                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 MARVIN C. ARNOLD,

        Plaintiff,
                v.                                           Civil Action No. 16-2207 (JEB)
 ROBERT SPEER, Acting Secretary of the
 Army, et al.,

        Defendants.


                                 MEMORANDUM OPINION

       Pro se Plaintiff Marvin Arnold worked as a social worker for the U.S. Army. He brought

this action under the Age Discrimination in Employment Act, alleging principally that he was

unfairly deprived of a promotion and constructively discharged. Denying such discrimination,

the Secretary of the Army now moves to dismiss the suit. Because Plaintiff has failed to

sufficiently allege facts showing that his age motivated the alleged discrimination, the Court will

dismiss the Complaint without prejudice, but allow Arnold the opportunity to further amend that

pleading.

I.     Background

       Plaintiff has worked overseas for many years as a family-advocacy-program therapist on

behalf of the Army, most recently in Germany. See ECF No. 1 (Complaint) at 10. He “had to

deal with persistent Age Discrimination throughout his tenure from June, 2009 through October,

2013.” ECF No. 11 (Amended Complaint) at 3. More specifically, “Plaintiff applied many

times for promotional opportunities and simple lateral transfer to other jobs but the Age and

Race Discrimination were profound in the supervisory chain.” Id. His Amended Complaint


                                                 1
listed four Defendants and several potential causes of action, but Plaintiff narrowed his suit in

response to Defendants’ Motion to Dismiss, voluntarily dismissing his Title VII cause of action

and all Defendants other than the Secretary of the Army. See ECF No. 17 (Motion to Strike).

All that remains extant, therefore, is his age-discrimination claim.

        Plaintiff’s central allegation focuses on his non-selection for the position of Supervisory

Social Worker in Vilseck, Germany. See ECF No. 11-3 (EEOC Decision) at 1-2. His concern is

that the selectee for the job was unqualified or at least less qualified than Arnold himself. See

ECF No. 19 (Opp.) at 5 (“What the Army, the EEOC and the Defendant ha[ve] done is to

concede that the person who was hired was not qualified and in effect this is an acknowledgment

that Discrimination did occur per the ADEA.”). He concludes that the only explanation for the

decision to select a less-qualified applicant is discrimination. Id. Plaintiff further alleges that he

was denied an extension of time on his initial tour and was eventually constructively forced to

resign from his position. See Am. Compl. at 3. Arnold contends that each of these acts

constitutes discrimination under the ADEA. Defendant now moves to dismiss the entire

Amended Complaint.

II.     Legal Standard

        Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” Although the notice pleading

rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544

U.S. 336, 347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule

12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must

contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). Plaintiff



                                                    2
must put forth “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged,” and there must be “more than a sheer possibility

that a defendant has acted unlawfully.” Id.

       As it must at this stage, the Court treats all of the facts in the Complaint as true. Sparrow

v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In evaluating the sufficiency of

Plaintiff’s Complaint under Rule 12(b)(6), the Court may consider the facts set forth in

Plaintiff’s Opposition to the Motion to Dismiss as well as “the facts alleged in the complaint, any

documents either attached to or incorporated in the complaint and matters of which [the court]

may take judicial notice.” Equal Emp’t Opportunity Comm’n v. St. Francis Xavier Parochial

Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d

146, 152 (D.C. Cir. 2015). Although a plaintiff may survive a 12(b)(6) motion even if “recovery

is very remote and unlikely,” the facts alleged “must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555-56 (citation omitted).

III.   Analysis

       In moving to dismiss, Defendant sets out three arguments: failure to exhaust, failure to

state a claim, and improper types of damages. The Court looks at each separately.

       The government first maintains that Plaintiff has not completed the administrative

process with the Equal Employment Opportunity Commission in relation to two of his claims —

the denial of an extension of time on his initial tour and the subsequent constructive resignation

— and that those claims are therefore barred by the exhaustion doctrine. See ECF No. 14

(MTD) at 3. “[E]xhaustion requirements, however, are not jurisdictional” in an ADEA case, and

the burden of pleading and proving insufficient exhaustion thus falls on the defendant. Huang v.

