United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS TO DISMISS
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
David Golden brings this suit against Management &
Training Corporation (“MTC”) and Chugach
Government Services, Inc. (“CGSI”) for
discrimination and retaliation in violation of the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et
seq., as well as for wrongful termination. Specifically,
Mr. Golden alleges that after he complained to his
supervisors at MTC and CGSI that he was receiving disparate
pay and treatment based on his age, he was placed on an
unnecessary Performance Improvement Plan (“PIP”)
and then terminated. Now before the Court are MTC's and
CGSI's motions to dismiss Mr. Golden's Second Amended
Complaint. MTC has moved to dismiss on the ground that Mr.
Golden's claims are either time-barred or insufficiently
pleaded. CGSI has moved to dismiss on the ground that it
never in fact employed Mr. Golden and that therefore it
cannot be liable to him under the ADEA. In the alternative,
it argues that Mr. Golden has failed to state a claim and
that his claims are time-barred. For the reasons set forth
below, the Court finds that Mr. Golden has stated claims
against MTC for certain acts of age discrimination and
retaliation, but not for wrongful termination. It further
finds that Mr. Golden has stated a claim for retaliation
against CGSI, but not for wrongful termination, and that his
claim for age discrimination is time-barred.
FACTUAL AND PROCEDURAL BACKGROUND
Golden worked as a career and technical training manager at
the Potomac Job Corps facility from his hiring in May 2009
until his termination in July 2015, when he was 63 years old.
2d Am. Compl. ¶¶ 4, 8, ECF No. 43. The Potomac
facility is one of several locations around the country at
which the U.S. Department of Labor administers its Job Corps
program, which offers free academic and vocational training
to young, formerly incarcerated individuals. Id.
¶¶ 6, 9. Defendant CGSI has contracted with the
U.S. Department of Labor to provide operations, training,
management, and maintenance services at the site.
Id. ¶ 5. CGSI in turn subcontracts with MTC to
provide educational services to Job Corps students.
Id. ¶ 6. “With the assistance and
understanding of Defendant MTC, CGSI's human resources
director at Job Corps' District of Columbia
facility-Grace Jabril-oversaw the duties and responsibilities
of MTC's hired staff including Plaintiff.”
Id. ¶ 5. Correspondence from individuals
working at the facility- “regardless of whether the
author was an employee of CGSI or MTC-at all times contained
the ‘Job Corps' logo.” Id. ¶ 7.
hired Mr. Golden in 2009, when he was 57 years old.
Id. ¶ 8; 1st Am. Compl. ¶ 7, ECF No. 20.
In April 2011, Mr. Golden began to “voice his
concerns” to MTC and CGSI personnel that he was being
discriminated against on the basis of his age. 2d Am. Compl.
Specifically, he complained about (1) disparate amount of pay
he was receiving as a yearly salary from Job Corps compared
to other managers significantly younger than him and less
credentialed; (2) younger employees being able to attend
training courses that he was not allowed to attend; (3)
younger managers getting their supply purchase orders
approved while the orders that he made were always being
delayed; and (4) younger managers received additional
compensation bonuses above their salary for work performed on
projects while he was unable to receive the same compensation
for similar work performed.
Id. Mr. Golden alleges that he hand-delivered EEO
complaints containing these allegations on April 4, 2011;
December 10, 2013; July 14, 2014; February 20, 2015; and May
20, 2015. Id. ¶ 12. The recipients of each EEO
complaint included employees of both MTC and CGSI.
what Mr. Golden characterizes as “satisfactory
performance appraisals from his supervisors throughout his
entire tenure at Job Corps, ” Mr. Golden's MTC
supervisors twice placed him on PIPs-once in 2012 and once in
2015. Id. ¶¶ 13, 15. Mr. Golden met the
requirements of his 2012 PIP and continued to work at Job
Corps. Id. ¶ 14. However, following Mr.
