1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
BENJAMEN A. MILLER, Plaintiff,

v. VINCENT C. GRAY, Defendant. Civil Action No. 13-CV-02018-(BAH) Judge Beryl A. Howell

MEMORANDUM OPINION The plaintiff, Benjamen A. Miller, filed this action against Mayor Vincent C. Gray, in his official capacity, alleging that he was denied teaching positions with the District of Columbia Public Schools (“DCPS”) for three consecutive y ears from 2009 to 2011, in violation of the Age Discrimination in Employment Act (“ADEA”) and District of Columbia Human Rights Act (“DCHRA”), and in retaliation for the exercise of his rights under these statutes. Compl., ECF No. 1, ¶¶ 4, 50-55. Pending before the Court is th e defendant’s motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiff’s DCHRA claim fo r failure to state a claim. Def.’s Mot. Dismiss (“Def.’s Mot.”), ECF N o. 7. For the reasons set forth below, the defendant’s motion to dismiss is denied.
I. BACKGROUND The plaintiff alleges that DCPS discrimina ted against him based on his age when it denied his applications for teaching positions on three separate occasions in 2009, 2010, and 2011. The plaintiff is currently seventy-two years old and avers he is “exceptionally wellqualified to teach.” Compl. ¶¶ 3-8. He cites as his qualifications th at (1) he holds a Bachelor of Arts degree in Sociology and two Masters degrees, one in Educational Administration and the2 other in Economics; (2) he has a District of Columbia Teaching License at the highest level, called a “Regular II-A”; (3) he has prior teaching experience in th e District of Columbia from 1964 to 1977; and (4) he was certified, in June 20 09, by the District of Columbia Office of the State Superintendent of Education, “to teach and/or provide services in the subjects as indicated below: Social Studies/Grades 7-12 Level.” Id. ¶¶ 5-8. A. The Plaintiff’s Rejection in the 2009 In 2009, when the plaintiff was sixty-eight y ears old, he applied for Teacher and SchoolBased Instructional Coach positions w ith DCPS for the 2009-2010 school year. Id. ¶¶ 7-9. On July 23, 2009, the plaintiff received a message fr om DCPS rejecting his application and noting the “tremendous number” of high quality applications DCPS received. Id. ¶ 10. The plaintiff followed-up with a written reques t to DCPS for the specific reasons why his application would not be rece iving further consideration. Id. ¶11. According to the plaintiff’s summary of DCPS’s response, which was made in a letter, dated July 27, 2009, DCPS advised that his application was denied because (1) he “did not possess a Master’s degree in education, teaching or curriculum,” which were qualifications for the position; (2) the plaintiff’s prior teaching experience “was a number of years ago”; and (3) the social studies process is so competitive, DCPS was “looking for individual s [with] recent low-income urban teaching experience.” Id. at 12. In a subsequent telephone conversation initiate d by the plaintiff, th e same DCPS official who sent the July 27, 2009 letter, allegedly explaine d to the plaintiff that while “not ridding itself of all of its older teachers,” DCPS was “s eeking a greater balan ce of older and younger teachers.” Id. ¶ 13. The plaintiff construes “[t]hese co mments [as] reflect[ ing] that defendant was explicitly considering age as a factor in the hiring decisions.” Id.3 The plaintiff subsequently informed th e Equal Employment Opportunity (“EEOC”) Specialist for the DCPS that he believed he had been rejected because of his age. Id. ¶ 14. Despite being told that all the positions had b een filled but that he would receive a telephone screening interview for positions opening in the mi ddle of the year, the plaintiff never received an interview. Id. ¶¶ 15, 17. Consequently, the plaintiff file d a charge of age discrimination with the EEOC regarding his non-selection on October 13, 2009. Id. ¶ 27. DCPS was notified of this charge by December 31, 2009. Id.
