                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
ALFRED L. STONE,                     )
                                     )
          Plaintiff,                 )
                                     )
       v.                            ) Civil Action No. 09-2359 (RBW)
                                     )
LANDIS CONSTRUCTION                  )
CORPORATION et al.,                  )
                                     )
          Defendants.                )
____________________________________)


                                  MEMORANDUM OPINION

       In this action filed pro se, the plaintiff claims that the defendants did not hire him as a

Master Plumber because of his race, African American, and his age, then 55. He sues Landis

Construction Corporation (“Landis Corp.”) and its Chief Executive Officer, Ethan Landis

(“Landis”), under 42 U.S.C. § 1981(b) (2006), Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-1 to e-17 (2006), and the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. §§ 621-34 (2006). The plaintiff also sues Landis in his individual capacity under

section 1981. See Plaintiff’s Complaint That the Defendants’ Violated Title 42 Sec. 1981(b);

and, Title 29 Sec. 621 & 626 Because They Failed or Refused to Hire Him Because of His Age

and His Race, That Being African American (“Compl.”) (Count II).

       Currently pending before the Court is the Defendants’ Motion for Summary Judgment or

to Dismiss (“Defs.’ Mot.”) [Dkt. No. 7], which the plaintiff has opposed [Dkt. No. 9]. Upon

consideration of the parties’ submissions and the entire record, the Court will grant the

defendants’ motion to dismiss as to the Title VII and ADEA claims and will enter summary

judgment for the defendants on the section 1981 claim.
                                    FACTUAL BACKGROUND

        The plaintiff alleges that on April 30, 2006, he applied for a Master Plumber position that

the defendants had advertised in The Washington Post. Compl. ¶ 7. He interviewed with Landis

on May 6, 2006, at the Takoma Park office of Landis Corp. Id. ¶ 9. Landis, “a white male in his

thirties or forties,” id. ¶ 10, “represented to the [p]laintiff that he was competent to perform the

administrative part of the job description; but . . . had concerns about whether the [p]laintiff

could perform the physical labor because ‘you‘re old.’ ” Id. ¶ 11. However, pursuant to Landis’

request, the plaintiff prepared “a proposed budget for a new plumbing department” and sent

Landis a copy by e-mail on May 8, 2006. Id. ¶¶ 12-13. Ultimately, the defendants “rejected the

[p]laintiff’s application for employment . . . [but] kept the position open and continued to seek a

person of [p]laintiff’s qualifications.” Id. ¶ 15. On October 30, 2006, the defendants “hired a

white Master Plumber for the position; but, denied the [p]laintiff notice and the opportunity to

reapply for the position. . . .” Id. ¶ 16.

        On June 13, 2007, the plaintiff lodged a discrimination charge against Landis Corp. with

the United States Equal Employment Opportunity Commission (“EEOC”), claiming race and age

discrimination. Defendants’ Reply to Opposition to Motion for Summary Judgment or to

Dismiss (“Defs.’ Reply”), Exhibit (“Ex.”) (Charge of Discrimination). On August 24, 2009, the

EEOC dismissed the charge as untimely and informed the plaintiff of his right to sue within 90

days of his receipt of the dismissal notice. Compl. Ex. (Dismissal and Notice of Rights).

        The record reflects that the Clerk of Court first received the plaintiff’s complaint dated

October 23, 2009, on October 27, 2009, but this latter date was subsequently stricken, see Dkt.

No. 1, and changed to reflect the same date the Clerk first received the plaintiff’s application to

proceed in forma pauperis, November 19, 2009. See Dkt. No 2. This case was deemed formally

                                                  2
filed on December 14, 2009, after the Court granted the plaintiff’s in forma pauperis motion on

December 13, 2009. Id.

                                            DISCUSSION

             The Defendants’ Motion to Dismiss the Title VII and ADEA Claims

        The defendants move to dismiss the Title VII and ADEA claims under Rule 12(b)(6) of

the Federal Rules of Civil Procedure.1 They assert that the plaintiff failed to exhaust his

administrative remedies by filing a timely charge with the EEOC and failed to file a timely

complaint with the Court. In addition, the defendants assert that “[t]here is no jurisdiction over

the individual defendant, Mr Landis,” under Title VII or the ADEA, Defs.’ Mot. at 3-4, but the

plaintiff is not suing Landis in his individual capacity under either of those statutes. See Compl.

