United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, United States District Judge.
an age discrimination and retaliation case brought by an
employee of the District of Columbia Department of Employment
Services ("DOES"). Plaintiff John Kangethe alleges
that he was passed over for two promotions on the basis of
his age and as retaliation for earlier discrimination
complaints. Specifically, Plaintiff alleges that he was not
selected to fill an Associate Director ("AD")
position with the Office of Labor Market Research and
Information ("LMI") on a temporary basis when it
became vacant in February 2014 ("Temporary LMI AD
Position"), and subsequently was not chosen to fill that
same position on a permanent basis later that year
("Permanent LMI AD Position"). He also alleges
various other retaliatory actions, such as being denied leave
to attend the deposition of a party to a prior lawsuit of his
and being issued a notice of proposed suspension. Plaintiff
brings this lawsuit against the District of Columbia under
the Age Discrimination in Employment Act ("ADEA"),
the District of Columbia Human Rights Act ("DCHRA")
and Title VII of the Civil Rights Act ("Title
the Court is Defendant District of Columbia's  Motion
to Dismiss. Defendant argues that Plaintiff fails to state a
claim for age discrimination or retaliation for three main
reasons. First, Defendant argues that none of the allegedly
discriminatory or retaliatory actions described in
Plaintiff's Complaint are actionable “adverse
actions.” Second, Defendant argues that Plaintiff
failed to exhaust his administrative remedies with regard to
certain incidents that are described in Plaintiff's
Complaint but were not mentioned in Plaintiff's
administrative charge. Third, Defendant argues that
Plaintiff's retaliation claim fails because the causal
connection between protected activity and the alleged
retaliation is too remote.
consideration of the pleadings, the relevant legal
authorities, and the record for purposes of this motion, the
Court GRANTS IN PART and DENIES IN PART Defendant's
Motion. The Court agrees that a number of the allegedly
retaliatory actions in Plaintiff's Complaint do not
constitute “adverse actions” upon which a claim
for age discrimination or retaliation may be based.
Specifically, Plaintiff has not pled adverse actions with
respect to Ms. Reich's March 11, 2014 email, the notice
of proposed suspension issued to Plaintiff, or the denial of
the Temporary LMI AD Position. Accordingly, Defendant's
Motion is GRANTED and Plaintiff's claims are DISMISSED to
the extent that they are premised on these alleged actions.
Defendant's Motion is DENIED in all other respects. The
Court finds that Plaintiff has pled actionable adverse
actions with respect to the denial of the Permanent LMI AD
Position and the denial of Plaintiff's requested leave to
attend the deposition of a party to his prior discrimination
lawsuit against DOES. The Court also finds that Plaintiff
sufficiently pled causation, and rejects Defendant's
argument that Plaintiff failed to exhaust his administrative
purposes of the motion before the Court, the Court accepts as
true the well-pleaded allegations in Plaintiff's
Complaint. The Court does “not accept as true, however,
the plaintiff's legal conclusions or inferences that are
unsupported by the facts alleged.” Ralls Corp. v.
Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C.
Cir. 2014). Further, because Plaintiff proceeds in this
matter pro se, the Court must consider not only the
facts alleged in Plaintiff's Complaint, but also the
facts alleged in Plaintiff's Opposition to
Defendant's Motion to Dismiss. See Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir.
2015) (“a district court errs in failing to consider a
pro se litigant's complaint ‘in light
of' all filings, including filings responsive to a motion
to dismiss”) (quoting Richardson v. United
States, 193 F.3d 545, 548 (D.C. Cir. 1999));
Fillmore v. AT & T Mobility Servs. LLC, 140
F.Supp.3d 1, 2 (D.D.C. 2015) (“the Court, as it must in
a case brought by a pro se plaintiff, considers the
facts as alleged in both the Complaint and Plaintiff's
Opposition to Defendant's Motion to Dismiss.”). The
Court recites only the background necessary for the
Court's resolution of the pending Motion to Dismiss.
John N. Kangethe was hired in 2002 as a Labor Economist for
DOES and has been employed there ever since. Compl., ECF No.
1, ¶ 12. Plaintiff applied for a “Supervisory
Labor Economist” position at LMI multiple times in 2008
and 2009 but was never interviewed for the position.
Id. ¶ 19. He did, however, serve in the
position on an acting basis for over eighteen months.
Id. ¶ 53.
2010, Plaintiff filed a complaint with the Washington, D.C.
Office of Human Rights (“OHR”), alleging
discrimination and retaliation on the basis of race, national
origin, and age. Id. ¶ 20. After obtaining a
“Rights to Suit” letter from the Equal Employment
Opportunity Commission (“EEOC”), Plaintiff filed
a lawsuit against his employer in the United States District
Supervisory Labor Economist position was subsequently renamed
“Associate Director of Labor Market, Workforce,
Research and Analysis” (“LMI AD Position”).
Id. ¶ 21. Openings for that position were
advertised again multiple times in 2011 and 2012.
Id. Again, Plaintiff applied each time but was never
interviewed, despite being qualified for the position.
Id. ¶ 22.
AD Position became available again in February 2014 when the
individual in that position was terminated. Id.
¶¶ 25-26. At that time, Defendant selected Mr.
Andrew Rodgers to fill the LMI AD Position on an
“interim” basis while a search for a permanent
replacement was conducted. Id. ¶ 29. Mr.
