UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________) ALF RED L. ST ONE, ) ) P laintif

f, )

) v. ) Civil Action No. 09-2359 ( RBW) ) LANDIS CONSTRUCTION ) CORP ORATION et al. , ) ) Defendan ts. ) ____________________________________)

MEMORAN DUM OP INION In this action filed pro se , the plaintiff cla ims that the defenda nts did not hi re him as a Master Plumber be cause of his rac e, Af rica n Americ an, and his a g e, then 55. He sues L andis Construction Corporation (“L andis Corp.”) a nd its Chi ef Executive Of fice r, Ethan L andis (“L andis”), unde r 42 U.S.C. § 1981(b) (2006) , Title VI Iof the Civil Ri g hts Act of 1964, 42 U.S.C. §§ 2000e-1 to e-17 ( 2006), and the Ag e Discrimination in Em ploy ment Act (“ ADEA” ), 29 U.S.C. §§ 621-34 (2006). The plaintiff also sues L andis in his indivi dual ca pacity under section 1981. SeePlaintiff’s Complaint That the Defe ndants’ Violated T itle 42 Sec. 1981(b); and, Title 29 Sec. 621 & 626 Be cause They Fa iled or Refuse d to Hire Him B eca use of His Ag e and His Race , That B eingAfric an Amer ican ( “Compl.”) (Count I I ). Currently pendingbefor e the Court is the De fenda nts’ Motion for Summary J udg ment or to Dismiss (“D efs.’ Mot.”) [Dkt. No. 7], which the plaintiff has opposed [Dkt. No. 9]. Upon consideration of the parties’ submissi ons and the e ntire re cord, the Court will gra nt the defe ndants’ motion to dism iss as to the Title VI Iand ADE A claims and w ill enter summary judgme nt for the de fenda nts on the section 1981 claim.F ACTUAL BACK GR OUND

The plaintiff a lleg es that on April 30, 2006, he a pplied for a

Master Plumber position that the def endants ha d adver

tised in The W

ashington Post . Compl. ¶ 7. He interview ed with L andis on May 6, 2006, at the Takoma Park off ice of L andis Corp. Id . ¶ 9. L andis, “a white male in his thirties or forties,” id . ¶ 10, “r epre sented to the [p] laintiff that he wa s competent to per form the administrative par

t of the job descr iption; but. . . had conc erns a bout whether

the [p] laintiff could per form the phy sical labor be cause ‘you‘re old.’ ” Id . ¶ 11. Howe ver, pur suant to L andis’ reque st, the plaintiff prepa red “ a propose d budg et for a new plumbingdepar

tment” and se nt L andis a c opy

by e-ma il on May

8, 2006. Id . ¶¶ 12- 13. Ultimately , the def endants “ reje cted the [p] laintiff’s application for employ ment . . . [but ] kept the positi on open and c ontinued to seek a person of [p] laintiff’s qualific ations.” Id . ¶ 15. On Oc tober 30, 2006, the de fenda nts “hired a white Master

Plumber for the position; but, denied the [p] laintiff notice a nd the opportunity

to

rea pply for the position. . . .” Id . ¶ 16. On J une 13, 2007, the plaintiff lodg ed a disc rimination charg e ag ainst L andis Corp. with the United States Equal Employ ment Opportunity

Commi ssion (“EEOC”) , claimingrac e and a g e discrimination. Defe ndants’ Reply to Opposition t o Motion for Summary J udg ment or to Dismiss (“Def

s.’ Reply”), Exhibit (“Ex .”) ( Charg e of D iscrimination). On August 24, 2009, the EEOC dismissed the char g e as untimely and informe d the plaintiff of his right to sue within 90 day s of his rec eipt of the dismissal notice. Compl. Ex . (Dismissal and Notice of Rights). The re cord r efle cts that the Clerk of Court f irst rec eived the pla intiff’s complaint dated October 23, 2009, on October

27, 2009, but this l atter date was subse quently stricken, seeDkt. No. 1, and c hang ed to re flec t the same da te the Clerk f

irst rec eived the pla intiff’s application to proce ed in forma pauperis , November 19, 2009. SeeDkt. No 2. This case was de emed f ormally 2filed on De cembe r 14, 2009, af ter the Court grante d the plaintiff’s in forma pauperis motion on Dec ember

