Proctor v. District of Columbia , 74 F. Supp. 3d 436 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LELIA PROCTOR,
Plaintiff,
Civil Action No. 13-00985
v.
Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.
Defendants.
MEMORANDUM OPINION
The plaintiff, Leila Proctor, proceeding pro se, brings numerous federal and state law
claims arising out of her termination from the District of Columbia Public Schools (“DCPS”).
Pending before the Court is the District of Columbia’s (the “District”) Motion to Dismiss or, in
the Alternative, for Summary Judgment, ECF No. 8 (“D.C.’s Mot. Dismiss”) and Attorney
General Eric Holder and U.S. Attorney Ronald Machen’s (“Federal Defendants”) Motion to
Dismiss Federal Defendants, ECF No. 20. 1 For the reasons stated below, the District’s motion
for summary judgment and the Federal Defendants’ motion to dismiss are granted.
I. BACKGROUND
Since 1977, the plaintiff served as a science teacher for DCPS. Am. Compl. at 3, ECF
No. 3. Her service came to an abrupt end when she received a Reduction in Force (“RIF”)
1
On September 29, 2014, the Court issued an Order granting the District’s Motion to Dismiss or, in the Alternative,
for Summary Judgment. See Order (Sep. 29, 2014), ECF No. 25. The Order notes that this Memorandum Opinion
would follow in order to permit the Court to address both the District’s arguments and the Federal Defendants’
arguments in a single opinion. Following issuance of the Order dismissing the plaintiff’s claims with respect to the
District, the plaintiff filed a motion requesting discovery, see Memorandum Requesting Discovery, ECF No. 28, and
a motion seeking to amend the complaint, see Memorandum Requesting Time to Amend My Complaint, ECF No.
29. In light of the Court’s Order on September 29, 2014, the Court denies these motions as moot with respect to the
District. Moreover, because no amendment or discovery could save the plaintiff’s claims with respect to the Federal
Defendants, such motions are also denied.
1
notice, effective November 2, 2009. See Am. Comp. ¶ 32. The plaintiff alleges that she received
the RIF notice as a result of “blatant deliberate direct discrimination.” Am. Compl. ¶ 29.
Between June and August 2009, DCPS hired approximately 934 new teachers, primarily
from organizations such as Teach for America and the New Teacher Project. Am. Compl. ¶ 32.
In August 2009, the plaintiff received a letter from DCPS instructing her to report to Woodson
Senior High 9th Grade Academy for the 2009 to 2010 school year. Am. Compl. ¶ 30. Upon
arrival, the plaintiff noticed that Woodson Senior High had retained three new science teachers
during the summer, two of whom were white women in their twenties and members of Teach for
America. Am. Compl. ¶31. On October 2, 2009, the plaintiff received an official notice that,
due to a DCPS budget shortfall, her position was being eliminated pursuant to a RIF. Pl. Mem.
Opp’n at 10, ECF No. 16. The plaintiff was one of approximately 266 teachers subject to the
RIF. Am. Compl. ¶ 32.
On October 7, 2009, the plaintiff’s union, the Washington Teachers’ Union (“the
Union”), challenged the RIF in District of Columbia Superior Court. See Washington Teachers’
Union Local #6 v. Rhee et al., No. 2009 CA 007482B (October 9, 2009) ( “WTU Litigation”);
see also Defs.’ Mem. Supp. Mot. Dismiss and Summ. J. (“D.C.’s Mem.”), Ex. 2, Am. Compl.,
WTU Litigation (“WTU Amended Complaint”), ECF No. 8-2. As part of their challenge, the
Union alleged that the supposed “budget shortfall” was “clearly a pretext[]” so that DCPS could
discharge “the older, more senior teachers” without the need to follow the bargained-for
discharge procedures. See WTU Amended Complaint at 2–3. 2 On November 5, 2009, the court
heard testimony from five witnesses on behalf of the Union and two witnesses on behalf of the
defendant, the District of Columbia. D.C.’s Mem. Ex. 7, Order Den. Pl.’s Mot. Prelim. Inj. and
2
In parallel, the plaintiff filed a petition for appeal with the Office of Employee Appeals concerning her pending
termination. She was represented in the petition by the Union. See D.C.’s Mem., Ex. 1.
