United States District Court, D. Columbia.
BILLY P. GREER, Plaintiff,
BOARD OF TRUSTEES OF THE UNIVERSITY OF THE DISTRICT OF COLUMBIA, Defendant
[Copyrighted Material Omitted]
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For BILLY P. GREER, Plaintiff: Monique Daniel Pressley, LEAD ATTORNEY, PRESSLEY FIRM, PLLC, Washington, DC.
For BOARD OF TRUSTEES UNIVERSITY OF DISTRICT OF COLUMBIA, Defendant: Jeremy S. Schneider, LEAD ATTORNEY, PRO HAC VICE, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, McLean, VA; Yoora Pak, LEAD ATTORNEY, Anneliese Marie Kite-Stone, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, McLean, VA.
Plaintiff Billy P. Greer asserts that his employer the University of the District of Columbia (" UDC" or " Defendant" ) discriminated against him on the basis of race, gender and age, and retaliated against him for protected activity, by refusing to promote him within the ranks of the UDC police department. Defendant moves to dismiss the First Amended Complaint because it is untimely, because Plaintiff failed to properly exhaust administrative
remedies, and because the complaint otherwise fails to state a valid claim for relief. In a cursory opposition, Plaintiff sought leave to file a second amended complaint. For the reasons set forth below, Defendant's motion is GRANTED and the First Amended Complaint is dismissed. Plaintiff may move for leave to file a Second Amended Complaint.
The court is compelled to note the unusual procedural course this litigation has taken. Plaintiff, through counsel, filed a complaint on November 1, 2013. (ECF No. 1). Defendant moved to dismiss on April 14, 2014, raising arguments nearly identical to those raised in the pending motion to dismiss. ( Compare ECF No. 7-1 with Def. Renewed Mot. (ECF No. 32)). Despite two extensions of time, Plaintiff failed to oppose the motion. (Minute Orders, May 2, 2014 & May 22, 2014). On June 6, 2014, Defendant asked the court to treat the motion as conceded and dismiss the case. (ECF No. 10). This spurred Plaintiff into action, and he alerted the court to his counsel's deficient performance. ( See ECF No. 11). Given the inadequacies of Plaintiff's counsel, the court stayed this case for approximately six months to enable Plaintiff to locate replacement counsel. ( Id. ; ECF No. 15). Replacement counsel appeared at a hearing on February 12, 2015 and acknowledged deficiencies in the then-operative complaint, but did not enter an appearance and seek leave to file an amended complaint until late March 2015. (ECF Nos. 26, 28). The court granted leave to file an amended complaint and denied the then-pending motion to dismiss as moot, without prejudice to filing a renewed motion to dismiss the amended complaint. (Minute Order, Feb. 19, 2015; Minute Entry, Apr. 1, 2015). Defendant's motion to dismiss the First Amended Complaint is the pending motion.
The court recites this procedural history to highlight that in March 2015, when Plaintiff had the opportunity to submit the amended complaint, Plaintiff and his current lawyer had the benefit of knowing the arguments Defendant had raised almost one year earlier about the inadequacies of the original complaint. Despite this advance knowledge, the First Amended Complaint made minimal changes to Plaintiff's allegations, and the arguments in the motion before the Court mirror those made previously. Plaintiff's counsel explained during oral argument that the bare-bones nature of the First Amended Complaint is due in part to complications with obtaining Plaintiff's file from his former counsel.
The court is sympathetic to the difficulties replacement counsel faces when taking on an already-pending case, particular where withdrawing counsel is ill and may be difficult to reach. However, these difficulties cannot be used to explain many of the deficiencies in the operative complaint. Plaintiff did not need access to documents in order to remedy his failure to specifically invoke the Age Discrimination in Employment Act. See infra Section III.A. Nor did Plaintiff need access to evidence no longer in his possession in order to plead, on information and belief if necessary, that he applied for (or was prevented from applying for) and was qualified for the jobs he ultimately did not receive. See infra Section III.D.
