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Charlie A. Fennell, Jr v. Aarp

March 16, 2011

CHARLIE A. FENNELL, JR., PLAINTIFF,
v.
AARP, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Charlie A. Fennell, Jr. ("Fennell"), a fifty-three-year-old black male, commenced this action pro se against his former employer, AARP,*fn1 alleging violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., in connection with the termination of his employment from AARP. Presently before the Court is AARP's [5] Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ("Motion to Dismiss"), which Fennell has opposed. Based upon the parties' submissions, the relevant authorities, and the record as a whole, the Court shall DENY AARP's Motion to Dismiss in its entirety.

I. BACKGROUND

When presented with a motion to dismiss for failure to state a claim, the district court must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct. 2064 (2010). Furthermore, where the non-movant is proceeding pro se and has filed multiple submissions in opposition to the motion to dismiss, the district court should endeavor to read the party's filings together and as a whole. Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). Therefore, in setting forth the factual background relevant to the present motion, the Court shall rely upon all the well-pleaded factual allegations set forth in Fennell's pleadings and memoranda. See Compl. for Declaratory Relief ("Compl."), Docket No. [1]; Pl.'s Mem. to Oppose Def.'s Mot. to Dismiss Case ("Pl.'s Opp'n"), Docket No. [10].

Fennell, self-identifying as a "53 year old adult black male," had a long tenure with AARP, a total of nearly twenty-two years. Compl. ¶¶ 1-2, 4. He began his career in July 1987 as a Pre-Press Operator; by the time of his termination-in March 2009-he had risen through the ranks to become Manager, Print Services, a position he occupied for ten years. Id. ¶ 5. Fennell's job performance throughout his employment was "impeccable," and he was repeatedly praised in his performance evaluations for "using AARP resources wisely." Pl.'s Opp'n at 3.

In his capacity as Manager, Print Services, Fennell reported to Patricia Peterson ("Peterson"), Director of Operations. Compl. ¶ 5. Peterson, like her predecessors, directed Fennell to accept personal print requests from AARP employees. Id. ¶ 6. Indeed, Peterson expressly informed Fennell that he had the authority to approve personal print jobs requiring up to one thousand copies, though he would require her approval or the approval of another superior before commencing a print job exceeding that threshold. Id. Peterson's statement in this regard was consistent with AARP's long-standing, unwritten policy governing personal print services. Id. Fennell's superiors were aware of that policy and frequently asked him to complete personal print jobs on their behalf. Id. It was, in short, "standard practice." Pl.'s Opp'n at 2.

Sometime in 2007, Fennell was asked to meet with Gary Weisharr ("Weisharr"), Senior Audit Manager, who was conducting an inquiry into the use of print services for personal purposes. Compl. ¶ 7. During the course of that meeting, Fennell informed Weisharr that he had the authority to approve personal print requests for up to one thousand copies. Id. While not entirely clear from the face of the Complaint, it appears that nothing immediately came of the meeting or the inquiry. Id.

Sometime in 2009, the issue resurfaced when AARP commenced a more robust internal investigation into the use of print services for personal purposes. Compl. ¶ 8. On or about March 5, 2009, Fennell was again asked to meet with Weisharr, who this time was joined by Caroline Ashe-Donnem ("Ashe-Donnem"), Senior Internal Auditor. Id. At some point during the meeting, Fennell was told that he would have to reimburse AARP in the amount of $15,000 for copies that he was accused of making for personal purposes. Id. While Fennell admits he made copies for personal use, he maintains that the number was not significant, less than two hundred copies.*fn2 Id. He claims that Weisharr provided no evidence supporting the claimed amount, and the cited $15,000 figure was arbitrary and unsupported. Pl.'s Opp'n at 7. Nevertheless, Fennell ultimately signed an agreement (the "Restitution Agreement") and an accompanying statement requiring him to reimburse AARP in the amount of $5,000. Compl. ¶ 8. He claims he signed only under duress, believing that his employment would be terminated in the event he did not sign. Id. Fennell also alleges that AARP represented that executing the Restitution Agreement would resolve all its concerns about his behavior, that the representation was false and known to be false at the time it was made, and that he relied on the representation in signing the agreement. Id.

Apart from Fennell, no employee was ever required to reimburse AARP for the use of print services for personal purposes. Compl. ¶ 8. Fennell contends that "[n]o white employee working for [AARP] has been treated in the same manner." Pl.'s Opp'n at 5. Specifically, he names three AARP employees-two white males and one white female-who used print services for personal purposes but were neither terminated nor asked to provide restitution for such services. Id. at 2-3.

