Moeller v. Dist. of Columbia

JAMES W. MOELLER, APPELLANT, v. DISTRICT OF COLUMBIA, APPELLEE.

No. 20-CV-313

DISTRICT OF COLUMBIA COURT OF APPEALS

Submitted March 31, 2021

July 1, 2021

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Appeal from the Superior Court of the District of Columbia

(CAB4172-18)

(Hon. Fern Flanagan Saddler, Trial Judge)

James W. Moeller filed briefs pro se.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Carl J. Schifferle, Deputy Solicitor General, and Sonya L. Lebsack, Assistant Attorney General, were on the brief for appellee.

Before THOMPSON and DEAHL, Associate Judges, and FERREN, Senior Judge.

THOMPSON, Associate Judge:

Appellant James W. Moeller appeals from the Superior Court's grant of summary judgment to defendant/appellee the District of Columbia (the "District") on Mr. Moeller's claim that the District — specifically, the District's Public Service Commission ("PSC") — violated the District of Columbia Human Rights Act ("DCHRA")¹ by utilizing language in a job vacancy announcement that was discriminatory on the basis of age. We reverse the grant of summary judgment and remand for further proceedings pertinent to whether Mr. Moeller has standing to maintain this action.

I.

On May 23, 2018, the PSC announced two vacancies for attorney-advisors in the agency's Office of the General Counsel, in a notice designated as "Job ID 18523." A section of the notice stated the following under the heading "Education and Experience":

Graduation from an accredited law school with a Juris Doctor Degree (J.D.). The incumbent should be a recent law school graduate with D.C. Bar Membership.

In his June 13, 2018, complaint filed in the Superior Court alleging age discrimination, Mr. Moeller alleged that the PSC notice violated the DCHRA provision that prohibits the "print[ing] or publish[jng]" of "any notice or advertisement . . . relating to employment" that "unlawfully indicat[es] any preference, limitation, specification, or distinction[] based on" a protectedcharacteristic, including "age." D.C. Code § 2-1402.11(a)(4)(B) (2021 Repl.). The complaint, which sought both injunctive relief and damages, asserted that Mr. Moeller was sixty years old and was "deterred . . . from submitting a job application in response to th[e] announcement" "[b]ecause the announcement expressed a preference for a 'recent law school graduate.'" The District of Columbia moved to dismiss the complaint for lack of standing. The Honorable Neal Kravitz denied the motion, determining that at the motion-to-dismiss stage, Mr. Moeller satisfied the requirement for suing under D.C. Code § 2-1403.16(a) (2021 Repl.), in that he claimed that the language in question "contained a clear 'preference, limitation, specification, or distinction' based on age," plausibly alleged that the language deterred him from applying for the attorney-advisor positions, and thus was a "person claiming to be aggrieved" by a discriminatory practice. Id.

The case proceeded to discovery, and after the close of discovery, the parties filed cross-motions for summary judgment. The court (the Honorable Fern Flanagan Saddler, to whom the case had been transferred) denied both motions, reasoning that there were material facts remaining in dispute, including the age of "recent law school graduates" and whether Mr. Moeller "was actually deterred from applying to the position based upon the alleged ageist language" in the PSC announcement. Both parties sought reconsideration, the District doing so on the ground that Mr. Moeller had failed to produce during discovery his proffered evidence (a Law School Admissions Council report) that the "vast majority" of recent law school graduates are between the ages of 28 and 32. On reconsideration, Judge Saddler entered summary judgment in favor of the District, reasoning that without the now-inadmissible LSAC Report, Mr. Moeller had "failed to produce any support for his claim that the phrase 'recent law school graduate' constitutes discriminatory language based upon age, in violation of the [DCHRA]." Judge Saddler found that "no reasonable fact finder could find in favor of [Mr. Moeller] on his claim of violation of the DCHRA."

This appeal followed. Appellant urges us to hold that he needed no proof of the typical age of a new law school graduate because the term "recent law school graduate" in an advertisement for a specific job is per se discriminatory. The District disagrees, arguing that the surrounding context in the PSC announcement makes clear that the statement that the applicant should be a "recent law school graduate" denotes that the advertised positions were entry-level positions "wherein a law degree is required but having worked as a lawyer is not." But the District's lead-off argument is that we should resolve the matter on the ground that Mr. Moeller lacked standing to challenge the Job ID 18523 announcement as discriminatory because he neither applied for the positions advertised nor demonstrated a real interest in the jobs.

