Azzam v. Dist. of Columbia, Civil Action 19-cv-3365 (TSC)

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: TANYA S. CHUTKAN United States District Judge
• Parties: AMAL AZZAM, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
• Docket Number: Civil Action 19-cv-3365 (TSC)
• Decision Date: 13 September 2022

AMAL AZZAM, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.

Civil Action No. 19-cv-3365 (TSC)

United States District Court, District of Columbia

September 13, 2022

MEMORANDUM OPINION

TANYA S. CHUTKAN United States District Judge

Plaintiff Amal Azzam is a civil engineer employed by the District of Columbia Department of Transportation (DDOT). She alleges that her employer denied her promotion opportunities based on her gender, religion, race, national origin, and age, and that it retaliated against her for complaining about the alleged discrimination. Defendant, the District of Columbia, has moved to dismiss most of her claims, arguing that she failed to timely serve the District and that she otherwise fails to state a valid claim for gender, religion, race, and national origin discrimination. For the reasons explained below, the court will GRANT IN PART and DENY IN PART Defendant's motion.

I. BACKGROUND

Plaintiff is a 52-year-old Egyptian Muslim woman. ECF No. 15, Am. Compl. ¶¶ 1, 75. She has been employed at DDOT since 2003 and holds the title of Civil Engineer. Id. ¶ 12. On or about July 24, 2015, Plaintiff-a Grade 13 employee-applied for a Grade 14 Supervisory Civil Engineer position at DDOT. Id. ¶ 15, 26. Plaintiff alleges that the available position “involved supervision of bridge and tunnel management/ maintenance: a job that [she] currently performs and greatly enjoys.” Id. ¶ 16. Plaintiff was not selected for the job, despite scoring

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“the highest of all applicants” on DDOT's “interview and certification scoring system.” Id. ¶¶ 18-19. According to Plaintiff, her male supervisor instead selected an unqualified male employee for the role, id. ¶ 19, who was neither Egyptian nor Muslim, id. ¶ 29. Plaintiff subsequently met with two supervisors, Deputy Director Greer Gillis and Chief Operations Manager Suzette Robinson, to seek a “correction” to the selection decision. Id. ¶ 21. Her supervisors “conceded” that the selected male applicant was not qualified and would be moved to another position. Id. ¶ 22. Plaintiff did not hear anything further from her supervisors about the selection decision. Id.

In October 2016, Plaintiff filed an internal grievance with DC Human Resources (“DCHR”) regarding her non-selection for the 2015 position. On July 13, 2017, DCHR responded that the male applicant selected for the position was not qualified, and that “as a correction and resolution, the position would be re-posted and she would be able to reapply.” Id. ¶ 24. For a year, Plaintiff monitored DDOT's job postings, but the Grade 14 Supervisory Civil Engineer position was not re-posted. Id. ¶ 25. On July 10, 2018, she inquired with DCHR and learned that in January 2018, DDOT re-posted the 2015 position, but did so as a Grade 15 position and required that applicants have at least one year of experience as a Grade 14 employee. Id. Because Plaintiff was a Grade 13 employee, she was not qualified for the 2018 position. Id. ¶¶ 25-26.

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on August 21, 2018, alleging gender and religion discrimination.

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Id. ¶ 22; see also ECF No. 16, Def. Mot., Ex. 1.^[1] The EEOC issued a right to sue letter on August 6, 2019. Am. Compl. ¶ 7.

On August 14, 2019, Plaintiff applied for one of four newly available positions at DDOT but in September 2019 she learned that she was not selected. Id. ¶ 32. According to Plaintiff, each of the four selected candidates were less qualified than she was and all were under the age of 40. Id. ¶¶ 35-36. Plaintiff filed a second charge with the EEOC in May 2020 complaining about this non-selection, alleging religion, race, national origin, and age discrimination, as well as retaliation. Id. ¶¶ 38-41; Ex. 3, May 12, 2020, EEOC Charge. She received a right to sue letter dated May 26, 2020, for this charge. Id. ¶ 10.

Plaintiff filed her lawsuit against DDOT pro se on November 7, 2019. ECF No. 1, Compl. She served the Office of the Attorney General for the District of Columbia with the summons and Complaint by certified mail on February 12, 2020. See ECF No. 5, Return of Service/Affidavit at 3; Def. Mot, Ex. 2, Robinson Declaration. On February 27, 2020, DDOT filed a motion to dismiss her lawsuit, arguing that DDOT is not capable of being sued. ECF No. 4. The court agreed with DDOT that the agency could not be sued, see Fields v. D.C. Dep't of Corr., 789 F.Supp. 20, 22 (D.D.C. 1992) (“It is well established, however, that agencies and departments within the District of Columbia government are not suable as separate entities.”), but found that dismissal of Plaintiff's Complaint solely on that basis was not warranted, and instead substituted the District of Columbia as the proper Defendant. ECF No. 8. The court also granted Plaintiff's request for a short stay to allow her time to obtain counsel, which she did on

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June 1, 2020. See Min. Order (Mar. 27, 2020); ECF No. 11. On July 7, 2020, Plaintiff filed an amended complaint, which Defendant moved to dismiss.

