Macedo v. Elrich

AUGUSTO D. MACEDO, Plaintiff, v. MARC ELRICH, County Executive Montgomery County, Maryland Defendant.

Civil Action No. 8:20-3006-PX

United States District Court, D. Maryland

September 24, 2021

MEMORANDUM OPINION

PAULA XINIS UNITED STATES DISTRICT JUDGE

Pending in this employment discrimination case is Defendant Montgomery County Executive Marc Elrich (“Elrich” or “Defendant”)'s motion to dismiss. ECF No 7. The motion is fully briefed, and no hearing is necessary. See D. Md. Loc. R. 105.6. For the following reasons the Court GRANTS in part and DENIES in part the motion.

I. Background^[1]

In 2016, Plaintiff Augusto D. Macedo applied to become a police officer with the Montgomery County Police Department (“MCPD”). A 53-year-old black male, Macedo had enjoyed a long career as a practicing attorney before deciding to switch professions. ECF No. 1 ¶¶ 2, 3. After submitting his application to become a police officer, Macedo was invited to participate in MCPD's three-part interview process, which included a physical fitness assessment, a written examination, and an oral interview. ECF No. 1 ¶ 15. Macedo passed the physical fitness assessment and scored 88% out of 100% on the written exam. ECF No. 1 ¶¶ 16, 17.

On August 27, 2016, Macedo reported to MCPD headquarters for his oral interview. A white female officer greeted him. ECF No. 1 ¶ 18. The interview panel consisted of the female officer and two male officers, one white and one black. ECF No. 1 ¶ 20; ECF No. 1-5 at 2. Before the interview began, Macedo extended his hand to the white male officer who, in Macedo's view, rudely hesitated before reluctantly shaking his hand in return. ECF No. 1-5 at 2. The female officer next explained that the interview panel would take notes of Macedo's responses. Id. Macedo later learned that interview panel wrote his age, 53, at the top of their rating sheets for him but not for any other candidate. ECF No. 1-3 at 3.

Not five minutes after Macedo's interview ended, the female officer informed Macedo that although he was “qualified, ” he was not “well qualified” to “move on to the ‘next stage'” because he “failed” the oral interview component. ECF No. 1 ¶ 22; ECF No.1-5 at 4. A different officer on the interview panel conveyed that Macedo could reapply for the position in six months. ECF No. 1-5 at 4.

On December 23, 2016, Macedo complained about his non-selection in writing to the United States Equal Employment Opportunity Commission (“the EEOC”), which he cross-filed with the Montgomery County Office of Human Rights.^[2] ECF No. 1-5. This complaint included a detailed narrative of Macedo's application and interview experience. Id. Macedo noted his race and age, the race and gender of the interviewers, and statistical information comparing the racial composition of Montgomery County to the composition of the applicant pool for the MCPD officer position. Id. at 2, 4. Under the subheading “claim, ” Macedo wrote that he is “an African-American male, 54-years [sic], highly educated, with a storied educational and work career” who is “both mentally and physically fit, ” and who had passed two “objective tests” but was summarily rejected after a “subjective” in-person interview. Id. at 4-5. As Macedo put it, he fell victim to a “selection process [that] was unfair, unjust, and clearly illegally discriminatory as [he is] over the age of 40 and a member of the non-white class.” Id. at 5.

A few months later, the EEOC responded to Macedo, construing his claim as brought pursuant to Title VII of the Civil Rights Act of 1964. ECF No. 1-2 at 2. The EEOC requested that Macedo review the enclosed draft formal charge, known as the “EEOC Form 5, ” and make corrections, sign, date, and return it to the agency. Id. The EEOC Form 5 noted expressly that Macedo was pursuing a “race” discrimination claim. Id. at 4. Not only was the “race” box on the EEOC Form 5 checked, the typed narrative also briefly described Macedo's oral interview experience, including MCPD's on-the-spot determination that Macedo was “not well-qualified” to advance to the next phase of the employment process despite his good performance on objective measurements. Id. at 4. The typed narrative summed up Macedo's contention that he “believe[d] he was not hired due to [his] race (Black) in violation of Title VII of the Civil Rights Act of 1964, as amended.” Id.

