DABNEY L. FRIEDRICH, United States District Judge.
Before the Court is the Washington Metropolitan Area Transit Authority's (WMATA) Motion to Dismiss. Dkt. 3. For the following reasons, the motion will be granted in part and denied in part.
In this action, pro se plaintiff Ernest A. Thomas asserts age- and national origin-based employment discrimination claims against his employer, WMATA, and against his direct supervisor Sachit Kakkar and senior WMATA managers Paul J. Weidefeld and John T. Kuo (collectively, the Individual Defendants). See Compl. at 2-4, Dkt. 1; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. Thomas also asserts a retaliation claim. Compl. at 4.
Thomas is a 62-year-old U.S. citizen of Liberian national origin. Id. ¶ 1. He currently works for WMATA, id., and he has a history of filing EEOC complaints against his employer for discrimination based on race, age, and national origin, and for retaliating against him because of those claims, see id. ¶¶ 14, 20-24. The past complaints include at least three formal complaints to the EEOC during a span of about fifteen months beginning in early 2014. Id. ¶¶ 21-24.
In February 2017, Thomas applied for a promotion to the open position of Deputy Chief Vehicle Engineer. Id. ¶ 3. The next month, WMATA rejected Thomas's application, purportedly because he lacked the requisite ten years of management experience in transit engineering, which was part of the job description. Id. ¶ 4. This case arises from WMATA's decision not to promote Thomas.
Thomas asserts that his supervisor, Defendant Kakkar, made two revisions to the Deputy Chief Vehicle Engineer job requirements on January 11, 2017 before posting an opening for the job. Id. ¶ 2. Under the revisions, the Deputy Chief Vehicle Engineer position (1) now required ten years of transit-engineering-management experience, even though the more senior Chief Vehicle Engineer position required only five years; and (2) no longer required Professional Engineering qualifications. Id. ¶¶ 6, 11. Both changes allegedly disadvantaged Thomas, who has a Professional Engineering license but lacked ten years of experience. See id. Citing Thomas's failure to meet the ten-years requirement, WMATA ultimately rejected Thomas's bid for the promotion. Id. ¶ 4. WMATA later hired Anthony Johnson, a
On April 13, 2017, Thomas filed employment discrimination claims with the EEOC based on national origin and age, as well as a retaliation claim. Thomas received a Dismissal and Notice of Rights letter from the EEOC on April 28, 2017. See Dkt. 7 at 2. Thomas then filed his complaint on July 27, 2017, seeking monetary and punitive damages and injunctive relief. Compl. at 9. The case was reassigned to the undersigned judge on December 4, 2017.
WMATA now moves for dismissal under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that (1) Thomas failed to exhaust administrative remedies under Title VII before bringing this action; (2) WMATA is immune from ADEA claims due to sovereign immunity; (3) the Individual Defendants must be dismissed because they acted in their official capacities; (4) Thomas failed to state a claim for national-origin discrimination under Title VII; and (5) WMATA is immune from punitive damages. See Mem. at 7-13, Dkt. 3.
Under Rule 12(b)(1), a party may move to dismiss a claim over which the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion for dismissal under Rule 12(b)(1) "presents a threshold challenge to the court's jurisdiction." Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). Federal district courts are courts of limited jurisdiction, and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, to survive a Rule 12(b)(1) motion, a plaintiff must demonstrate that the court has jurisdiction by a preponderance of the evidence. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
"When ruling on a Rule 12(b)(1) motion, the court must treat the plaintiff's factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged." Jeong Seon Han v. Lynch, 223 F.Supp.3d 95, 103 (D.D.C. 2016) (quotation marks and citation omitted). Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, "the court must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Rule 12(b)(6)." Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 65 (D.D.C. 2011). Also, unlike when evaluating a Rule 12(b)(6) motion, a court may consider documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed. R. Civ. P. 12(b)(1), 12(h)(3).
Under Rule 12(b)(6), a party may move to dismiss for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 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) (quoting
When evaluating a Rule 12(b)(6) motion, the court "must construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (quotation marks omitted). While a "pro se complaint is entitled to liberal construction," Washington v. Geren, 675 F.Supp.2d 26, 31 (D.D.C. 2009) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" are not sufficient to state a claim, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. "In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice." Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks omitted). Finally, Rule 12(b)(6) dismissal for failure to state a claim "is a resolution on the merits and is ordinarily prejudicial." Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).
WMATA argues that Thomas failed to exhaust administrative remedies under Title VII before suing in federal court, see Mem. at 10, but the Court disagrees.