13, 2009. Id

. DISCUSSIO N The Defendan ts’ M otion to Dism iss the Title VII and ADEA Claim s The de fenda

nts move to dismi ss the Title VI Iand ADE A claims under Rule 12(b)(6) of the Fe dera l Rules of Civil Procedur e. They asser t that the plaintiff fa iled to exhaust hi s 1 administrative re medies by filing a timely charg e with the EEOC a

nd failed to file a

timely complaint with the Court. In addition, the defe ndants asser t that “[t] here is no jurisdiction over the individual defe ndant, Mr L andis,” unde r Title VI Ior the AD EA, De fs.’ Mot. at 3-4, but the plaintiff is not suing L andis in his indivi dual ca pacity under e ither of those statutes. SeeCompl. (Count I I ) ¶¶

19-26 (a ssertingindividual capac ity claim under

section 1981(b) ). Contrary to the defe ndants’ asse rtion, the rec ord establishes that the c omplaint was timely submitt ed with the plaintiff’ s in forma pauperis application on Nove mber 19, 2009, five day s befor e expiration of the 90-da y filing pe riod. See G uillen v. Nat’l Grange , 955 F. Supp. 144, 145 (D.D.C. 1997) ( findinga Title VI I litigant “not r esponsible for the administrative delay associate d with the Court’s revie w of pe titions to proce ed in forma pauperis . . . . [T] he prese ntation of a c omplaint [ and] a petition to procee d in forma pauperis tolls t he ninety -day period of limitations . . . ”) (c itations omi tted); accord W ashington v. W

hite , 231 F. Supp.2d 71,

The de fenda

nts also invoke Rule 12(b)(1) but they do not provide any

supporting 1 argument for dismissing the c omplaint, broug ht pursuant to fede ral law , for lac k of subject matter jurisdiction, and the Court discerns no suc h basis. See 28 U.S.C. § 1331 (2006) (cr eatingorig inal jurisdiction in federa l district court as for “civil ac tions arising unde r the [] laws . . . of the United States). 375-76 (D.D .C. 2002) (citingcase s). Dismissal based on this action havingbeen untimely filed there fore is not warra

nted. The de fenda

nts corre ctly

asser t, however , that the plaintiff’s untimely charg e with the EEOC fore closes judicial re view. Unde r Title VI I , “[a] charg e . . . shall be f iled within one hundred a nd eig hty day s after

the alleg ed unlawf

ul employ

ment prac tice occ urre d. . . .” 42 U.S.C. § 2000e-5(e )(1) . Simi larly , the ADEAprec ludes the filingof a c ivil action “until 60 day s afte r a c harg e . . . has be en filed w ith the [ EEOC],” which “sha ll be filed . . . within 180 day s afte r the a lleg ed unlawf

ul prac tice.” 29 U .S.C. § 626(d)(1). I f a c harg e is not filed within the time permitted, “the e mploy ee ma y not challeng e that pra ctice in c ourt.” Ledbetter v. G oodyear Tire & Rubber Co., Inc. , 550 U.S. 618, 624 (2007) (c iting 42 U.S.C. § 2000e-5 ( f)( 1)) (super seded on othe r g rounds by the L illy L edbetter

Fa ir Pay Act of 2009, Pub.L . No. 111-2, 123 Stat. 5); W

ashington v. W

ashington Metro. Area Transit Auth. , 160 F.3d 750, 752 ( D.C. Cir. 1998) (“ Be fore suing unde r either the ADEAor Title VI I , an ag grieve d party must ex haust his administrative re medies by filing a char g e of discr imination with t he EEOC within 180 day s of the alleg ed discriminatory incident.”) (citations omitted). In his discrimination charg e sig ned and dated J une 13, 2007, the plaintiff stated that “on approximately

5/8/06, Ilear

ned that I was unjustly

denied se lection to this posit ion,” and he also listed that date as the da

te when the discrimination occur red. Def s.’ Reply Ex . But e ven if, a s 2 the plaintiff now c ontends, the alleg ed unlawf ul prac tice occ urre d on October 30, 2006, when the