B. The Plaintiff’s Rejection in 2010 In July 2010, the plaintiff applied again fo r teaching positions with DCPS for the next 2010-2011 school year. Id. ¶ 28. The plaintiff receive d an automated rejection, on February 4, 2011, which allegedly stated that “due to the high volume of applications we receive, we are not able to re-evaluate or provide indi vidual feedback on applications.” Id. ¶ 29. The plaintiff renewed his complaint about age discriminati on, prompting a response, on February 28, 2011, from a DCPS Director of Labor and Management Relations, who explaine d that his application was rejected because “the reviewer of [his] appli cation determined that [his] essays did not meet the rubric guidelines.” Id. ¶ 30. The plaintiff contends this expl anation was “false, and a pretext for age discrimination,” id. ¶ 31, and that the DCPS rejected hi s application out of retaliation for his previous age discrimination claim, id. ¶¶ 31, 34-35. On July 8, 2011, the plaintiff filed a discrimination claim with the EEOC over his non-selection for the 2010-2011 DCPS positions. Id. ¶ 37. C. The Plaintiff’s Rejection in 2011 The plaintiff submitted his third application for positions with DCPS, on April 10, 2011, for the next 2011-2012 school year. Id. ¶ 38. This time, the plaintiff applied for Master4 Educator and Assistant Principal positions. Id. On May 11, 2011 and June 9, 2011, respectively, the plaintiff was notified that DC PS was not hiring Master Educators or Assistant Principals for the upcoming school year. Id. ¶¶ 40-41. Through a Freedom of Information Act Request (“FOIA”), however, the plaintiff claims he learned that DCPS had, in fact, filled both types of positions after re ceiving his applications. Id. ¶ 42. The plaintiff alleges that his applications were rejected due to age disc rimination and in retalia tion for his pending EEOC charges of discrimination. Id. ¶¶ 43, 46. On April 30, 2012, the plai ntiff filed a third charge of age discrimination with the EEOC. Id. ¶ 48. On September 30, 2013, the EEOC closed its investigation of the plaintiff’s three complaints and issued a notice of the right to sue. Id . ¶ 49. The plaintiff subsequently filed this action on December 19, 2013.
II. LEGAL STANDARD The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . cl aim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007); F ED
. R. C IV
. P. 8(a). Although “detailed factual allegations” are not necessary, to provide “grounds ” of “entitle[ment] to relief” a plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly , 550 U.S. at 555. To state a claim upon which relief can be granted, “a complaint must contain sufficient factual matter, accepte d as true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 570). A complaint is plausible on its face “w hen the plaintiff pleads factual content that allows the court to draw the reasonable inferenc e that the defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678. To survive a motion to dismiss, the complaint “need not plead5 law or match facts to every element of a legal theory.’” Krieger v. Fadely , 211 F.3d 134, 136 (D.C. Cir. 2000); see also Jones v. Air Line Pilots Ass’n, Int’l , 642 F.3d 1100, 1104 (D.C. Cir. 2011) (“an employment discriminati on plaintiff is not required to plead every fact necessary to establish a prima facie case to survive a motion to dismiss”) (citing Swierkiewicz v. Sorema N.A ., 534 U.S. 506, 511 (2002)). Furthermore, in eval uating a motion to dismiss, the court must accept the factual allegations made in the complaint as true and give the plaintiff the benefit of all inferences that can reasonably be drawn from hi s allegations. Wagener v. SBC Pension Benefit Plan-Non Bargained Program , 407 F.3d 395, 401 (D.C. Cir. 2005).