Plaintiff alleges that Defendant discriminated against her on the basis of her gender, religion, race, and national origin in violation of Title VII of the Civil Rights Act of 1964, by refusing to hire her for the Grade 14 Supervisory Civil Engineer position in 2015, instead hiring “a significantly less qualified male applicant who was neither Egyptian nor Muslim,” and by reposting the position in 2018 as a Grade 15 position for which she could not qualify. Am. Compl. ¶¶ 44-68. She also alleges that Defendant's refusal to hire her for any of the four August 2019 positions constitutes religion, race, national origin discrimination, and retaliation for her earlier EEOC complaints, all in violation of Title VII, as well as age discrimination in violation of the Age Discrimination in Employment Act. Id. ¶¶ 55, 60, 65, 69-80.

Defendant argues that the court should dismiss the Amended Complaint because Plaintiff failed to timely serve the District with her original complaint under Fed.R.Civ.P. 4(m), a failure that was not cured by her filing of an amended complaint. Defendant also argues that Plaintiff's discrimination claims stemming from Defendant's 2015 hiring decision are untimely, that she has failed to state any plausible claim for gender, religion, race, or national origin discrimination, and that her retaliation claim is invalid because it is not supported by an inference of causation. Defendant did not move to dismiss Plaintiff's age discrimination claim.

II. LEGAL STANDARD

A. Rule 12(b)(5)

When a defendant moves to dismiss for insufficient service of process, “[t]he plaintiff bears the burden of proving that he has effected proper service.” Jouanny v. Embassy of Fr. in the U.S., 220 F.Supp.3d 34, 37 (D.D.C. 2016). “[T]o do so, [it] must demonstrate that the

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procedure employed satisfied the requirements of the relevant portions of Rule 4 [governing summonses] and any other applicable provision of law.” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1083 (4th ed.)). “[U]nless the procedural requirements for effective service of process are satisfied, a court lacks authority to exercise personal jurisdiction over the defendant.” Candido v. District of Columbia, 242 F.R.D. 151, 160 (D.D.C. 2007). As a result, “[f]ailure to effect proper service is . . . a ‘fatal' jurisdictional defect, and is grounds for dismissal.” Jouanny, 220 F.Supp.3d at 38. The court has discretion to dismiss the claim or allow the plaintiff to correct service of process. See Wilson v. Prudential Fin., 332 F.Supp.2d 83, 89 (D.D.C. 2004).

B. Rule 12(b)(6)

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim tests the legal sufficiency of a complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, 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 plausible when the factual content allows the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A plaintiff's factual allegations do not need to be “detailed,” but “the Federal Rules demand more than ‘an unadorned, the-defendant-unlawfully-harmed-me accusation.'” McNair v. D.C., 213 F.Supp.3d 81, 86 (D.D.C. 2016) (citing Twombly, 550 U.S. at 570)).

Compliance with Title VII's statute of limitations is an affirmative defense properly raised in a motion under Rule 12(b)(6).

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See Greer v. Bd. of Trustees of Univ. of D.C., 113 F.Supp.3d 297, 306 (D.D.C. 2015) (citing cases). “In ruling on a motion to dismiss, the Court may consider not only the facts alleged in the complaint, but also documents attached to or incorporated by reference in the complaint and documents attached to a motion to dismiss for which no party contests authenticity.” Demissie v. Starbucks Corp. Off. & Headquarters, 19 F.Supp.3d 321, 324 (D.D.C. 2014). The court holds documents prepared by a pro se plaintiff to “less stringent standards” than legal documents drafted by an attorney. See Gage v. Somerset Cnty., 369 F.Supp.3d 252, 258 (D.D.C. 2019) (citation omitted).

III. ANALYSIS

A. Service of Process

Plaintiff filed her original Complaint on November 7, 2019. Compl. Accordingly, under Fed.R.Civ.P. 4(m), she had until February 5, 2020, to serve the District with a summons and copy of the Complaint. The parties agree that Plaintiff did not serve the District until February 12, 2020, seven days after the deadline. See Return of Service/Affidavit at 3; Def. Mot. at 3; Robinson Declaration; ECF No. 17, Pl. Opp'n at 6.

Defendant argues that because of Plaintiff's untimely service, the court...