Lynn v. Altarum Institute ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOANNE LYNN, )
)
Plaintiff, )
)
v. ) Civil Action No. 22-459 (RBW)
)
ALTARUM INSTITUTE, )
)
Defendant. )
)
MEMORANDUM OPINION
The plaintiff, Dr. Joanne Lynn, brings this civil action against the defendant, Altarum
Institute (“the Institute”), asserting a claim of discrimination based upon her age, in violation of
the District of Columbia Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401.01–2-1404.04.
See First Amended Complaint for Equitable and Monetary Relief and Demand for Jury Trial
(“Am. Compl.”) at ¶¶ 33–43, ECF No. 7. Currently pending before the Court is the Institute’s
motion to dismiss. See Altarum Institute’s Motion to Dismiss Plaintiff’s First Amended
Complaint (“Def.’s Mot.”) at 1, ECF No. 8. Upon careful consideration of the parties’
submissions, 1 the Court concludes for the following reasons that it must deny the Institute’s
motion to dismiss.
1
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) Altarum Institute’s Memorandum in Support of Its Motion to Dismiss Plaintiff’s First Amended
Complaint (“Def.’s Mem.”), ECF No. 8-2; (2) Plaintiff Joanne Lynn’s Opposition to Defendant Altarum Institute’s
Motion to Dismiss (“Pl.’s Opp’n”), ECF No. 9; and (3) the Defendant’s Reply Memorandum in Response to
Plaintiff’s Opposition to Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint (“Def.’s Reply”),
ECF No. 11.
I. BACKGROUND
A. Factual Background
The following allegations are taken from the plaintiff’s Amended Complaint unless
otherwise indicated. 2
The plaintiff “is a 70-year-old woman,” who holds a “Doctor of Medicine degree[,]” “has
been a tenured professor at two universities, has published 300 peer-reviewed medical journal
articles, has written for major public commissions, has earned two Masters degrees in addition to
her [medical degree], and has a number of honors for her work.” Am. Compl. ¶ 6. The Institute
is a “corporation with its headquarters in Ann Arbor, M[ichigan], and an office in Washington,
D.C.” Id. ¶ 2.
“[I]n or around May 2011[,]” the Institute hired the plaintiff to serve “as the Director for
the Center of Eldercare Improvement [(‘the Center’)] to lead an [ ] initiative to improve
end[-]of[-]life care in the Strategic Research Initiatives [G]roup, reporting to CEO/President Linc
Smith and Vice President Jim Lee.” Id. ¶ 6. The plaintiff was “at least 15 years older than her
colleagues and supervisors[,]” id. ¶ 7, and the plaintiff’s supervisors were aware that she was
“significantly older than her colleagues[,]” id. ¶ 8. “As one of her duties within the company,
[the plaintiff] maintained a blog, MediCaring.org[,]” to which “[s]he posted frequently while
working [for the Institute.]” Id. ¶ 9. “Smith and Lee encouraged [the plaintiff] to speak with the
2
As the Institute correctly notes, see Def.’s Reply at 5–11, the plaintiff includes additional factual allegations in her
opposition that are not present in her Amended Complaint. Compare, e.g., Am. Compl. ¶ 17 (stating that, “[a]s part
of [her] work with Congressman Suozzi, [the plaintiff] developed legislation, solicited stakeholder and policymaker
input, and conversed with the conventional press and with[ ]persons having substantial presence in social media[,]”
and that the Institute’s “managers were aware of this work at all times” (emphasis added)), with Pl.’s Opp’n at 6
(stating that “speaking to the media was an essential part of her work with Congressman Suozzi, and [the Institute]
knew of and approved this arrangement” (emphasis added)). However, a non-pro-se “plaintiff may not amend [his,
her, or its] complaint by the briefs in opposition to a motion to dismiss.” Kingman Park Civic Ass’n v. Gray, 27 F.
Supp. 3d 142, 168 (D.D.C. 2014) (internal quotation marks and alteration omitted). Accordingly, the Court will
consider only those allegations in the plaintiff’s Amended Complaint.
2
media to raise [the Institute’s] profile” and the plaintiff “spoke with press from other countries
and on topics other than those for which [the Institute] had funded projects.” Id. ¶ 10.
