United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE
Hylton, proceeding pro se, alleges that the Federal
Housing Finance Agency (“FHFA”) discriminated
against him based on his race, age, and disability in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), the Age Discrimination in
Employment Act of 1967 (“ADEA”), and the
Rehabilitation Act of 1973. With respect to each of these
claims, moreover, Hylton relies on both a disparate treatment
and disparate impact theory of liability. The FHFA, in turn,
moves to dismiss all of Hylton's claims, arguing that the
complaint lacks sufficient detail to state a claim. Dkt. 4.
For the reasons stated below, the Court concludes that Hylton
has, in effect, moved to amend or to supplement his complaint
in his opposition brief and that, with the benefit of the
additional detail he has provided, his disparate treatment
claims survive the FHFA's motion to dismiss. His
disparate impact claims, however, fail to clear this modest
threshold. The Court will, accordingly,
GRANT in part and DENY in
part the FHFA's motion to dismiss.
Hylton has worked for the Department of Housing and Urban
Development for approximately 25 years. Dkt. 1 at 3 (Compl.
¶ 9). On October 3, 2010, he filed an application for
the position of Ombudsman with the FHFA, a vacancy posted
through a public announcement. Id. at 3 (Compl.
¶ 10). Hylton, who was 55 years old, African-American,
and paraplegic, Dkt. 6-1 at 34, applied for the position
under “Schedule A, ” Dkt. 1 at 3 (Compl. ¶
10), an excepted service hiring process for federal employees
with disabilities, Dkt. 6-1 at 21. He alleges that the FHFA
discriminated against him by evaluating his application in a
competitive process along with non-disabled candidates, Dkt.
6 at 8, and then, once Hylton was in the pool of competitive
applicants, by giving him “less favorable treatment
than it would have given an identical applicant without a
disability, ” id. at 9. Specifically, Hylton
alleges that his application for the Ombudsman position
received a score of 94 out of 100 from the Office of
Personnel Management but that, despite his rating, he was not
selected for an interview while two individuals with scores
of 94 and 88, respectively, advanced to the second round of
the application process. Id. at 10; see
also Dkt. 6-1 at 40-41.
point after the hiring process began, but before it was
completed, the FHFA underwent a “major agency-wide
reorganization” and, ultimately, none of the candidates
who applied through the vacancy announcement was hired as
Ombudsman. Dkt. 6-1 at 41. Instead, the FHFA re-assigned an
existing “Agency Executive” to fill the position.
Dkt. 1 at 5 (Compl. ¶ 15). Hylton alleges that the FHFA
“use[d] [this] personnel procedure to re-assign an
existing Agency Executive, ” id., in order
“to circumvent his selection for the position of
Ombudsman, ” Dkt. 6-1 at 39.
September 21, 2011, Hylton filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”)
alleging that “he was discriminated against on the
basis of his race (African-American), age , and/or
disability (Paraplegic/Wheelchair).” Id. at
34; Dkt. 1 at 8 (Compl. Ex. A). After the EEOC accepted his
complaint for investigation, an administrative judge ruled
for the FHFA on summary judgment, and Hylton appealed the
administrative judge's decision to the EEOC's Office
of Federal Operations (“OFO”). Id. On
June 29, 2017, the OFO affirmed the administrative
judge's determination that Hylton failed to establish
that he had been “discriminated against by [the FHFA]
as alleged, ” and it notified Hylton of his right to
file a civil action within 90 days of receipt of the OFO
decision. Id. at 9- 10. Hylton timely commenced this
suit on October 2, 2017. Dkt. 1.
motion to dismiss for failure to state a claim, the Court
must “treat ‘the complaint's factual
allegations as true'” and must grant the plaintiff
“the benefit of all inferences that can be derived from
the facts alleged.” Brown v. Whole Foods Mkt. Grp.
Inc., 789 F.3d 146, 150 (D.C. Cir. 2015) (quoting
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681
(D.C. Cir. 2009)). Although “detailed factual
allegations” are not necessary, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim for relief that is plausible on its
face, '” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). While
the Court need not accept as true either a “legal
conclusion couched as a factual allegation” or an
inference drawn by the plaintiff “if such inference is
unsupported by the facts set out in the complaint, ”
Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006)
(citations and internal quotation marks omitted), a claim is
“plausible” if the plaintiff “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged, ” Harris v. D.C. Water & Sewer
Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting
Iqbal, 556 U.S. at 678).
asserts-or, at least, seeks to assert-disparate treatment and
disparate impact claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., the Age Discrimination in Employment Act of
1967 (“ADEA”), 29 U.S.C. § 621 et
seq., and the Rehabilitation Act of 1973, 29 U.S.C.