III. DISCUSSION The defendant argues that the complaint should be dismissed, pursuant to Federal Rule of Civil Procedure 12(b)(6), on th e following three grounds: (1) failu re to sue a proper party, (2) failure to plead sufficient facts to state a DCHR A age discrimination claim, and (3) failure to timely file its DCHRA claim within the applicable one year statutory period. See Def.’s Mot. at 1. For the following reasons, the Court finds each argument unavailing. A. Failure to Sue the Proper Party The very first argument asserted by the defe ndant as grounds to dismiss the plaintiff’s ADEA claim is that the pl aintiff has named the wrong party to be sued in this case by naming Mayor Vincent Gray, even though the defendant concedes that the Mayor is named “in his official capacity.” Def.’s Mem. In Supp. Mot. to Dismiss (“Def.’s Mem.”), at 3,6, ECF No. 7. This argument simply does not warrant the dismissal the defendant seeks. Courts generally have held that “there is no individual liability unde r . . . the ADEA.” Bilal-Edwards v. United Planning Org. , CV 11-2220, 2013 WL 7389440, at *7 (D.D.C. Feb. 21, 2013) (quoting Smith v. Janey , 664 F. Supp. 2d 1, 8 (D.D.C. 2009), aff’d sub nom, Smith v. Rhee ,6 No. 09–7100, 2010 WL 1633177 (D.C. Cir. 2010)); Hill v. Borough of Kutztown , 455 F.3d 225, 247 (3d Cir. 2006) (finding no liability under ADEA against individuals because they “lacked the power to fire [the plaintiff]”); Medina v. Ramsey Steel Co., Inc. , 238 F.3d 674 (5th Cir. 2001) (finding that “the ADEA ‘provides no basis for individual liability for supervisory employees’”) (quoting Stults v. Conoco, Inc. , 76 F.3d 651, 655 (5th Cir. 1996)); Smith v. Lomax , 45 F.3d 402, 403 n.4 (11th Cir. 1995) (finding reli ef could not be granted agains t two defendants sued in their individual capacities under the ADEA). At the same time, the complaint is clear, as the defendant concedes that Mayor Vincent Gray is sued only in his official capacity. Compl. ¶ 4; Def.’s Mem. at 3,6. In this circumstance, “a suit against a state official in his or her offici al capacity is not a suit against the official but rather is a suit against the official’s office.” Kranz v. Gray , 842 F. Supp. 2d 13, 16, n.1 (D.D.C. 2012) (quoting Will v. Mich. Dep’t of State Police , 491 U.S. 58, 71 (1989)); Atchinson v. District of Columbia , 73 F.3d 418, 424 (D.C. Cir. 1996) (“When sued in their official capacities, government officials are not personall y liable for damages.”) (citing Kentucky v. Graham , 473 U.S. 159, 166 (1985)); Jefferies v. District of Columbia , 917 F. Supp. 2d 10, 29 (D.D.C. 2013) (“A suit against a District of Columbia official in her official capacity is equivalent to a suit against the municipality itself.”) (internal quota tions and citations omitted). Thus, rather than dismissing the complaint for failure to sue a proper party, the Court will subs titute the District of Columbia as the defendant. See Kranz , 842 F. Supp. 2d at 25; Waker v. Brown , 754 F. Supp. 2d 62, 65 (D.D.C.2010) (where the court substituted the District of Columbia for the mayor, police chief, and Department of Corrections); Henneghan v. D.C. Pub. Schs. , 597 F. Supp. 2d 34, 37 (D.D.C. 2009) (where the c ourt substituted the District of Columbia for DCPS).7 B. Failure to State a DCHRA Claim The defendant next argues that the Court s hould dismiss the plain tiff’s DCHRA claim for failure to plead sufficient facts to state a cl aim under Federal Rule of Civil Procedure 8. See Def.’s Mem. at 6-7. The plainti ff counters that the complaint states ample facts relating to each element of an age discrimination claim to support his claims. The Court agrees with the plaintiff. The DCHRA makes unlawful discrimination in employment against individuals on the basis of age. See D.C. Code § 2-1402.11(a). An inferen ce of age discrimination sufficient for a prima facie case “is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for th e position, (3) was not hired, and (4) was disadvantaged in favor of a younger person.” Cuddy v. Carmen , 694 F.2d 853, 857 (D.C. Cir. 1982) (citing elements of prima facie ADEA claim). 