Golden's second placement on a PIP in March 2015, he was
fired in July 2015 “for allegedly not successfully
completing the requirements of the 2015 PIP despite receiving
a satisfactory rating from [his MTC supervisor Mr. Stroman]
during the same period.” Id. ¶¶
15-16. Mr. Golden highlights that “Dwaine Page (34
years of age) and Patricia Pryor (43 years of age)- younger
managers employed by Job Corps who did not satisfactorily
perform their job duties during [Mr. Golden's]
tenure-were given the opportunity to cure their performance
after lesser methods of discipline were imposed upon
them.” Id. ¶ 19.
months before his termination, Mr. Golden filed a charge with
the EEOC alleging discrimination based on race, age, and
disability, as well as retaliation. See MTC's
Mot. Ex. 1 (“1st EEOC Charge”) at 2, ECF No.
45-3. MTC received notice of this charge on or
around May 26, 2015. See Id. at 1. The EEOC declined
to pursue Mr. Golden's case and instead granted him a
right-to-sue letter on August 5, 2015. See MTC's
Mot. Ex. 2 (“1st Right-to-Sue Letter”) at 1, ECF
No. 45-4. By that time, Mr. Golden had been terminated.
Golden never filed a suit based on his first EEOC charge.
Instead, he filed a second EEOC charge against “Potomac
Job Corp” on February 18, 2016. His charge included the
On multiple occasions, from the time period of May 2009,
until the time of my discharge in June of 2015 I was subject
to different and unfavorable treatment than those outside my
protected class. Other younger managers, in the same position
title as me, received better compensation, and educational
training opportunities from my company that were not extended
to me. As a result of this treatment I filed multiple
internal EEO complaints that were left unaddressed. Shortly
after which, I was put on a Performance Improvement Plan, and
MTC's Mot. Ex. 3 (“2d EEOC Charge”) at 2, ECF
No. 45-5. He further explained that he had “been
discriminated against, and been the victim of retaliation for
engaging in protected activity in violation of the Age
Discrimination in Employment Act of 1967, as amended.”
receiving his right-to-sue letter based on the second EEOC
charge, see Compl. Ex. 1, ECF No. 1-2, Mr. Golden
brought suit against MTC and Chugach Government Solutions,
LLC (“CGS”)-not CGSI-alleging that Defendants
retaliated against him in violation of Title VII by
“erroneously placing Plaintiff on a PIP and terminating
him despite his satisfactory ratings on his yearly
performance appraisals” “as a direct and
proximate result of filing an internal complaint for age
discrimination and hostile work environment.” Compl.
¶ 17, ECF No. 1. After MTC and CGS filed their first
motions to dismiss, see MTC's 1st Mot. Dismiss,
ECF No. 10; CGS's 1st Mot. Dismiss, ECF No. 14, Mr.
Golden moved for leave to amend his complaint to replace his
claim under Title VII with a claim under the ADEA, which the
Court allowed. See 1st Am. Compl.; Minute Order
(Nov. 3, 2016). MTC and CGS again moved to dismiss Mr.
Golden's complaint for failure to state a claim.
See MTC's 2d Mot. Dismiss, ECF No. 22; CGS's
2d Mot. Dismiss, ECF No. 23. One of the grounds upon which
CGS moved to dismiss the First Amended Complaint was that
CGSI, not CGS, operated the Potomac Job Corps facility.
See Mem. P. & A. CGS's 2d Mot. Dismiss at
3-4, ECF No. 23.
2017, the Court granted MTC's and CGS's second
motions to dismiss, finding that Mr. Golden had “not
alleged any facts that might support an inference that he
held a reasonable, good faith belief that the perceived harms
he reported were violations of the ADEA.” Golden v.
Mgmt. & Training Corp., 266 F.Supp.3d 277, 282
(D.D.C. 2017). However, because “the Court believe[d]
that the deficiencies [in the complaint might] be cured
through subsequent pleading, the Court  dismiss[ed] the
complaint without prejudice and grant[ed] Golden leave to
amend the complaint, ” including by adding CGSI as a
defendant. Id. Once Mr. Golden filed his Second
Amended Complaint, ECF No. 43, MTC and CGSI both moved to
dismiss. See MTC's 3d Mot. Dismiss
(“MTC's Mot.”), ECF No. 45; CGSI's Mot.