§ 791 et seq. According to the FHFA, he has
failed to satisfy the minimal pleading requirements for doing
so. The Court will first address Hylton's disparate
treatment claims and will then turn to his disparate impact
FHFA argues that Hylton's complaint lacks sufficient
detail to state a claim under Title VII, the ADEA, or the
Rehabilitation Act. For disparate treatment claims brought in
the absence of direct evidence of discrimination, “[a]
single analytical framework applies” under all three
statutes: the familiar burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Etokie v. Duncan, 202 F.Supp.3d 139, 148
(D.D.C. 2016), aff'd sub nom. Etokie v. DeVos,
No. 16-5243, 2017 WL 3725634 (D.C. Cir. May 31, 2017).
“Under this test, ‘[a] plaintiff makes out a
prima facie case of disparate-treatment
discrimination by establishing that: (1) she is a member of a
protected class; (2) she suffered an adverse employment
action; and (3) the unfavorable action gives rise to an
inference of discrimination.'” Achagzai v.
Broad. Bd. of Governors, 170 F.Supp.3d 164, 180-81
(D.D.C. 2016) (quoting George v. Leavitt, 407 F.3d
405, 412 (D.C. Cir. 2005)). One way for a party to raise an
inference of discrimination is to show that the plaintiff
“was treated differently from similarly situated
employees who are not part of the protected class.”
Leavitt, 407 F.3d at 412. The Court must be mindful,
however, that the McDonnell Douglas test is
“an evidentiary standard, not a pleading requirement,
” Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002), and “an employment discrimination plaintiff
is not required to plead every fact necessary to establish a
prima facie case to survive a motion to dismiss,
” Jones v. Air Line Pilots Ass'n,
Int'l, 642 F.3d 1100, 1104 (D.C. Cir. 2011).
Instead, Hylton's “claim must simply ‘give
the defendant fair notice of what [his] . . . claim is and
the grounds upon which it rests.'” Kangethe v.
District of Columbia, 953 F.Supp.2d 194, 199 (D.D.C.
2013) (quoting Twombly, 550 U.S. at 555).
to the FHFA, Hylton's complaint fails to satisfy even
this liberal pleading standard. The Court need not decide
that question, however, because the D.C. Circuit requires
“a district court . . . to consider a pro se
litigant's complaint ‘in light of' all filings,
including filings responsive to a motion to dismiss.”
Brown, 789 F.3d at 152. This is particularly true
where, as here, the defendant “will suffer no prejudice
by allowing” the pro se plaintiff “to,
in effect, supplement his complaint with the allegations
included in his opposition.” Id.; see also
Richardson v. United States, 193 F.3d 545, 548 (D.C.
Cir. 1999); Anyanwutaku v. Moore, 151 F.3d 1053,
1059 (D.C. Cir. 1998). Applying this principle, the Court
concludes that Hylton's complaint, opposition brief, and
the exhibits that are “attached to” those
filings, EEOC v. St. Francis Xavier Parochial Sch.,
117 F.3d 621, 624 (D.C. Cir. 1997), provide sufficient
“factual matter (taken as true) to” support
Hylton's disparate treatment claims, Twombly,
550 U.S. at 556.
avers-or must be deemed to have averred-that he
“fulfilled the mandatory requirements” for
selection as a candidate for Ombudsman, but that the FHFA
failed to put his name forward in the same manner as equally
or less-qualified applicants because of his race, age, and/or
disability. Dkt. 6-1 at 40. He further alleges that his
application to the Ombudsman position received a score of 94
out of 100 from OPM but, despite this rating, he was not
selected for an interview while two individuals with scores
of 94 or 88 advanced to the second round of the application
process. Dkt. 6 at 10. That allegation lacks
detail-particularly detail about the races, ages, or
disability status of his comparators-but, at this preliminary
stage of the litigation, Hylton is “not required to
plead every fact necessary to establish a prima facie case to
survive a motion to dismiss.” Jones, 642 F.3d
at 1104. Nor does the fact that the FHFA ultimately opted to
fill the Ombudsman position from the ranks of then-current
“Agency Executive[s], ” Dkt. 1 at 5 (Compl.
¶ 15), defeat Hylton's claims as a matter of law.
Although the FHFA contends that the hiring process changed
due to an agency reorganization, Hylton alleges that the
change was a subterfuge used “to circumvent his
selection for the position.” Id. at 39. For
present purposes, the question is not who is ...