Daniels v. Chugach Government Services, Inc. , 149 F. Supp. 3d 183 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
JOHN DANIELS, )
)
Plaintiff, )
)
v. )
) Civ. Action No. 14-1667 (EGS)
)
CHUGACH GOVERNMENT SERVICES, )
INC. )
)
Defendant. )
)
MEMORANDUM OPINON
Plaintiff John Daniels (“Mr. Daniels”) is a middle-aged man
from Liberia, West Africa. Am. Compl. ¶ 4. A permanent resident
of Maryland, Mr. Daniels worked for Defendant Chugach Government
Services (“Chugach”) as a Systems Administrator from 2009 until
2011. Id. ¶ 4. In the fall of 2011, Chugach reorganized and Mr.
Daniels was laid off. Id. ¶ 5. The position held by Mr. Daniels
was combined with the position held by Mr. Daniels’ middle-aged
Ethiopian colleague. Id. Mr. Daniels interviewed for the new
position, but a younger Caucasian male was hired instead. Id. ¶
6. Mr. Daniels trained the new hire. Id. ¶ 10. After one month,
the new hired was dismissed for poor performance. Id. ¶ 11. Mr.
Daniels served as Acting Lead Systems Administrator for
approximately four months. Id. ¶ 12. Mr. Daniels was never
invited to apply for the permanent position, which was awarded
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to a younger African American candidate in March 2012. Id. ¶ 10.
Based on these events, Mr. Daniels alleges that Chugach
discriminated against him based on his national origin, age and
race. Id. ¶¶ 10-13. Chugach moves to dismiss Mr. Daniels’
Amended Complaint for failure to state a claim. Def.’s Mot.
Dismiss, Docket No. 14. Upon consideration of the motion, the
response and reply thereto, the applicable law, and the entire
record, Defendant’s Motion is GRANTED in part and DENIED in
part.
I. BACKGROUND
A. Chugach Government Services
Chugach is a government contractor based in
Alaska. Am. Compl. ¶ 3. Mr. Daniels was employed at Chugach’s
Washington, D.C. office. Id. At the time of the events alleged
by Mr. Daniels, Chugach was a wholly owned subsidiary of Chugach
Alaska Corporation, an Alaska Native Corporation created
pursuant to the terms of the Alaska Native Claim Settlement Act
(“ANCSA”). Def. Mem. Supp., Docket No. 14 at 7. The Alaska
Native Settlement Claim Act of 1971 extinguished all Native
claims to Alaskan land based on aboriginal use. Cook Inlet
Region, Inc. v. Rude, 690 F.3d 1127, 1129 (9th Cir. 2012).
Native Alaskans were compensated monetarily and with title to
forty million acres of land. Id. ANCSA transferred title of the
settlement land to twelve regional corporations, including the
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Chugach Alaska Corporation, and other entities created by the
Act. Id.; see also United States v. Atl. Richfield Co., 435 F.
Supp. 1009, 1020-21 (D. Alaska 1977) aff’d, 612 F.2d 1132 (9th
Cir. 1980) (“The intent of Congress in the Settlement Act was to
settle the claims of Alaska Natives and to compensate them
without deciding the difficult and disputed question of the
existence and extent of aboriginal title to Alaska lands.”).
B. Mr. Daniels’ Employment at Chugach
Mr. Daniels was employed by Chugach’s Washington, D.C.
office as an IT professional. Am. Compl. ¶ 4. Mr. Daniels’
employment with Chugach began in 2009 as a Systems
Administrator. Id. At this time, Mr. Daniels was in his mid-
fifties. The Lead Systems Administrator was an Ethiopian male in
his sixties. Id. In 2011, Chugach announced a reorganization,
including the consolidation of Mr. Daniels’ position with the
Lead Systems Administrator position. Id. ¶ 5. Mr. Daniels and
his Ethiopian colleague applied for the new position, but
Chugach hired a younger Caucasian male. Id. ¶ 6. Mr. Daniels
alleges that the new hire did not possess the relevant education
or work experience requirements that were posted in the job
description. Id. ¶ 7.