The plaintiff state s that he filed a n ag e discrimination cha

rg e with the EEOC on Apr il 2 18, 2007, Memorandum of L aw in Support of the Plaintiff’s Motion to Deny the Def endant’ s Motion to Dism iss (“Pl.’s Mem.”) a t 2, 6-8, but he has not supplied any evidenc e of suc h a filing

. 4defe ndants filled the position with a white Master Plumber, seeMemorandum of L aw in Support of the Plaintiff’s Motion to Deny the Def endant’ s Motion to Dis miss (“Pl.’s Mem.”) at 8, his administrative cha

rg e wa s still lodge d beyond the 180-da y filing pe riod. Be cause the plaintiff

3 filed an untimely

char g e with the EEOC, the Court will g rant the de fenda nts’ motion to di smiss the Title VI Iand ADE A claims on the ground that the plaintiff f ailed to exhaust his administrative re medies. The Defendan ts’ M otion f or Sum m ary Judgm ent on the Sect ion 1981 Claim I. Stand ard of Review Courts will gra

nt a motion for summary

judgme nt pursuant to Fe dera l Rule of Civil Procedur e 56 if “ the pleading s . . . and any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P

. 56(c) (2). When rulingon a Rule 56(c ) motion, the Court must vi ew the e vidence in the light most favora

ble to the non-movingparty
. Holcomb v . Powell , 433 F.3d 889, 895 ( D.C. Cir. 2006) (citing Ree ves v . Sanderson Plumbing Prods. , 530 U.S. 133, 150 (2000)). The Court must there fore draw“all justifiable infe renc es” in the non- moving pa rty ' s favor and ac cept the The plaintiff a

rgues that “e quitable estoppel [] applies . . . bec ause the initial October 3 27, 2009 defe ctive plea ding a nd aff idavit were cure d and re filled [si c] with the Court on November

17, 2009.” Pl.’s Mem. at 7. Althoug h the filingdeadlines unde r Title VI Iare subject to waiver , estoppel and e quitable tolling, Fox v . Giaccia , 424 F. Supp. 2d 1, 6 (D.D .C. 2006), the plaintiff ar gues only

for a pplying e quitable estoppel to the filingof the c omplaint, which is now a moot issue. I n addition, the plaintiff asser ts that “the cha

rg e must be filed with the EEO C within one hundre d and eighty

or three hundred da

y s of the discre te discriminatory act.” Pl.’s Mem. at 7. Howeve r, the 300-da

y period a pplies only

“in [an ag e discrimination] case to which se ction 633(b) of this ti tle applies.” 29 U .S.C. § 626(e). And sec tion 633(b) limits “F eder al ac tion upon commence ment of State Proce eding s,” which is not the ca se her e. Cf. Nat ’l R.R. Pass. Corp. v. Morgan , 536 U.S. 101, 114 (2002) (obse rvingthat “[b] eca use Morg an first filed his c harg e with an appr opriate state ag ency , only those ac ts that occurr ed 300 day s befor e F ebrua ry 27, 1995, the day that Morg an filed his cha rg e, ar e ac tionable.”)

.

5non-movingparty ' s evidenc e as true
. Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). The non-movingparty , howeve r, ca nnot rely on “mer e alleg ations or denials,” Burke v . Gould , 286 F.3d 513, 517 ( D.C. Cir. 2002) (quoting Anderson , 477 U.S. at 248) (inter nal quotation marks omitted), and “ must do more than simply show that there is some metaphy sical doubt as to the mater ial fac ts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986) (citation omitted). Simply put, “conc lusory

alleg ations unsupported by fac tual data will not

cre ate a triable issue of f

act.” Pub. Citiz en He alth Research Grp. v. FDA , 185 F.3d 898, 908 (D.C. Cir. 1999) (inter

nal quotation marks and c itations omi tted). Rather , to withstand a proper ly supported motion for summary judgme nt, the non-movingparty must “set out specific fac ts showing a

g enuine issue f

or trial.” F ed. R. Civ. P. 56(e)(2). “ [T] here is no [ g enuine] issue for tria l unless there is suff icient evidenc e fa

voringthe non-movingparty for a jury to return a verdic t for that par

ty ,” Anderson , 477 U.S. at 249 (citation omitted), and if the Court concludes that the evidenc e adduc ed by the non-movingparty