2
Mot. TRO, WTU Litigation at 5 (“WTU Preliminary Injunction Ruling”), ECF No. 8-7. On
November 24, 2009, the court denied the Union’s request for a preliminary injunction
concluding that “some questionable RIF decisions do not establish that the RIF was a pretext for
a mass discharge, given the undisputed evidence that the DCPS budget was sufficient to support
the existing staff and the new teachers being hired for the current school year, until the Council
reduced the budget . . . .” Id. at 17. Three years later, on September 7, 2012, the Superior Court
adopted the findings and analysis from the preliminary injunction and dismissed the case. See
D.C.’s Mem., Ex. 3, Order Granting Mot. Dismiss, WTU Litigation (“WTU Motion to Dismiss
Ruling”), ECF No. 8-3. The court again determined that “the RIF . . . was indeed a RIF,” id. at
4, and concluded that “the facts in no way support” the Union’s theory “that DCPS had created
the shortfall by hiring too many new teachers in the spring and early summer of 2009 . . . as a
pretext for terminating more senior teachers . . . .” Id. at 4 n.3.
Shortly after the Superior Court had denied the Union’s request for a preliminary
injunction, the plaintiff challenged, on December 5, 2009, her dismissal by filing a complaint
with the EEOC. See D.C.’s Mem., Ex. 5 (“December 5, 2009 EEOC Charge”), ECF No. 8-5.
Plaintiff checked two boxes marked “Age” and “Retaliation,” claiming that she “was
discriminated against based upon [her] age 69 and retaliated against in violation of the Age
Discrimination in Employment Act of 1967.” Id. Almost two years later, on October 21, 2011,
the plaintiff filed an addendum to the December 5, 2009 EEOC Charge, requesting that “the
charge of violation of my Civil Rights [be] added to [the] initial charge of discrimination (age
and race).” See Pl.’s Mem. Opp’n Mot. Dismiss, Ex. 2 at 2 (“October 21, 2011 EEOC
Addendum”), ECF No. 16-1. Despite the wording of the addendum, the original EEOC Charge
contained no mention of race discrimination. See December 5, 2009 EEOC Charge. Nearly
3
three years after the original charge, and one year after the addendum, on November 15, 2012,
the plaintiff filed an additional EEOC charge, this time checking three boxes for age, retaliation,
and race. See D.C.’s Mem., Ex. 6 (“November 15, 2012 EEOC Charge”), ECF No. 8-6. In this
charge, the plaintiff alleged that she “[had] been discriminated against based on [her] race
(Black).” Id.
During the WTU Litigation and its aftermath, the media published numerous stories
regarding the RIF. In one story, appearing in the February 2010 issue of Fast Company, then-
DCPS Chancellor Michelle Rhee explained her justification for the RIF: “I got rid of teachers
who had hit children, who had had sex with children, who had missed 78 days of school. Why
wouldn’t we take those things into consideration?” See Pl.’s Mem. Reply Supp. Opp’n Def.’s
Mot. Dismiss at 12 (“Pl.’s Reply”), ECF No. 19. Several other news sources picked-up and
reported the quotes, both around the time of initial publication and in the years since. See id. at
13–15.
On June 28, 2013, the plaintiff filed the instant action against two D.C. and two federal
government officials, DCPS, and the District asserting violations of the Age Discrimination in
Employment Act, 29 U.S.C. § 621 (“ADEA”); race and age discrimination in violation of Title
VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (“Title VI”); race
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq., (“Title VII”); a claim under 42 U.S.C. § 1983 for violations of Due Process; race
and age discrimination in violation of the D.C. Human Rights Act, D.C. Code § 2-14-1 et seq.
(“DCHRA”); wrongful discharge; defamation; and fraudulent misrepresentation. 3 See Am.
Compl. at 1–2, 24.
3
The plaintiff’s complaint charges the following defendants: (1) Kaya Henderson, Chancellor, DCPS, (2) Michelle
Rhee, former Chancellor, DCPS, (3) DCPS, (4) the District of Columbia, (5) Ronald Machen, “the U.S. Attorney
4
II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction under Federal
Rule of Civil Procedure 12(b)(1)
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power
authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts
are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116,
120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the
constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by
Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of
Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case,
the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); FED. R. CIV. P.