Chugach asked Mr. Daniels’ to work in a temporary capacity
to assist the Caucasian male’s transition into the newly-created
senior IT position. Id. ¶ 10. After one month, the new hire was
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dismissed from his duties due to behavioral and performance
issues. Id. ¶ 11. Chugach asked Mr. Daniels to serve as Acting
Senior IT Administrator. Id. Mr. Daniels served in this capacity
from approximately November 2011 to February 2012. Id. ¶ 12. In
early March, 2012, Mr. Daniels received a letter informing him
that his term as Acting Senior IT Administrator was over. Id.
Mr. Daniels alleges that he was not invited to apply for the
permanent position. Id. The person hired for the permanent
position was a “much younger African-American male, who unlike
Mr. Daniels or his former supervisor, had no direct African
ancestry.” Id. ¶ 13. Chugach invited Mr. Daniels to work as a
Substitute Instructor, but with few hours and only minimum wage,
Mr. Daniels could not support his family and sought work at
Walmart. Id. ¶ 14.
C. Mr. Daniels’ Office of Federal Contract Compliance
Program Complaint.
On May 30, 2012, Mr. Daniels filed a complaint with the
Office of Federal Contract Compliance Program (“OFCCP”). Id. ¶
15. Although the OFCCP findings are not attached to Mr. Daniels’
Complaint, he alleges OFFCP concluded that Chugach violated
Executive Order 11236 by “hiring the first Caucasian candidate
over Mr. Daniels, a more qualified candidate, when the first
candidate did not meet the minimum requirements of Senior IT
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Administrator.” Id. 1 Chugach offered Mr. Daniels $2,287.20 in
back pay, an offer rejected by Mr. Daniels as “entirely
unsatisfactory.” Id. Mr. Daniels requested a right-to-sue letter
from OFCCP and now alleges racial discrimination under Section
1981 (Count I), national origin discrimination under Title VII
(Count II), and age discrimination under the Age Discrimination
in Employment Act (Count III). Id. ¶¶ 16-18. Mr. Daniels seeks
over $700,000.00 in damages, plus pre-judgment and post-judgment
interest.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of a complaint. Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The pleading must
contain a “short plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The pleading
standard does not require detailed factual allegations, but
should be “more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Id. at 678. Naked assertions without
factual enhancements or formulaic recitations of the elements of
1 Executive Order 11236 prohibits government contractors from
discriminating against employees on the basis of race, color,
religion, sex, sexual orientation, gender identity, or national
origin. See Executive Action 11236, available at
http://www.dol.gov/ofccp/regs/statutes/eo11246.htm.
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a cause of action will not suffice. Id. Rather, to survive a
motion to dismiss, a complaint “must contain sufficient factual
matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. Plausibility entails that the plaintiff has pled
factual content that is not merely consistent with liability but
allows the Court to draw a reasonable inference that the
defendant is liable for the alleged misconduct. Id.
In considering a 12(b)(6) motion, the Court should liberally
view the complaint in the plaintiff’s favor, accepting all
factual allegations as true, and giving the plaintiff the
benefit of all inferences that can be drawn therefrom. Redding
v. Edwards, 569 F. Supp. 2d 129, 131 (D.D.C. 2008) (citing Kowal
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
III. ANALYSIS
A. Mr. Daniels states a claim for race discrimination
under Section 1981.
Chugach argues that Mr. Daniels § 1981 claim for race
discrimination fails because it is (1) a national origin claim
filed under the pretense of race; (2) time barred under a three-
year statute of limitations; and (3) barred based on federal
immunity because Chugach is an instrumentality of the federal
government. Def.’s Mem. Supp. at 9-14. Mr. Daniels acknowledges
that national origin and race claims are distinct, but maintains
that he has adequately pled a race discrimination claim under §
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1981 because “Chugach was trying to rid its staff of Black
Africans, who present a different culture and heritage from
those of the unqualified Caucasian candidate Chugach hired——and
then fired——before hiring an African American without informing
plaintiff of the existence of the reposting of the position.”
