Fennell v. Aarp

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLIE A. FENNELL, Jr.,
Plaintiff,
Civil Action No. 09-01976 (CKK)
v.
AARP,
Defendant.
MEMORANDUM OPINION
(March 16, 2011)
Plaintiff Charlie A. Fennell, Jr. (“Fennell”), a fifty-three-year-old black male, commenced
this action pro se against his former employer, AARP,1 alleging violations of Title VII of the
Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e et seq., in connection with
the termination of his employment from AARP. Presently before the Court is AARP’s [5]
Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (“Motion to
Dismiss”), which Fennell has opposed. Based upon the parties’ submissions, the relevant
authorities, and the record as a whole, the Court shall DENY AARP’s Motion to Dismiss in its
entirety.
I. BACKGROUND
When presented with a motion to dismiss for failure to state a claim, the district court
must accept as true the well-pleaded factual allegations contained in the complaint. Atherton v.
D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009), cert. denied, __ U.S. __, 130 S. Ct.
2064 (2010). Furthermore, where the non-movant is proceeding pro se and has filed multiple
1
The organization was once known as the American Association of Retired Persons, but
now goes simply by the acronym AARP.
submissions in opposition to the motion to dismiss, the district court should endeavor to read the
party’s filings together and as a whole. Richardson v. United States, 193 F.3d 545, 548 (D.C.
Cir. 1999). Therefore, in setting forth the factual background relevant to the present motion, the
Court shall rely upon all the well-pleaded factual allegations set forth in Fennell’s pleadings and
memoranda. See Compl. for Declaratory Relief (“Compl.”), Docket No. [1]; Pl.’s Mem. to
Oppose Def.’s Mot. to Dismiss Case (“Pl.’s Opp’n”), Docket No. [10].
Fennell, self-identifying as a “53 year old adult black male,” had a long tenure with
AARP, a total of nearly twenty-two years. Compl. ¶¶ 1-2, 4. He began his career in July 1987 as
a Pre-Press Operator; by the time of his termination—in March 2009—he had risen through the
ranks to become Manager, Print Services, a position he occupied for ten years. Id. ¶ 5. Fennell’s
job performance throughout his employment was “impeccable,” and he was repeatedly praised in
his performance evaluations for “using AARP resources wisely.” Pl.’s Opp’n at 3.
In his capacity as Manager, Print Services, Fennell reported to Patricia Peterson
(“Peterson”), Director of Operations. Compl. ¶ 5. Peterson, like her predecessors, directed
Fennell to accept personal print requests from AARP employees. Id. ¶ 6. Indeed, Peterson
expressly informed Fennell that he had the authority to approve personal print jobs requiring up
to one thousand copies, though he would require her approval or the approval of another superior
before commencing a print job exceeding that threshold. Id. Peterson’s statement in this regard
was consistent with AARP’s long-standing, unwritten policy governing personal print services.
Id. Fennell’s superiors were aware of that policy and frequently asked him to complete personal
print jobs on their behalf. Id. It was, in short, “standard practice.” Pl.’s Opp’n at 2.
2
Sometime in 2007, Fennell was asked to meet with Gary Weisharr (“Weisharr”), Senior
Audit Manager, who was conducting an inquiry into the use of print services for personal
purposes. Compl. ¶ 7. During the course of that meeting, Fennell informed Weisharr that he had
the authority to approve personal print requests for up to one thousand copies. Id. While not
entirely clear from the face of the Complaint, it appears that nothing immediately came of the
meeting or the inquiry. Id.
Sometime in 2009, the issue resurfaced when AARP commenced a more robust internal
investigation into the use of print services for personal purposes. Compl. ¶ 8. On or about
March 5, 2009, Fennell was again asked to meet with Weisharr, who this time was joined by
Caroline Ashe-Donnem (“Ashe-Donnem”), Senior Internal Auditor. Id. At some point during
the meeting, Fennell was told that he would have to reimburse AARP in the amount of $15,000
for copies that he was accused of making for personal purposes. Id. While Fennell admits he
made copies for personal use, he maintains that the number was not significant, less than two
hundred copies.2 Id. He claims that Weisharr provided no evidence supporting the claimed
amount, and the cited $15,000 figure was arbitrary and unsupported. Pl.’s Opp’n at 7.
Nevertheless, Fennell ultimately signed an agreement (the “Restitution Agreement”) and an
accompanying statement requiring him to reimburse AARP in the amount of $5,000. Compl. ¶
8. He claims he signed only under duress, believing that his employment would be terminated in
the event he did not sign. Id. Fennell also alleges that AARP represented that executing the
2
Elsewhere, Fennell appears to suggest that the cited figure refers not to the total number
of copies that he made, but rather the size of each individual project. Specifically, Fennell
suggests that “he only printed personal jobs that were usually 50 to 250 impressions.” Pl.’s
Opp’n at 7. In any event, Fennell consistently maintains that the total cost of the copies he made
was significantly less than the $15,000 identified by AARP. Compl. ¶ 8; Pl.’s Opp’n at 7.
