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Kangethe v. District of Columbia

United States District Court, District of Columbia

September 13, 2016



          COLLEEN KOLLAR-KOTELLY, United States District Judge.

         This is an age discrimination and retaliation case brought by an employee of the District of Columbia Department of Employment Services ("DOES").[1] 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 VII").

         Before the Court is Defendant District of Columbia's [5] 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.

         Upon 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 remedies.

         I. BACKGROUND

         For the 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.

         Plaintiff 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.

         In 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 Court. Id.

         The 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.

         The LMI 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.

         DOES 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.

         The 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.

         However, 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.

         Plaintiff 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.

         Plaintiff 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. ¶ 74.

         Plaintiff 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 at 21.

         Based 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).


         Under 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.


         The 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.

         1. Adverse Actions

         The 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, ...

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