United States District Court, E.D. Virginia, Alexandria Division
Liam O Grady, United Stales District Judge
This matter comes before the Court on Defendant HITT Contract Inc.'s ("HITT") Motion to Dismiss for failure to state a claim. Standard brings just one cause of action: discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). For the reasons outlined below, the Court finds good cause to GRANT the Motion.
HITT hired Plaintiff Richard Standard to work as its controller in 2002. In 2007, HITT promoted Standard to Treasurer and made him a Corporate Officer. In December of 2012, HITT hired a new CFO and informed Standard that he was being replaced as Treasurer. Shortly thereafter, on December 14, 2012, HITT gave Standard a letter that stated this change would take effect on February 13, 2015. The letter also outlined Standard's "transition to retirement." The letter stated that although Standard would assume new duties in February 2015, he would retain his salary and benefits. The letter also stated that Standard's employment would terminate on November 18, 2015. Finally, the letter stated that HITT would "leave open the possibility of working beyond that date on a consulting basis and as prospects may dictate." November 18, 2015, coincided with Standard's 66th birthday-the day Standard became eligible for full Social Security benefits.
Despite this letter, Standard asserts that Brett Hitt, one of HITT's co-Presidents, verbally assured him multiple times that HITT would retain him as a consultant after November 18, 2015. Around March of 2013, Standard had a "retirement party" to celebrate his transition into his new role at HITT. At the party, Brett said to Standard, "You're not going anywhere. I shouldn't even be here. You're not retiring." After Standard transitioned into his new role, he was permitted to work from home and come into the office whenever he had meetings.
Over time, HITT delegated Standard's duties to Brett's 29 year old son, Cullen. In early 2015, it became clear to Standard that he was permanently excluded from performing any meaningful duties at HITT. Standard sent Brett an email in February of 2015, asking him to explain HITT's plans for him going forward. Brett responded by saying that HITT no longer needed Standard to assist on any acquisitions or joint ventures, and that HITT only needed Standard to do banking oversight, a minor responsibility. HITT then terminated Standard's employment, as it stated it would, on November 18, 2015. HITT did not retain Standard as a consultant.
Standard asserts that his forced retirement was part of an overall scheme to eliminate all of HITT's older employees. Standard alleges that Brett Hitt spoke openly, sometimes in Standard's presence, about the forced retirement of older employees.
Standard filed a charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC") on December 1, 2015. Standard withdrew his charge with the EEOC on February 3, 2016. Standard then filed his Complaint in this case on February 19, 2016.
II. Legal Standard
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual information to "state a claim to relief that is plausible on its face." BellAtl Corp. v. Twombly, 550 U.S. 544, 550 (2007). A motion to dismiss pursuant to Rule 12(b)(6) must be considered in combination with Rule 8(a)(2), 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), so as to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests, " Twombfy, 550 U.S. at 555. While "detailed factual allegations" are not required, Rule 8 does demand that a plaintiff provide more than mere labels and conclusions stating that the plaintiff is entitled to relief. Id. Because a Rule 12(b)(6) motion tests the sufficiency of a complaint without resolving factual disputes, a district court "'must accept as true all of the factual allegations contained in the complaint' and 'draw all reasonable inferences in favor of the plaintiff.'" Kensington Volunteer Fire Dep't v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). Accordingly, a complaint may survive a motion to dismiss "even if it appears 'that a recovery is very remote and unlikely.'" Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
"Before a plaintiff may file suit under... the ADEA, he is required to file a charge of discrimination with the EEOC." Jones v. Calvert Group, Ltd, 551 F.3d 297, 300 (4th Cir.2009); 29 U.S.C.A. § 626(d). In Virginia, "this charge must be filed no later than 300 days after the alleged unlawful practice occurred'" Lewis v. Norfolk Southern Corp., 271 F.Supp.2d 807, 811 (E.D. Va. 2003) (quoting 29 U.S.C. § 626(d)(2)). "[T]he filing period runs from the time at which the employee is informed of the allegedly discriminatory employment decision, regardless of when the effects of that decision come to fruition." Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982); see also Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). However, "the limitation period does not begin to run until the employee receives 'final and unequivocal' notice of the adverse employment decision in issue." Connolly v. Mills Corp., 430 F.Supp.2d 553, 557-58 (E.D. Va. 2006) (quoting English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988)). That is, the limitation period begins to run when the employee knows "with certainty" that the adverse employment action will occur. Id. (quoting Lendo v. Garrett County Board of Education, 820 F.2d 1365, 1367 (4th Cir. 1987)).
A. When Standard Knew With Certainty That He Was Going To Be Terminated
The critical question before the Court is when did Standard know, "with certainty, " that he would be terminated on November 18, 2015. HITT argues that the 300 day clock began to run on December 14, 2012, when it gave the letter to Standard that unequivocally stated that his employment would be terminated on November 18, 2015. Standard argues, in contrast, that the 300 day clock began to run on February 5, 2015, the day Standard emailed Brett asking HITT to explain its plan for Standard going forward, and Brett responded that HITT no longer needed Standard to assist with any of his previous duties. Standard insists that the December ...