II.

"[E]ven though Congress created the District of Columbia court system under Article I of the Constitution, rather than Article III, this court has followed consistently the constitutional standing requirement embodied in Article III." Grayson v. AT&T Corp., 15 A.3d 219, 224 (D.C. 2011) (en banc). "Thus, [a plaintiff] must allege 'some threatened or actual injury resulting from [] putatively illegal action'[] in order for th[e] court to assume jurisdiction." Id. (footnote omitted). Standing is "a threshold jurisdictional question which must be addressed prior to and independent[ly] of the merits of any party's claim." Equal Rts. Ctr. v. Props. Int'l, 110 A.3d 599, 603 (D.C. 2015) (quoting W.H. v. D.W., 78 A.3d 327, 337 (D.C. 2013) (internal quotation marks omitted)).

Our case law establishes that "standing under the DCHRA is co-extensive with standing under Article III." Molovinsky v. Fair Emp't Council of Greater Wash., Inc., 683 A.2d 142, 146 (D.C. 1996). This means that the language of D.C. Code § 2-1403.16(a) creating a cause of action for "[a]ny person claiming to be aggrieved by a[] . . . discriminatory practice," D.C. Code § 2-1403.16(a), does not eliminate or overcome the requirement that "a party seeking to bring a claim must allege '. . . a personal stake in the outcome of the controversy' as to 'justify exercise of the court's remedial powers on his behalf.'" Equal Rts. Ctr., 110 A.3d at 603 (quoting W.H., 78 A.3d at 337).² Thus, a DCHRA plaintiff must have "suffered 'injury in fact' - an actual or imminent, concrete and particularized, invasion of a legally protected interest" that is "fairly . . . trace[able] to defendant's challenged actions." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted)).

The private-right-of-action provision of Title VII of the Civil Rights Act of 1964 contains language similar to that of D.C. Code § 2-1403.16(a). See 42 U.S.C. 2000e-5(b) (authorizing private suits by any "person claiming to be aggrieved" by violations of that Act). Describing the requirements for standing to sue under theTitle VII provision prohibiting job advertisements that "indicat[e] any preference . . . based on race [or other prohibited categories]," id. § 2000e-3(b), courts have stated that "[t]o be aggrieved . . . a person [alleging that he was deterred from applying for a specific job] must be able to demonstrate that he has a real, present interest in the type of employment advertised" and "[i]n addition, . . . must be able to show he was effectively deterred by the improper ad from applying for such employment." Hailes v. United Air Lines, 464 F.2d 1006, 1008 (5th Cir. 1972); see also Newark Branch, NAACP v. Harrison, 907 F.2d 1408, 1414-16 (3d Cir. 1990) (holding that the district court did not err in dismissing the NAACP's original complaint for lack of standing where the NAACP did not allege or show that at least one of its members had "a real and genuine interest in municipal employment with [defendant] Harrison"). This court "generally follow[s] Title VII analysis in discrimination cases brought under the DCHRA." Psychiatric Inst. v. District of Columbia Comm'n on Hum. Rts., 871 A.2d 1146, 1151 n.2 (D.C. 2005).

In this case, Mr. Moeller alleged in his complaint that he was deterred from applying for the PSC attorney-advisor positions described in Job ID 18523 because of the language of the announcement that (allegedly) expressed a preference for younger candidates. We agree with the Superior Court that at the motion-to- dismiss stage, that allegation was sufficient to state a claim and to defeat dismissal for lack of standing.³ But we are now asked to consider the issue of standing with the benefit of the summary judgment record, including the evidence amassed during discovery.⁴ We recognize that some courts have skipped over a standing analysis and have addressed, as a merits matter, the defendant's claim that the plaintiff alleging discriminatory job advertising was not actually deterred from applying for a job by the advertisement's allegedly discriminatory language. See, e.g., Hailes v. United Airlines, 464 F.2d at 1008-09 (finding "no merit in United's contention that the[] facts present[ed] no 'case or controversy' within the court's constitutional jurisdiction," but remanding "for factual development by trial or otherwise, and a determination by the district court of whether Hailes was reasonably inhibited in violation of his Title VII rights from seeking employmentwith United"); see also Banks v. Heun-Norwood, 566 F.2d 1073, 1074, 1076-77 (8th Cir. 1977) (reasoning that the plaintiff was not aggrieved in that it was the low...