12(h)(3).
When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true
all uncontroverted material factual allegations contained in the complaint and “‘construe the
complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the
facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972
(D.C. Cir. 2005) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004))). The court
General for the District of Columbia,” and (6) Eric Holder, the U.S. Attorney General. In this circumstance, “a suit
against a state official in his or her official capacity is not a suit against the official but rather is a suit against the
official's office.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Atchinson v. District of Columbia, 73
F.3d 418, 424 (D.C. Cir. 1996) (“When sued in their official capacities, government officials are not personally
liable for damages.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); Jefferies v. District of Columbia, 917
F.Supp.2d 10, 29 (D.D.C. 2013) (“A suit against a District of Columbia official in her official capacity is equivalent
to a suit against the municipality itself.”) (citations and internal quotation marks omitted); Kranz v. Gray, 842
F.Supp.2d 13, 16 n.1 (D.D.C. 2012). The Court, therefore, will substitute the District of Columbia as the defendant
in place of defendants 1–3, listed above. See Kranz, 842 F.Supp.2d at 16 n.1; Waker v. Brown, 754 F.Supp.2d 62,
65 (D.D.C. 2010) (substituting the District of Columbia for the mayor, police chief, and Department of Corrections);
Henneghan v. D.C. Pub. Schs., 597 F.Supp.2d 34, 37 (D.D.C. 2009) (substituting the District of Columbia for
DCPS).
5
need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported
by facts alleged in the complaint or amount merely to legal conclusions. See Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Moreover, in evaluating subject matter
jurisdiction, the court, when necessary, may “‘undertake an independent investigation to assure
itself of its own subject matter jurisdiction,’” Settles v. United States Parole Comm'n, 429 F.3d
1098, 1107–08 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir.
1987)), and consider facts developed in the record beyond the complaint, id. See also Herbert v.
National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (in disposing of motion to
dismiss for lack of subject matter jurisdiction, “where necessary, the court may consider the
complaint supplemented by undisputed facts evidenced in the record, or the complaint
supplemented by undisputed facts plus the court's resolution of disputed facts.”); Alliance for
Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005). The burden of establishing any
jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff.
See Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446
(1942); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).
B. Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil
Procedure 12(b)(6)
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity
and, at the same time, “give the defendant fair notice of what the … claim is and the grounds
upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in
original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a
notable and generous departure from the hyper-technical, code-pleading regime of a prior era, []
6
it does not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss,
134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible
when the plaintiff pleads factual content that is more than “‘merely consistent with' a defendant's
liability,” but allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged,” id. at 678 (citing Twombly, 550 U.S. at 556); see also Rudder v. Williams,
666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to
withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or
“formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment]
to relief,” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the] claims across the
line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).
In considering a motion to dismiss for failure to plead a claim on which relief can be
granted, the court must consider the complaint in its entirety, accepting all factual allegations in
the complaint as true, even if doubtful in fact. Twombly at 555; Sissel v. United States HHS,
2014 U.S. App. LEXIS 14397 (D.C. Cir. 2014) (in considering Rule 12(b)(6) motion, the “court
assumes the truth of all well-pleaded factual allegations in the complaint and construes
reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept
the plaintiff's legal conclusions as correct”) (internal quotations and citations omitted). In
addition, courts may “ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions
7
to dismiss, in particular, documents incorporated the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs, Inc., 551 U.S. 322 (citing Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)); see
also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).
C. Conversion to Motion for Summary Judgment
The District has moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), for
dismissal, or, alternatively, for summary judgment, pursuant to Federal Rule of Civil Procedure
56 on all of the plaintiff’s claims. See D.C.’s Mot. Dismiss. Federal Rules of Civil Procedure
12(d) provides that if “matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment,” and if a motion is so converted,
“[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to
the motion.” 4 Fed. R. Civ. P. 12(d).