3
Restitution Agreement would resolve all its concerns about his behavior, that the representation
was false and known to be false at the time it was made, and that he relied on the representation
in signing the agreement. Id.
Apart from Fennell, no employee was ever required to reimburse AARP for the use of
print services for personal purposes. Compl. ¶ 8. Fennell contends that “[n]o white employee
working for [AARP] has been treated in the same manner.” Pl.’s Opp’n at 5. Specifically, he
names three AARP employees—two white males and one white female—who used print services
for personal purposes but were neither terminated nor asked to provide restitution for such
services. Id. at 2-3.
On March 10, 2009, five days after his meeting with Weisharr and Ashe-Donnem,
Fennell was informed by Peterson and Annette Nelson (“Nelson”), Human Resources
Representative, that his employment would be terminated effective March 20, 2009 as part of a
reduction-in-force prompted by deteriorating economic conditions. Compl. ¶ 9. During his
meeting with Peterson and Nelson, Fennell was promised that he would be given a severance
package in one of three forms of his choosing (the “Severance Agreement”). Id. Fennell was
provided written documentation pertaining to the termination of his employment and AARP’s
separation program, Pl.’s Opp’n at 8, instructed to return his severance election form by a
specified date, and directed to leave the premises immediately, Compl. ¶ 9.
On March 18, 2009, eight days after his meeting with Peterson and Nelson and two days
before the termination of his employment was to become effective, Fennell received a phone call
from Peterson and Remus Boxley (“Boxley”), Human Resources Representative. Compl. ¶ 9.
During that phone call, Fennell was informed that he would be terminated not as part of a
4
reduction-in-force, but instead for using print services for personal purposes. Id. He was further
told that, in light of the change in the reason for his termination, he would not be eligible for
severance. Id. While not entirely clear from the face of the Complaint, Fennell appears to allege
that his employment was terminated effective immediately. Id. Based upon Peterson and
Boxley’s indications that AARP would not honor its promise to provide him with severance,
Fennell never returned his severance election form. Pl.’s Opp’n at 2.
At the time of his termination, Fennell had more seniority and experience than all the
managers who remained employed in his department, and he claims to have been qualified for
the positions that were not eliminated. Pl.’s Opp’n at 8. Moreover, less than two months after
his termination, Fennell’s former position was assumed by Peggy White, a black female that
Fennell supervised and trained for more than twelve years. Id.
Fennell commenced this action against AARP on October 20, 2009. See Compl. Self-
identifying as a “53 year old adult black male,” he expressly frames his causes of action as
arising under Title VII. Id. ¶¶ 1-2. Specifically, he contends that AARP’s reliance upon his use
of print services for personal purposes as a basis for his termination is pretextual. Id. ¶ 11.
While he admits that he made copies for personal use, id. ¶ 8, Fennell nevertheless contends that
the “reason [for his termination] has no basis in fact because of the unlawful discrimination by
[AARP],” Pl.’s Opp’n at 3. However, somewhat contradictorily, Fennell sometimes appears to
contend that AARP’s stated reason for his termination was not a pretext for discrimination, but
rather for denying him the severance he was otherwise promised. Compl. ¶ 11. Regardless, he
seeks compensatory damages in the amount of $1,000,000, punitive damages in the amount of
5
$3,000,000, specific enforcement of the Severance Agreement, and rescission of the Restitution
Agreement. Id. ¶¶ 12-13.
On December 8, 2009, AARP filed the present [5] Motion to Dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. As grounds for dismissal, AARP argues that
Fennell fails to allege that he exhausted his administrative remedies and fails to state a plausible
claim for relief under Title VII. See generally Mem. in Supp. of Def.’s Mot. to Dismiss for
Failure to State a Claim Upon Which Relief Can Be Granted (“Def.’s Mem.”), Docket No. [5].
Fennell moved for an extension of time “to conduct additional and necessary legal fact finding
and research,” Pl.’s Consent Mot. for Extension of Time to Respond to Def.’s Mot. to Dismiss,
Docket No. [8], and the motion was granted, Order (Jan. 6, 2010), Docket No. [9]. During the
time period in between the filing of AARP’s Motion to Dismiss and the deadline for Fennell’s
opposition, Fennell filed a charge of discrimination, dated December 23, 2009, with the Equal
Employment Opportunity Commission (the “EEOC”).3 Pl.’s Opp’n at 8, 12. Therein, he asserts
that he was discriminated against by AARP on three bases—race, sex, and age. Id. at 12.