Pl.’s Mem. Opp. at 5. Mr. Daniels also asserts that a four-year
statute of limitations applies and contends that Chugach does
not qualify as an instrumentality of the federal government. Id.
at 2-5.
1. Mr. Daniels has pled adequate facts to maintain a
claim for race discrimination under § 1981.
Section 1981 prohibits racial discrimination in the
“making, performance, modification, and termination of
contracts” and protects classes of persons from intentional
discrimination based on their ancestry or ethnic
characteristics. 42 U.S.C. § 1981(a); St. Francis College v. Al-
Khazraji, 481 U.S. 604, 613 (1987) (defining race as used in §
1981 as including ancestry and ethnicity claims). To establish a
claim under § 1981, a plaintiff must show that (1) he is a
member of a racial minority group; (2) the defendant intended to
discriminate on the basis of race; and (3) the discrimination
pertained to one of the activities enumerated in the statute.
Dickerson v. District of Columbia, 806 F. Supp. 2d 116, 119
(D.D.C. 2011). A successful Section 1981 claim alleges
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discrimination based on ancestry or ethnic characteristics, not
country of origin. Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35
(D.D.C. 2008) (“Race and national origin are ‘ideologically
distinct categories.’”); see also BARBARA T. LINDEMANN, ET AL.,
EMPLOYMENT DISCRIMINATION LAW, 6-3, Equal Employment Opportunity
Committee Section of Labor and Employment law American Bar
Association, 5th ed., V1 (2012) (“Although ancestry can fall
within the purview of § 1981, national origin does not.”).
The Supreme Court has “refused to narrowly define the
concept of race.” Khair v. Campbell Soup Co., 893 F. Supp. 316
(D.N.J. 1995). As discussed in St. Francis College,
§ 1981, “at a minimum,” reaches discrimination against
an individual “because he or she is genetically part of
an ethnically and physiognomically distinctive group of
homo sapiens.”
481 U.S. 604 at 613 (1987). Here, Mr. Daniels alleges that
Chugach sought to “rid its IT department of Black African
employees” and “eliminate him due to his black African heritage
and ancestry.” Compl. ¶ 16. Mr. Daniels alleges that his
Ethiopian colleague’s position was also terminated through
Chugach’s reorganization. Am. Compl. ¶ 10. Mr. Daniels also
identifies the individuals hired to fill the newly created
position as a Caucasian male and an African-American male. Am.
Compl. ¶ 11-13. Finally, Mr. Daniels asserts that the OFCCP
concluded that Chugach violated Executive Order 11236, which
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prohibits discrimination based on inter alia, race and color,
when it hired the Caucasian male instead of Mr. Daniels because
the Caucasian male “did not meet the minimum requirements of the
Senior IT Administrator job description.” Id. ¶ 15.
“While there may be some overlap between claims based on
national origin and claims based on protected status under
Section 1981, any potential overlap does not disqualify a
Plaintiff from going forward under Section 1981.” Uzoukwu v.
Metropolitan Washington Council of Governments, et al., 27 F.
Supp. 3d 62, 67 (D.D.C. 2014). The allegation that Chugach hired
a white male who did not meet the minimum job requirements is
sufficient to state a plausible claim for relief under § 1981.
See id. (holding that a Nigerian-American’s claim of race
discrimination under § 1981 should be permitted based on alleged
incidents where her white colleagues were treated more
favorably). In short, a liberal view of Mr. Daniels’ complaint,
accepting all factual allegations as true and giving him the
benefit of all inferences that can be drawn therefrom, Mr.
Daniels has sufficiently stated a claim for racial
discrimination under § 1981.
2. A four-year statute of limitations applies to Mr.
Daniels’ § 1981 claim.
Chugach also argues that Mr. Daniels’ § 1981 claim is
barred by a three-year statute of limitation period. Def.’s Mem.
