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Lawrence D. Caldwell v. Anthony D. Romero

March 2, 2012

LAWRENCE D. CALDWELL, PLAINTIFF,
v.
ANTHONY D. ROMERO, JO-ANNA JOSEPH, AND OTHER EMPLOYEES AND AGENTS UNKNOWN TO PLAINTIFF OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION NATIONAL OFFICE, IN THEIR PERSONAL AND INDIVIDUAL CAPACITIES AS, DEFENDANTS.



The opinion of the court was delivered by: Signed: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This case is before the Court on defendants' Motion to Dismiss. Plaintiff Lawrence D. Caldwell, proceeding pro se, filed a complaint on July 19, 2011, pursuing claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.1, et seq. Defendants moved to dismiss, citing insufficient service of process,*fn1 lack of personal jurisdiction, and failure to state a claim. Upon consideration of defendants' motion, the response and reply thereto, the applicable law, the entire record, and for the reasons set forth below, the Court hereby GRANTS defendants' motion to dismiss.

I.BACKGROUND

Plaintiff is a resident of the District of Columbia and a former employee of the National Prison Project ("NPP") of the American Civil Liberties Union Foundation ("ACLU"). Compl. ¶ 3. Plaintiff began working as an unpaid volunteer at the NPP in April 2004, and was offered and accepted a part-time paid position as a paralegal several weeks later. Id. ¶ 7. In April 2005, plaintiff was offered and accepted a full-time paid position as a paralegal. Id.

Defendant Anthony Romero is the current Director of the ACLU and works in its National Office, located at 125 Broad Street, New York, New York. Compl. ¶ 4. He is being sued in his individual capacity. Id. Romero reports to, and is a member of, the ACLU's 83-member Board of Directors. Defendants' Mot. to Dismiss, Exhibit 1, Declaration of Anthony D. Romero ("Romero Decl.") ¶ 7. Romero's personal residence is in New Jersey, id. ¶ 8, and he does not own or rent property in the District of Columbia. Id. ¶ 9. Romero states that his travel to the District of Columbia is limited to official ACLU purposes, with the exception of two personal trips made in the last ten years. Id. ¶¶ 10-12. Plaintiff alleges that Romero visited the NPP offices located in the District of Columbia three times while plaintiff was employed at the NPP, and that Romero spoke to plaintiff on one of those occasions. Pl.'s Opp. at 3-4.

Defendant Jo-Anna Joseph is the Director of Human Resources of the ACLU and also works in its National Office, located at 125 Broad Street, New York, New York. Compl. ¶ 5. She is being sued in her individual capacity. Id. Joseph's personal residence is in New Jersey, and she does not own or rent property in the District of Columbia. Defendants' Mot. to Dismiss, Exhibit 2, Declaration of Jo-Anna Joseph ("Joseph Decl.") ¶¶ 8-9. Joseph does not transact or solicit any business in the District of Columbia, and her travel is limited to official trips related to her ACLU employment and three personal trips in the last four years. Id. ¶¶ 10-12. In his opposition, plaintiff states that Joseph met with "the entire administrative staff of the NPP, including plaintiff" in 2008 to discuss the "efficiency" of the NPP, among other topics. Pl.'s Opp. at 4.

On January 22, 2009, plaintiff received a letter signed by defendant Joseph and another ACLU employee, Elizabeth Alexander, informing plaintiff that his paralegal position had been eliminated, effective immediately, "due to the economic crisis." Compl. ¶ 8. Plaintiff was also informed of the layoff verbally by Ms. Alexander. Id. Despite the effective date of his termination letter, plaintiff remained at the NPP and received a regular salary through February 1, 2009. Id.

On January 26, 2009, the ACLU held a national conference call with all projects and regional offices to discuss the layoffs. Compl. ¶ 9. Plaintiff participated in this call, which was chaired by Steven R. Shapiro, Legal Director of the ACLU. Id. During the call, Mr. Shapiro stated that the ACLU would lay off 10 percent of its staff, institute a hiring freeze, and suspend regular cost-of-living salary increases. Id. Mr. Shapiro stated that all final decisions as to layoffs had been decided by defendant Romero. Id. According to plaintiff, his position was the only position eliminated at the NPP, and all administrative staff who retained their positions were younger than plaintiff. Compl. ¶ 8.

On June 5, 2009, the ACLU listed a job opening for a "Legislative & Policy Counsel Assistant" on its national website. Defendants' Mot. to Dismiss, Margolis Aff., Ex. B.*fn2

The posting stated that paralegal experience was "a plus." Compl. ¶ 11. Plaintiff submitted his resume for consideration to defendant Joseph and received an email from another ACLU employee several weeks later confirming that his resume had been received. Id. Plaintiff states, without providing further detail, that he "subsequently learned a much younger individual had been hired." Id.

On September 24, 2009, plaintiff filed a complaint against the defendants with the Equal Employment Opportunity Commission ("EEOC"), charging age discrimination in employment.*fn3 The EEOC ultimately dismissed plaintiff's charges and closed its investigation on April 29, 2011, finding no information sufficient to establish a statutory violation. Compl. ¶ 11, Ex. 1. Plaintiff filed his complaint on July 19, 2011. At the time the complaint was filed, plaintiff was sixty-five years old. Compl. ¶ 7.

II.LEGAL STANDARD

A plaintiff bears the burden of making a prima facie showing that the Court has personal jurisdiction over a defendant. Kurtz v. United States, 779 F. Supp. 2d 50, 51 (D.D.C. 2011) (citing Ballard v. Holinka, 601 F. Supp. 2d 110, 117 (D.D.C. 2009)). A plaintiff must plead specific facts providing a basis for personal jurisdiction, id. at 51, and a plaintiff cannot rely on merely conclusory allegations. Buesgens v. Brown, 567 F. Supp. 2d 26, 31 (D.D.C. 2008). Accordingly, to establish personal jurisdiction over a defendant, the plaintiff must allege specific acts connecting the defendant with the forum. Id. (citing Second Amend. Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)). Although complaints filed by pro se plaintiffs are to be liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), "[p]ro se plaintiffs are not freed from the requirement to plead an adequate jurisdictional basis for their claims." Kurtz, 779 F. Supp. 2d at 51 (quoting Gomez v. Aragon, 705 F. Supp. 2d 21, 23 (D.D.C. 2010)).

On a motion to dismiss for lack of personal jurisdiction, a Court may consider material outside of the pleadings. Thompson Hine LLP v. Smoking Everywhere Inc., --- F. Supp. 2d ----, 2012 WL 32337, *2 (D.D.C. Jan. 6, 2012); Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002). When considering whether personal jurisdiction exists, the Court need not treat all of plaintiff's jurisdictional allegations as true. Buesgens, 567 F. Supp. 2d at 31. Instead, the court may receive and weigh affidavits and any other relevant ...


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