Specifically, Fennell’s charge of discrimination provides:
I believe that I have been discriminated against based on my race
(Black) and sex (male), in violation of Title VII of the Civil Rights
Act of 1964, as amended. I also believe that I have been
3
The charge of discrimination and the EEOC’s right-to-sue letter are attached to
Fennell’s opposition papers and incorporated therein by reference. Pl.’s Opp’n at 8, 11-12.
Consideration of these documents is proper because, when presented with a motion to dismiss, a
court may consider “any documents attached to [the non-movant’s pleadings] or incorporated by
reference.” Felder v. Johanns, 595 F. Supp. 2d 46, 58-59 (D.D.C. 2009) (citing Equal Empl.
Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
Furthermore, “a court may consider an EEOC complaint and Notice of Charge without
converting a motion to dismiss into a motion for summary judgment because such records are
public document[s] of which a court may take judicial notice.” Ndondji v. InterPark Inc., __ F.
Supp. 2d __, 2011 WL 810701, at *4 (D.D.C. Mar. 9, 2011) (internal quotation marks omitted).
6
discriminated against based on my age (53), in violation of the Age
Discrimination in Employment Act of 1967, as amended.
Pl.’s Opp’n at 12. On or about January 22, 2010, a mere thirty days after Fennell first filed his
charge of discrimination, the EEOC issued a right-to-sue letter, providing that the EEOC was
closing its file on Fennell’s charge of discrimination:
The EEOC issues the following determination: Based upon its
investigation, the EEOC is unable to conclude that the information
obtained establishes violations of the statutes. This does not certify
that the respondent is in compliance with the statutes. No finding is
made as to any other issues that might be construed as having been
raised by this charge.
Pl.’s Opp’n at 11.
On February 17, 2010, Fennell filed his opposition to AARP’s Motion to Dismiss. See
Pl.’s Opp’n. On March 1, 2010, AARP filed its reply. See Reply Br. in Supp. of Def.’s Mot. to
Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (“Def.’s Reply”),
Docket No. [11]. While AARP continued to submit materials in support of the present motion, a
matter discussed in greater detail below, the matter was then fully briefed and ripe for
adjudication.
II. LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in
order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). Rule 12(b)(6) provides a vehicle for parties to challenge the sufficiency of a
complaint on the ground that it “fail[s] to state a claim upon which relief can be granted.” Fed.
7
R. Civ. P. 12(b)(6). When presented with a motion to dismiss for failure to state a claim, the
district court must accept as true the well-pleaded factual allegations contained in the complaint.
Atherton, 567 F.3d at 681. Although “detailed factual allegations” are not necessary to withstand
a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “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.” Twombly, 550 U.S. at 555. “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, __ U.S.
__, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). Rather, a complaint must
contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. The plaintiff must
provide more than just “a sheer possibility that a defendant has acted unlawfully.” Id. at 1950.
When a complaint’s well-pleaded facts do not enable a court, “draw[ing] on its judicial
experience and common sense,” “to infer more than the mere possibility of misconduct,” the
complaint has not shown that the pleader is entitled to relief. Id.While “[a]ll pleadings shall be so construed as to do substantial justice,” Fed. R. Civ. P.
8(f), a document filed by a party proceeding pro se must be “liberally construed,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal quotation marks omitted). For example,
where a pro se party has filed multiple submissions, the district court must generally consider
those filings together and as a whole. Richardson, 193 F.3d at 548; see also Sieverding v. U.S.
Dep’t of Justice, 693 F. Supp. 2d 93, 101 n.2 (D.D.C. 2010) (considering factual allegations in
8
pro se plaintiff’s prior pleadings even though they had technically been superceded by filing of
amended complaint). Moreover, “a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94(internal quotation marks omitted). Nonetheless, “[a] pro se complaint, like any other, must
present a claim upon which relief can be granted.” Crisafi v. Holland, 655 F.2d 1305, 1308
(D.C. Cir. 1981). Even with the liberality afforded pro se complaints, the district court “need not
accept inferences unsupported by the facts alleged in the complaint or legal conclusions cast in
the form of factual allegations.” Kaemmerling v. Lappin, 663 F.3d 669, 667 (D.C. Cir. 2008)
(internal quotation marks omitted).
III. DISCUSSION
The Court’s discussion proceeds in three parts. First, beginning with the issues that have
been the focus of the parties in briefing the present motion, the Court shall explain why Fennell
has stated a claim for race- and sex-based discrimination. Second, although afforded little
attention in AARP’s moving papers, the Court shall explain why Fennell has also stated a claim
for age-based discrimination. Third, because the Court can glean from Fennell’s pro se filings
the contours of several other claims left altogether unaddressed by AARP, the Court will
endeavor to identify the claims that may require further attention from the parties as this action
develops further.