(Count II) ¶¶ 19-26 (asserting individual capacity claim under section 1981(b)).

        Contrary to the defendants’ assertion, the record establishes that the complaint was timely

submitted with the plaintiff’s in forma pauperis application on November 19, 2009, five days

before expiration of the 90-day filing period. See Guillen v. Nat’l Grange, 955 F. Supp. 144, 145

(D.D.C. 1997) (finding a Title VII litigant “not responsible for the administrative delay

associated with the Court’s review of petitions to proceed in forma pauperis. . . . [T]he

presentation of a complaint [and] a petition to proceed in forma pauperis tolls the ninety-day

period of limitations . . . ”) (citations omitted); accord Washington v. White, 231 F. Supp.2d 71,




        1
          The defendants also invoke Rule 12(b)(1) but they do not provide any supporting
argument for dismissing the complaint, brought pursuant to federal law, for lack of subject matter
jurisdiction, and the Court discerns no such basis. See 28 U.S.C. § 1331 (2006) (creating original
jurisdiction in federal district court as for “civil actions arising under the [] laws . . . of the United
States).

                                                    3
75-76 (D.D.C. 2002) (citing cases). Dismissal based on this action having been untimely filed

therefore is not warranted.

       The defendants correctly assert, however, that the plaintiff’s untimely charge with the

EEOC forecloses judicial review. Under Title VII, “[a] charge . . . shall be filed within one

hundred and eighty days after the alleged unlawful employment practice occurred. . . .” 42

U.S.C. § 2000e-5(e)(1). Similarly, the ADEA precludes the filing of a civil action “until 60 days

after a charge . . . has been filed with the [EEOC],” which “shall be filed . . . within 180 days

after the alleged unlawful practice.” 29 U.S.C. § 626(d)(1). If a charge is not filed within the

time permitted, “the employee may not challenge that practice in court.” Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 550 U.S. 618, 624 (2007) (citing 42 U.S.C. § 2000e-5 (f)(1))

(superseded on other grounds by the Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123

Stat. 5); Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir.

1998) (“Before suing under either the ADEA or Title VII, an aggrieved party must exhaust his

administrative remedies by filing a charge of discrimination with the EEOC within 180 days of

the alleged discriminatory incident.”) (citations omitted).

       In his discrimination charge signed and dated June 13, 2007, the plaintiff stated that “on

approximately 5/8/06, I learned that I was unjustly denied selection to this position,” and he also

listed that date as the date when the discrimination occurred.2 Defs.’ Reply Ex. But even if, as

the plaintiff now contends, the alleged unlawful practice occurred on October 30, 2006, when the



       2
         The plaintiff states that he filed an age discrimination charge with the EEOC on April
18, 2007, Memorandum of Law in Support of the Plaintiff’s Motion to Deny the Defendant’s
Motion to Dismiss (“Pl.’s Mem.”) at 2, 6-8, but he has not supplied any evidence of such a filing.


                                                  4
defendants filled the position with a white Master Plumber, see Memorandum of Law in Support

of the Plaintiff’s Motion to Deny the Defendant’s Motion to Dismiss (“Pl.’s Mem.”) at 8, his

administrative charge was still lodged beyond the 180-day filing period.3 Because the plaintiff

filed an untimely charge with the EEOC, the Court will grant the defendants’ motion to dismiss

the Title VII and ADEA claims on the ground that the plaintiff failed to exhaust his

administrative remedies.