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Supp. at 9-10. In Jones v. R.R. Donnelley & Sons Co., the
Supreme Court held that “a cause of action ‘aris[es] under an
Act of Congress enacted’ after December 1, 1990——and therefore
is governed by § 1658’s 4 year-statute of limitations——if the
plaintiff’s claim against the defendant was made possible by a
post-1990 enactment.” 541 U.S. 369, 382 (2004). The Civil Rights
Act of 1991 expanded the scope of § 1981 claims to include the
prohibition of racial discrimination in the making and enforcing
of contracts. 42 U.S.C. § 1981 (a); see also Hamilton v.
District of Columbia, 852 F. Supp. 2d 139, 144 (D.D.C. 2012).
Thus, a four-year statute of limitations applies to Mr. Daniels’
claims in this case. Mr. Daniels’ claim was filed on October 6,
2014, and therefore falls within the four-year statute of
limitations.
3. Chugach is not an instrumentality of the federal
government.
Finally, Chugach argues that because Mr. Daniels brought
suit against “Chugach Government Services, Inc. – Potomac Job
Corps Center,” his § 1981 claim is barred because the Federal
Jobs Corps Center operates under the color of federal law and is
therefore immune from suit. Def.’s Mem. Supp. at 13. Mr. Daniels
insists that Chugach is not an instrumentality of the federal
government, nor was it acting under the color of federal law.
Pl.’s Mem. Opp. at 3-4.
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Section 1981(c) provides that “[t]he rights protected by
this section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.” 42
U.S.C. § 1981(c). Chugach notes that the federal Job Corps
Program was created by Congress and is implemented by the U.S.
Department of Labor (“DOL”). Def.’s Mem. Supp. at 13. Chugach
argues that the length and detail of documents governing Job
Corp “demonstrate the high degree of control that the DOL
exercises over federal Job Corp Centers.” Id.
Chugach’s immunity under the color of federal law
argument goes too far. As noted by Mr. Daniels, the authority
cited by Chugach is misplaced, as all cases cited by Chugach
involve an actual federal government agency. See, e.g.
DynaLantic Corp. v. U.S. Dept. of Defense, 855 F. Supp. 2d 237,
291 (D.D.C. 2012) (dismissing § 1981 claim because Defendant
Department of Defense is a federal agency, and thus operating
under the color of federal law); Williams v. Glickman, 936 F.
Supp. 1 at 3 (D.D.C. 1996) (dismissing § 1981 claim based on
federal farm loan applications); see also Sindram v. Fox, 374
Fed. Appx. 302, 304 (3d Cir. 2010) (dismissing § 1981 claim
because Defendant Department of Education is a federal agency,
and thus operating under the color of federal law). Chugach has
cited to no authority, and the Court is aware of none, that has
deemed a private government contractor as an instrumentality of
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the federal government or otherwise operating under the color of
federal law. Accordingly, Chugach is not immune from suit under
§ 1981.
For all of these reasons, Chugach’s Motion to dismiss
Daniels’ § 1981 claim is DENIED.
B. Mr. Daniels’ Title VII national origin claim fails
because Chugach is exempt from the definition of
“employer” under Title VII.
Chugach argues that Mr. Daniels’ claim of discrimination
based on national origin fails because Chugach was not an
“employer” as required under Title VII at the time of the events
alleged. Def.’s Mem. Supp. at 4. Rather, Chugach maintains that
it was a wholly owned subsidiary of the Chugach Native
Association, which qualifies as an Alaska Native Corporation
(“ANC”) and is therefore exempt from the definition of employer
under Title VII. Id. Mr. Daniels contends Chugach has not
established that it was a wholly owned subsidiary during at the
time of the events in question, deeming Chugach’s motion as to
Count II premature. Pl.’s Mem. Opp., Docket No. 15 at 1-2.
Title VII makes it an unlawful employment practice for
“an employer . . . to discriminate against any individual . . .
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C.A. § 2000e-2(a)(1). Based on 43
U.S.C. § 1626(g), Courts have routinely held that ANCs are
exempt from the definition of employer under Title VII. Fox v.
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Portico Reality Services Office, 739 F. Supp. 2d 912, 919 (E.D.
Va. 2010) (holding that 43 U.S.C. § 1626(g) exempts Native
Corporations and direct subsidiaries, but not indirect
subsidiaries, from the definition of employer under Title VII).