A. Fennell Has Stated a Claim for Race- and Sex-Based Discrimination
In support of the present motion, AARP’s arguments for dismissal are two-fold: AARP
first argues that Fennell has failed to allege that he exhausted his administrative remedies; it next
argues, more forcefully, that Fennell has failed to state a plausible claim for discrimination. The
9
Court addresses each argument in turn.
1. AARP Has Failed to Establish that Fennell Did Not Exhaust His
Administrative Remedies
Before commencing an action based on Title VII in federal court, a plaintiff must first file
a timely charge of discrimination with the EEOC. Lewis v. City of Chicago, Ill., __ U.S. __, 130
S. Ct. 2191, 2196-97 (2010). The exhaustion requirement serves the salutary purposes of
providing the EEOC the opportunity to investigate the claimant’s allegations, affording the
charged party notice of those allegations, and potentially narrowing the issues requiring further
adjudication. Ndondji, 2011 WL 810701, at *7. The exhaustion requirement is not
jurisdictional, Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011), and it has often been
said that it “should not be construed to place a heavy technical burden” on the Title VII plaintiff,
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), cert. denied, 519 U.S. 811 (1996). In
the instant case, AARP’s initial moving papers raised a single argument on this theme—namely,
that Fennell had failed to allege that he had exhausted his administrative remedies. Def.’s Mem.
at 4. However, it is well-established that the exhaustion of administrative remedies is not a
pleading requirement but an affirmative defense. Hodge v. United Airlines, 666 F. Supp. 2d 14,
20 n.4 (D.D.C. 2009) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). In
recognition of this allocation of the burden of proof, “[m]eager, conclusory allegations that the
plaintiff failed to exhaust his administrative remedies,” such as those proffered by AARP, are
plainly insufficient. Drewrey v. Clinton, __ F. Supp. 2d __, 2011 WL 229432, at *4 (D.D.C. Jan.
26, 2011). Therefore, dismissal cannot rest on this basis.
Regardless, while Fennell may not have exhausted his administrative remedies at the time
he commenced this action, AARP concedes, as it must, that Fennell has since filed a charge of
10
discrimination and received a right-to-sue letter from the EEOC. Pl.’s Opp’n at 12-13. “[T]he
defect of a prematurely filed lawsuit may be excused when it is cured by the issuance of a right to
sue letter while the action is pending.” Cruz-Packer v. District of Columbia, 539 F. Supp. 2d
181, 190 (D.D.C. 2008) (citing Williams v. Washington Metro. Area Transit Auth., 721 F.2d
1412, 1418 n.12 (D.C. Cir. 1983)). Absent some argument that the claims asserted in this action
are not reasonably related to those identified in Fennell’s charge of discrimination—an argument
AARP has not made—these developments effectively moot AARP’s exhaustion argument.4
2. Fennell Has Pleaded a Plausible Claim of Race- and Sex-Based
Discrimination
As an alternative basis for dismissal, AARP argues that Fennell has failed to state a
plausible claim for race- or sex-based discrimination under Title VII. Specifically, AARP avers
that (a) Fennell has failed to allege a prima facie case of discrimination and (b) the facts he has
alleged fail to state a plausible claim that he was discriminated against on the basis of his race or
sex. Neither argument warrants dismissal.
i. Fennell is not required to plead a prima facie case of
discrimination.
AARP’s contention that Fennell has failed to allege a prima facie case of discrimination,
4
Citing the United States Court of Appeals for the District of Columbia’s decision in
Martini v. Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir. 1999), cert.
dismissed, 528 U.S. 1147 (2000), which provides that the EEOC is precluded from issuing an
early right-to-sue letter without first conducting an investigation of the charges raised by the
complainant, AARP intimates that the timing of the issuance of the EEOC’s right-to-sue letter in
this case, coming a mere thirty days after Fennell first filed his charge, suggests that “no true
investigation occurred.” Def.’s Reply at 3 n.4. While AARP simply reserves the right to raise
the issue in the future, and appears to back away from the contention in its subsequently filed
papers, the Court observes that, in contrast to Martini, the EEOC in this case issued a final
determination as to Fennell’s charge of discrimination. See McAlister v. Potter, 733 F. Supp. 2d
134, 144 (D.D.C. 2010) (distinguishing Martini on this ground); Quarles v. Gen. Inv. & Dev.
Co., 260 F. Supp. 2d 1, 16-17 (D.D.C. 2003) (same).
