Opinion
Civil Action No. 04-261 (CKK).
March 7, 2005
MEMORANDUM OPINION
Plaintiff Stephen A. Matthews ("Plaintiff") has brought this employment discrimination action against Defendant American Psychological Society ("Defendant" or "APS") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 et seq. ("ADEA") and the Americans With Disabilities Act 42 U.S.C. § 12101 ("ADA"). Plaintiff alleges additional counts of Intentional Infliction of Emotional Distress and Hostile Work Environment. Currently pending before the Court is Defendant's Motion to Dismiss, or, in the Alternative, for Summary Judgment. Defendant argues that Plaintiff has failed to establish that the case is within the jurisdiction of this Court. Plaintiff has filed an Opposition to Defendant's Motion, to which Defendant has filed a Reply. Plaintiff has also filed a Surreply. After reviewing Plaintiff's Complaint, the parties' briefs, and the applicable law, the Court shall grant in part and deny in part Defendant's Motion to Dismiss. The Court shall grant in part and deny in part Defendant's Motion for Summary Judgment.
I: BACKGROUND
On February 17, 2004, Plaintiff filed the above-captioned action, alleging employment discrimination against his former employer on the basis of race, age, and disability in violation of Title VII, and employment discrimination on the basis of age in violation of the ADEA. Compl. ¶¶ 6-9, 11-15. Plaintiff worked for APS from November 13, 2001 through October 25, 2002. Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n."), Ex. 1 (Affidavit of Stephen A. Matthews). Plaintiff also alleges counts of hostile work environment and intentional infliction of emotional distress. Compl. ¶¶ 20-30. Plaintiff alleges that this Court has jurisdiction pursuant to Title VII, the ADEA, and the ADA. Id. ¶ 1. Plaintiff alleges that Defendant "is an employer as defined by" these statutes. Id. ¶ 4. Plaintiff alleges that he exhausted his administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and has attached a notice from the EEOC of the right to sue within ninety days of receiving the notice. The notice by the EEOC was mailed on November 10, 2003, and Plaintiff filed a Complaint on February 17, 2004. Defendant has not disputed the timeliness of Plaintiff's filing.On June 24, 2004, Defendant moved to dismiss this initial Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6) and for summary judgment under Rule 56. Defendant asserts that Plaintiff has not sufficiently established jurisdiction with this Court because "Plaintiff has appended nothing to the Complaint to support a bald assertion that APS is a `statutory employer'" under Title VII, the ADEA, and the ADA. Def.'s Mem. in Support of Mot. to Dismiss ("Def.'s Mem.") at 2-3. Additionally, Defendant attached three exhibits. The first was a sworn statement of Sarah Brookhart, Deputy Director of APS, certifying that during 2002, APS employed fewer than fifteen people for thirty-five calendar weeks. Def.'s Mem. Ex. 1 ¶ 5. Defendant also attached two contradictory charts. The first indicated that APS employed fifteen employees for only seventeen weeks of 2002, and fewer than fifteen for the remaining weeks. Def.'s Mem. Ex. 2. The second chart, however, indicates that APS employed fifteen employees for twenty-two weeks of 2002. Def.'s Mem. Ex. 3. Defendant also moved to dismiss the charges of intentional infliction of emotional distress, on the grounds that the Court lacks jurisdiction and that Plaintiff's Complaint on this count was insufficient to plead a cause of action. Def's Mem. at 4.
Employers must have "fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding year" to be subject to Title VII. 42 U.S.C. § 2000e(b). The definition of "employer" under the ADA is identical to that of Title VII. 42 U.S.C. § 12111(5). The ADEA, however, only applies to employers with twenty or more employees. 29 U.S.C. § 630(b). The relevant time period is when the alleged discrimination took place, rather than when the complaint is filed. See Walters v. Metropolitan Educ. Enterprises, Inc., 519 U.S. 202, 205 (1997) (treating the year in which the alleged discrimination took place and the preceding year as the relevant time period); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 623 n. 1 (D.C. Cir. 1997) (same); Komorowski v. Townline Mini-Mart and Restaurant, 162 F.3d 962, 966 (7th Cir. 1998) ("[D]efendant must employ fifteen or more employees for more than twenty weeks during the year in which the alleged discrimination occurred or during the year preceding the discrimination.").
