MEMORANDUM OPINION
Plaintiff John Kangethe, proceeding pro se, brings this suit against his employer, the District of Columbia. He asserts violations of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Equal Pay Act of 1963. He also alleges that he was subjected to retaliation and a hostile work environment. The District has moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for ‘ failure to state a claim upon which relief can be granted, and Kangethe has filed a memorandum in opposition. For the reasons set forth below, the Court will grant in part and deny in part the District’s motion to dismiss.
BACKGROUND
Taking as true the allegations in Kangethe’s complaint,
see Oberwetter v. Hilliard,
Kangethe alleges that the position of LMI Supervisory Labor Economist — the section head — opened in April 2008. See id. ¶ 22. The position was advertised as a GS-14. See id. ¶ 25. During DOES’s search for a new supervisor, Kangethe was appointed acting LMI head, taking on significant additional responsibilities. See id. ¶¶ 26, 30. He alleges that he performed these tasks with excellence. See id. ¶¶ 30-31. While serving as acting head, Kangethe applied for the permanent position and was found to be the most qualified candidate. See id. ¶¶ 31-32. However, Joseph Walsh, the DOES Director, declined to select Kangethe for the position, instead asking whether other candidates were available and directing DOES to relist the job opening. See id. ¶ 35. Kangethe alleges that this process repeated itself four times, with him applying for the position, being the only eligible candidate, and Walsh declining to give him the job. See id. ¶¶ 36-42.
During this time, Kangethe alleges that he continued to be paid at the GS-12 level despite performing GS-14 work. See id. ¶¶ 27, 30, 55. On August 16, 2009, he received a temporary pay raise to the GS-14 level for 90 days, while continuing to carry out the same duties. See id. ¶ 50. Kangethe alleges that he then contacted a Human Resources staff member to ask for retroactivе pay for his prior work as acting LMI head. See id. ¶¶ 52-53. After the temporary promotion expired, he continued to perform the supervisory responsibilities for another month. See id. ¶¶ 55-58. On December 14, 2009, Kangethe alleges that he again requested an update from Human Resources on his compensation. See id. ¶ 56. Later that day, he was informed by Eric Scott, DOES’s new Chief of Staff, that the Human Resources staff member “indicated that [Kangethe had] reached out to her concerning [his] duties.” See. id. ¶ 57 (internal quotation marks omitted). Scott then notified Kangethe that he was no longer the official acting supervisor and stripped him of his supervisory duties. See id. ¶¶ 57-58.
Kangethe filed an Equal Employment Opportunity (“EEO”) complaint on February 2, 2010. See id. ¶ 61. On April 19, 2010, he initiated the Equal Employment Opportunity Commission administrative process. See id. ¶ 64.
In May 2010, Scott announced that a new position, Associate Director of Policy, Legislative, and Statistical Analysis, would be created to replace the still-vacant LMI supervisory position, and that a new person would be brought in to assume the Associate Director position. See id. ¶ 67. Kangethe alleges that the position was not advertised on the District’s Human Resources website, in violation of its personnel rules. See id. ¶ 70. Nonetheless, an individual was invited to interview for the position. See id. ¶ 71.
DOES ultimately failed to hire anyone for this position, and Kangethe claims that the responsibilities were then shifted to a new position, Associate Director, for Labor Market and Workforce Research and Analysis, which was advertised at a GS-15 level.
See id.
¶ 80. Kangethe alleges that the job description for this position was altered in an attempt to “discourage or disqualify” him.
See id.
¶ 81. He still applied, but DOES hired a younger white man with allegedly less relevant experience.
See id.
¶¶ 84-85. According to the
Kangethe initiated this action against DOES on December 13, 2011. Shortly after, DOES moved to dismiss the case, arguing that it was not a suable entity, and that in any event it had not been properly served. The Court denied the motion, giving Kangethe an opportunity to file and рroperly serve an amended complaint naming the District of Columbia as a defendant.
See
Mem. Op. & Order [Docket Entry 22],
STANDARD OF REVIEW
“[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be cоnstrued favorably to the pleader.”