11
Def.’s Mem. at 5, is without merit. The law of this Circuit is clear: at the motion to dismiss
stage, dismissal is not available on the basis that the plaintiff has failed to plead the elements of a
prima facie case of discrimination. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.
Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11 (2002)). In recognition of
the fact that discovery is most likely to unearth relevant facts and evidence pertaining to
discriminatory animus, the prima facie case is an evidentiary standard, not a pleading
requirement. Bryant v. Pepco, 730 F. Supp. 2d 25, 28 (D.D.C. 2010). Therefore, dismissal may
not rest on this basis.
ii. Fennell has adduced sufficient factual allegations to survive a
motion to dismiss.
While a plaintiff need not plead all the elements of a prima facie case, he must
nevertheless plead sufficient facts to show a plausible entitlement to relief. Under Title VII, the
two essential elements for a discrimination claim are that (i) the plaintiff suffered an adverse
employment action (ii) because of his race, color, religion, sex, or national origin. Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). The pleading burden is not great, and courts
in this Circuit have consistently recognized the “ease with which a plaintiff claiming employment
discrimination can survive a . . . motion to dismiss.” Rouse v. Berry, 680 F. Supp. 2d 233, 236
(D.D.C. 2010).
In the instant case, Fennell has satisfied his pleading burden, especially when taking into
account the solicitude to be afforded the pleadings of pro se litigants. As an initial matter, the
adverse employment action—termination—is “obvious.” Douglas v. Donovan, 559 F.3d 549,
554 (D.C. Cir. 2009). Meanwhile, Fennell has alleged sufficient facts to state a plausible claim
12
that his termination was discriminatory.5 While the Court need not enumerate all those factual
allegations here, the following are particularly noteworthy:
• First, Fennell has alleged that his job performance throughout his career was
impeccable and that he was repeatedly praised in the area that was cited as the
basis for his termination. See Iweala v. Operational Techs. Servs., Inc., 634 F.
Supp. 2d 73, 83 (D.D.C. 2009) (superior performance ratings may be evidence
that the employer’s reasons for terminating the plaintiff were pretextual).
• Second, Fennell alleges that he was assured that his execution of the Restitution
Agreement would satisfy AARP’s concerns, and was initially told that he was
being terminated as part of a reduction-in-force prompted by a deterioration in
business conditions, only to be informed a mere eight days later that he was being
terminated for an entirely different reason. See Jarmon v. Genachowski, 720 F.
Supp. 2d 30, 40 (D.D.C. 2010) (employer’s “inconsistent explanations for its
actions” may be evidence of pretext).
• Third, Fennell identifies three allegedly similarly situated white employees, and
one similarly situated female employee, who engaged in comparable conduct but
were not treated in a like manner.6 See Brady, 520 F.3d at 495 (evidence of
pretext may be found where “employer treated other employees of a different race,
color, religion, sex, or national origin more favorably in the same factual
circumstances.”).
5
Although not immediately relevant to the present motion, the Court takes this
opportunity to observe that Fennell appears to be laboring under the misapprehension that his
allegations, if true, would constitute “direct evidence” of discrimination. Pl.’s Opp’n at 4. For
Fennell’s edification, “direct evidence” is that which, if believed by the fact finder, establishes a
fact in question without any need for an inference, such as statements or documents showing a
discriminatory animus on their face. Herbert v. Architect of Capitol, __ F. Supp. 2d __, 2011
WL 637549, at *17 n.19 (D.D.C. Feb. 23, 2011).
6
The three employees are William Novelli, John Rothner, and Nancy J. Bremer. Pl.’s
Opp’n at 2-3. While Fennell asserts that all three individuals were “similarly situated” to him,
Pl.’s Opp’n at 3, other allegations cast at least some doubt on the assertion. See Adair v. Solis,
__ F. Supp. 2d __, 2010 WL 3833920, at *10 n.2 (D.D.C. Sept. 30, 2010) (plaintiff must show
that the relevant aspects of comparators’ employment situations are “nearly identical”). One of
these employees, for instance, is identified as AARP’s Chief Executive Officer, who was several
levels removed from Fennell in the chain-of-command. Compl. ¶ 5. Nor were any of the three
individuals likely to have held the same position as Fennell—namely, Manager, Print
Services—a position that has obvious implications for the use of print services. Of course, these
considerations may ultimately be immaterial for purposes of the application of AARP’s policies
concerning personal use of company resources; the Court merely highlights the issue here as one
that may require further elaboration in the course of this action. For present purposes, it suffices
to say that the question cannot be resolved in the current procedural posture.