43 U.S.C. § 1626(g) states:
For the purposes of implementation of the Civil
Rights Act of 1964 [42 U.S.C.A. § 2000a et seq.],
a Native Corporation and corporations,
partnerships, joint ventures, trusts, or affiliates
in which the Native Corporation owns not less than
25 per centum of the equity shall be within the
class of entities excluded from the definition of
“employer” by section 701(b)(1) of Public Law 88-
352 (78 Stat. 253), as amended [42 U.S.C.A.
2000e(b)(1)], or successor statues.
43 U.S.C. § 1626(g). This statute was passed with the intent to
“facilitate Alaska Native Shareholder employment programs by
resolving any uncertainty as to the applicability of the Civil
Rights Act of 1964 to certain business enterprises in which
Native Corporations participate.” Fox, 739 F. Supp. 2d 912 at
919 (citing Sen. Rep. No. 100-201, at 39 (1987)).
In support of its Motion, Chugach submitted to the Court
its 2011 and 2013 Biennial Reports, which confirm that ANC
Chugach Alaska Corporation owned 100 percent of Chugach from
2009 to 2012, the period relevant to his matter. Def.’s Reply
Mem., Docket No. 16, Ex. A. Based on this documentation, the
Court is satisfied that Chugach was a wholly owned subsidiary at
the time of the alleged discrimination. Chugach is therefore
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exempt from the definition of employer under Title VII and Mr.
Daniels’ claim for discrimination based on national origin
fails. Pratt v. Chenega Integrated Systems, Case No. 07-1573,
2007 WL 2177335 at *3 (N.D. Cal. July 27, 2007) (holding that
documents showing entity was at least 25 percent owned by a
Native Corporation was sufficient to grant motion to dismiss
based on entities exemption from Title VII’s definition of
employer); see also Aleman v. Chugach Support Services, Inc.,
485 F.3d 206, 211 (4th Cir. 2007) (affirming that direct
subsidiary of Alaska Native Corporation was exempt from
definition of employer under Title VII, but did not extend to
claims under Section 1981); Thomas v. Choctaw Management/Service
Enterprise, 313 F.3d 910, 911 (5th Cir. 2002) (affirming
District Court’s granting of Defendant’s Motion to Dismiss
because, inter alia, Indian Tribes are exempt from the
definition of employer under Title VII).
For all of these reasons, Chugach’s Motion to Dismiss Mr.
Daniel’s Title VII national origin discrimination claim is
GRANTED.
D. Mr. Daniels’ Age Discrimination claim fails because
he did not properly exhaust his administrative
remedies through the EEOC.
Chugach argues that Mr. Daniels’ age discrimination claim
is barred as a matter of law because he failed to exhaust his
administrative remedies through the EEOC. Def.’s Mem. Supp. at
14
8. Mr. Daniels maintains that his OFCCD complaint satisfies
exhaustion of his age discrimination claim. Pl.’s Mem. Opp. at
6.
Before bringing suit under the ADEA, plaintiffs must
exhaust their administrative remedies. 29 U.S.C. § 626(d)(1).
Doing so requires filing a charge with the EEOC within 180 days
after the alleged unlawful practice occurred. Id.; see also
Washington v. Washington Metropolitan Area Transit Authority,
160 F.3d 750, 752 (D.C. Cir. 1998). Here, Mr. Daniels does not
dispute that he failed to file a charge with the EEOC; rather,
he argues that his OFCCD complaint is sufficient to exhaust all
administrative remedies related to his age discrimination claim.
Pl.’s Mem. Opp. at 6.
In support of his argument, Mr. Daniels points to a
November 2011 Memorandum of Understanding (“MOU”) between the
Equal Employment Opportunity Commission (EEOC) and OFCCP, which
states that “all complaints/charges of employment discrimination
filed with OFCCP alleging a Title VII basis (race, color,
religion, sex, national origin, or retaliation) shall be
received as complaints/charges simultaneously dual-filed under
Title VII.” EEOC, 76 Fed. Reg. 71029-32 (Nov. 16, 2011). Mr.
