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Gladden v. Solis

United States District Court, District of Columbia

February 28, 2013

Warren GLADDEN, Plaintiff,
Hilda SOLIS, Secretary of Labor, Defendant.

Page 148

Warren K. Gladden, Macungie, PA, pro se.

Claire M. Whitaker, U.S. Attorney's Office, Washington, DC, for Defendant.



Plaintiff Warren Gladden's pro se complaint alleges that the Department of Labor discriminated against him based on his race, his age, and his prior engagement in protected activity, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq.,

Page 149

when it rejected his application for employment. (Compl. ¶¶ 66-71. [1]) Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant has moved to dismiss the complaint for failure to state a claim. For the reasons stated herein, the motion will be granted and the complaint dismissed.


As this matter is before the Court on a Rule 12(b)(6) motion to dismiss, the following facts are drawn from the allegations in the complaint, documents attached as exhibits thereto or incorporated therein, and matters subject to judicial notice. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). Plaintiff is an African-American male who, in 2008, when he was 53 years old, applied for a position as a Program Specialist, G-14, in the Department of Labor's Office of Federal Contract Compliance Programs. (Compl. ¶¶ 5, 7, 8, 26, 33.) As described in the vacancy announcement, [2] the duties of the position included providing expert advice on systemic discrimination investigations of Federal contractors, serving as an expert on issues concerning systemic discrimination investigations, and developing or revising policies to ensure uniformity and to enhance the office's enforcement programs to address systemic discrimination investigations. (Compl. ¶ 26.) In addition, applicants were required to have " one year specialized experience equivalent to at least the next lower grade level." (Compl. ¶ 27.)

The first step of the application process involved a computer-scored evaluation of each application. (Compl. ¶¶ 43, 44.) The next step, for applicants whose scores fell within the required range, was an individualized review by a Human Resources specialist to determine whether, in fact, the applicant met the " minimum qualification requirements" for the position. (Compl. ¶¶ 36-38.) In plaintiff's case, his initial score fell within the required range, but the subsequent review led to the determination that he did not meet the " minimum qualification requirement" of " one year of specialized experience in researching and analyzing factual and/or legal issues arising from investigations and enforcement activities associated with violations of systemic discrimination" because, according to the specialist who performed the review, his experience was limited to " one personal discriminatory case in which you provided assistance to your attorney with the proceedings of an internal EEO [Equal Employment Opportunity] grievance against your former employer." (Compl. ¶¶ 36, 38.) Because the Human Resources specialist concluded that plaintiff's experience did not satisfy the specialized experience requirement, she excluded plaintiff from the list of eligible candidates that she certified for consideration by the person who would make the hiring decision. (Compl. ¶¶ 45, 47.) The list of eligible candidates, five in total, included two African-American males and two individuals who were older than plaintiff, one by 20 years. The person ultimately hired to fill the position was an African-American male, one year older than plaintiff.

After his application was rejected, plaintiff filed a complaint with the Department

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of Labor alleging that his exclusion from the list of eligible candidates was the result of race discrimination, age discrimination, and/or retaliation for prior protected activity.[3] (Compl. ¶ 10.) The Final Agency Decision, issued on July 9, 2010, concluded that " [b]ased on the record, the evidence does not support a conclusion that the Agency's actions constituted discrimination based on race, age, and/or in reprisal of EEO activity." (Compl., Att. 1, at 12 (" Final Agency Decision" ).)

On November 3, 2010, plaintiff filed the above-captioned case. On June 14, 2011, the case was dismissed without prejudice for failure to exhaust administrative remedies. (Mem. Op. and Order, June 14, 2011 [ECF No. 15].) On November 16, 2012, the Court granted plaintiff's ...

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