On the EEOC Form 5, Macedo appears to have made handwritten edits before returning it to the EEOC. He corrected his middle initial (striking “G” and replacing it with the letter “D”) and his birth year (replacing “1963” with “1962”). ECF No. 1-2 at 4. Macedo also checked the box on the form to indicate he was pursuing an age discrimination claim, but he left the “race” box unchanged. Id. In the narrative section, the words “race (Black)” were crossed out and the words “Age 53” were written instead. Id.

The EEOC opened an investigation into Macedo's allegations and ultimately issued a written determination, concluding that reasonable cause existed to believe MCPD discriminated against Macedo on the basis of age and in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”). ECF No. 1-3 at 3-4. As grounds for its decision, the EEOC explained that the interview scoring sheets made special note of Macedo's age, and that the successful applicants were “significantly younger” than Macedo and had “little to no experience.” Id. at 3. Further, MCPD failed to “provide a valid explanation as to why” Macedo was not selected. Id. Left out of the EEOC determination, however, was any mention of the EEOC having investigated Macedo's race claim. See id. at 3-4.

The EEOC invited the County to engage in conciliation to voluntarily “eliminate [its] alleged unlawful practices.” ECF No. 1-3 at 4. Evidently those efforts failed. Id. at 1. On August 5, 2020, the EEOC issued a right to sue letter to Macedo. Id. at 2. Macedo filed suit in this Court on October 16, 2020, alleging that MCPD discriminated against him on account of his race, in violation of Title VII and 42 U.S.C. § 1981, and on account of his age, in violation of the ADEA. The Complaint also includes companion state and local antidiscrimination claims brought pursuant to the Maryland Fair Employment Practices Act (“MFEPA”) and the Montgomery County Human Rights Act (“MCHRA”). ECF No. 1; see also 42 U.S.C. § 2000e-2; 29 U.S.C. § 623(a); Md. Code Ann., State Gov't § 20-101 et seq.; Md. Code Ann., State Gov't § 20-1202.

Defendant now moves to dismiss the Title VII and ADEA claims, arguing that Elrich, as County Executive, cannot be considered an “employer” capable of being sued under either statute. Elrich also maintains that both causes of action, and the related § 1981 claim, fail as a matter of law, and alternatively that the Title VII claim must be dismissed for lack of exhaustion. Lastly, Defendant urges dismissal of the state and local claims as time-barred. The Court considers each argument below.

II. Standard of Review

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). A complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,' however, ‘rather than a blanket assertion, of entitlement to relief.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555).

In ruling on a motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and viewed in the light most favorable to him. Twombly, 550 U.S. at 555. The Court may also consider documents attached to the motion to dismiss when “integral to and explicitly relied on in the complaint, and when the [opposing parties] do not challenge the document[s'] authenticity.” Zakv. Chelsea Therapeutics, Int'l, Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015) (quoting Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)) (internal quotation marks omitted). However, “[f]actual allegations must be enough to raise a right to relief above a speculative level.” Twombly, 550 U.S. at 555. “[C]onclusory statements or a ‘formulaic recitation of the elements of a cause of action will not [suffice].'” EEOC v. Performance Food Grp., Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). “[N]aked assertions of wrongdoing necessitate some ‘factual enhancement' within the complaint to cross ‘the line between possibility and plausibility of entitlement to relief.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

Macedo proceeds pro se, but he is also an experienced attorney. See ECF No. 1-5 at 2-3. Although generally pro se pleadings are construed liberally to allow for the development of a potentially meritorious case, Hughes v Rowe, 449 U.S. 5, 9 (1980), Macedo will be not be afforded the same special solicitude accorded self-represented litigants who lack formal legal training. See DiPrete v. 950 Fairview St., LLC, No. 15-00034, 2016 WL 6137000, at *4 n.4 (W.D. Va. Oct. 21, 2016), appeal dismissed, No. 16-2335, 2017 WL 2241808 (4th Cir. May 22, 2017) (finding that because pro se plaintiff is an attorney no “special consideration or leniency is warranted” and collecting cases); see also Gordon v....