The Circuit reviews a district court's decision to convert a motion to dismiss into a
summary judgment motion for an abuse of discretion. Colbert v. Potter, 471 F.3d 158, 164–65
(D.C. Cir. 2006); Flynn v. Tiede–Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (“The
decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to
the sound discretion of the trial court.”). In using this discretion, “the reviewing court must
4
In the instant action, because the plaintiff is proceeding pro se, she was provided with an order on December 11,
2013, outlining the requirements for responding both to a motion under Federal Rule of Civil Procedure 12(b)(6)
and under Federal Rule of Civil Procedure 56. See Dec. 11, 2013 Order, ECF No. 9; see also Fox v. Strickland, 837
F.2d 507, 509 (D.C. Cir. 1988) (holding that a pro se party must be advised of consequences of failing to respond to
a dispositive motion, including “an explanation that the failure to respond . . . may result in the district court
granting the motion and dismissing the case”); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (holding that a pro
se party must be advised, when motion to dismiss may be converted to motion for summary judgment, that “‘any
factual assertion in the movant’s affidavits will be accepted by the district judge as being true unless [the opposing
party] submits his own affidavits or other documentary evidence contradicting the assertion’” (quoting Lewis v.
Faulkner, 689 F.2d 100, 102 (7th Cir. 1982))). This order, commonly referred to as a Fox/Neal Order, both alerted
the plaintiff of the need to respond to the District’s motion and of the need to provide supporting factual
information. After four requests for an extension of time, the plaintiff filed her opposition to the District’s motion to
dismiss on June 12, 2014, or approximately seven months after receiving notice of the need to respond and of the
need to provide supporting factual information.
8
assure itself that summary judgment treatment would be fair to both parties.” Tele-Commc'ns of
Key W., Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). Therefore, “[i]n converting
the motion, district courts must provide the parties with notice and an opportunity to present
evidence in support of their respective positions.” Kim v. United States, 632 F.3d 713, 719 (D.C.
Cir. 2011). When the defendant expressly moves for summary judgment in the alternative to a
motion to dismiss before discovery has been conducted, and relies upon extra-pleading material,
to which the plaintiff has an opportunity to respond, the Court need not issue separate prior
notice of the conversion. See Colbert, 471 F.3d at 168; see also Mount v. Johnson, No. 12-cv-
1276, 2014 U.S. Dist. LEXIS 49613, at *20 (D.D.C. Apr. 10, 2014); Pintro v. Wheeler, No. 13-
cv-0231, 2014 U.S. Dist. LEXIS 45092, at *13 n.5 (D.D.C. Apr. 2, 2014) (finding prior notice of
conversion unnecessary “where the plaintiff is represented by counsel and has responded to the
submission of exhibits with evidence of her own.”); Hamilton v. Geithner, 743 F. Supp. 2d 1, 8
(D.D.C. 2010) (Walton, J.), aff'd, 666 F.3d 1344 (D.C. Cir. 2012).
If extra-pleading evidence “is comprehensive and will enable a rational determination of
a summary judgment motion,” a district court will be more likely to convert to summary
judgment, but “when it is scanty, incomplete, or inconclusive,” the district court is more likely to
decline to convert to summary judgment and permit further discovery. See 5C Charles Alan
Wright, et al., Federal Practice & Procedure § 1366 (3d ed. 2012). Thus, there is no bright-line
threshold for conversion under Rule 12(d); the touchstone is fairness and whether consideration
of summary judgment is appropriate, in light of the nature of the extra-pleading material
submitted, the parties’ access to sources of proof, the parties’ concomitant opportunity to present
evidence in support or opposition to summary judgment and the non-moving party’s need, as
reflected in a sufficiently particularized request, under Federal Rule of Civil Procedure 56(d), for
9
discovery in order to respond adequately. In light of the extra-pleading evidence that has been
submitted, and the ample time afforded the parties to access sources of proof, the Court will
consider matters beyond the pleadings and treat the District’s motion as one for summary
judgment. 5
D. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (same). The burden is on
the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in
dispute. Celotex, 477 U.S. at 323; Hendricks v. Geithner, 568 F.3d 1008, 1012 (D.C. Cir. 2009).
