrimination under ADEA and Title VII. Plaintiff names the District of Columbia, the Mayor of the District, and Superintendent of D.C. Public Schools as defendants. On March 9, 2007, defendants filed a motion to dismiss.
Defendants have moved to dismiss plaintiff's complaint pursuant to Rules 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. Specifically, defendants move to dismiss for the following reasons: (1) plaintiff failed to effectuate proper service on the District of Columbia and/or the Mayor; (2) age is not a protected class under Title VII; (3) the Mayor and Superintendent are not proper defendants; (4) a move from one office space to another is not actionable under ADEA; and (5) there is an inference against discrimination when the same actor fires and then rehires the same employee.
Under Rule 12(b)(5) of the Federal Rules of Civil Procedure, a court may dismiss a complaint without prejudice for ineffective service of process. See Fed. R. Civ. P. 12(b)(5); Simpkins v. Dist. of Columbia Gov't, 108 F.3d 366, 368-69 (D.C. Cir. 1997). "[T]he party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions of Rule 4 and any other ...