Dismiss (“CGSI's Mot.”), ECF No. 46. Their
motions are now ripe for decision.
Federal Rules of Civil Procedure require that a complaint
contain “a short and plain statement of the
claim” in order to give the defendant fair notice of
the claim and the grounds upon which it rests. Fed.R.Civ.P.
8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam). A motion to dismiss under Rule 12(b)(6)
does not test a plaintiff's ultimate likelihood of
success on the merits; rather, it tests whether a plaintiff
has properly stated a claim. See Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), abrogated on other grounds by
Harlow v. Fitzgerald, 457 U.S. 800 (1982). A court
considering such a motion presumes that the complaint's
factual allegations are true and construes them liberally in
the plaintiff's favor. See, e.g., United
States v. Philip Morris, Inc., 116 F.Supp.2d 131, 135
(D.D.C. 2000). Nevertheless, “[t]o 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 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means
that a plaintiff's factual allegations “must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555-56 (citations omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
therefore insufficient to withstand a motion to dismiss.
Iqbal, 556 U.S. at 678. A court need not accept a
plaintiff's legal conclusions as true, see id.,
nor must a court presume the veracity of the legal
conclusions that are couched as factual allegations, see
Twombly, 550 U.S. at 555.
MTC's Motion to Dismiss
Golden's Second Amended Complaint contains claims of
retaliation, wrongful discharge, and age discrimination
against MTC. MTC has moved to dismiss on the grounds that a
portion of Mr. Golden's claims are time-barred, that he
did not plead a plausible inference of retaliation, that he
did not state a prima facie case for age discrimination, and
that he did not state a claim for wrongful discharge. See
generally MTC's Mem. Mr. Golden responds that it
“is simply not the case” that his Second Amended
Complaint is based off of incidents that occurred before
April 24, 2015, that he has pleaded a prima facie case of age
discrimination, and that his Second Amended Complaint
contains sufficient facts to plead a plausible inference of
retaliation. See generally Pl.'s Opp'n
MTC's Mot. For the reasons given below, the Court finds
that Mr. Golden's claims for retaliation and
discrimination based on events occurring before April 24,
2015 are time-barred, but that Mr. Golden has pleaded
sufficient facts to state timely claims for discrimination
and retaliation based on his termination. However, the Court
finds that Mr. Golden has failed to state a claim for
wrongful termination, and therefore dismisses that claim.
Statute of Limitations
contends that all of Mr. Golden's statutory claims except
those based on his termination are time-barred. See
MTC's Mem. at 11-12. In particular, it first argues that
any claims that were contained in both Mr. Golden's first
EEOC charge and his second EEOC charge are barred because he
did not file suit on those twice-alleged claims within 90
days of the issuance of the EEOC's first right-to-sue
letter. Id. Similarly, it argues that any claim
based on actions that occurred before April 24, 2015, are
time-barred because Mr. Golden did not file his second EEOC
charge until February 18, 2016. Id. at 12. Mr.
Golden responds that the actions about which he has sued
occurred after April 24, 2015, because “the retaliatory
conduct that serves as a basis for his administrative and
judicial complaints stem from (1) being placed on a second
PIP that should have never happened because it was not
warranted; and ultimately (2) being terminated for it in
July 2015 for allegedly not successfully completing the
requirements of a PIP despite receiving a satisfactory rating
from his supervisors during that particular rating
period.” Pl.'s Opp'n MTC's Mot. at 7. The
Court finds that claims based on allegedly discriminatory or
retaliatory actions that occurred prior to April 24, 2015,
are time-barred, including Mr. Golden's placement on the
second PIP in March 2015. However, it should be noted that
this limitation on Mr. Golden's ability to sue for his
placement on the PIP does not mean that he cannot use his
placement on the PIP as evidence that his ultimate
termination was discriminatory or retaliatory. See
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002) (“Nor does the statute bar an employee from
using the prior acts as background evidence in support of a
individual who wishes to challenge an employment practice
under the ADEA must first file a charge with the EEOC.”