Plaintiff's opposition pointed out the discrepancy between Defendant's exhibits, arguing that the second exhibit actually supported Plaintiff's allegation of jurisdiction and that all factual allegations should be construed in the light most favorable to the Plaintiff. Pl.'s Opp'n ¶¶ 5, 9. Plaintiff attached three affidavits of former APS employees, including the Plaintiff. Pl.'s Opp'n. Ex. 1, Ex. 2, Ex. 3. Each of these affidavits certify that APS employed at least fifteen people during the time of their employment, although the affidavits do not specify that APS employed fifteen people for the mandatory twenty-week period. Pl.'s Opp'n. Ex. 1, Ex. 2, Ex. 3. Plaintiff argued that this evidence shows that Defendant qualifies as an employer under Title VII, the ADA, and the ADEA, and that the Court should deny Defendant's motion. Pl.'s Opp'n. ¶ 10.
Plaintiff also attached a "Statement of Genuine Issues of Material Fact that are in Dispute," listing the parties' disagreement as to the number of Defendant's employees as issues one and two. Pl.'s Opp'n at 6, ¶¶ 1, 2. Additionally, Plaintiff indicated that the parties dispute the time period during which the number of Defendant's employees is relevant (i.e. when the complaint was filed as opposed to when the alleged discrimination occurred). Id. ¶¶ 3, 4. Plaintiff reiterates that the relevant time period is the year in which the alleged discrimination occurred or the preceding calendar year. Id. ¶ 4. Defendant has not argued to the contrary. Defendant's only reference to the number of employees when the complaint was filed, rather than when the alleged discrimination took place, was in the affidavit attached to the Motion to Dismiss, which mentions the number of people APS has employed since 2002. Def.'s Mot. Ex. 1 ¶¶ 6, 7.
Defendant filed a response on August 2, 2004, specifying two approaches by which it challenges Plaintiff's jurisdictional allegations. Def.'s Reply ¶ 5. First, Defendant alleges that Plaintiff's jurisdictional allegations are facially insufficient, because Plaintiff did not allege the specific number of people employed by APS at the time of the alleged discrimination. Id. Second, Defendant contends that Plaintiff's jurisdictional allegations are factually untrue, referring to the affidavit of Sarah Brookhart as evidence. Id. Defendant maintains that Plaintiff has not refuted the affidavit and thus has not met his burden of establishing federal jurisdiction. Id. at ¶ 2.
Plaintiff filed a Surreply on August 16, 2004. In it, Plaintiff again pointed to Defendant's second exhibit and to Plainitff's three affidavits as contradicting Defendant's jurisdictional challenge. Pl.'s Surreply ¶ 5. Plaintiff also reiterated the argument that the Court should review the evidence in the light most favorable to the non-moving party. Id. ¶ 6. Finally, Plaintiff requested that the Court stay a ruling on Defendant's motion and allow each side "sufficient discovery to prove the jurisdictional reality." Id.
II: LEGAL STANDARD
In evaluating a motion to dismiss for lack of subject matter jurisdiction filed pursuant to Federal Rule of Civil Procedure 12(b)(1), "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998). In reviewing such a motion, the Court must accept as true all the factual allegations contained in the Complaint. Leatherman v. Tarrant County Intelligence Coordination Unit, 507 U.S. 163, 164 (1993). A federal court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over a claim that "arises under the laws of the United States" so long as it is "neither `immaterial and made solely for the purpose of obtaining jurisdiction' nor `wholly insubstantial and frivolous.'" EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 623 (D.C. Cir. 1997) (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).Similarly, in considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the Complaint in the light most favorable to the plaintiff, and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004). Dismissal under Rule 12(b)(6) is appropriate only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Under the summary judgment standard, Defendant, as the moving party, bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Fed.R.Civ.P. 56(c). Plaintiff, in response to Defendant's motion, must "go beyond the pleadings and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, `designate' specific facts showing that there is a genuine issue for trial." Id. at 324 (internal citations omitted). Summary judgment is generally appropriate at a point in the case when "pleadings, depositions, answers to interrogatories, . . . admissions on file . . . [and] affidavits, if any" are sufficient to "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Hopkins v. Women's Div., General Bd. of Global Ministries, 284 F. Supp.2d 15, 21 (D.D.C. 2003).
The Court is to draw all inferences from the supporting records submitted in favor of the party opposing the summary judgment motion. However, mere allegations or denials in the nonmoving party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Furthermore, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); rather, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251. Where the nonmovant's evidence is insufficient to allow a reasonable jury to return a verdict in its favor as a matter of law, or is merely colorable or not significantly probative, then the movant is entitled to summary judgment. See Anderson, 477 U.S. at 249.