13
• Fourth, Fennell alleges that, even though he was told that his position was being
eliminated, it was in fact filled less than two months later by a female. See Prater
v. FedEx Corporate Servs., Inc., No. 07 Civ. 22, 2009 WL 1725978, at *11
(D.D.C. June 18, 2009) (employer’s act of replacing the plaintiff with a person
outside the plaintiff’s protected class may be one factor in evaluating pretext).
• Fifth, Fennell has alleged that he was expressly authorized to engage in the
conduct for which he was terminated, that such conduct was “standard practice,”
and that his superiors were all aware of the policy. See Farris v. Clinton, 602 F.
Supp. 2d 74, 88 (D.D.C. 2009) (employer’s deviation from “standard practice”
could “give rise to a determination that the defendant’s asserted nondiscriminatory
justification for the [challenged] decision was pretextual.”).
• Sixth, Fennell has alleged that the factual basis for AARP’s allegations
concerning his conduct are false and, in particular, that there was no support for
AARP’s assertion that he owed $15,000. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147 (“In appropriate circumstances, the trier of fact
can reasonably infer from the falsity of the explanation that the employer is
dissembling to cover up a discriminatory purpose.”).
Of course, these allegations may or may not bear out in discovery and they may or may
not be sufficient to survive a motion for summary judgment. They are nonetheless sufficient to
discharge Fennell’s burden to plead a plausible claim for race- and sex-based discrimination.
Therefore, dismissal may not rest on this basis.
iii. AARP’s extra-pleading materials do not counsel in favor of
dismissal.
Perhaps recognizing the inevitability of this conclusion, AARP includes with its reply
papers a declaration by a human resources representative professing to show that the universe of
individuals identified by Fennell as having received more favorable treatment is overwhelmingly
comprised of people within his protected class. See Decl. of Tracey Volk, Docket No. [11-1].
There are myriad problems with the argument. First, because it was raised for the first time in
AARP’s reply papers, the Court shall disregard the argument. See Baloch v. Norton, 517 F.
Supp. 2d 345, 348 (D.D.C. 2007) (“If the movant raises arguments for the first time in his reply
14
to the non-movant’s opposition, the court [may] either ignore those arguments . . . or provide the
non-movant an opportunity to respond.”), aff’d, 550 F.3d 1191 (D.C. Cir. 2008). Indeed, the
eminently sensible concern that an opposing party may be deprived of a meaningful opportunity
to respond to an argument raised for the first time on reply is heightened where, as here, the
opposing party is appearing in the action without legal representation. Second, the argument is
plainly premised upon consideration of materials outside the pleadings and, while there may be
certain materials that a court may consider without converting the motion to one for summary
judgment (e.g., documents incorporated by reference into the complaint and public records of
which the court may take judicial notice), the declaration proffered by AARP does not fall within
the ambit of that narrow category. See generally Felder, 595 F. Supp. 2d at 58-59 (outlining the
types of materials that may properly be considered on a motion to dismiss). Third, and perhaps
most importantly, given that Fennell has pointed to various other factual allegations other than
putative comparators that may independently support an inference of discriminatory animus,
AARP’s argument is unconvincing on the merits.
Similarly problematic is AARP’s request, filed several weeks after the present motion had
been fully briefed, for leave to supplement the record (the “Motion to Supplement”). See Def.’s
Mot. for Leave to File Suppl. Reply Br. in Supp. of Mot. to Dismiss, Docket No. [12]. Premised
upon purportedly “new and additional information” discovered in the time since AARP filed its
reply memorandum, AARP asks this Court to consider “admissions” allegedly made by Fennell
during the EEOC’s investigation into his administrative charge. Id. at 1-2. In particular, AARP
relies upon statements attributed to Fennell in a memorandum prepared as part of the walk-in
interview conducted when Fennell filed his charge of discrimination. See Decl. of Kathleen
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Williams, Docket No. [13-1], Ex. A. According to AARP, the statements further support the
conclusion that the universe of individuals identified by Fennell as having received more
favorable treatment is comprised of people within his protected class. See Proposed Suppl.
Reply Br. of Def. AARP in Supp. of Mot. to Dismiss, Docket No. [13], at 2. For the same
reasons just identified, the Court declines AARP’s invitation to consider the proffered evidence:
once again, these are materials outside the scope of the pleadings and were introduced only after
the present motion had been fully briefed; therefore, without further briefing, Fennell would not
be afforded a meaningful opportunity to respond. More to the point, while AARP’s arguments
may undercut the strength of the inference of discrimination in this case, they certainly do not
allow this Court to conclude, as a matter of law, that Fennell has failed to state a plausible claim
for relief. Accordingly, the Court shall DENY AARP’s [12] Motion to Supplement.