Title VII provides that a plaintiff may bring a claim in federal court within ninety days of an EEOC dismissal. See 42 U.S.C. § 2000e-5(f)(1) ("If a charge filed with the [EEOC under Title VII] is dismissed by the Commission, ... the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge ... by the person claiming to be aggrieved."). The EEOC issued Thomas a Dismissal and Notice of Rights letter on April 28, 2017. Dkt. 7 at 2. Thomas then filed his complaint on July 27, 2017, exactly 90 days after his EEOC dismissal. Dkt. 1. In doing so, he complied with Title VII's requirements for administrative exhaustion.
WMATA climbs uphill in asking the Court to ignore Title VII's plain meaning. WMATA's attempt to circumvent the statutory text reads out of context a single statement from Martini v. Federal National Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999). Namely, "Title VII complainants must wait 180 days after filing charges with the EEOC before they may sue in federal court." Id. at 1347. But Martini is properly read to require a 180-day wait only for plaintiffs whose cases have not been dismissed by the EEOC. The Martini plaintiff received a premature right-to-sue letter based on the assumption that the EEOC would be unable to process the complaint within 180 days, and the EEOC did not actually dismiss the Martini plaintiff's administrative action.
In contrast, the EEOC dismissed Thomas's administrative action. See Dismissal and Notice of Rights Letter, Dkt. 7 at 2. The EEOC dismissal triggered Thomas's statutory right to file a like civil action within ninety days. See 42 U.S.C. § 2000e-5(f)(1); Dismissal and Notice of Rights Letter, Dkt. 7 at 2 ("Your lawsuit
Further, the Court's reading of Martini comports with subsequent discussions of the case, which have consistently read Martini to apply only when the EEOC has not dismissed a charge. In Carr Park, Inc. v. Tesfaye, the D.C. Circuit observed that "Martini struck down an EEOC regulation asserting authority to authorize a private party to sue before 180 days even if a charge had not been dismissed." 229 F.3d 1192, 1193 n.1 (D.C. Cir. 2000) (second emphasis added). While Carr Park is not controlling because it merely dismissed an attempted interlocutory appeal as untimely, the Carr Park Court said that the district judge in that case — by limiting Martini to cases that the EEOC has not yet dismissed — "read Martini in harmony with the statutory wording...." Id. at 1193. The Court today reads Martini in the same way — namely, plaintiffs like Thomas need not wait 180 days after filing with the EEOC when the EEOC has already dismissed their administrative actions. See Quarles v. Gen. Inv. & Dev. Co., 260 F.Supp.2d 1, 16-17 (D.D.C. 2003) (denying a motion to dismiss for failure to exhaust where the plaintiff filed a civil action within ninety days of receiving a Dismissal and Notice of Rights letter); Tesfaye v. Carr Park, Inc., 85 F.Supp.2d 37, 38 (D.D.C. 2000) (same); see also Fennell v. AARP, 770 F.Supp.2d 118, 126 n.4 (D.D.C. 2011) (distinguishing cases involving a final EEOC determination from those, like Martini, without a final determination); McAlister v. Potter, 733 F.Supp.2d 134, 144 (D.D.C. 2010) (distinguishing the ninety-day deadline after a final EEOC determination from the 180-day window in cases like Martini). Therefore, the Court will deny WMATA's motion to dismiss for failure to exhaust administrative remedies.
WMATA asserts that it is immune from ADEA suits; the Court agrees. A state is immune from federal suits brought by the state's own citizens or the citizens of another state unless the state waives its sovereign immunity or Congress validly abrogates that immunity. See Jones v. WMATA, 205 F.3d 428, 431-32 (D.C. Cir. 2000). WMATA originates in a compact signed by Maryland, Virginia, and the District of Columbia, and it enjoys the sovereign immunity of those signatories. Id. The signatories to the WMATA compact have not waived sovereign immunity for discretionary employment functions such as hiring and promotion, see Beebe v. WMATA, 129 F.3d 1283, 1287-88 (D.C. Cir. 1997), and the ADEA does not abrogate state sovereign immunity, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91-92, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). "[S]overeign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief." Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 765, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002). Therefore, sovereign immunity forecloses Thomas's claims against WMATA for both monetary damages and injunctive relief under the ADEA. See Bailey v. WMATA, 696 F.Supp.2d 68, 72 (D.D.C. 2010) (dismissing ADEA claims against WMATA for both damages and injunctive relief).
First, WMATA's business activities do not waive sovereign immunity. Decades ago, the Supreme Court required lower courts to analyze whether business activities in interstate commerce constituted a waiver of sovereign immunity. See Parden v. Terminal Ry. of Ala. State Docks Dep't, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). But Parden has been explicitly overruled, and business activities no longer constitute a waiver of sovereign immunity. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
Second, Thomas argues that WMATA should not benefit from the signatories' sovereign immunity because taxpayers would not be responsible for any monetary award against WMATA. The D.C. Circuit has foreclosed this argument. The practical result of damages against WMATA "would be payment from the treasuries of Maryland and Virginia," so WMATA benefits from their sovereign immunity. Jones, 205 F.3d at 432 (quoting Morris v. WMATA, 781 F.2d 218, 225 (D.C. Cir. 1986)).