“Until 2020, [the Institute] never required [the plaintiff] to pre-approve these media contacts,
though she often did work closely with the public relations team and generally informed them of
press contacts, even after they were completed.” Id. According to the plaintiff, “[b]eing visible
in the press was a vital part of her job to promote the improvement of eldercare.” Id.
“In or about 2017, there was a change in leadership” and the Center “was repositioned as
a business group, not a public benefit group.” Id. ¶ 11. The plaintiff was then “tasked [ ] with
covering the Center[’s] . . . expenses entirely through grants and other streams of income, instead
of the previous system that funded the Center through earned income and a supplemental
budget.” Id. ¶ 12. “In or about April 2019, [the plaintiff] applied for a Health and Aging Policy
Fellowship” at an external organization, “with the full support of [the Institute,]” and, “[w]hen
she started this fellowship, she asked to move from a full-time to a part-time position within [the
Institute].” Id. ¶ 14. “Thereafter, Anne Montgomery[,]”—“a woman significantly younger than”
the plaintiff, who “lacked managerial and research experience and knowledge”—became the
Director of the Center[.]” Id. ¶ 15. The plaintiff “continued to work in the Center . . . on a
part-time basis, with Montgomery as her supervisor.” Id.
In November 2019, the plaintiff “testified before the House Ways and Means Committee
. . . (without [the Institute’s] input on the content of her testimony),” and thereafter, “she agreed
to spend her fellowship year in Congressman Tom Suozzi’s office.” Id. ¶ 16. While “work[ing]
with Congressman Suozzi,” the plaintiff “conversed with the conventional press and
with[ ]persons having substantial presence in social media.” Id. ¶ 17. The plaintiff asserts that
“[the Institute’s] managers were aware of this work at all times[.]” Id. ¶ 17.
3
“On or about February 4, 2021, [the Institute] circulated an updated media policy [ ] that
[ ] prohibited employees from communicating with members of the media without approval from
[both] the Director of Communications and Public Affairs and the employee’s Center director.”
Id. ¶ 18. The plaintiff subsequently “contacted the Director of Communications and Public
Affairs Sarah Litton,” as well as the plaintiff’s “direct supervisor[,] Anne Montgomery[,] to
discuss this policy.” Id. ¶ 19. The plaintiff “had a routine of informing Litton when time
permitted about media communications and otherwise asking reporters to not be identified [as
being associated] with [the Institute.]” Id. “Litton confirmed that this pattern made sense
considering [the plaintiff’s] employment specifications and that this constituted an exception [to]
the policy for” the plaintiff. Id. “Litton [also] affirmed that press communications for issues
outside of [the scope of the Institute’s work] did not require pre-approval, and Montgomery
agreed.” Id. Litton and Montgomery “emphasized” that this arrangement reflected the
plaintiff’s “part-time position within the company as she was actively pursuing outside roles in
order to [advance] eldercare improvement.” Id.
“On or about July 9, 2021, Chief Human Resources Officer Lesa Litteral admonished
[the plaintiff] for purportedly violating the media policy after [the plaintiff] gave a statement to a
reporter about a topic unrelated to” the Institute. Id. ¶ 20. Although the plaintiff “had asked the
reporter to quote her as ‘a geriatrician in D[.]C[.,]’ [ ] the reporter [had] listed [the plaintiff’s]
affiliation with [the Institute].” Id. The plaintiff “reminded [the Institute] that it would be
impossible for her to coordinate with it before every press contact[,] as she was promoting a bill
in Congress and was working on multiple policy issues.” Id. ¶ 21. “In response, Litteral
confirmed that [the Institute] would not interfere in [the plaintiff’s] independent
communications.” Id.
4
“On or about July 10, 2021, . . . [the plaintiff] recorded a podcast interview[.]” Id. ¶ 22.
Following the interview, “in an effort to include [the Institute] in her outside contact with the
press despite” being told by “Litton, Montgomery, and Litteral” that she did not have to secure
the Institute’s approval regarding press communications, the plaintiff “contacted the [Institute’s]
communications department about whether she should use [an] [ ] attribution” to the Institute.
Id. “Anya Day, [the Institute’s] . . . interim lead for Communications[], advised [the plaintiff] to
only use the [ ] attribution [to the Institute] for topics directly related to [the Institute].” Id. The
plaintiff “took this as another clear signal that she did not need to inform [the Institute] about her
outside projects and their press coverage.” Id.