Scheuer v. Rhodes,
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ”
Bell Atl. Corp. v. Twombly,
The pleadings of
pro se
parties are “ ‘to be liberally construed, and a
pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.’ ”
Erickson,
DISCUSSION
I. Non-Promotion Claims
Kangethe contends that the District discriminated against him based on his race, national origin, and age, as well as retaliated against him, in refusing to promote him to three positions at DOES: LMI Supervisory Labor Economist (“Pоsition One”); Associate Director of Policy, Legislative, and Statistical Analysis (“Position Two”); and Associate Director for Labor Market and Workforce Research and Analysis (“Position Three”). See Am. Compl. ¶ 96. He alleges that he applied to Position 1 itself on four occasions, see id. ¶42, and that the other two positions were each an outgrowth of the first. See, e.g., id. ¶¶ 66, 80.
The District counters that Kangethe cannot state a claim under Title VII or the ADEA because he has failed to establish a prima facie case of discrimination.
See
Def.’s Mot. to Dismiss at 7-8. But in employment discrimination cases involving Title VII or ADEA claims, “it is not appropriate to require a plaintiff to plead facts establishing a prima facie case.”
See Swierkiewicz v. Sorema N.A.,
Rather than pleading facts establishing a prima facie case, Kangethe’s claim must simply “ ‘give the defendant fair notice of what [his] ... claim is and the grounds upon which it rests.’ ”
Twombly,
The District’s other arguments for dismissal fare no better. It maintains that because Position One was never filled, Kangethe will never be able to establish one of the prima facie requirements.
See
[the] plaintiff must show that (1) he is a member of a protected class; (2) he applied for and was qualified for an available position; (3) despite his qualifications he was rejected; and (4) either sоmeone not of his protected class filled the position or the position remained vacant and the employer continued to seek applicants.
Cones v. Shalala,
The District also contends that Kangethe cannot establish a prima facie case for Position Two because he never applied for that position.
See
Def.’s Mot. to Dismiss at 7. However, Kangethe alleges that the lack of an opportunity to apply was
itself
the product of discrimination.
See
Am. Compl. ¶ 97. Addressing such circumstances, the D.C. Circuit has held that a discrimination action can be brought when an employer fails to open a position to competition — thus depriving the plaintiff of an opportunity to apply — as long as the plaintiff expressed 'his interest in' the position.
See Cones,
Finally, the District argues that Kangethe cannot establish a prima facie showing with respect to Position Three because he lacked the necessary job qualifications. See Def.’s Mot. to Dismiss at 7. This argument, too, runs squarely against D.C. Circuit case law. Kangethe asserts that DOES changed the job qualifications precisely in order to “discourage or disqualify” him from applying. See id. ¶ 81; see also ‘ id. ¶¶ 82-83 (highlighting the change in job descriptions). In such circumstances, the fact that a plaintiff is not “technically” qualified poses no obstacle. As the D.C. Circuit explained,
[this] theory of “qualification” would open a potential loophole in Title VII. Agencies seeking to prevent minority employees from advancing to higher level positions could simply refuse to open those positions to competition and instead laterally transfer non-minorities. Agency employees would be- unable to mount Title VII cases , because none would be “technically” qualified. Nothing in Title VII or McDonnell Douglas supports such a counterintuitive result.
Cones,
II. Reassignment of Supervisory Duties
Kangethe also alleges that DOES engaged in retaliatory conduct and age discrimination in stripping him of his supervisory resрonsibilities and acting LMI head status. See id. ¶¶ 110-11, 113, 116, 129. The District argues that these claims must be dismissed because Kangethe has failed to allege an adverse action, and because he has failed to allege a protected activity that can serve as a basis for the retaliation claim.
The District’s first argument is easily dismissed. The D.C. Circuit has held that “withdrawing an employee’s .supervisory duties constitutes an adverse employment actiоn.”
Stewart v. Ashcroft,
The adequacy of Kangethe’s alleged proteсted activity poses a closer question. To state a prima facie case of retaliation, “the plaintiff must establish that (1) he engaged in a statutorily protected activity, (2) the employer took an adverse personnel action, and (3) a causal connection existed between the two.”
Forkkio v. Powell,
The District contests Kangethe’s alleged protected activity, arguing that it is “plain on its face” that his December 14 e-mail to Human Resources asking for an “update” on compensation does not qualify as ■ such an activity.