Faison v. District of Columbia, 664 F.Supp.2d 59, 64
(D.D.C. 2009). “In the District of Columbia, where
there is a local anti-discrimination agency, this charge must
be filed within 300 days of the occurrence of the allegedly
unlawful practice.” Id. If an EEOC charge is
not filed within that period, a plaintiff cannot challenge
the unlawful practice in court. Schuler v.
PricewaterhouseCoopers, LLC, 595 F.3d 370, 373 (D.C.
Cir. 2010) (citing 29 U.S.C. § 626(d)(1)). If the EEOC
elects not to pursue the complainant's case, it issues a
right-to-sue letter. See 29 U.S.C. § 626(e).
Upon receipt of that letter, a complainant has 90 days to
bring suit. Id.; 29 C.F.C. § 1614.407(a);
see also Colbert v. Potter, 471 F.3d 158, 160 (D.C.
Golden submitted his second EEOC charge on February 18, 2016.
See 2d EEOC Charge at 2. Three-hundred days before
February 18, 2016, is April 24, 2015. Mr. Golden was placed
on a second PIP in March 2015 and was terminated in July
2015. 2d Am. Compl. ¶¶ 15- 16. Therefore, Mr.
Golden's claims based on his placement on his second PIP
in 2015 are undeniably untimely unless it and another timely
action, such as his termination, can be found to constitute a
single, coherent employment practice.
Supreme Court has “repeatedly interpreted the term
‘[employment] practice' to apply to a discrete act
or single ‘occurrence,' even when it has a
connection to other acts.” Morgan, 536 U.S.
111. “A discrete retaliatory or discriminatory act
‘occurred' on the day that it
‘happened.'” Id. at 110. The Court
has also repeatedly held that “discrete acts that fall
within the statutory time period do not make timely acts that
fall outside the time period.” Id. at 112;
see also Nono v. George Washington Univ., 245
F.Supp.3d 141, 147 (D.D.C. 2017) (“[P]laintiffs must
file charges that are timely as to each discrete alleged
discriminatory act, and prior discriminatory acts that
occurred outside the time period are not actionable.”)
example, in Delaware State College v. Ricks, 449
U.S. 250, 259 (1980), the Court found that a claim based on
an allegedly discriminatory decision to deny a professor
tenure was time-barred, even though the effect of that tenure
denial was the professor's placement on a yearlong
terminal contract that resulted in his termination, within
the limitations period, upon the expiration of the contract.
The Court explained that “[t]he proper focus is upon
the time of the discriminatory acts, not upon the time at
which the consequences of the acts became most painful,
” Id. (quoting Abramson v. Univ. of
Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)). Because the
professor had not alleged that “the manner in which his
employment was terminated differed discriminatorily from the
manner in which the College terminated other professors who
also had been denied tenure, ” but instead had simply
alleged that his denial of tenure, which occurred outside of
the limitations period, was discriminatory, his complaint
failed to state a timely claim for employment discrimination.
Id. at 258.
Golden's case is distinguishable from Ricks
because Mr. Golden has called into question the propriety of
his termination itself, explaining that he “was
terminated by Job Corps for allegedly not
successfully completing the requirements of the 2015 PIP
despite receiving a satisfactory rating from Mr. Stroman,
” his supervisor who had instituted the PIP,
“during the same time period.” 2d Am. Compl.
¶ 16 (emphasis added). He has, in effect, alleged two
discriminatory or retaliatory acts: his placement on the PIP
and his “unjustifiabl[e]” termination.
Id. ¶ 18. Additionally, as MTC has also
highlighted, Mr. Golden had already complained about his
placement on the second PIP in his first EEOC charge and did
not file suit based on that charge for 197 days, far more
than the 90 days permitted under the statute. See
MTC's Mem. at 11; 1st Right-to-Sue Letter, ECF No. 45-4.
Accordingly, while Mr. Golden's claims based on his
placement on the PIP are untimely for two reasons and are
thus not actionable, his claims based on his termination are,
and therefore remain.