“Material facts are those that might affect the outcome of the suit under governing law; genuine
issues are those in which the evidence before the court is such that a reasonable trier of fact could
find for the moving party.” Hendricks, 568 F.3d at 1012; see also Holcomb v. Powell, 433 F.3d
880, 895 (D.C. Cir. 2006) (“A fact is ‘material’ if a dispute over it might affect the outcome of a
suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the
5
In any event, even if the Court did not treat the motion as a motion for summary judgment, the extra-pleading
materials submitted by the parties would still be considered since these materials consist primarily of documents
over which the Court may take judicial notice because they are publically filed as part of court proceedings or are
published reports in the media. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)
(“In determining whether a complaint fails to state a claim, we may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which we may take judicial
notice.”). As discussed below, the defendants bear the burden of proof in regards to several of the defenses asserted
in this matter (e.g., failure to exhaust administrative remedies) and have therefore submitted materials outside of the
pleadings in support of their defense, including materials filed by the plaintiff with the EEOC. The defenses at issue
consist of pure conclusions of law and require no judicial fact-finding.
10
summary judgment determination.” (citing Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477
U.S. 242, 248 (1986))).
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as
true. Liberty Lobby, 477 U.S. at 255; see also Grosdidier v. Broad. Bd. of Governors, 709 F.3d
19, 23–24 (D.C. Cir. 2013). The Court is only required to consider the materials explicitly cited
by the parties, but may on its own accord consider “other materials in the record.” FED. R. CIV.
P. 56(c)(3). The nonmoving party must establish more than “[t]he mere existence of a scintilla
of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on mere
allegations or conclusory statements, see Ass’n of Flight Attendants v. Dep’t of Transp., 564 F.3d
462, 465 (D.C. Cir. 2009); Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006); Veitch v.
England, 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring); Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must
present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R.
CIV. P. 56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011)
(noting that at summary judgment stage, plaintiff “can no longer rest on such ‘mere allegations,’
but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the
summary judgment motion will be taken to be true.’” (quoting Sierra Club v. EPA, 292 F.3d 895,
898–99 (D.C. Cir. 2002) (ellipsis and second alteration in original))). “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby,
477 U.S. at 249–50 (citations omitted).
11
III. DISCUSSION
Pending before the Court is the District’s motion for summary judgment and the Federal
Defendants’ motion to dismiss. The Court will first address the District’s motion before turning
to the Federal Defendants’ motion.
A. District of Columbia’s Motion for Summary Judgment
The District argues that the plaintiff’s claims fail as a result of: (1) the doctrine of issue
preclusion; 6 (2) the plaintiff’s failure to exhaust her administrative remedies; and (3) the
applicable statute of limitations. 7 Each of these arguments is addressed seriatim below.
1. Issue Preclusion
“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,
which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892
(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or
not relitigation of the claim raises the same issues as the earlier suit.’” Id. (quoting New
Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In contrast, issue preclusion, which was “once
known as ‘collateral estoppel’ and ‘direct estoppel,’” bars “successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination essential to the prior
6
Additionally, the District notes, in a footnote, that the WTU Litigation is currently on appeal before the D.C. Court
of Appeals, and suggests that the suit could be dismissed “pursuant to the theory of parallel litigation.” D.C.’s Mem.
at 12 n.2 (citing Holland v. ACL Transp. Serv., LLC, 815 F. Supp.2d 46, 55 (D.D.C. 2011) (“District courts have the
discretion to . . . dismiss a pending suit when parallel litigation that is factually related is ongoing in another
forum.”). Nevertheless, “the federal rule and the rule in this circuit is that collateral estoppel may be applied to a
trial court finding even while the judgment is pending on appeal.” S. Pac. Commc'ns Co. v. Am. Tel. & Tel. Co., 740
F.2d 1011, 1018 (D.C. Cir. 1984). Accordingly, the Court declines the District’s invitation to dismiss the suit on
those grounds.
7
In a footnote, the District asserts that, to the extent the plaintiff has alleged a claim of age discrimination in
violation of Title VII, the claim should be dismissed. The District argues that the ADEA is the “exclusive federal
remedy for age discrimination.” See D.C.’s Mem. at 6 n.1. The Court agrees. In this Circuit, “the ADEA provides
the exclusive remedy for a federal employee who claims age discrimination.” See Chennareddy v. Bowsher, 935
F.2d 315, 318 (D.C. Cir. 1991); see also Ward v. Kennard, 133 F. Supp. 2d 54, 58 (D.D.C. 2000) (dismissing claims
“because the plaintiff fails to assert these age-discrimination claims under the ADEA”). To the extent the plaintiff
has alleged an age discrimination claim as a violation of Title VII, this claim is dismissed.