“is mere ly

colora ble . . . or is not signific antly probative,” id . (citations omitted), or if the non- moving pa rty has otherw ise “fa iled to make a sufficie nt showing on a

n essential ele ment of [his] case with respec t to which [he] has the burde n of proof ,” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), then the movingparty is entitled to summary judgme nt. II. Legal Analysi s Title 42 U.S.C. § 1981 prohibit s rac ial discrimination in “the making , perf ormanc e, modification, and ter

mination of contrac ts, and the enjoy ment of all bene fits, privileg es, terms, and conditions of the c ontrac tual relationship.” 42 U.S.C. § 1981(b). Section 1981 claims in the employ ment context are a

naly zed under the sa

me fra mework a s Title VI Iclaims. Royall v. Nat’l

6Ass’n of Letter Carrier, AFL-CIO , 507 F. Supp. 2d 93, 102-103 (D .D.C. 2007). Thus, once , as

here , the plaintiff has state d a prima f acie case of discrimination, the burde n shifts to the defe ndant “to ar

ticulate some leg itimate, nondiscriminatory rea son for its actions.” Vicke rs v. Powell , 493 F.3d 186, 195 ( D.C. Cir. 2007) (interna l quotation marks and citation omitted); see Carter v. GeorgeW

ashington Univ. , 387 F.3d 872, 878 ( D.C. Cir. 2004) (statingthat in this circ umstance “ the employ er must produc e admissible evidenc e that, if be lieved, would esta blish that its action was motivated by a leg itimate, nondiscriminatory rea son”) ( internal quotation marks and c itation omit ted). I f the de fenda nt satisfies its burden, the plaintiff “ must show that the employ er’ s proffe red justification is m ere prete x t and thus a cove rup for a ra cially discriminatory

decision. Vicke rs , 493 F.3d at 195 (internal quotation mar ks and citation omitted). Then, “the district court must conduct one c entra l inquiry . . . [ i.e .,] whether the plaintiff produc ed suff

icient evidenc e for

a re asonable jury

to find that the employ er' s asserte d non-discriminatory

rea son was not the ac tual rea son and that the e mploy er intentionally discriminated ag ainst the plaintiff on a pr ohibited basis.” Adey emi v. D istrict of Columbia , 525 F.3d 1222, 1226 ( D.C. Cir. 2008) (citation omitted). “At [this] point, the plaintiff can sur vive summary

judgme nt only

by showingthat a

rea sonable jury

could conc lude that he wa s [rejected] for a discriminatory

rea son,” notwithstanding the de fenda nt's pr offe red nondiscr iminatory explanation. Jack

son v. Gonzales , 496 F.3d 703, 706- 07 (D.C. Cir. 2007) (inter nal quotation marks and c itation omit ted); see W eber v . Battista , 494 F.3d 179, 182 ( D.C. Cir. 2007) (statingthat “the plaintiff must [ul timately ] demonstrate that the employ er' s stated re ason wa s pretextual and that the true rea son was discr iminatory ”) ( internal quotation marks a nd citation omitted); Georgev. Leavitt , 407 F.3d 405, 415 (D.C. Cir. 2005) (statingthat “[o] nce [an] employ er ha s articulate d a 7non-discriminatory explanation for its action, the issue is not the corr ectne ss or desira bility of [t hat explanation] but whether the employ er hone stly

believes in the r easons it offe rs”) (interna l quotation marks and c itation omit ted). The plaintiff may attempt to demonstrate the pr etextual nature of the e mploy er' s stated motive “either direc tly by persua ding the [court] that a discriminatory

rea son more likely

motivated the employ er or indirectly

by showingthat the employ er' s proffe red e x planation is unworthy of cr edenc e.” George , 407 F.3d at 413 (internal quotation marks and c itation omit ted). I f the plaintiff is “una ble to adduce evidenc e that could allow a r easona

ble trier of

fac t to conclude that [the defe ndant' s] proffere d rea son was a pr etext for discr imination, sum mary judgme nt must be entere d ag ainst [t he plaintiff].” Paquin v. Fed. Nat'l Mortg. Ass'

n , 119 F.3d 23, 27- 28 (D.C. Cir. 1997) (c itation omit ted). L andis states that in May