I. FACTUAL BACKGROUND
Plaintiff, a 53 year-old African-American man has been employed as a police officer at the University of the District of Columbia since 1988. (Am. Compl. ¶ ¶ 6-8). He alleges that since 2006, UDC has engaged in a pattern and practice of race, gender and age discrimination. ( Id. ¶ 11). This pattern takes the form of " giving
preferential treatment to non African-American persons in hiring, promotion, discipline and discharge."  ( Id. ¶ 12). Between 2002 and 2008 UDC " hired several supervisors who not only did not work for the UDC police department, but had no prior supervisory experience," in violation of UDC's collective bargaining agreement with the Local 2087, American Federation of State, County and Municipal Employees (of which Greer is a member) and D.C. personnel regulations, both of which require that current employees receive preference for vacant positions. ( Id. ¶ ¶ 14-17).
Greer filed at least one charge with the Equal Employment Opportunity Commission (the " EEOC" ) in 2009 which charged UDC with " employment discrimination," and later filed a lawsuit arising from that charge. (Am. Compl. ¶ ¶ 18-19). Since Greer filed those allegations of discrimination, UDC has " filled several positions for which Mr. Greer was fully qualified." ( Id. ¶ ¶ 20-21). In August 2010, Plaintiff learned that UDC hired Thomas Coles, an African-American male, as a lieutenant in the police department, even though Coles' " last working assignment was that of a patrol officer at D.C. Protective Services," ( Id. ¶ ¶ 22-23), Cole was not then an employee of the D.C. Government ( id. ¶ 25), and Plaintiff had between 10 and 14 years of supervisory experience at UDC. ( Id. ¶ 26). At subsequent times UDC filled four lieutenant positions with candidates other than Plaintiff. Dana Miller, a female of unidentified race who is younger than Plaintiff and is not a resident of D.C., has been promoted to two supervisory positions even though she has " less supervisory experience than" Plaintiff. (Am. Compl. ¶ ¶ 28-30). Cerina Smith, a female of unidentified race who is younger than Plaintiff, has less experience than Plaintiff and was neither a D.C. resident or employee when she was appointed to a lieutenant position in 2012. (Am. Compl. ¶ ¶ 33-36). Plaintiff alleges he was qualified for this position but was not interviewed for it. (Am. Compl.¶ ¶ 40-41). Ronald Culmer, a non-resident, non-D.C. employee of unidentified race and age, was hired into a lieutenant position, also in 2012, even though there were no open positions at the time. (Am. Compl. ¶ ¶ 37-39, 42). In August 2012 Plaintiff applied for, but was not considered for, two supervisory positions. (Am. Compl. ¶ ¶ 31-32). Finally, an unidentified person of unknown gender, race or age was hired less than six months after Culmer (Am. Compl. ¶ 43). In sum, Defendant hired one man and two women, and two individuals younger than Plaintiff (but potentially still in the class protected by the ADEA). To the extent Plaintiff alleges race discrimination, he does not allege the race of any person who received a promotion other than Mr. Coles. (Am. Compl. ¶ ¶ 20-25).
In August 2012 Plaintiff filed another complaint with the EEOC alleging
gender and race discrimination and retaliation. He received a right-to-sue-letter on August 6, 2013 and filed this lawsuit on November 1, 2013. (Compl; Am. Compl. ¶ 45). In the First Amended Complaint, he alleges that the actions described above constitute age, gender and race discrimination in violation of Title VII (Am. Compl. ¶ ¶ 47) and retaliation for his previous complaints of discrimination. ( Id. ¶ 49). Defendant moved to dismiss the First Amended Complaint as untimely, for failure to exhaust administrative remedies, and for failure to state a claim. (Def. Renewed Mot.)
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242, 352 U.S. App.D.C. 4 (D.C. Cir. 2002). " To survive a motion to dismiss, 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and citation omitted). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where " recovery is very remote and unlikely[,]" the facts alleged in the complaint " must be enough to raise a right to relief above the speculative level[.]" Bell A. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than " labels and conclusions" or a " formulaic recitation of the elements of a cause of action[.]" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C. 2013).
In deciding a 12(b)(6) motion, 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." St. Francis Xavier Parochial Sch., 117 F.3d at 624. When the plaintiff alleges the filing of an administrative charge, that charge may be deemed incorporated into the complaint and the court can consider it on a motion to dismiss. Hudson v. Children's Nat'l Med. Ctr., 645 F.Supp.2d 1, ...