                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
___________________________________
                                    )
JAMES H. TYLER,                     )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                 Civil Action No. 14-0362 (JDB)
                                    )
DISTRICT OF COLUMBIA HOUSING        )
AUTHORITY,                          )
                                    )
                  Defendant.        )
___________________________________ )


                                  MEMORANDUM OPINION

       This matter is before the Court on the District of Columbia Housing Authority’s Motion

to Dismiss Plaintiff’s Complaint. For the reasons discussed below, the motion will be denied.

                                        I. BACKGROUND

       Plaintiff sought employment with the District of Columbia Housing Authority (“DCHA”)

“before the year 2008” as a police officer and a special police officer. Compl. at 1. At that time,

plaintiff was 67 years of age. See id., Ex. 2 (Letter to plaintiff from Danielle J. Hayot,

Washington Field Office, U.S. Equal Employment Opportunity Commission, dated December

17, 2013) (exhibit numbers designated by the Court). DCHA “never contacted [plaintiff],” and

in 2008 he filed a charge of discrimination against the DCHA with the U.S. Equal Employment

Opportunity Commission (“EEOC”). Id. at 1. Not until 2013 did plaintiff hear from the EEOC,

at which time, he alleges, he was offered $3,000.00 to settle his claim. Id. Plaintiff declined the

offer. Id.

       The EEOC summarized the findings of its investigation as follows:

                                                  1
               You alleged that the [DCHA] discriminated against you on the basis
               of your age (67) in violation of the [ADEA] when it failed to hire
               you for the position of Police Officer on or around September 2007.
               The [DCHA] was unable to locate any records evidencing your
               application for Police Officer. However, it did produce an
               application for Security Officer Position you submitted on
               September 19, 2007. You were not selected for that position. The
               evidence indicates that you were not selected because you failed to
               indicate that you had earned a high school diploma or equivalent
               degree.
               You did not produce any additional evidence that would support a
               finding of age discrimination. Based on this evidence, it is unlikely
               that [the DCHA] subjected you to discrimination on the basis of age
               in violation of EEOC’s laws. Therefore, we decline to pursue the
               matter further.
Id., Ex. 2. The EEOC issued its right-to-sue letter on December 17, 2013. Id., Ex. 1 (Dismissal

and Notice of Rights dated December 17, 2013). Contrary to the EEOC’s representations as to

his education level, plaintiff asserts that he “has a G.E.D. and over 100 college credit hours.”

Compl. at 2.

       Plaintiff alleges that the DCHA refused to hire him because of his age in violation of the

Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C. § 621 et seq. Compl. at 2.

He demands monetary damages and injunctive relief. See id.

                                        II. DISCUSSION

                     A. Defendant’s Motion to Dismiss Under Rule 12(b)(5)

       The DCHA moves to dismiss the complaint under Federal Rule of Civil Procedure

12(b)(5) for insufficient service of process. See generally Mem. of P. & A. in Support of District

of Columbia Housing Auth.’s Mot. to Dismiss, ECF No. 8 (“Def.’s Mem.”) at 5-8 (page numbers

designated by ECF). It argues that plaintiff effected service of process 232 days after having

filed his complaint in the United States District Court for the District of Maryland, and 226 days


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after transfer of the case to this district, well beyond the 120-day period set forth in Federal Rule

of Civil Procedure 4(m). Id. at 7.

       Because plaintiff is proceeding pro se and in forma pauperis, court officers “issue and

serve all process” on his behalf. 28 U.S.C. § 1915(d); see Fed. R. Civ. P. 4(c)(3). Under these

circumstances, the Court declines to penalize plaintiff by dismissing the complaint for

insufficient service of process based on exceeding the time limits of Rule 4(m). See, e.g., Hardy

v. Joseph I. Sussman, P.C., 953 F. Supp. 2d 102, 107-08 (D.D.C. 2013).

                     B. Defendant’s Motion to Dismiss Under Rule 12(b)(6)

       Alternatively, the DCHA moves to dismiss the complaint under Federal Rule of Civil

Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can

be granted. See generally Def.’s Mem. at 8-11. Although a plaintiff need not set forth “detailed

factual allegations” to withstand a Rule 12(b)(6) motion, in order to establish the “grounds” of

his “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.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007); see also Papasan v. Allain, 478 U.S. 265, 286 (1986). The Court “must

accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551

U.S. 89, 94 (2007). The complaint “is construed liberally in [plaintiff’s] favor, and [the Court

should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.”

Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court need

not accept inferences that are not supported by the facts alleged and legal conclusions drawn by

plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).



                                                  3
        Under the ADEA it is “unlawful for an employer . . . to fail or refuse to hire . . . 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). A successful claim under the ADEA

requires a plaintiff to demonstrate that he “(1) . . . is a member of the protected class (i.e., over

40 years of age); (2) . . . was qualified for the position for which [he] applied; (3) . . . was not

hired; and (4) . . . was disadvantaged in favor of a younger person.” Teneyck v. Omni Shoreham

Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004) (citations omitted). “[P]laintiff is not required to

plead every fact necessary to establish a prima facie case to survive a motion to dismiss,”

however. Jones v. Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citing

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002)). Nevertheless, he must allege sufficient

facts to put the defendant on notice of the claim against it, see Kangethe v. District of Columbia,

953 F. Supp. 2d 194, 199 (D.D.C. 2013), which in this case means allegations that plaintiff

suffered an adverse employment action because of his age, see Montgomery v. Omnisec Int’l Sec.

Servs., Inc., 961 F. Supp. 2d 178, 183 (D.D.C. 2013) (citing Baloch v. Kempthorne, 550 F.3d

1191, 1196 (D.C. Cir. 2008)).

        A pro se plaintiff is held to “less stringent [pleading] standards” than lawyers are,

Erickson, 551 U.S. at 94, but still must plead facts permitting an inference of “more than the

mere possibility of misconduct,” Atherton v. District of Columbia Office of the Mayor, 567 F.3d

672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 556 U.S. at 679); see Brown v. Whole Foods

Market Group, Inc., __ F. 3d __, __, 2015 WL 3634672, at *4 (D.C. Cir. June 12, 2015).

However, a pro se litigant’s complaint must be considered in light of all other filings, including

those responding to a motion to dismiss. Brown, 2015 WL 3634672, at *5; see also Richardson

v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999).



                                                   4
       Plaintiff, who was 67 years of age when he submitted his application to the DCHA,

alleges that the DCHA declined to hire him as either a police officer or a special police officer.

By mentioning his G.E.D. and college credit hours earned, plaintiff appears to assert that he was

qualified for the positions, insofar as a high school diploma or its equivalent was required. A fair

reading of the complaint and other materials is that plaintiff suffered an adverse employment

action because of his age. The “claim has facial plausibility” because the complaint “pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

                                       III. CONCLUSION

       Because plaintiff’s complaint adequately alleges an age discrimination claim under the

ADEA, defendant’s motion to dismiss will be denied. An Order is issued separately.




                                                      /s/
                                                      JOHN D. BATES
                                                      United States District Judge
DATE: June 29, 2015




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