       The Defendants’ Motion for Summary Judgment on the Section 1981 Claim

                                      I. Standard of Review

       Courts will grant a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56 if “the pleadings . . . and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c)(2). When ruling on a Rule 56(c) motion, the Court must view the evidence in the light

most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)

(citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must

therefore draw “all justifiable inferences” in the non-moving party's favor and accept the


       3
           The plaintiff argues that “equitable estoppel [] applies . . . because the initial October
27, 2009 defective pleading and affidavit were cured and refilled [sic] with the Court on
November 17, 2009.” Pl.’s Mem. at 7. Although the filing deadlines under Title VII are subject
to waiver, estoppel and equitable tolling, Fox v. Giaccia, 424 F. Supp. 2d 1, 6 (D.D.C. 2006), the
plaintiff argues only for applying equitable estoppel to the filing of the complaint, which is now a
moot issue. In addition, the plaintiff asserts that “the charge must be filed with the EEOC within
one hundred and eighty or three hundred days of the discrete discriminatory act.” Pl.’s Mem. at
7. However, the 300-day period applies only “in [an age discrimination] case to which section
633(b) of this title applies.” 29 U.S.C. § 626(e). And section 633(b) limits “Federal action upon
commencement of State Proceedings,” which is not the case here. Cf. Nat’l R.R. Pass. Corp. v.
Morgan, 536 U.S. 101, 114 (2002) (observing that “[b]ecause Morgan first filed his charge with
an appropriate state agency, only those acts that occurred 300 days before February 27, 1995, the
day that Morgan filed his charge, are actionable.”).

                                                 5
non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The non-moving party, however, cannot rely on “mere allegations or denials,” Burke v. Gould,

286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation

marks omitted), and “must do more than simply show that there is some metaphysical doubt as to

the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)

(citation omitted). Simply put, “conclusory allegations unsupported by factual data will not

create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908

(D.C. Cir. 1999) (internal quotation marks and citations omitted). Rather, to withstand a

properly supported motion for summary judgment, the non-moving party must “set out specific

facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). “[T]here is no [genuine] issue

for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a

verdict for that party,” Anderson, 477 U.S. at 249 (citation omitted), and if the Court concludes

that the evidence adduced by the non-moving party “is merely colorable . . . or is not significantly

probative,” id. (citations omitted), or if the non-moving party has otherwise “failed to make a

sufficient showing on an essential element of [his] case with respect to which [he] has the burden

of proof,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), then the moving party is entitled to

summary judgment.

                                        II. Legal Analysis

       Title 42 U.S.C. § 1981 prohibits racial discrimination in “the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Section 1981 claims in the

employment context are analyzed under the same framework as Title VII claims. Royall v. Nat’l


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

here, the plaintiff has stated a prima facie case of discrimination, the burden shifts to the

defendant “to articulate some legitimate, nondiscriminatory reason for its actions.” Vickers v.

Powell, 493 F.3d 186, 195 (D.C. Cir. 2007) (internal quotation marks and citation omitted); see

Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (stating that in this

circumstance “the employer must produce admissible evidence that, if believed, would establish

that its action was motivated by a legitimate, nondiscriminatory reason”) (internal quotation

marks and citation omitted). If the defendant satisfies its burden, the plaintiff “must show that

the employer’s proffered justification is mere pretext and thus a coverup for a racially

discriminatory decision. Vickers, 493 F.3d at 195 (internal quotation marks and citation

omitted). Then, “the district court must conduct one central inquiry . . . [i.e.,] whether the

plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted

non-discriminatory reason was not the actual reason and that the employer intentionally

discriminated against the plaintiff on a prohibited basis.” Adeyemi v. District of Columbia, 525

F.3d 1222, 1226 (D.C. Cir. 2008) (citation omitted).

       “At [this] point, the plaintiff can survive summary judgment only by showing that a

reasonable jury could conclude that he was [rejected] for a discriminatory reason,”

notwithstanding the defendant's proffered nondiscriminatory explanation. Jackson v. Gonzales,

496 F.3d 703, 706-07 (D.C. Cir. 2007) (internal quotation marks and citation omitted); see

Weber v. Battista, 494 F.3d 179, 182 (D.C. Cir. 2007) (stating that “the plaintiff must

[ultimately] demonstrate that the employer's stated reason was pretextual and that the true reason

was discriminatory”) (internal quotation marks and citation omitted); George v. Leavitt, 407 F.3d