See
Def.’s Mot. to Dismiss at 10. But the District oversimplifies. Opposing an unlawful employment practice qualifies as protected activity, even when the opposition is informal, i.e., occurs outside of the EEO administrative process.
See Broderick,
III. Retroactive Pay Claims
. Kangethe claims that DOES’s denial of retroactive pay for his time as acting LMI head constitutes retaliation and violates the Equаl Pay Act. He contends that the retaliation was in response to two allegedly protected activities: on February 2, 2010, Kangethe contacted an EEO Counselor to file civil rights claims against DOES, and on February 16, 2010, he e-mailed Human Resources “seeking advice” about his retroactive compensation and “suggesting possible improper hiring practices at DOES.” See Am. Compl. ¶ 130. Kangethe was denied retroactive pay оn February 17,2010. See id. ¶¶ 63,130.
Responding to this retaliation claim, the District asserts that an e-mail “seeking advice” on retroactive compensation is not protected activity. Def.’s Mot. to Dismiss at 10 (citing Am. Compl. ¶ 130), But Kangethe’s e-mail also “suggest[ed] possible improper hiring practices.”
See
Am. Compl. ¶ 130. This e-mail hence qualifies as a protected activity because (at least as described in the complaint) it opposed an unlawful employment practice.
See Broderick,
The District’s other argument against the retaliation claim proves similarly unavailing. It contends that the denial of retroactive pay does not amount to an adverse action.
See id.
As the D.C. Circuit has made clear, this argument is wrong. “[S]uffer[ing] any reductions in salary or benefits” is a “typical adverse action[] in employment discrimination cases.”
Baloch v. Kempthorne,
Kangethe also challenges his denial of pay under the Equаl Pay Act, asserting that he was unlawfully paid a GS-12 salary while serving as acting LMI head, and that younger individuals performing these duties were compensated at a substantially higher level.
See
Am. Compl. ¶¶ 122-24. Kangethe claims that this pay disparity contravenes the Equal Pay Act principle of “equal pay for equal work,”
see
Pl.’s Opp’n at 12 (citing
Shultz v. Wheaton Glass Co.,
The District correctly points out that Kangethe’s claim under the Equal Pay Act is fatally flawed — as the statute’s
IV. Remaining Claims in Count Four
In Count Four, titled “Retaliation-Humiliation-Embarrassment-Emotional Distress,” Kangethe furnishes a lengthy list of alleged adverse actions, which he contends were retaliatory and constituted a hostile work environment. The District’s only argument as to this Count is that the retaliation claims must be dismissed because Kangethe’s December 2009 and February 2010 e-mails to Human Resources do not constitute protected activities. See Def.’s Mot. to Dismiss аt 10. As discussed above, Kangethe’s allegations plausibly indicate that both e-mails opposed practices he reasonably believed violated Title VII, so they constitute protected activities. Moreover, the District fails to address other alleged protected activities, such as contact with the EEO office, that preceded many of the alleged actions. Therefore, there is no basis to dismiss any claims in this Count.
CONCLUSION
For the foregoing reasons, the Court will dismiss Kangethe’s Equal Pay Act claims and allow all other claims to proceed. A separate Order will be issued on this date.
Notes
. While Kangethe alleges that he is “a member of a racial minority/' see Am. Compl. ¶ 105, and notes that he is a naturalized citizen, see id. ¶ 1, he fails to specify his race and national origin. Still, the allegations he does make suffice to make his entitlement to relief plаusible.
. Although it is not clear from its motion, the District appears to argue that Kangethe has failed to allege an adverse action as to this claim. This argument is unavailing because the alleged non-promotion — a non-selection to a position at a higher pay grade — is a classic adverse action.
See Baloch v. Kempthorne,
. In his opposition, Kangethe makes clear that he does not allege a separate claim based on DOES’s failure to extend his temporary promotion to the GS-14 pay level. See Pl.’s Opp’n to Def.’s Mot. to Dismiss [Docket Entry 28] at 11 (Nov. 1, 2012). Accordingly, the Court will not address the viability of any such claim.