Thereafter, the Institute “began to refuse to allow [the plaintiff] to pursue proposals for
grants and contracts[,]” “[d]espite [the plaintiff’s] remarkable record of securing grants and
contracts that supported her work toward eldercare improvement[.]” Id. ¶ 23. “In 2021, [the
plaintiff] proposed over [six] separate initiatives for funding and [the Institute] refused to allow
her to proceed.” Id. ¶ 24. According to the plaintiff, “[i]n a research career that required
securing funding to support oneself and one’s colleagues, being unable to pursue new funding
indicated that [she] was no longer wanted at the company.” Id.
“In or about early September 2021, Tara Fowler, [the Institute’s] manager of the division
of Population Health, approached [the plaintiff] about transitioning to hourly employment as of
October 1, 2021[.]” Id. ¶ 25. The plaintiff “suggested in response that Fowler delay this change
until 2022, because [the plaintiff] had important projects to complete[,] [ ] had fully covered the
funding for her part-time employment through the end of 2021[,]” and “was planning a minor
surgery in November.” Id. The plaintiff “also proposed that she remain as an hourly employee
only on fully funded projects during 2022, in order to complete the [Agency for Healthcare
5
Research and Quality (“]AHRQ[“)-]funded PACE evaluation” because, “[w]hile this project was
funded by AHRQ, the funding r[a]n[] through [the Institute], and [the plaintiff] would need to be
an employee of [the Institute] to finish her tasks on this important project.” Id. “This [proposal]
was accepted by [the Institute].” Id.
“On or about September 29, 2021, an Associated Press reporter emailed [the plaintiff]
about an article [that] he was writing[.]” Id. ¶ 27. In response, the plaintiff “advised the reporter
that [the Institute] was not working on this topic, helped [the reporter] with some background
information on his topic, and suggested very briefly that he might be interested in a different
topic [on which the Institute] was working[.]” Id. Accordingly, the plaintiff “did not speak
[about any of] the [Institute’s] project[s] to the reporter.” Id. “Following this call, [the plaintiff]
emailed Montgomery to let her know that this reporter may be interested in reporting on [one of]
the [Institute’s] project[s], for which Montgomery was communications lead.” Id.
“[O]n or about October 4, 2021,” the Institute “terminated [the plaintiff] . . . purportedly
for violating its media policy repeatedly” by “speaking with th[e reporter from the Associated
Press] in September [ ] 2021” and “being erroneously identified in the interview from July
[ ] 2021.” Id. ¶ 28. The Institute “delegated [the plaintiff’s] position in the AHRQ-PACE
[evaluation] to Christine Stanik, who . . . is in her [forties].” 3 Id. ¶ 29.
3
The Institute argues that the plaintiff’s allegation that “Christine Stanik, [ ] upon information and belief is in
her [forties,]” Am. Compl. ¶ 29, is a “conclusory allegation[,]” Def.’s Mem. at 10 n.10, that “the Court should not
consider[,]” id. In support of its argument, the Institute cites to Kowal v. MCI Communications Corp., 16 F.3d 1271(D.C. Cir. 1994), in which the District of Columbia Circuit noted that the “standards for pleadings on information
and belief must be construed consistent with the purposes of [Federal] Rule [of Civil Procedure] 9(b)[,]” id. at 1279
n.3, and thus “affirm[ed] the district court’s determination that pleadings on information and belief require an
allegation that the necessary information lies within the defendant’s control, and that such allegations must also be
accompanied by a statement of the facts upon which the allegations are based[,]” id. However, Rule 9(b) applies to
claims “alleging fraud or mistake[,]” Fed. R. Civ. P. 9(b), which are not alleged in this litigation, see generally Am.
Compl. Accordingly, the Court will not strike the plaintiff’s allegation regarding Stanik’s age.
6
B. Procedural History
On January 24, 2022, the plaintiff initiated this civil action in the Superior Court for the
District of Columbia. See Complaint for Equitable and Monetary Relief and Demand for Jury
Trial (“Compl.”) at 1, ECF No. 1-1. On February 22, 2022, the Institute removed the case to this
Court based on diversity jurisdiction. See Notice of Removal at 1, ECF No. 1. Subsequently, on
March 15, 2022, the plaintiff filed her Amended Complaint in this case. See Am. Compl. at 1.