Daniels acknowledges that discrimination on the basis of age is
not mentioned in the MOU, but argues that “it makes little sense
for a complainant to have the burden of filing two separate
15
complaints with the EEOC for age discrimination and with OFCCP
for Title VII violations when the discrimination alleged arises
from the same operative actions undertaken by the government
contractor.” Pl.’s Mem. Opp. at 6. Mr. Daniels also represents
that the EEOC directed him to assert all of his claims with the
OFCCP. Id. at 7. Finally, in large part conceding that his age
discrimination claim should have been exhausted through the
EEOC, Mr. Daniels requests that the Court equitably toll the
time necessary to allow Mr. Daniels to properly exhaust his age
discrimination claim through the EEOC. Id.
Mr. Daniels cannot exhaust his age discrimination through
the OFCCP for three principle reasons. First, the plain language
of the MOU does not mention age discrimination claims. EEOC, 76
Fed. Reg. 71029-32 (Nov. 16, 2011). Second, the MOU applies to
discrimination claims alleging a Title VII basis. Id. (emphasis
added). Here, Mr. Daniels alleges his age discrimination claim
under ADEA. Am. Compl., Count III (“VIOLATION OF ADEA FOR
DISCRIMINATION ON THE BASIS OF AGE”). Third, case law supports
the conclusion that Mr. Daniels’ OFCCP complaint does not
satisfy the requirement of filing a charge with the EEOC.
Granger v. Aaron’s Inc., Case No. 09-1634, 2010 WL 2464832, at
*4 (W.D. La June 14, 2010) aff’d, 636 F.3d 708 (5th Cir. 2011)
(holding that a complaint filed with the OFCCP, over which the
OFCCP has no jurisdiction, cannot be considered a dual-filed
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complaint under the provisions of an MOU); see also Meckes v.
Reynolds Metals Co., 604 F. Supp. 598, 601 (N.D. Ala. 1985)
(holding that because OFCCP was never a proper place to file any
kind of age discrimination claim, plaintiff’s OFCCP charge of
age discrimination was not a ‘filing’ of an ADEA charge and
could not constitute a ‘joint’ filing with EEOC under the
Memorandum).
Mr. Daniels argument that equitable tolling should be
applied so that he may timely file an age discrimination
complaint with the EEOC is equally without merit. The courts
equitable tolling power “will be exercised only in extraordinary
and carefully circumscribed instances.” Washington v. Washington
Metro, 160 F.3d 750, 752 (D.C. Cir. 1998). Equitable tolling
does not extend to “what is at best, a garden variety of
excusable neglect.” Id. (citing Irwin v. Dep’t. of Veteran
Affairs, 498 U.S. 89, 96 (1990)).
Here, the statement Mr. Daniels’ submitted with his OFCCP
complaint does not mention an allegation of age discrimination.
Def.’s Mem. Supp., Ex. 4. Only in his complaint, filed two years
after the alleged discriminatory events, does Mr. Daniels allege
an age discrimination claim. Compl., Docket No. 1 at 8. These
facts strongly suggest that Mr. Daniels did not timely seek to
exhaust is administrative remedies on his age discrimination
claim under the ADEA. Moreover, although Mr. Daniels claims that
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the EEOC advised him to file all charges with the OFCCP, Mr.
Daniels does not allege that Chugach engaged in any misconduct
designed to mislead Mr. Daniels about when his claim should be
filed, or otherwise induce him to miss the filing deadline. See
Irwin, 498 U.S. 89 at 96 (“We have allowed equitable tolling in
situations where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked by
his adversary’s misconduct into allowing the filing deadline to
pass.”).
For all of these reasons, Chugach’s Motion to Dismiss Mr.
Daniels’ age discrimination claim under the ADEA is GRANTED.
IV. CONCLUSION
After consideration of the motion, the response and reply
thereto, the applicable law, and the entire record, for the
reasons discussed in this Memorandum, Defendant’s Motion is
GRANTED in part and DENIED in part. An appropriate order
accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Court Judge
March 7, 2016
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