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Michael Barbett v. Logistics Application

February 28, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Pro sePlaintiff Michael Barbett was employed by Defendant Logistics Application, Inc. (LAI) at a Federal Energy Regulatory Commission worksite. After being terminated in May 2010, he filed this suit asserting that such termination violated the Age Discrimination in Employment Act. In now moving to dismiss the Complaint, Defendant correctly argues that Plaintiff failed to timely file his claim with the Equal Employment Opportunity Commission. As a result, the Court will grant Defendant's Motion.


According to Plaintiff's two-page Complaint, which must be presumed true for purposes of this Motion, Plaintiff is a 53-year-old man who had worked as a contractor at a FERC worksite for twenty-three years. See Compl. at 1-2. On May 17, 2010, when some confusion ensued about his whereabouts on an earlier day, Plaintiff was taken for a drug test. Id. at 1. Plaintiff stated that he would not submit to a drug test because of another appointment, which refusal led his supervisor to terminate him that same day. Id. Plaintiff alleges that he was "let go because of my age . . . so that my assistant supervisor . . . could replace me with somebody else with a lower salary." Id.

Plaintiff filed a charge of discrimination with the EEOC on June 22, 2011. See Compl., Exh. 1, ECF No. 1-1 at 3 (Charge of Discrim.). On June 29, the EEOC dismissed the charge on the ground that it was not timely filed. See Exh. 1, ECF No. 1-1 at 1 (Dismissal). Plaintiff then filed the current action in this Court on Sept. 23. LAI now moves to dismiss on the ground of untimeliness.

II.Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.

In weighing a motion to dismiss, a court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Equal Employment Opportunity Comm'n v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). As the EEOC Charge and the Dismissal were both attached to the Complaint here, the Court may properly consider them without converting this Motion to Dismiss into one for summary judgment.*fn1


A. Failure to Timely File

Defendant argues that since Plaintiff did not file his claim with the EEOC within the time permitted under federal law, this case must be dismissed. Under the ADEA, in order to file suit against an employer for age discrimination in a district court, a party must first exhaust his administrative remedies by filing a charge of discrimination with the EEOC. See Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1367 (D.C. Cir. 2008). The relevant statute, 29 U.S.C. § 626(d)(1)(B), states that the time limit within which to bring an EEOC charge is 300 days "after the alleged unlawful practice occurred."

Plaintiff here failed to meet this deadline. He alleges he was terminated on May 17, 2010, and he filed his EEOC Charge on June 22, 2011. (Although the date on the EEOC Charge is somewhat hard to read on the attached copy, see ECF No. 1-1 at 3, Plaintiff does not dispute Defendant's characterization of it as June 22.) As the time elapsed is more than a year -- and thus more than the permitted 300 days -- Plaintiff's suit in this Court is barred, unless some exception applies. See Rann, 346 F.3d 199 (affirming dismissal of ADEA suit for failing to exhaust administrative remedies).

B. Equitable Tolling and Equitable Estoppel

In opposing Defendant's Motion to Dismiss, Plaintiff states, "I did not know that I had a time limit to submit my Complaint." See Opp. (styled "Motion to Continue") at 1. He also notes that he "had a hard time dealing with [his] mom's death." Id. The Court, giving some latitude to a pro se Plaintiff, will address his potential invocation of the doctrines of equitable estoppel and equitable tolling. See Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F. 3d 1363, ...

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