On March 29, 2022, the Institute filed its motion to dismiss the Amended Complaint, see Def.’s
Mot. at 1; on April 12, 2022, the plaintiff filed her opposition to the Institute’s motion to dismiss,
see Pl.’s Opp’n at 1; and on April 26, 2022, the Institute filed its reply, see Def.’s Reply at 1.
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court must dismiss a complaint that
“fail[s] to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible “when the plaintiff pleads factual content that allows the [C]ourt to
draw [a] reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
In evaluating a motion to dismiss under Rule 12(b)(6), “the Court must construe the
complaint ‘in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged.’” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)). While the Court must
“assume the[ ] veracity” of any “well-pleaded factual allegations[]” in a complaint, conclusory
7
allegations “are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Thus,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). Also, the Court need
not accept “legal conclusions cast as factual allegations[]” or “inferences drawn by [the] plaintiff
if those inferences are not supported by the facts set out in the complaint[.]” Hettinga, 677 F.3d
at 476. In resolving such motions, the Court “may consider only 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. Opportunity Comm’n v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
III. ANALYSIS
The Institute moves to dismiss the plaintiff’s Amended Complaint for failure to state a
claim under Rule 12(b)(6), arguing that the plaintiff has failed to establish that (1) “she was
qualified at the time [the Institute] terminated her employment,” Def.’s Mem. at 9 (emphasis
omitted); (2) “she was disadvantaged in favor of a younger person,” id. at 12; and (3) “her
employment ended because of her age[,]” id. at 11 (emphasis in original). In response, the
plaintiff argues that she has pleaded sufficient facts to show that (1) “she was qualified for her
position,” Pl.’s Opp’n at 10; (2) “she was disadvantaged in favor of a younger person, [although]
she is not required to do so[,]” id. at 14; and (3) “her age was a motivating factor in [the
Institute’s] decision to terminate her[,]” id. at 12. The Court will begin by determining whether
the allegations in the plaintiff’s Amended Complaint adequately set forth a claim of
discrimination based upon her age, before addressing the Institute’s arguments.
8
A. Whether the Plaintiff Has Adequately Alleged a Claim of Age Discrimination Under
the DCHRA
Under the DCHRA, it is “unlawful to discriminate against an individual on the basis of
age.” Badwal v. Bd. of Trustees of Univ. of D.C., 139 F. Supp. 3d 295, 315 (D.D.C. 2015). “To
state a prima facie claim for age discrimination under the . . . DCHRA, [a] plaintiff must show
that he or she (1) was at least forty years of age, (2) suffered an adverse employment action, and
(3) that there was some reason to believe that the adverse employment action was based on the
employee’s age.” 4 Id. However, a “plaintiff need not plead all of these elements in order to
overcome a motion to dismiss[,]” Miller v. Gray, 52 F. Supp. 3d 62, 67 (D.D.C. 2014), although
“a plaintiff must furnish more than labels or conclusions or a formulaic recitation of the elements
of a cause of action and his [or her] complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face[,]” Spaeth v. Georgetown Univ.,
839 F. Supp. 2d 57, 62 (D.D.C. 2012) (internal quotation marks omitted). Therefore, “[t]he
plausibility standard articulated in Twombly, and confirmed in Iqbal, ‘asks for more than a sheer
possibility that a defendant has acted unlawfully.’” Koch v. White, 967 F. Supp. 2d 326, 334
(D.D.C. 2013).
Here, the Court concludes that the plaintiff has met her burden under Twombly and Iqbal.
“[C]onstru[ing] the [Amended C]omplaint in favor of the plaintiff,” as the Court must do at this
stage of the proceedings, Hettinga, 677 F.3d at 476, the Amended Complaint sets forth “a claim
to relief that is plausible on its face[,]” Spaeth, 839 F. Supp. 2d at 62. According to the
Amended Complaint, the plaintiff “is a 70-year-old woman[,]” Am. Compl. ¶ 6, and therefore
satisfies the first element of a prima facie case of discrimination based upon age, see Badwal,
4
“When evaluating claims under the DCHRA, the Court may look to cases interpreting the federal Age
Discrimination in Employment Act (‘ADEA’)[.]” Badwal, 139 F. Supp. 3d at 315.