On March 10, 2009, five days after his meeting with Weisharr and Ashe-Donnem, Fennell was informed by Peterson and Annette Nelson ("Nelson"), Human Resources Representative, that his employment would be terminated effective March 20, 2009 as part of a reduction-in-force prompted by deteriorating economic conditions. Compl. ¶ 9. During his meeting with Peterson and Nelson, Fennell was promised that he would be given a severance package in one of three forms of his choosing (the "Severance Agreement"). Id. Fennell was provided written documentation pertaining to the termination of his employment and AARP's separation program, Pl.'s Opp'n at 8, instructed to return his severance election form by a specified date, and directed to leave the premises immediately, Compl. ¶ 9.

On March 18, 2009, eight days after his meeting with Peterson and Nelson and two days before the termination of his employment was to become effective, Fennell received a phone call from Peterson and Remus Boxley ("Boxley"), Human Resources Representative. Compl. ¶ 9. During that phone call, Fennell was informed that he would be terminated not as part of a reduction-in-force, but instead for using print services for personal purposes. Id. He was further told that, in light of the change in the reason for his termination, he would not be eligible for severance. Id. While not entirely clear from the face of the Complaint, Fennell appears to allege that his employment was terminated effective immediately. Id. Based upon Peterson and Boxley's indications that AARP would not honor its promise to provide him with severance, Fennell never returned his severance election form. Pl.'s Opp'n at 2.

At the time of his termination, Fennell had more seniority and experience than all the managers who remained employed in his department, and he claims to have been qualified for the positions that were not eliminated. Pl.'s Opp'n at 8. Moreover, less than two months after his termination, Fennell's former position was assumed by Peggy White, a black female that Fennell supervised and trained for more than twelve years. Id.

Fennell commenced this action against AARP on October 20, 2009. See Compl. Self-identifying as a "53 year old adult black male," he expressly frames his causes of action as arising under Title VII. Id. ¶¶ 1-2. Specifically, he contends that AARP's reliance upon his use of print services for personal purposes as a basis for his termination is pretextual. Id. ¶ 11. While he admits that he made copies for personal use, id. ¶ 8, Fennell nevertheless contends that the "reason [for his termination] has no basis in fact because of the unlawful discrimination by [AARP]," Pl.'s Opp'n at 3. However, somewhat contradictorily, Fennell sometimes appears to contend that AARP's stated reason for his termination was not a pretext for discrimination, but rather for denying him the severance he was otherwise promised. Compl. ¶ 11. Regardless, he seeks compensatory damages in the amount of $1,000,000, punitive damages in the amount of $3,000,000, specific enforcement of the Severance Agreement, and rescission of the Restitution Agreement. Id. ¶¶ 12-13.

On December 8, 2009, AARP filed the present [5] Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As grounds for dismissal, AARP argues that Fennell fails to allege that he exhausted his administrative remedies and fails to state a plausible claim for relief under Title VII. See generally Mem. in Supp. of Def.'s Mot. to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ("Def.'s Mem."), Docket No. [5]. Fennell moved for an extension of time "to conduct additional and necessary legal fact finding and research," Pl.'s Consent Mot. for Extension of Time to Respond to Def.'s Mot. to Dismiss, Docket No. [8], and the motion was granted, Order (Jan. 6, 2010), Docket No. [9]. During the time period in between the filing of AARP's Motion to Dismiss and the deadline for Fennell's opposition, Fennell filed a charge of discrimination, dated December 23, 2009, with the Equal Employment Opportunity Commission (the "EEOC").*fn3 Pl.'s Opp'n at 8, 12. Therein, he asserts that he was discriminated against by AARP on three bases-race, sex, and age. Id. at 12. Specifically, Fennell's charge of discrimination provides:

I believe that I have been discriminated against based on my race (Black) and sex (male), in violation of Title VII of the Civil Rights Act of 1964, as amended. I also believe that I have been discriminated against based on my age (53), in violation of the Age Discrimination in Employment Act of 1967, as amended.

Pl.'s Opp'n at 12. On or about January 22, 2010, a mere thirty days after Fennell first filed his charge of discrimination, the EEOC issued a right-to-sue letter, providing that the EEOC was closing its file on Fennell's charge of discrimination:

The EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes. This does not certify that the respondent is in compliance with the statutes. No finding is made as to any other issues that might be construed as having been raised by this charge.

Pl.'s Opp'n at 11.

On February 17, 2010, Fennell filed his opposition to AARP's Motion to Dismiss. See Pl.'s Opp'n. On March 1, 2010, AARP filed its reply. See Reply Br. in Supp. of Def.'s Mot. to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted ("Def.'s Reply"), Docket No. [11]. While AARP continued to submit materials in support of the present motion, a matter ...


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