1 The plaintiff need not plead all of these elements in order to overcome a motion to dismiss. Miller v. Insulation Contractors, Inc. , 608 F. Supp. 2d 97, 105 (D.D.C. 2009) (“A plaintiff is not re quired to plead all elements of the prima facie case nor ‘plead law or match facts to every element of a legal th eory,’” quoting Krieger v. Fadely , 211 F.3d 134, 136 (D.C. Cir. 2000)). Furthermore, the complaint in this matter contains sufficient allegations that address each elemen t for a prima facie case of age discrimination. With respect to the first element, the plaintiff alleges that he “was 68 years old at the time of his application for [the] first round of t eaching positions” with the DCPS, which makes him a member of a protected class fo r this and each subsequent application he filed with DCPS. See Compl. ¶ 9. The second element regarding the pl aintiff’s qualifications for the positions for which he applied and was rejected is supported by the list of e ducational qualifications that the

1 The defendant has only moved to dismiss the plaintiff’s DCHRA claim, presumably in reliance on the defendant’s first argument regarding the plaintiff’s failure to name th e proper party as ground to dismiss the ADEA claim. See Def.’s Mem. at 5. Even if the defendant had expressly moved to dismiss the ADEA claim on the same basis as the DCHRA claim, the same analysis would apply. See Paquin v. Fed. Nat. Mortg. Ass’n , 119 F.3d 23, 27 n.1 (D.C. Cir. 1997) (“[W]e apply the same analysis to [the plaintiff’s] ADEA and DCHRA claims.”).8 plaintiff has enumerated in the complaint, in cluding the educational degrees he has been awarded, the certifications he has earned, and his prior years of teaching experience. See id. ¶ 5- 6; Pl.’s Opp’n at 3. The third element regarding the plaintiff not being hired is satisfied. The complaint details the three separate occasions wh en the plaintiff applied for DCPS positions but was not hired by DCPS. See Compl. ¶¶ 1, 7-48. Finally, regarding the four th factor, the plaintiff has alleged in the complaint that younger people were hired for the positions for which he was rejected. Pl.’s Opp’n at 3 (citing Compl. ¶¶ 18-22). The plaintiff further supports his claim that he was discriminated against on the basis of his age by DCPS with allegations about his communi cations with officials from DCPS. Compl. ¶ 13. Specifically, the plaintiff alleges that af ter his first applicati on was rejected, a DCPS official told him that the agency was “seeki ng a greater balance of older and younger teachers” and that “DCPS was not ridding itself of all of its older teachers.” Id. The plaintiff contends that this “admission of age consciousness in the decisi onal process” is direct evidence that age was a factor in DCPS’s hiring decisions. Pl.’s Opp’n’ at 5. In addition, according to the plaintiff, DCPS’s allegedly “shifting” explan ations, regarding the basis for his rejections, are “a hallmark of pretext and discrimination.” Id. at 3; see Wilson v. Cox , No. 12-5070, 2014 WL 2457632, at *3 (D.C. Cir. June 3, 2014) (reversing district co urt’s grant of summary judgment to defendant employer upon finding that two statements allege dly made by employees of the defendant employer arguably constituted “direct evidence of age discrimination”). In sum, the plaintiff has sufficiently stated his claim of age discrimination to overcome the defendant’s motion to dismiss. C. Failure to Timely File DCHRA Claim The defendant also argues that the DCHRA claim is subject to dismissal for failure to file the complaint within the applicable statutory pe riod. In support of this claim, the defendant9 submits that the plaintiff “has not set forth facts which demonstrat e the tolling of the applicable statute[] of limitations, that he timely filed this action after receiving a right to sue letter, or that he even received such a letter.” Def. ’s Mem. at 7. This is incorrect. The plaintiff clearly stat es that “[o]n September 30, 2013, the EEOC closed its investigation of [the plaintiff’s] complaints and issued him a noti ce of the right sue,” after which the plaintiff commenced this action on Decem ber 19, 2013, within the applicable 90 day period under the ADEA. Compl. ¶ 49; s ee Peterson v. Archstone , 601 F. Supp. 2d 123, 125 (D.D.C. 2009) (“A civil action may be broug ht under this [ADEA] . . . ag ainst the respondent named in the charge within 90 days after the date of the receipt of [the] [Notice of Right to Sue]. 