9
139 F. Supp. 3d at 315 (“A plaintiff must show that he or she [ ] was at least forty years of
age[.]”). The plaintiff also alleges in her Amended Complaint that she was “terminated” by the
Institute, see Am. Compl. ¶ 28, and therefore satisfies the second element of a prima facie case
of discrimination based upon age, see Badwal, 139 F. Supp. 3d at 315 (“A plaintiff must show
that he or she . . . suffered an adverse employment action[.]”); Newman v. D.C. Courts,
125 F. Supp. 3d 95, 104 (D.D.C. 2015) (“[L]oss of a job constitutes an adverse employment
action.”).
Regarding the third element of her prima facie case, the Court concludes that the plaintiff
has likewise met her burden.
[F]or the causation element, the standard at the motion[-]to[-]dismiss stage is not
high, and courts, in this Circuit as elsewhere, rarely require more than an assertion
that the plaintiff suffered an adverse action due to his [or her] age, so long as this
assertion is accompanied by sufficient facts to [ ] put the defendant on notice of the
incidences giving rise to the claim.
Badwal, 139 F. Supp. 3d at 315. In her Amended Complaint, the plaintiff alleges that she
worked for the Institute, first on a full-time basis, see Am. Compl. ¶¶ 6–14, and then, later, on a
part-time basis, see id. ¶¶ 14–25, from May 2011, see id. ¶ 6, to October 2021, when she was
terminated, see id. ¶ 28. According to the plaintiff, “[w]hile [working] at [the Institute], [she]
was at least 15 years older than her colleagues and supervisors[,]” id. ¶ 7, and her “supervisors
knew that [she] was significantly older than her colleagues[,]” id. ¶ 8. See id. ¶ 30 (alleging that
the Institute’s “directors are knowledgeable of [the plaintiff’s] age and tenure with the
company”). The plaintiff further alleges that she had significant success while working for the
Institute, including “secur[ing] funding for all personnel and to develop important initiatives with
her team[,]” id. ¶ 13; and “having a near-perfect score on the grant application to the []AHRQ[]
for the PACE project[,]” id. ¶ 23. The plaintiff alleges that, despite these accomplishments, the
10
Institute began “to send . . . signal[s] that [the plaintiff] was expected to leave [the Institute]
soon.” Id. ¶ 25. “In 2021,” id., according to the plaintiff, the Institute “began to refuse to allow
[her] to pursue proposals for grants and contracts[,]” id., which, “[i]n a research career that
required securing funding to support oneself and one’s colleagues, . . . indicated that she was no
longer wanted at the company[,]” id. ¶ 24. Moreover, the plaintiff contends that the Institute
“approached [the plaintiff] about transitioning to hourly employment as of October 1, 2021,
apparently in an effort to reduce her compensation that was higher due to her decades of
experience and to send an even stronger signal that [the plaintiff] was expected to leave [the
Institute] soon.” Id. ¶ 25.
In addition, the plaintiff asserts that, although she was terminated “purportedly for
violating [the Institute’s] media policy . . . when she spoke with th[e Associated Press] reporter
in September [ ] 2021,” id. ¶ 28, and when she was “erroneously identified [as associated with
the Institute] in the interview from July [ ] 2021[,]” id., she had been informed by her supervisors
that there was “an exception [to] the policy for [her,]” id. ¶ 19; see id. ¶ 21 (alleging that
“Litteral confirmed that [the Institute] would not interfere in [the plaintiff’s] independent
communications” with the press). The plaintiff therefore alleges that “[t]he reason given for
terminating [her] employment is in error . . . and [ ] served only as pretext for unlawful
discrimination.” Id. ¶ 41. Moreover, according to the plaintiff, the Institute “delegated [her]
position in the AHRQ-PACE [project] to Christine Stanik, who upon [the plaintiff’s] information
and belief is in her [forties].” Id. ¶ 29.
