Jianqing Wu v. Special Counsel, Inc.

54 F.Supp.3d 48

Jianqing Wu, Plaintiff

v.Special Counsel, Inc., et al., Defendants.

Civil Action No. 14–376 JEB

United States District Court, District of Columbia.

Signed July 16, 2014

Jianqing Wu, Hyattsville, MD, pro se.

Jennifer Leigh Feldman, Smith, Gambrell & Russell, LLP, Denise Elizabeth Giraudo, Michael J. Murphy, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Elizabeth J. Bower, Willkie Farr & Gallagher, LLP, Joseph G. Cosby, Butzel Long, P.C., Washington, DC, Steven E. Brust, Yash B. Dave, Smith, Gambrell & Russell, LLP, Jacksonville, FL, Joel M. Ferdinand, Fisherbroyles, LLP, Atlanta, GA, Mukti N. Patel, Fisherbroyles, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Pro se Plaintiff Jianqing Wu, a native Mandarin speaker, is an educated man, having earned three separate graduate degrees over the years, including a J.D. and a Ph.D. Perhaps, he alleges, too educated, as he contends that Defendants ALTA, Hire Counsel, Special Counsel, Morrison & Foerster, and Wilkie Farr & Gallagher all denied him employment as a contract attorney on the basis of his age—because his experience would have made him too expensive—and because of his race and national origin—because they preferred people whose language skills were not as good as his. These acts, he alleges, violated the Age Discrimination in Employment Act, Title VII of the 1964 Civil Rights Act, and various state laws. All five Defendants now separately move to dismiss Wu's claims on a variety of grounds. Concluding that Plaintiff has failed to state a plausible claim that Defendants discriminated against him or that their policies had a disparate impact on a protected class of which he is a member, the Court will grant those Motions as to all federal claims. Plaintiff may pursue his remaining state-law claims in the appropriate forum should he so choose.

I. Background

The Court views the facts pled in the Amended Complaint as true, as it must at this stage of the proceedings. Plaintiff, a graduate of four degree programs and a member of the New York, D.C., and patent bars, “is ... devoted to document review as a real career.” Am. Compl., ¶ 19. In July 2009, Wu, a native Mandarin speaker, applied for a job assisting with a Mandarin review project for Defendant law firm Wilkie Farr & Gallagher LLP through Defendant staffing agency Alijon (now known as Special Counsel). See Am. Compl., ¶¶ 21, 26. As part of his application, he was required to take Defendant ALTA's “Advanced Chinese Reading Test.” Id., ¶ 22. Forced to rush through the test because there were no “instructions on the test duration, total question number, test scope, or anything,” id., Wu earned a score of 75 percent. Unfortunately, as he understood it, the “passing point” for employment with Wilkie Farr was 90 percent. Id., ¶ 23. As a result, Plaintiff was not hired. See id.

Undeterred, Wu applied for another Mandarin project through another staffing agency, Defendant Hire Counsel, in October 2009, this time with Defendant law firm Morrison & Foerster, and he took another ALTA Mandarin exam. See id., ¶ 40. Yet again, he was not hired. Still he kept on, seeking similar employment no fewer than six more times. See id., ¶ 47. Although he was asked to take the same exam on each of those six occasions, he refused to sit for any, and after “careful review” of hiring-agency testing practices, he concluded that he had been “blacklisted” by Defendants because his test score was not high enough, because he refused to take further tests, because of animus Defendants felt toward him as a person of Chinese descent, see id., ¶¶ 47–49, or as part of a “pay-rate fixing” conspiracy aimed at “select[ing] as many new, inexperienced, less qualified, and mismatched candidates” as possible in order to keep pay low and help Defendants' “bottom line.” See id., ¶ 54.

Unhappy with his inability to gain employment as a document reviewer, Plaintiff filed a charge of discrimination with the EEOC on June 12, 2013, alleging violations of Title VII and the Age Discrimination in Employment Act. See Hire Counsel MTD, Exh. A (EEOC Form) at 2. Although it did not make a determination on the merits of that complaint, the EEOC issued Wu a Notice of Right to Sue on December 12, 2013. See Compl., Exh. 1 (Notice of Right to Sue) at 1. Plaintiff did not turn down that invitation, filing a Complaint with this Court on March 10, 2014. See ECF No. 1. Although his Amended Complaint weighs in at a prolix 45 pages and includes lengthy digressions on rate fixing and economic analysis, Wu does clearly include federal claims for discrimination on the basis of national origin and age against all Defendants, race discrimination against Special Counsel and Hire Counsel only, and state negligence and breach-of-contract claims against ALTA only.

All five of those Defendants subsequently moved to dismiss, citing various and alternative grounds. In now turning to those Motions, the Court need only analyze the arguments regarding Plaintiff's failure to state a claim to resolve this case.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants' Motions to Dismiss, the Court must “treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) ) (citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). The notice-pleading rules are “not meant to impose a great burden upon a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and he must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, 127 S.Ct. 1955, “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). Plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). Although a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote and unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ).

In evaluating the sufficiency of Plaintiff's Complaint under Rule 12(b)(6), the Court may consider “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't Opportunity Comm'n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). It may not, however, consider documents presented for the first time as an attachment to a motion to dismiss or an opposition. Plaintiff offers just such a set of documents—styled “Declarations”—along with his Opposition to each Defendant's Motion to Dismiss. As these documents are unsworn and improper at this stage, the Court will pay them no mind.

One other point deserves mention here. The Court is well aware that pro se parties deserve a significant amount of leeway in their pleadings. See, e.g., Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999) (“Courts must construe pro se filings liberally.”); Voinche v. FBI, 412 F.Supp.2d 60, 70 (D.D.C.2006) (“This Court gives pro se parties the benefit of the doubt and may ignore some technical shortcomings of their filings”). Because Plaintiff is a lawyer with several degrees and many years' experience, however, no special treatment is due. See Richards v. Duke Univ., 480 F.Supp.2d 222, 235 (D.D.C.2007) (“[B]ecause plaintiff is an attorney, and a knowledgeable one at that, this Court will not give her all the benefits of the liberal standards that are afforded to pro se litigants and plaintiff's pro se status will not weigh in favor of denying the defendants' motions to dismiss.”); Ruffin v. Fenty, No. 09–1237, 2010 WL 8754288, at *2 n. 7 (D.D.C. Sept. 13, 2010) (“[I]n the normal course of his law practice, any complaint filed by the plaintiff would not be entitled to the application of a ‘less stringent standard’ to survive a motion to dismiss, and thus it hardly makes sense that the plaintiff should be given such leeway by the Court simply because he is representing himself.”). The Court, accordingly, will treat his pleadings as it would any other lawyer's.

III. Analysis

Plaintiff charges that each Defendant engaged in multiple forms of discrimination. ALTA, Morrison & Foerster, and Wilkie Farr, he alleges, discriminated against him on the basis of his national origin and his age, and Hire Counsel and Special Counsel because of his race, national origin, and age. He contends, moreover, that all Defendants were complicit in a hiring scheme that had a disparate impact on older Chinese people and native Mandarin speakers. The Court will address the intentional-discrimination and disparate-impact claims in turn. Determining that none survives, the...