28 U.S.C. § 626(e).”) (internal quotations omitted). Notwithstanding the time ly filing of the ADEA claim, the defendant contends th at the DCHRA claim is untimely. This argument is foreclosed by well-established case-law. It is undisputed that before commencing an ADEA action in court, a plaintiff must exhaust administrative remedies by filing a discrimi nation charge with the EEOC, as well as with the appropriate state agency. Schuler v. PricewaterhouseCoopers, LLP , 514 F.3d 1365, 1367-68 (D.C. Cir. 2008). The D.C. Circuit has explaine d that the worksharing agreement between the District of Columbia Office of Human Rights (“DCOHR”) and the EEOC, “acting in accordance with 29 C.F.R. § 1626.10,” operates so that “[ c]harges received by one agency under the agreement shall be deemed rece ived by the other agency.” Id. at 1372. As a consequence of the “cross-filing” of complaints between the DCOHR and EEOC, the one-year limitations period for the filing of complaints to the DCOHR, unde r D.C. Code §§ 2-1403.04(a), 2-1403.16(a), is tolled during the processing of the complaint by the EEOC. See, e.g. , Frett v. Howard Univ. , 2014 U.S. Dist. LEXIS 31493, at *15-16 (D.D.C. Mar. 10, 2014) (filing of EEOC charge tolled the10 statute of limitations for disc rimination claim under DCHRA); Brewer v. District of Columbia , 891 F. Supp. 2d 126, 132 (D.D.C. 2012) (“Because the plaintiff here filed a complaint with the EEOC, he is deemed to have fulfilled the state filing requirement”); Lee v. District of Columbia , 733 F. Supp. 2d 156, 160 (D.D.C. 2010) (“Workshari ng agreements, which generally provide for cross-filing between the EEOC and FEP agenci es, satisfy this statutory [limitations] requirement”) (internal quotations and citations omitted). Moreove r, the EEOC’s issuance of a right to sue notice automatically results in the DCOHR’s termination of the case based on administrative convenience, enabling the plaint iff to file suit under the ADEA and DCHRA. See Ibrahim v. Unisys Corp. , 582 F. Supp. 2d 41, 46 (D.D.C. 2008) (“the deferral of jurisdiction by the DCOHR amounted to a dismissal of [the plaintiff’s] complain t ‘on the grounds of administrative convenience.’” (citing Griffin v. Acacia Life Ins. Co ., 925 A.2d 564, 573 (D.C. 2007) (quoting D.C. Code § 1-2556(a)(2001))). The plaintiff filed three EEOC charges in this action all within one y ear of the notice of his rejections. The plaintiff received notice of his first rejection for 2009/2010 positions on July 23, 2009, Compl. ¶ 10, and allegedly “timely filed a charge of discrimination” with the EEOC “on October 13, 2009,” id. ¶ 27. He received notice of his second rejections for 2010/2011 positions on February 4, 2011, id. ¶ 29, and allegedly “timely file d a charge of discrimination with the EEOC . . . on July 8, 2011,” id. ¶ 37. Finally, the plaintiff received notice of his third rejections for 2011/2012 positions on May 11, 2011 and June 9, 2011, id. ¶¶ 40-41, and timely “filed a charge of discrimination with the EEOC . . . on April 30, 2012,” id. ¶ 48. As discussed above, once the EEOC charge was filed, the DCHRA’ s one year statute of limitation was tolled until the plaintiff received a notice from the EEOC of his right to sue, which allegedly occurred11 in this case on September 30, 2013. Consequent ly, the plaintiff’s DCHRA claim was timely filed, within the one year statute of limitations, on December 19, 2013.
IV. CONCLUSION Accordingly, for the foregoing reasons, the defendant’s Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for fail ure to sue a proper party, state a DCHRA claim, or timely file a DCHRA claim, within the applicable statutory period, is DENIED. An appropriate Order accompanies this Memorandum Opinion.

Date: June 30, 2014

__________________________ BERYL A. HOWELL United States District Judge