2006 when the pla intiff was intervie wed, the “ defe ndants decide d not to hire a plumber . . . be cause [t hey] decided that it was not clea r that the plumbing work justified the ove rhea d of a f ull tim e plumber e mploy ee.” Def s.’ Mot., Dec laration of Ethan L andis ¶ 2. The de fenda nts subsequently

decide d in October

2006 “that it was fina

ncially 4 fea sible to hire a f

ull tim e plumber e mploy ee,” and hire d 50-y ear -old Dan Cave ll on October 30, 2006. Id . ¶ 3. Cavell wa s hired bec ause he had wor ked for the def endants a s an indepe ndent contra ctor since J anuar

y 2005 and the de fenda

nts “wer e fa

miliar and happy

with his work.” Id

. L andis denies that he ever “made any

derog atory

rema rks to [t he plaintiff] about his rac e or a g e,” id ., or that the plaintiff’ s rac e or a g e fa ctore d into the hiring de cision. Id

.

The plaintiff’ s claim that L andis’ dec lara tion is i nadmissible hear say , Pl.’s Mem. at 2 4 ¶ 1, is basele ss. By

his own admission, the plaintiff interviewe d with L andis. Fur thermore , L andis, as CEO and c o-owne r of L andis Corp., is competent to testify about the compa

ny ’s hiringdecisions. 8The plaintiff a sserts that discover y is require d to determine “ when the de cision was made to hire Cavell for

the position on October 30, 2006; bec ause, the Def endant’ s statement that Cavell was hire d beca

use they wer e satisfied w ith his service is a pr etext.” Pl.’s Mem. at 11-12. He “ submits t hat [L andis’] statement is a lie bec ause on O ctober 1 , 2008, [L andis] represe nted st to the EEOC’s investig ator that no one was hire d for the position of Dire ctor of the Plumbi ng Division.” Id . at 12. He the n claims that a g enuine issue of materia l fac t exi sts as to “whethe r the day to day duties of a Ma ster Plumber ar e the same as the D irec tor of the Plumbing Division.” Id . The plaintiff ha s not established how the a nswers to a

ny of those questions would be probative of his section 1981 discrimination claim, and the Court is not “authorize[ d]” by the anti-discrimination laws to “be come a super- personne l depar

tment that ree x amines an e ntity ' s business decisions.” Barbour v. Browner , 181 F.3d 1342, 1346 ( D. C. Cir. 1999) (citation and internal quotation marks omitted). In any event, the de fenda

nts are e ntitled to judgment on the section 1981 cla im because the plaintiff has not prof fer ed any evidenc e that would esta blish that the hiringdecision wa s motivated by his race , which is the only status section 1981 protec ts. See 42 U.S.C. § 1981(a) (be stowing on “ [a] ll persons within . . . the United States . . . the same r ight . . . to make and e nforc e contr acts . . . a s is enjoy ed by white citizens . . .”); Kodish v. United Air Lines Inc. , 628 F.2d 1301, 1303 ( 10 Cir. 1980) (finding“no ca use of a ction under [§ 1981]” in a t h “ca se of a lleg ed ag e discrimination”)

. 5 In the abse nce of

any evidenc e to re but the defe ndants’ leg itimate, non-discriminatory

rea sons for the c halleng ed hiringdecision, the Court finds that the de fenda nts are e ntitled to judgme nt as a matter

of law on the plaintiff’s sec tion 1981 claim. The plaintiff’ s only

alleg ed fa ct sug g estingan unlawf ul motive, that L andis had stated 5 in May 2006 that he wa s too old to perform the duties of the position (Com pl. ¶ 11), is rele vant only to the dismiss ed ADE A claim.

9CONCLUSION

For the fore g oing r easons, the Court grants the de fenda nts’ motion to di smiss t he cla ims broug ht under Title VI Iand the AD EA and grants the de fenda nts’ motion for summary

judgme nt on the claim brought under sec tion 1981. 6

________s/______________ Reg g ie B . Walton DATE: August 24, 2010 United States District J udg e

A sepa rate Orde r ac companies this Memora ndum Opinion. 6 10