Rodgers was “in his 40's.” Id.
Plaintiff complained to several individuals at DOES regarding
this designation, arguing that Mr. Rodgers and others who had
held the Temporary LMI AD Position in the past had
discriminated against him. Id. ¶¶ 31-33.
For example, Plaintiff complained about an incident where Mr.
Rodgers had upheld a 15-day suspension for Plaintiff without
pay. Id. ¶ 31. The suspension was later struck
from Plaintiff's personnel file. Id. ¶ 32.
told Plaintiff that Mr. Rodgers had been selected for the
Temporary LMI AD Position because he would “advance the
business interest of the agency” and because he
“had worked closely with LMI before.”
Id. ¶ 34. Plaintiff alleges that these
rationales were pretextual, and that Mr. Rodgers was actually
chosen over Plaintiff for discriminatory reasons.
Id. ¶¶ 35-40.
Permanent LMI AD Position was then advertised on May 14,
2014. Id. ¶ 41. Plaintiff submitted a timely
application. Id. DOES allowed the position to remain
unfilled for a period of months. Id. ¶¶
45-51. Eventually, DOES cancelled the opening without filling
the Permanent LMI AD Position. Id.
DOES then issued a second posting for the Permanent LMI AD
Position in August 2014. Id. ¶ 50. Plaintiff
did not submit another application at this time. Pl.'s
Opp'n at 5. M r. S a i k ou Diallo was chosen for the
position on September 11, 2014. Compl. ¶ 51. Mr. Diallo,
who had been hired as a Labor Economist at DOES in May 2014,
is 38 years old. Id. ¶ 43. He did not apply for
the Permanent LMI AD Position when it was advertised in May
2014. Id. ¶ 44. Plaintiff alleges that Mr.
Diallo has admitted that he also did not apply for the
position when it was advertised in August 2014. Pl.'s
Opp'n at 13, n.4.
alleges that Mr. Diallo was less qualified than himself for
the Permanent LMI AD Position. Compl. ¶¶ 52-53. He
further alleges that DOES “refused to give any
consideration to Plaintiff, ” even though they knew he
had applied for the position repeatedly, including applying
for the current vacancy earlier that year. Id.
¶ 54. Plaintiff alleges that Mr. Diallo was chosen as a
result of age discrimination. Id. ¶ 61.
also alleges that the individuals who discriminated against
him with regard to the Temporary and the Permanent LMI AD
Positions were aware of the discrimination claims he had
filed in 2010 with the OHR and EEOC, the ongoing lawsuit he
was pursuing that grew out of those claims, and his other
“continued complaints” of discrimination.
Id. ¶¶ 70, 77. He alleges that he was not
selected for either LMI AD Position as retaliation for this
protected activity. Id. ¶ 77. When Plaintiff
first complained to his superior, Ms. Stephanie Reich,
regarding the selection of Mr. Rodgers for the Temporary LMI
AD Position, Ms. Reich's response included a reference to
Plaintiff's lawsuit, indicating to Plaintiff that his
“on-going lawsuit . . . played a role in the
Plaintiff's denial of the interim LMI supervisory
position.” Id. ¶ 76. Specifically, in a
March 11, 2014 email, Ms. Reich wrote “[p]lease note,
we remain aware of your lawsuit and the case, as decided on
the merits, will be honored by the DC government and
[‘DOES']. However, as that matter is pending we
must continue to produce work product.” Id.
also alleges that Defendant retaliated against him by denying
him leave to attend the deposition of a party to
Plaintiff's prior discrimination lawsuit against DOES,
Mr. James Moore. Id. ¶ 78. Finally, Plaintiff
also alleges that Defendant retaliated against him when he
was issued an “Advanced Written Notice of Proposed
Suspension of 15 days, ” based on “manufactured
charges.” Id. ¶¶ 82-83. Plaintiff
did not, however, serve this suspension. Pl.'s Opp'n
on these allegations, Plaintiff asserts causes of action for
age discrimination and retaliation under the ADEA, Title VII
and the DCHRA. Id. ¶ 90. Defendant moves to
dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6).
Rule 12(b)(6), a party may move to dismiss a complaint on the
grounds that it “fail[s] to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6).
“[A] complaint [does not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint
must contain sufficient factual allegations that, if accepted
as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
various arguments in Defendant's Motion can be organized
into three main categories: Defendant argues that
Plaintiff's age discrimination and retaliation claims
must be dismissed because Plaintiff (1) fails to demonstrate
any actionable adverse actions, (2) failed to exhaust his
administrative remedies, and (3) fails to demonstrate a
causal link between protected activity and allegedly
retaliatory actions. As explained below, the Court agrees
that some of the incidents alleged in Plaintiff's
Complaint are not “adverse actions, ” but rejects
the remainder of Defendant's arguments.
Court begins by resolving the parties' numerous disputes
regarding whether various allegations in Plaintiff's
Complaint constitute “adverse actions.” An
adverse action is “‘a significant change in
employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.'” Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). An employee
must “experience[ ] materially adverse consequences
affecting the terms, conditions, or privileges of employment
or future employment opportunities such that a reasonable
trier of fact could find objectively tangible harm.”
Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002); see also Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006) (distinguishing between “purely
subjective injuries” which are not actionable, and
“objectively tangible harm, ” which is
actionable). Further, ...