No doubt aware of the limitations imposed upon the consideration of materials outside
the scope of the pleadings, AARP suggests, in a footnote, that the Court may exercise its
discretion to treat the motion as one for summary judgment. Def.’s Reply at 2 n.2. For various
reasons, the Court also declines AARP’s invitation in this regard. First, in framing its initial
moving papers, AARP relied exclusively on Rule 12(b)(6) as a basis for dismissal. See generally
Def.’s Mem. Consistent with this framing, the Court advised Fennell, in accordance with the
United States Court of Appeals for the District of Columbia’s decision in Fox v. Strickland, 837
F.2d 507 (D.C. Cir. 1988), that he was required to respond lest the motion be treated as
conceded. See Order (Dec. 11, 2009), Docket No. [7]. Because AARP did not move in the
alternative for summary judgment or otherwise rely on matters outside the pleadings, the Court
did not issue a further warning in accordance with Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
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1992), which requires district courts to inform pro se litigants that, on a motion for summary
judgment, “any factual assertion[s] in the movant’s affidavits will be accepted by the district
judge as being true unless [the opposing party] submits his own affidavits or other documentary
evidence contradicting the assertion.” Id. at 456. Second, and in a similar vein, before
considering materials outside the pleadings, “[a]ll parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Because AARP
introduced the evidence at issue only with its reply papers, Fennell has not been afforded a
meaningful opportunity to respond. Third, even if the Court were inclined to treat the motion as
one for summary judgment, AARP has failed to comply Local Rule LCvR 7(h), which requires
each party submitting a motion for summary judgment to attach a statement of material facts as
to which the party contends there is no genuine dispute, with specific citations to those portions
of the record upon which the party relies in fashioning the statement. Fourth, and finally, given
that Fennell has pointed to various other factual allegations independent of the putative
comparator evidence that may separately support an inference of discriminatory animus, AARP’s
argument is unconvincing on the merits, at least at the nascent stage of this litigation. For all
these reasons, the Court declines to convert the present motion into one for summary judgment.
Simply put, Fennell has stated a claim for relief and the Court therefore shall DENY AARP’s [5]
Motion to Dismiss.
B. Fennell Has Stated a Claim for Age Discrimination
Fennell’s age discrimination claim is given exceedingly short shrift by AARP in its
Motion to Dismiss. AARP concedes that Fennell’s opposition papers include a reference to age
discrimination, but nevertheless contends, in a footnote, that “given that [Fennell] states the
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Complaint is brought under Title VII only, there is no basis for an age discrimination claim.”
Def.’s Reply at 1 n.1. Not only does the argument ignore the solicitude to be accorded to the
filings of pro se litigants, it fails to acknowledge that Fennell’s charge of discrimination, which is
attached to his opposition papers and incorporated by reference therein, expressly identifies the
Age Discrimination in Employment Act of 1967 (the “ADEA”), as amended, 29 U.S.C. § 621 et
seq., as a basis for the present action. Pl.’s Opp’n at 12. Additionally, Fennell avers that he is
fifty-three years old, within the class protected by the ADEA, and asserts that although AARP
“claims to be an organization that defends the rights of individuals 50 and over and improve[s]
the quality of their lives” and that he “is one of the people that [AARP] claims to represent and
protect,” he was “not protected” and was instead “discriminated against.” Pl.’s Opp’n at 9.
While certainly not as fulsomely developed as his claims for race- and sex-based discrimination,
when situated alongside Fennell’s allegations of circumstantial evidence of discrimination and
when considered through the liberal lens afforded pro se filings, the Court concludes that Fennell
has alleged a claim for age discrimination. See Baloch, 550 F.3d at 1196 (the essential elements
for an ADEA claim are that the plaintiff suffered an adverse employment action because of his
age). This is especially true given AARP’s complete failure to come forward with a cogent and
compelling argument for dismissal of the claim.
C. Additional Claims Cannot Be Resolved on the Present Motion to Dismiss
Affording Fennell’s pro se papers a liberal construction, various other causes of action,
even though not expressly stated, are easily gleaned from the factual allegations set forth in the
Complaint. These claims are left altogether unaddressed by AARP. Therefore, while the Court
shall endeavor to describe the basic contours of such claims, with one exception, it does not
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opine on their ultimate merits.7
1. Breach of Contract
To state a claim for breach of contract, a plaintiff must allege (i) a valid contract between
the parties, (ii) an obligation or duty arising out of the contract, (iii) a breach of that duty, and (iv)
damages caused by that breach. Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009).
In this case, Fennell alleges that he was promised severance in one of three specified forms in
connection with the termination of his employment, that AARP breached that promise, and that
he suffered damages as a result. Furthermore, as part of his requested relief, Fennell seeks
specific enforcement of the Severance Agreement. These allegations align with a claim for
breach of contract. However, because the claim is not addressed in the parties’ briefing, the
Court declines to opine on its merits at this time.