Based on these allegations, the plaintiff’s allegation that the Institute “discriminated
against [her] based on her age when it terminated her on or about October 4, 2021[,]” id. ¶ 40,
suffices to “put the [Institute] on notice of the incidences giving rise to the [plaintiff’s] claim[,]”
11
Badwal, 139 F. Supp. 3d at 315. Specifically, the plaintiff is alleging that the Institute’s rationale
for terminating her was a “pretext for unlawful discrimination[,]” Am. Compl. ¶ 41, and that her
termination was in fact “based on her age[,]” id. ¶ 40, after a series of purported actions
demonstrating that “she was no longer wanted at the company[,]” id. ¶ 24—specifically,
“refus[ing] to allow [her] to pursue proposals for grants and contracts[,]” id. ¶ 23, and
“approach[ing her] about transitioning to hourly employment[,]” id. ¶ 25. Although the Institute
“may ultimately show that it had a legitimate, non-discriminatory reason for” terminating the
plaintiff’s employment, Taylor v. Pompeo, Case No. 19-cv-2987 (CRC), 2021 WL 7904001,
at *9 (D.D.C. 2021), the Court concludes that the plaintiff’s allegations are sufficient to permit
the Court to “draw [the] ‘reasonable inference that the [Institute] is liable for the misconduct
alleged[,]’” id. at *8 (quoting Iqbal, 556 U.S. at 678); see Nurridin v. Bolden, 674F. Supp. 2d 64,
90 (D.D.C. 2009) (“Merely alleging that the employer’s proffered reasons for the adverse
employment actions is false may support an inference of discrimination sufficient to survive a
motion to dismiss.”); Badwal, 139 F. Supp. 3d at 315 (noting that “courts, in this Circuit as
elsewhere, rarely require more than an assertion that the plaintiff suffered an adverse action due
to his [or her] age, so long as this assertion is accompanied by sufficient facts to [ ] put the
defendant on notice of the incidences giving rise to the claim”). Accordingly, the Court
concludes that “the complaint in this matter contains sufficient allegations that address each
element for a prima facie case of age discrimination.” Miller, 52 F. Supp. 3d at 67.
B. The Institute’s Arguments
The Institute argues that the plaintiff has failed to establish that (1) “she was qualified at
the time [the Institute] terminated her employment,” Def.’s Mem. at 9 (emphasis omitted);
(2) “she was disadvantaged in favor of a younger person,” id. at 12; and (3) “her employment
12
ended because of her age[,]” id. at 11 (emphasis in original). 5 In response, the plaintiff argues
that she has pleaded sufficient facts to show that (1) “she was qualified for her position,” Pl.’s
Opp’n at 10; (2) “she was disadvantaged in favor of a younger person, [although] she is not
required to do so[,]” id. at 14; and (3) “her age was a motivating factor in [the Institute’s]
decision to terminate her[,]” id. at 12. The Court will address each of the Institute’s arguments in
turn.
1. Whether the Plaintiff Has Demonstrated that She Was Qualified
First, the Institute argues that the plaintiff “does not plausibly allege facts sufficient to
show that ‘she was qualified’ for the part-time position [that] she held at the time her
5
The Institute also argues that, because the Amended Complaint includes an allegation that Montgomery, the
woman who replaced the plaintiff as “the Director of the Center[,]” Am. Compl. ¶ 15, is “significantly younger than
[the plaintiff,]” id., the plaintiff “asks this Court to accept that [her] voluntary, personal decision to move to
part-time employment somehow transformed her decision into intentional age discrimination by [the Institute,]”
Def.’s Mem. at 10 (emphasis added). And, in her Amended Complaint, the plaintiff alleges that the Institute
“discriminated against [her] based on her age when the[ Institute] replaced her with two younger women at various
times in her career.” Am. Compl. ¶ 39. From the plaintiff’s other allegations, it appears that these “two younger
women[,]” id., are (1) Montgomery, who replaced the plaintiff as “the Director of the Center[,]” id. ¶ 15, after the
plaintiff “asked to move from a full-time to a part-time position[,]” id. ¶ 14; and (2) Stanik, to whom the Institute
“delegated [the plaintiff’s] position in the AHRQ-PACE [project]” following the plaintiff’s termination, id. ¶ 29.
However, in the plaintiff’s opposition to the Institute’s motion, her termination is the only adverse employment
action she relies upon to support her discrimination claim. See, e.g., Pl.’s Opp’n at 13–14 (arguing that the plaintiff
“has pled sufficient facts that age was a motivating factor in [the Institute’s] decision to terminate her”).
Accordingly, the Court concludes that, although the plaintiff references Montgomery’s promotion, the plaintiff has
conceded the assertion of any claims based upon her “mov[ing] from a full-time to a part-time position[,]” Am.