III: DISCUSSION
Defendant asks that this Court examine the sufficiency of Plaintiff's assertion of federal jurisdiction. In challenging Plaintiff's jurisdictional allegation, Defendant refers to two Fourth Circuit cases: Lissau v. Southern Foods Service, Inc., 159 F.3d 177 (4th Cir. 1998) and Thigpen v. United States, 800 F.2d 393 (4th Cir. 1986). See Def.'s Mem.at 3; Def.'s Reply ¶ 5. Defendant's citation to Lissau refers to general language establishing that neither Title VII or the ADEA incur individual liability. Lissau, 159 F.3d 177 at 180. Defendant's citation to Thigpen refers to a footnote in a concurring opinion which mentions in passing that a 12(b)(1) motion may be made either by challenging the sufficiency of the jurisdictional allegations on their face, or by proving the falsity thereof. Thigpen, 800 F.2d at 402 n. 15 (Murnaghan, J., concurring). Neither of these cases are binding in this Circuit. Furthermore, neither of these citations refer in any way to the requirements of a plaintiff's jurisdictional allegations in an employment discrimination claim.
Rather, the relevant law in this Circuit is stated in Equal Employment Opportunity Commission v. St. Francis Xavier Parochial School, 117 F.3d 621 (D.C. Cir. 1997). This Circuit clearly held that whether an employer has enough employees to be covered by the ADA is not a prerequisite to federal subject matter jurisdiction. "[C]overage under the ADA forms an element of the plaintiff's cause of action rather than a prerequisite to the district court's jurisdiction. . . ." Id. at 622. So long as the claim arises under the laws of the United States, the district court has jurisdiction unless the claim is "immaterial and made solely for the purpose of obtaining jurisdiction" or "wholly insubstantial and frivolous." Id. at 623 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946)).
The D.C. Circuit made a similar ruling in a case alleging employment discrimination in violation of Title VII. Even though the Court determined that the defendant did not qualify as an employer under Title VII, the Court "could not accept the district court's conclusion that it lacked subject-matter jurisdiction" because "[plaintiff's] claim arises under the laws of the United States." Haddon v. Walters, 43 F.3d 1488, 1490 (D.C. Cir. 1995). In both cases, the Court ruled that whether the defendant was a statutory employer was relevant to the question of whether plaintiff presented a claim upon which relief could be granted, not whether the district court had jurisdiction. Id.; St. Francis Xavier Parochial Sch., 117 F.3d at 622.
Here, Plaintiff has alleged claims under Title VII, the ADA, and the ADEA. These claims are "neither `immaterial and made solely for the purpose of obtaining jurisdiction' nor `wholly insubstantial and frivolous.'" St. Francis Xavier Parochial Sch., 117 F.3d at 623 (quoting Bell, 327 U.S. at 682-83). Whether or not Defendant is actually covered by these statutes does not affect this Court's jurisdiction. Therefore, Defendant's argument that Plaintiff has not sufficiently alleged the jurisdiction of this Court fails.
The question of whether APS qualifies as an employer under Title VII, the ADA, and the ADEA is relevant, however, to Defendant's 12(b)(6) motion. To prevail on this motion, the Defendant must "show `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). As Defendant points out, the Complaint makes only a very bare assertion of the coverage of the federal statutes. See Def.'s Mem. at 3. Plaintiff alleges, "The American Psychological Society is an employer as defined by Title VII . . ., the Age Discrimination in Employment Act . . ., as well as the Americans with Disabilities Act." Compl. ¶ 4. Plaintiff continues, "[APS] are [sic] covered by, and subject to the provisions of Title VII . . . and the Americans with Disabilities Act. . . ." Id. However, Plaintiff did not add that APS is "covered by, and subject to" the provisions of the ADEA. Id. Under the heading of Count 1, the Title VII claim, Plaintiff again specifies that "Defendant is an employer within the meaning of Title VII." Id. at ¶ 7. Under the heading of Count II, the ADEA claim, Plaintiff fails to make a similar assertion of coverage under the ADEA. See id. ¶¶ 11-15. Despite the sparse and uneven wording of these allegations, Plaintiff made at least a preliminary assertion of coverage under the statutes he invokes. Id. ¶ 4. Therefore, the Court finds Plaintiff's pleading adequate to state a claim and survive Defendant's 12(b)(6) motion to dismiss. Cf. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000) (explaining that, while plaintiff must establish a prima facie case of employment discrimination, it need not "be accomplished in the complaint itself").