Wheeler, No. 16-398, 2016 WL 6108497, at *6 (D.D.C. Oct. 19, 2016) (citing Artis v. Bernanke,



                                                 3
630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011); Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997)). Here, Arnold has not specifically conceded a failure to exhaust these claims, and

thus such a defense is appropriately considered at the summary-judgment stage rather than at this

juncture. Id. These claims, accordingly, cannot be dismissed solely for a lack of exhaustion.

That said, Arnold should be aware that he must ultimately refute the government’s argument that

he has not exhausted each discrete claim of discrimination.

       Defendant gains more traction with its next position, which concerns the insufficiency of

the facts pled to support an age-discrimination claim. The ADEA makes it unlawful for an

employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C § 623(a)(1). People forty years and

older are included in the protected class. Id. § 631(a). Plaintiff, born in 1945, thus belongs.

       Taking his factual assertions as true, the Court could potentially agree that Arnold was

treated unfairly, but there are not sufficient allegations demonstrating that such treatment

stemmed from discrimination on the basis of age. See Burford v. Yellen, No. 15-2074, 2017 WL

1214398, at *12 (D.D.C. Mar. 31, 2017) (“The Amended Complaint presents no facts to tie these

difficult interpersonal events to age or sex. . . . While these experiences may have been

frustrating . . . , the Amended Complaint does not allege legally-cognizable actions.”); Lurensky

v. Wellinghoff, 167 F. Supp. 3d 1, 15 (D.D.C. 2016) (“Plaintiff’s age-discrimination complaint is

that she is 64-years-old, and that there is reason to believe her age must have been a factor in the

workplace. Those allegations – a textbook example of the kind of ‘naked assertions’ prohibited

by Iqbal – are insufficient to support the initiation of discovery, and so the Court will grant

defendant’s motion to dismiss plaintiff's age discrimination claims.”).



                                                  4
       Plaintiff’s Amended Complaint relies on inferences unsupported by facts and contains

little or no mention of how the Army’s alleged conduct constitutes age discrimination. Aware of

his pro se status, the Court has looked beyond the Amended Complaint in search of a sufficient

factual basis to support his cause of action. See Brown, 789 F.3d at 152. Still, the relief Plaintiff

seeks eludes his grasp. The closest he comes to alleging facts indicating discrimination based on

his age is through an allegation that he was “called out in an administrative meeting about his

age,” Opp. at 5, and that there was an incident “that occurred in October 2009 in which Plaintiff

was laughed at because of his age.” Id. Yet neither of these allegations is ever tied to the

adverse actions of which he complains. In order to proceed, Plaintiff must allege more specific

facts that lay out what happened, who was involved (including, e.g., the age of the person who

was actually promoted), and how such conduct constitutes age discrimination.

       As opposed to dismissing the entire action, however, the Court will dismiss only the

Complaint and give Arnold another chance to make the showing laid out above. See Ciralsky v.

CIA, 355 F.3d 661, 666 (D.C. Cir. 2004) (discussing difference between dismissing complaint

and entire action).

       Finally, Defendant notes that the ADEA does not provide for punitive or compensatory

damages and that Arnold’s prayer for these damages must be struck. See MTD at 9. The

government is correct. “[T]he text of the ADEA explicitly provides for back pay, unpaid

overtime compensation, and liquidated damages but not compensatory and punitive damages.”

Lindsey v. Dist. of Columbia, 810 F. Supp. 2d 189, 201 (D.D.C. 2011) (quotation omitted); see

also Spaeth v. Georgetown Univ., 839 F. Supp. 2d 57, 65 (D.D.C. 2012). Plaintiff, consequently,

should not include such forms of relief in any subsequent Complaint.




                                                  5
IV.     Conclusion

        While age-discrimination claims should be construed liberally at the motion-to-dismiss

stage, see Spaeth, 839 F. Supp. 2d at 62, the Court cannot “create something out of nothing.”

Jianqing Wu v. Special Counsel, Inc., 54 F. Supp. 3d 48, 56 (D.D.C. 2014). It will thus dismiss

Plaintiff’s Complaint, but not the entire action, and give leave to amend. A separate Order so

stating will issue this day.

                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge
Date: May 9, 2017




                                                6