Therefore, WMATA is immune from Thomas's ADEA claim, and the Court will dismiss it with prejudice.
WMATA also seeks dismissal of Thomas's Title VII claim of national-origin discrimination. Title VII prohibits employers from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1), and from retaliating against an employee who seeks the statute's protections, see 42 U.S.C. §§ 2000e-3(a).
To survive a Rule 12(b)(6) challenge, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks omitted). But addressing a Rule 12(b)(6) challenge to an employment discrimination claim involves an extra wrinkle. Employment discrimination claims for a failure to hire or promote follow the familiar burden-shifting framework from McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, the plaintiff ultimately bears the burden of establishing the specific requirements of a prima facie case of employment discrimination,
On one hand, before Twombly and Iqbal, the D.C. Circuit utilized a very permissive standard for pleading employment discrimination. Under that standard, a plaintiff was only required to say that "`I was turned down for a job because of my race'... to survive a motion to dismiss under Rule 12(b)(6)." Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000) (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998)). But that standard was premised, at least in part, on the now-abrogated standard from Conley v. Gibson, which permitted a complaint to survive unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), abrogated by Twombly, 550 U.S. at 544, 127 S.Ct. 1955. And the D.C. Circuit's Sparrow articulation of Conley's pleading standard for employment discrimination complaints did not survive Twombly. See McManus v. Kelly, 246 F.Supp.3d 103, 111 (D.D.C. 2017) ("[A]lthough the issue is not entirely settled, the Court is convinced that the Sparrow pleading standard is no longer controlling."); Greer v. Bd. of Trs. of Univ. of D.C., 113 F.Supp.3d 297, 310 (D.D.C. 2015) (noting that "Twombly and Iqbal require more factual context" than the "multiple assumptions" necessary to state a claim under the Sparrow standard); Jackson v. Acedo, No. 08-cv-1941, 2009 WL 2619446, at *4 (D.D.C. Aug. 26, 2009) ("Sparrow is no longer binding authority in light of the[] observations by the Supreme Court in Twombly.").
On the other hand, it remains true that courts must not demand that plaintiffs plead the specific requirements of a prima facie case under McDonnell Douglas. Swierkiewicz, 534 U.S. at 511, 122 S.Ct. 992 ("[I]t is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case."); Twombly, 550 U.S. at 569-70, 127 S.Ct. 1955 (rejecting arguments that it should abrogate Swierkiewicz). Courts must therefore strike a balance between the rigidity of applying the specific requirements of a prima facie case from McDonnell Douglas, as rejected in Swierkiewicz, and the permissiveness of the Conley-Sparrow pleading regime, as rejected in Twombly.
The most straightforward way to read Twombly, Swierkiewicz, and the law of this Circuit may be to refer to the Circuit's general formulation of a prima facie case of employment discrimination (as opposed to the specific requirements for a prima facie case in the failure to hire context, per McDonnell Douglas). In general, "[t]o state a prima facie case of discrimination, a plaintiff must allege she is part of a protected class under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination." Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). If applied at the motion to dismiss stage, the general standard's third prong, an "inference of discrimination," could be plausibly pleaded with allegations of either direct or indirect discrimination. This standard would avoid running astray of Swierkiewicz without returning to Sparrow. And the standard would hew closely to Twombly because it is difficult to conceive of a case that would be plausible under Twombly without at least raising an "inference of discrimination" under the general test.
Thomas pleads that he is a member of a protected class because he of Liberian national origin. Compl. ¶ 1. And he adequately alleges an adverse employment action, i.e., WMATA's refusal to promote him. Id. ¶ 4. As a result, this dispute boils down to whether the defendants' "action[s] give[] rise to an inference of discrimination." Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). Most commonly, in the context of a failure to promote, "an inference of discrimination can be established by a plaintiff's elimination of `the two most common legitimate reasons ... to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.'" Martin v. D.C., 78 F.Supp.3d 279, 293 (D.D.C. 2015) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)); see Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (a plaintiff's elimination of an "absolute or relative lack of qualification" is generally "sufficient" to establish an inference of discrimination).