Compl. ¶ 14, and her replacement by Montgomery. See CD Int’l Enters., Inc. v. Rockwell Cap. Partners, Inc.,
251 F. Supp. 3d 39, 46 (D.D.C. 2017) (“It is well understood in this Circuit that when a plaintiff files an opposition
to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.” (internal quotation marks omitted)).
Moreover, as the Institute correctly argues, see Def.’s Mem. at 10, “[a]n employee suffers an adverse employment
action if he [or she] experiences materially adverse consequences affecting the terms, conditions, or privileges of
employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible
harm.” Allard v. Holder, 840 F. Supp. 2d 269, 275 (D.D.C. 2012) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002)). Absent allegations that the plaintiff’s decision to move to part-time “was involuntary, and
therefore qualifies as a constructive discharge[,]” Hill v. Gray, 28 F. Supp. 3d 47, 61 (D.D.C. 2014), which the
plaintiff does not make, see generally Am. Compl., her move was voluntary and thus does not qualify as an adverse
action. Cf. Allovio v. Holder, 923 F. Supp. 2d 151, 154 (D.D.C. 2013) (noting that a plaintiff’s “voluntary
retirement did not constitute an adverse employment action”). Accordingly, assuming that the plaintiff is seeking to
do so, the Court concludes that she may not rely on her voluntary decision to transition to part-time work in
April 2019 as a separate claim of discrimination from the claim based upon her termination.
13
employment ended” because her “own allegations about her violations of [the Institute’s] media
policy suggest . . . that [the plaintiff] was not qualified for the part-time position at the time [that
the Institute] terminated her employment.” Def.’s Mem. at 9 (emphasis in original). Although
phrased differently, this argument essentially asserts that the plaintiff’s alleged violations of the
Institute’s media policy rendered her unqualified and thus were “a legitimate, nondiscriminatory
reason[]” for her termination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
However, “[a]t the motion[-]to[-]dismiss stage[,] [ ] an employment discrimination plaintiff need
not anticipate legitimate, non-discriminatory reasons that may be proffered by the employer for
the adverse employment action nor allege pretext to survive a motion to dismiss.” Easaw v.
Newport, 253 F. Supp. 3d 22, 27 (D.D.C. 2017). Accordingly, the Court need not decide at this
stage of the litigation whether, in fact, the plaintiff’s alleged violations of the Institute’s media
policy rendered her unqualified for her position and were thus “a legitimate, nondiscriminatory
reason[]” for her termination. McDonnell Douglas, 411 U.S. at 802. 6
2. Whether the Plaintiff Has Demonstrated that She Was Disadvantaged in Favor of a
Younger Employee
Next, the Institute argues that the plaintiff “fails to allege facts sufficient to show that
employees who were similarly situated and substantially younger than [her] were not terminated
6
The parties also dispute whether, aside from her alleged violations of the Institute’s media policy, the plaintiff was
qualified for her position. See Pl.’s Opp’n at 10 (arguing that the plaintiff “has pled an array of facts that support
her qualifications for her positions at [the Institute]”); Def.’s Mem. at 9 (arguing that the plaintiff’s “subjective
allegations about her job performance during employment generally do not suffice to establish the second element of
her claim”). However, a “plaintiff need not plead all of the[] elements [of a prima facie case] in order to overcome a
motion to dismiss.” Miller, 52 F. Supp. 3d at 67. Moreover, the parties conflate the requirements for a prima facie
case for failure-to-hire claims, which require a showing that “the plaintiff . . . was qualified for the position[,]”
Miller, 52 F. Supp. 3d at 6, with the requirements for a prima facie case for termination claims, which only require a
showing that the plaintiff “(1) was at least forty years of age, (2) suffered an adverse employment action, and
(3) that there was some reason to believe that the adverse employment action was based on the employee’s age.”
Badwal, 139 F. Supp. 3d at 315. Accordingly, the parties’ arguments about whether the plaintiff has adequately
alleged that she was qualified to be in her position at the Institute are irrelevant.
14
for violating [the Institute’s] media policy.” Def.’s Mem. at 12 (emphasis in original). 7
However, as noted above, a “plaintiff need not plead all of the[] elements [of a prima facie case]
in order to overcome a motion to dismiss.” Miller, 52 F. Supp. 3d at 67. Moreover, a plaintiff is
not required to demonstrate “that [he or] she was treated differently than similarly situated
employees” in order to “establish a prima facie case of disparate treatment discrimination[.]”
