The opinion of the court was delivered by: Reggie B. Walton United States District Judge
In this action filed pro se, the plaintiff claims that the defendants did not hire him as a Master Plumber because of his race, African American, and his age, then 55. He sues Landis Construction Corporation ("Landis Corp.") and its Chief Executive Officer, Ethan Landis ("Landis"), under 42 U.S.C. § 1981(b) (2006), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to e-17 (2006), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (2006). The plaintiff also sues Landis in his individual capacity under section 1981. See Plaintiff's Complaint That the Defendants' Violated Title 42 Sec. 1981(b); and, Title 29 Sec. 621 & 626 Because They Failed or Refused to Hire Him Because of His Age and His Race, That Being African American ("Compl.") (Count II).
Currently pending before the Court is the Defendants' Motion for Summary Judgment or to Dismiss ("Defs.' Mot.") [Dkt. No. 7], which the plaintiff has opposed [Dkt. No. 9]. Upon consideration of the parties' submissions and the entire record, the Court will grant the defendants' motion to dismiss as to the Title VII and ADEA claims and will enter summary judgment for the defendants on the section 1981 claim.
The plaintiff alleges that on April 30, 2006, he applied for a Master Plumber position that the defendants had advertised in The Washington Post. Compl. ¶ 7. He interviewed with Landis on May 6, 2006, at the Takoma Park office of Landis Corp. Id. ¶ 9. Landis, "a white male in his thirties or forties," id. ¶ 10, "represented to the [p]laintiff that he was competent to perform the administrative part of the job description; but . . . had concerns about whether the [p]laintiff could perform the physical labor because 'you're old.' " Id. ¶ 11. However, pursuant to Landis' request, the plaintiff prepared "a proposed budget for a new plumbing department" and sent Landis a copy by e-mail on May 8, 2006. Id. ¶¶ 12-13. Ultimately, the defendants "rejected the [p]laintiff's application for employment . . . [but] kept the position open and continued to seek a person of [p]laintiff's qualifications." Id. ¶ 15. On October 30, 2006, the defendants "hired a white Master Plumber for the position; but, denied the [p]laintiff notice and the opportunity to reapply for the position. . . ." Id. ¶ 16.
On June 13, 2007, the plaintiff lodged a discrimination charge against Landis Corp. with the United States Equal Employment Opportunity Commission ("EEOC"), claiming race and age discrimination. Defendants' Reply to Opposition to Motion for Summary Judgment or to Dismiss ("Defs.' Reply"), Exhibit ("Ex.") (Charge of Discrimination). On August 24, 2009, the EEOC dismissed the charge as untimely and informed the plaintiff of his right to sue within 90 days of his receipt of the dismissal notice. Compl. Ex. (Dismissal and Notice of Rights).
The record reflects that the Clerk of Court first received the plaintiff's complaint dated October 23, 2009, on October 27, 2009, but this latter date was subsequently stricken, see Dkt. No. 1, and changed to reflect the same date the Clerk first received the plaintiff's application to proceed in forma pauperis, November 19, 2009. See Dkt. No 2. This case was deemed formally filed on December 14, 2009, after the Court granted the plaintiff's in forma pauperis motion on December 13, 2009. Id.
The Defendants' Motion to Dismiss the Title VII and ADEA Claims The defendants move to dismiss the Title VII and ADEA claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 They assert that the plaintiff failed to exhaust his administrative remedies by filing a timely charge with the EEOC and failed to file a timely complaint with the Court. In addition, the defendants assert that "[t]here is no jurisdiction over the individual defendant, Mr Landis," under Title VII or the ADEA, Defs.' Mot. at 3-4, but the plaintiff is not suing Landis in his individual capacity under either of those statutes. See Compl. (Count II) ¶¶ 19-26 (asserting individual capacity claim under section 1981(b)).
Contrary to the defendants' assertion, the record establishes that the complaint was timely submitted with the plaintiff's in forma pauperis application on November 19, 2009, five days before expiration of the 90-day filing period. See Guillen v. Nat'l Grange, 955 F. Supp. 144, 145 (D.D.C. 1997) (finding a Title VII litigant "not responsible for the administrative delay associated with the Court's review of petitions to proceed in forma pauperis. . . . [T]he presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day period of limitations . . . ") (citations omitted); accord Washington v. White, 231 F. Supp.2d 71, 75-76 (D.D.C. 2002) (citing cases). Dismissal based on this action having been untimely filed therefore is not warranted.
The defendants correctly assert, however, that the plaintiff's untimely charge with the EEOC forecloses judicial review. Under Title VII, "[a] charge . . . shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. . . ." 42 U.S.C. § 2000e-5(e)(1). Similarly, the ADEA precludes the filing of a civil action "until 60 days after a charge . . . has been filed with the [EEOC]," which "shall be filed . . . within 180 days after the alleged unlawful practice." 29 U.S.C. § 626(d)(1). If a charge is not filed within the time permitted, "the employee may not challenge that practice in court." Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 624 (2007) (citing 42 U.S.C. § 2000e-5 (f)(1)) (superseded on other grounds by the Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5); Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998) ("Before suing under either the ADEA or Title VII, an aggrieved party must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident.") (citations omitted).
In his discrimination charge signed and dated June 13, 2007, the plaintiff stated that "on approximately 5/8/06, I learned that I was unjustly denied selection to this position," and he also listed that date as the date when the discrimination occurred.*fn2 Defs.' Reply Ex. But even if, as the plaintiff now contends, the alleged unlawful practice occurred on October 30, 2006, when the defendants filled the position with a white Master Plumber, see Memorandum of Law in Support of the Plaintiff's Motion to Deny the Defendant's Motion to Dismiss ("Pl.'s Mem.") at 8, his administrative charge was still lodged beyond the 180-day filing period.*fn3 Because the plaintiff filed an untimely charge with the EEOC, the Court will grant the defendants' motion to dismiss the Title VII and ADEA claims on the ground that the plaintiff failed to exhaust his administrative remedies.
The Defendants' Motion for Summary Judgment on the ...