405, 415 (D.C. Cir. 2005) (stating that “[o]nce [an] employer has articulated a

                                                  7
non-discriminatory explanation for its action, the issue is not the correctness or desirability of

[that explanation] but whether the employer honestly believes in the reasons it offers”) (internal

quotation marks and citation omitted). The plaintiff may attempt to demonstrate the pretextual

nature of the employer's stated motive “either directly by persuading the [court] that a

discriminatory reason more likely motivated the employer or indirectly by showing that the

employer's proffered explanation is unworthy of credence.” George, 407 F.3d at 413 (internal

quotation marks and citation omitted). If the plaintiff is “unable to adduce evidence that could

allow a reasonable trier of fact to conclude that [the defendant's] proffered reason was a pretext

for discrimination, summary judgment must be entered against [the plaintiff].” Paquin v. Fed.

Nat'l Mortg. Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997) (citation omitted).

        Landis states that in May 2006 when the plaintiff was interviewed, the “defendants

decided not to hire a plumber . . . because [they] decided that it was not clear that the plumbing

work justified the overhead of a full time plumber employee.” Defs.’ Mot., Declaration of Ethan

Landis ¶ 2.4 The defendants subsequently decided in October 2006 “that it was financially

feasible to hire a full time plumber employee,” and hired 50-year-old Dan Cavell on October 30,

2006. Id. ¶ 3. Cavell was hired because he had worked for the defendants as an independent

contractor since January 2005 and the defendants “were familiar and happy with his work.” Id.

Landis denies that he ever “made any derogatory remarks to [the plaintiff] about his race or age,”

id., or that the plaintiff’s race or age factored into the hiring decision. Id.




        4
           The plaintiff’s claim that Landis’ declaration is inadmissible hearsay, Pl.’s Mem. at 2
¶ 1, is baseless. By his own admission, the plaintiff interviewed with Landis. Furthermore,
Landis, as CEO and co-owner of Landis Corp., is competent to testify about the company’s
hiring decisions.

                                                    8
       The plaintiff asserts that discovery is required to determine “when the decision was made

to hire Cavell for the position on October 30, 2006; because, the Defendant’s statement that

Cavell was hired because they were satisfied with his service is a pretext.” Pl.’s Mem. at 11-12.

He “submits that [Landis’] statement is a lie because on October 1st, 2008, [Landis] represented

to the EEOC’s investigator that no one was hired for the position of Director of the Plumbing

Division.” Id. at 12. He then claims that a genuine issue of material fact exists as to “whether

the day to day duties of a Master Plumber are the same as the Director of the Plumbing

Division.” Id. The plaintiff has not established how the answers to any 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 “become a super-personnel department that reexamines an entity'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 defendants are entitled to judgment on the

section 1981 claim because the plaintiff has not proffered any evidence that would establish that

the hiring decision was motivated by his race, which is the only status section 1981 protects. See

42 U.S.C. § 1981(a) (bestowing on “[a]ll persons within . . . the United States . . . the same right .

. . to make and enforce contracts . . . as is enjoyed by white citizens . . .”); Kodish v. United Air

Lines Inc., 628 F.2d 1301, 1303 (10th Cir. 1980) (finding “no cause of action under [§ 1981]” in a

“case of alleged age discrimination”).5

       In the absence of any evidence to rebut the defendants’ legitimate, non-discriminatory

reasons for the challenged hiring decision, the Court finds that the defendants are entitled to

judgment as a matter of law on the plaintiff’s section 1981 claim.

       5
           The plaintiff’s only alleged fact suggesting an unlawful motive, that Landis had stated
in May 2006 that he was too old to perform the duties of the position (Compl. ¶ 11), is relevant
only to the dismissed ADEA claim.


                                                  9
                                       CONCLUSION

       For the foregoing reasons, the Court grants the defendants’ motion to dismiss the claims

brought under Title VII and the ADEA and grants the defendants’ motion for summary judgment

on the claim brought under section 1981.6




                                            ________s/______________
                                            Reggie B. Walton
DATE: August 24, 2010                       United States District Judge




       6
           A separate Order accompanies this Memorandum Opinion.

                                               10