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (underline added). Although “[o]ne
method by which a plaintiff can” establish a prima facie case “is by demonstrating that [he or]
she was treated differently from similarly situated employees who are not part of the protected
class[,] . . . this is not the only way.” Id. (underline added and internal quotation marks omitted).
Here, as discussed above, the allegations in the Amended Complaint suffice to “put the
[Institute] on notice of the incidences giving rise to the [plaintiff’s] claim[,]” Badwal,
139 F. Supp. 3d at 315, which is all that the plaintiff is required to do at this stage of the
litigation. Accordingly, this argument does not merit dismissal of the Amended Complaint.
3. Whether the Plaintiff Has Adequately Pled that Age Discrimination Was the
But-For Cause of Her Termination
Third and finally, the Institute argues that the plaintiff’s “own allegations about the media
policy violations belie her claim of intentional age discrimination” and thus she “does not allege
facts sufficient to show that her employment ended because of her age, which she must do.”
7
Additionally, the Institute argues that “nothing in [the] Amended Complaint even hints that any of the
decisionmaker(s) as to [the plaintiff’s] termination, whom she fails to identify, including age(s), ‘harbored any
discriminatory animus’ toward [the plaintiff].” Def.’s Mem. at 13. In response, the plaintiff argues that
discriminatory animus “is not a required element of the DCHRA.” Pl.’s Opp’n at 15. The Court agrees with the
plaintiff. As the Court noted above, see Section III.A, “[t]o state a prima facie claim for age discrimination under
the . . . DCHRA,” Badwal, 139 F. Supp. 3d at 315—which, as also noted above, a plaintiff is not required to do at
the motion-to-dismiss stage, see Miller, 52 F. Supp. 3d at 67 (A “plaintiff need not plead all of the[] elements [of a
prima facie case] in order to overcome a motion to dismiss.”)—“[a] plaintiff must show that he or she (1) was at
least forty years of age, (2) suffered an adverse employment action, and (3) that there was some reason to believe
that the adverse employment action was based on the employee’s age[,]” Badwal, 139 F. Supp. 3d at 315.
Therefore, the plaintiff need not allege discriminatory animus to establish a prima facie case, but merely that “there
was some reason to believe that [her termination’ was based on [her] age[.]” Id. Accordingly, the plaintiff’s failure
to allege discriminatory animus does not merit the dismissal of her age discrimination claim.
15
Def.’s Mem. at 11 (emphasis in original). In support of its argument, the Institute cites
Blackwell v. SecTek, Inc., 61 F. Supp. 3d 149 (D.D.C. 2014), for the proposition that “an
adverse employment action is taken because of an employee’s age only if age was the but-for
cause of the challenged adverse employment action[,]” id. at 161. See Def.’s Mem. at 11–12.
However, as the plaintiff correctly notes in response, see Pl.’s Opp’n at 12, the Institute
misapprehends the law on this subject. Under both Supreme Court precedent regarding the Age
Discrimination in Employment Act (“ADEA”) and District of Columbia Court of Appeals
precedent regarding the DCHRA, “[a] plaintiff’s burden [ ] is to show that a protected
characteristic was a substantial factor in the employment decision[,]” i.e., “the protected
characteristic was a significant motivating factor bringing about the employer’s decision.” Rose
v. United Gen. Contractors, 285 A.3d 186, 197 (D.C. 2022); see also Babb v. Wilkie, __ U.S. __,
140 S. Ct. 1168, 1173–74 (2020) (holding that the ADEA “does not require proof that an
employment decision would have turned out differently if age had not been taken into account”).
Here, for the reasons stated above, see supra Section III.A, the Court concludes that the plaintiff
has met her burden to allege facts that “support an inference of discrimination sufficient to
survive a motion to dismiss[,]” Nurridin, 674 F. Supp. 2d at 90. Accordingly, the plaintiff’s
failure to allege that discrimination was a but-for cause of her termination does not merit
dismissal of the Amended Complaint.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must deny the Institute’s motion to
dismiss.
16
SO ORDERED this 26th day of June, 2023. 8
REGGIE B. WALTON
United States District Judge
8
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
17