Here, Thomas pleads sufficient facts, if accepted as true, to create a plausible inference of discrimination. Thomas alleges that Defendant Kakkar "revised the job description" of the sought-after position "to disqualify Plaintiff." Compl. ¶ 2. According to Thomas, the new job requirements were more stringent than any similar job in the organization, and they demanded more experience than required of the job's direct supervisor. Id. ¶ 6. But they did not require Professional Engineering registration, a qualification uniquely possessed by Thomas and required for similar positions throughout WMATA. Id. ¶ 11. WMATA proceeded to hire another candidate, even though that candidate allegedly did not meet the posted job requirements and was allegedly less qualified than Thomas. See id. ¶¶ 5, 8-11. According to Thomas, WMATA then incorrectly asserted that its chosen candidate met the job's experience requirement by double-counting a single piece of that individual's work history. Id. ¶ 9. WMATA disputes Thomas's account and identifies a number of potentially countervailing factors. See, e.g., Reply at 3-5, Dkt. 6; WMATA OIG Report, Dkt. 6-3. But at this stage, the Court accepts Thomas's factual allegations as true and concludes that the complaint at least raises a plausible inference of discrimination. Therefore, the Court will deny WMATA's motion to dismiss the Title VII claim against WMATA for national-origin discrimination.
WMATA next argues that Thomas's Title VII and ADEA claims against the Individual Defendants must be dismissed. The following sections will address both in turn.
Turning first to the Title VII claims against the Individual Defendants, "a supervisory employee may be joined as a party defendant in a Title VII action, [but] that employee must be viewed as being sued in his capacity as the agent of the employer, who is alone liable for a
Thomas also asserts ADEA claims against the Individual Defendants, seeking both damages and injunctive relief. Like the Title VII claims, the ADEA damages claims against the Individual Defendants function solely as damages claims against WMATA. See Atchinson v. District of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996) ("When sued in their official capacities, government officials are not personally liable for damages."). WMATA is immune from ADEA damages. See supra Section III.B. The Court will therefore dismiss with prejudice the ADEA damages claims against the Individual Defendants in their official capacities.
Thomas also seeks injunctive relief. In particular, he seeks to be prospectively awarded the promotion for which he was rejected. See Compl. at 9. Although WMATA itself is immune from such claims, see supra Section III.B, the Individual Defendants are not. Under the Ex parte Young doctrine, "[a] federal court is not barred by the Eleventh Amendment from enjoining state officers from acting unconstitutionally, either because their action is alleged to violate the Constitution directly or because it is contrary to a federal statute or regulation that is the supreme law of the land." Vann v. Kempthorne, 534 F.3d 741, 749 (D.C. Cir. 2008); see also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 S.Ct. 714 (1908). The doctrine "rest[s] upon the fiction that the suit went against the officer and not the State, thereby avoiding sovereign immunity's bar." Vann, 534 F.3d at 749. "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Id. at 750 (quoting Verizon Md. Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002)).
The Court finds no case in this Circuit directly addressing the availability of Ex parte Young claims under the ADEA. But the Supreme Court has allowed for such relief under the Americans with Disabilities Act. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (private individuals may sue for injunctive relief to enforce the standards of the ADA under Ex parte Young). And other circuit courts have persuasively applied Ex parte Young to the ADEA. See State Police for Automatic Ret. Ass'n v. DiFava, 317 F.3d 6, 12 (1st Cir. 2003) (Young applies to the ADEA); Meekison v. Voinovich, 67 Fed.
The Court will follow this course by applying the Ex parte Young doctrine to Thomas's ADEA claims against the Individual Defendants. Thomas's complaint alleges an ongoing violation of the ADEA and seeks prospective relief, namely the promotion for which he was rejected, which is sufficient to state a claim against the Individual Defendants. See Compl. at 9; Vann, 534 F.3d at 749. Therefore, the Court will deny the motion to dismiss the ADEA claims against the Individual Defendants for prospective injunctive relief.
Finally, WMATA moves to dismiss Thomas's claims for punitive damages. As a general matter, municipalities are not subject to punitive damages absent express statutory authorization. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-66, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Daskalea v. D.C., 227 F.3d 433, 446-47 (D.C. Cir. 2000); Smith v. D.C., 336 A.2d 831 (D.C. 1975) (per curiam); see also Coates v. WMATA, No. 15-cv-2006, 2016 WL 4543991, at *6 (D.D.C. Aug. 31, 2016) ("As a general rule, WMATA's sovereign immunity bars claims against it for punitive damages."). Thomas does not identify any statutory basis for a punitive damages award against WMATA, nor does he cite to any supportive case law. Instead, Thomas repeats the arguments he raised against WMATA's general assertion of sovereign immunity. See Opp. at 21-22. Those arguments are beside the point and, at any rate, rejected for the same reasons articulated in Section III.B.
Moreover, the Court's own inquiry does not reveal any statutory authorization for punitive damages against WMATA for the remaining Title VII claims. In Title VII cases involving intentional discrimination in employment, punitive damages are not recoverable against "a government, government agency or political subdivision," such as WMATA. 42 U.S.C. § 1981a(b)(1).
For the foregoing reasons, the Court grants in part and denies in part WMATA's Motion to Dismiss. Dkt. 3. A separate order consistent with this decision accompanies this memorandum opinion.