2. Fraudulent Misrepresentation
To state a claim for fraudulent misrepresentation, a plaintiff must establish, by clear and
convincing evidence, (i) a false representation, (ii) made in reference to a material fact, (iii) with
knowledge of its falsity, (iv) with the intent to deceive, and (v) an action taken in reliance upon
the representation. In re Estate of McKenney, 953 A.2d 336, 342 (D.C. 2008). “In alleging fraud
. . . a party must state with particularity the circumstances constituting fraud,” though “[m]alice,
intent, knowledge and other conditions of a person’s mind may be alleged generally.” Fed. R.
Civ. P. 9(b) (emphasis added). In this case, Fennell alleges that he entered into the Restitution
Agreement in reliance upon AARP’s representation that his doing so would resolve all the
concerns about his workplace behavior, and he claims that the representation was false and
7
To the extent other claims may be gleaned from the four corners of Fennell’s pleadings,
AARP would be well-advised to address those claims in the context of any future dispositive
motions.
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known to be false at the time it was made. These allegations align with the elements of a claim
for fraudulent misrepresentation. However, because the claim is not addressed in the parties’
briefing, the Court declines to opine on its merits at this time.
3. Rescission
To justify rescission of a contract based on a misrepresentation, a plaintiff must establish,
by a preponderance of the evidence, (i) a misrepresentation, (ii) made in reference to a material
fact, that (iii) “would have been likely to have induced a reasonable recipient to make the
contract.” McKenney, 953 A.2d at 342 (internal quotation marks omitted). In contrast to a cause
of action based on fraudulent misrepresentation, a claim for rescission may succeed even where
the misrepresentations are made without fraudulent intent. Id. However, unlike a claim for
fraudulent intent, a plaintiff prevailing on a claim for rescission cannot recover monetary
damages, but merely may avoid the contract. Id. at 341-42. In this case, Fennell alleges that he
entered into the Restitution Agreement in reliance upon AARP’s representation that his doing so
would resolve all the concerns about his workplace behavior, and he claims that the
representation was false at the time it was made. Furthermore, as part of his requested relief,
Fennell specifically seeks to have the Restitution Agreement set aside. These allegations align
with the elements of a cause of action for rescission. However, because the claim is not
addressed in the parties’ briefing, the Court declines to opine on its merits at this time.
4. Wrongful Termination
A number of Fennell’s allegations would suggest that he intends to assert a claim for
wrongful termination. Fennell claims to “refute[] [AARP’s] reasons for his termination because
the reason has no basis in fact.” Pl.’s Opp’n at 2. He further contends that AARP’s decision to
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terminate his employment was “arbitrary,” and that when he “ask[ed] for an explanation why his
job was eliminated . . . no answers were provided.” Id. at 2-3. It is well-established that an at-
will employee may, generally speaking, be discharged at any time and for any reason, or for no
reason at all, provided the reason is not otherwise prohibited by law. Liberatore v. Melville
Corp., 168 F.3d 1326, 1329 (D.C. Cir. 1999). Nor is an employer required to “explain its
reasons for firing an at-will employee without cause.” Francis v. District of Columbia, 731 F.
Supp. 2d 56, 72 (D.D.C. 2010). Therefore, to the extent Fennell was nothing more than an
employee terminable at will, a wrongful termination claim would be of dubious merit. However,
while nothing from the face of Fennell’s filings would suggest that he was anything other than an
at-will employee—i.e., an employee hired without an expressed term or duration for his
employment—neither does anything clearly indicate otherwise. See generally Compl.; Pl.’s
Opp’n. Because the claim is not addressed in the parties’ briefing, the Court declines to opine on
its merits at this time.
5. Deprivation of Due Process
Fennell also queries why there was “no right to due process” in connection with his
termination. Pl.’s Opp’n at 3. The answer is simple: the Due Process Clause, whether it be the
one found in the Fifth Amendment or the Fourteenth Amendment, protects individuals from
deprivations of due process by state actors and does not extend to the conduct of private
employers. Chandler v. W.E. Welch & Assocs., Inc., 533 F. Supp. 2d 94, 103 (D.D.C. 2008).
Therefore, to the extent Fennell intends to assert a claim that he was “denied the basic right to
due process which is granted to every U.S. citizen by the Constitution,” Pl.’s Opp’n at 9, it is
clear that such a claim must fail.
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IV. CONCLUSION
The Court has considered the remaining arguments tendered by the parties and has
concluded that they are without merit. Therefore, and for the reasons set forth above, the Court
shall DENY AARP’s [5] Motion to Dismiss. An appropriate Order accompanies this
Memorandum Opinion.
Date: March 16, 2011
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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