This leaves Defendant's Alternative Motion for Summary Judgment, which Defendant makes early in the litigation, before the parties have engaged in discovery. See Pl.'s Mem. in Support of Mot. to Enlarge Time ¶ 3. Here, Defendant's own contradictory exhibits are sufficient to establish that a genuine issue of material fact exists as to whether APS employed fifteen or more people for at least twenty weeks during the year or preceding year that the alleged discrimination took place, as required for coverage by Title VII and the ADA. See Def.'s Mot. Ex. 1, Ex. 2, Ex. 3. The affidavits that Plaintiff filed in response are not, in themselves, sufficient to establish statutory coverage, as they do not specify the number of weeks in which APS employed 15 or more people. Pl.'s Opp'n. Ex. 1, Ex. 2, Ex.3. However, they serve to illustrate further the genuine dispute of facts on this issue. Thus, despite Defendant's contention that "Plaintiff has only questioned an apparent miscalculation on one of the two documents" but has "failed to come forth with contradictory statistical evidence," Def.'s Reply ¶¶ 3, 4, there remains a genuine issue of material fact on the issue of whether Defendant qualified as an employer under Title VII and the ADA at the time of the alleged discrimination. The Court finds that summary judgment is therefore inappropriate for Plaintiff's claims under Title VII and the ADA.
The Court finds no apparent dispute, however, as to whether Defendant qualifies as an employer under the ADEA, which requires twenty employees for twenty or more calendar weeks during the current or preceding year. 29. U.S.C. § 630(b). None of the evidence presented by either party indicates that Defendant has ever employed twenty or more people. Rather, the maximum number of APS employees referred to by either party is "over fifteen." See, e.g., Def.'s Mot. Ex. 2, Ex. 3; Pl.'s Opp'n. ¶ 8 ("Plaintiff alleges that Defendant's workforce did consist of over fifteen employees during the time of the discriminatory actions."); Pl.'s Opp'n. Ex. 1, Ex. 2, Ex. 3. The affidavits submitted by Plaintiff were from APS employees of who would have personal knowledge of the number of employees working for APS during their individual employment, yet none of these former employees indicate that APS employed twenty or more employees.
Although Plaintiff has not conducted significant discovery on the number of Defendant's employees, Plaintiff nevertheless does not even attempt to "`designate' specific facts showing that there is a genuine issue for trial" with regard to whether Defendant qualifies as an employer under the ADEA. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal citations omitted). Although summary judgment is ordinarily more appropriate after discovery on issues of factual dispute, and even considering all factual allegations in favor of the Plaintiff, the allegations do not pose a sufficient disagreement as to whether Defendant employed twenty or more people during the applicable time period. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249. The Court grants summary judgment with regard to Count II, employment discrimination in violation of the ADEA.
In fact, in one of the attachments submitted by Plaintiff, a former APS employee states, "The maximum number of employees was only eighteen." Pl.'s Opp'n. Ex. 2 at 5, ¶ 2 (Statement of Barbara J. Givens).
Defendant also moves to dismiss Plaintiff's claim of intentional infliction of emotional distress. Def.'s Mem. at 4. Plaintiff has not responded to this part of Defendant's motion. Indeed, after the Complaint, Plaintiff refers only to the employment discrimination claims and does not mention the intentional infliction of emotional distress claim at all. See, e.g., Pl.'s Opp'n. ¶¶ 2, 6; Pl.'s Surreply ¶ 1. Under Local Rule 7(b), the Court may treat as conceded any motion to which the opposing party has not filed an opposing memorandum within eleven days. Rules of the Unites States District Court for the District of Columbia, LCvR 7(b). Defendant's motion is thereby considered conceded and the claim of intentional infliction of emotional distress is dismissed. See Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F. Supp.2d 15, 25 (D.D.C. 2003) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.").
IV: CONCLUSION
Defendant's motion to dismiss Count III, intentional infliction of emotional distress, is granted. Defendant's motion to dismiss under 12(b)(1) and 12(b)(6) is denied with respect to all other counts. Defendant's motion for summary judgment under 56(c) is granted in part with respect to Count II, employment discrimination in violation of the Age Discrimination in Employment Act. Summary judgment is denied without prejudice for the remaining counts of employment discrimination and hostile work environment under Title VII and the Americans with Disabilities Act.
An appropriate Order accompanies this Memorandum Opinion.