12
judgment, even if the issue recurs in the context of a different claim.” Id. at 892 & n.5 (internal
citations and quotation marks omitted); see also U.S. Postal Serv. v. Am. Postal Workers Union,
553 F.3d 686, 696 (D.C. Cir. 2009) (“Under collateral estoppel, once a court has decided an issue
of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a
suit on a different cause of action involving a party to the first case.”) (internal citation and
quotation marks omitted). “The objective of the doctrine of issue preclusion . . . is judicial
finality; it fulfills ‘the purpose for which civil courts had been established, the conclusive
resolution of disputes within their jurisdiction.’” Yamaha Corp. of Am. v. United States, 961
F.2d 245, 254 (D.C. Cir. 1992) (quoting Kremer v. Chemical Constr. Corp. 456 U.S. 461, 467
n.6 (1982)).
Three elements must be satisfied for a final judgment to preclude litigation of an issue in
a subsequent case: “[1], the same issue now being raised must have been contested by the parties
and submitted for judicial determination in the prior case[; 2] the issue must have been actually
and necessarily determined by a court of competent jurisdiction in that prior case[; and] [3]
preclusion in the second case must not work a basic unfairness to the party bound by the first
determination.” Martin v. Dep't of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha,
961 F.2d at 254 (D.C. Cir. 1992)) (alterations in original). Each of these requirements is met in
the instant case and is addressed below.
a) Contesting the Same Issue
For purposes of issue preclusion, “once an issue is raised and determined, it is the entire
issue that is precluded, not just the particular arguments raised in support of it in the first place.”
Yamaha, 961 F.2d at 254 (emphasis in original). Moreover, “[p]reclusion cannot be avoided
simply by offering evidence in the second proceeding that could have been admitted, but was
not, in the first.” Id. at 254–55. The District argues that both the WTU Litigation and the instant
13
litigation directly confront the issue of whether “the RIF was . . . a pretext to get rid of older
teachers and replace them with younger teachers.” D.C.’s Mem. at 8. The plaintiff disagrees,
and argues that “there was absolutely no litigation on age discrimination” in the WTU litigation
and that the “WTU’s case was about the [Collective Bargaining Agreement].” See Pl.’s Mem.
Opp’n at 21. An analysis of the complaint filed in the WTU litigation, the amended complaint
filed in the current action, and the opinions of the D.C. Superior Court reveal the plaintiff’s
argument to be without merit.
In the WTU Litigation, the Union alleged that in light of the 934 teachers hired in the
spring and summer of 2009, the “DCPS’ attempt to disguise this mass discharge [of 266
teachers] as a ‘RIF’ caused by a ‘budget shortfall’ [was] clearly a pretext[.]” WTU Am. Compl.
at 2. Here, the plaintiff has alleged that she was fired “under the pretext of a RIF,” Am. Compl.
¶ 32, after Chancellor Rhee “decided to have a pretend shortage of money,” Am. Compl. ¶ 34,
which was evidenced by the hiring of 934 new teachers, see Compl. ¶ 32. The D.C. Superior
Court rejected the argument that the RIF was a pretext in both its ruling on the preliminary
injunction and its ruling on the motion to dismiss. See WTU Preliminary Injunction Ruling at 17
(concluding that the plaintiffs did “not establish that the RIF was a pretext for a mass discharge,
given the undisputed evidence that the DCPS budget was sufficient to support the existing staff
and the new teachers being hired for the current school year, until the Council reduced the
budget . . . .”); WTU Motion to Dismiss Ruling at 4 & n.3 (concluding that “the RIF was indeed
a RIF” and that “the facts in no way support” the Union’s theory “that DCPS had created the
shortfall by hiring too many new teachers in the spring and early summer of 2009 . . . as a pretext
for terminating more senior teachers . . . .”).
14
Despite the Superior Court’s ruling, the plaintiff argues that the court did not consider the
fact that she was allegedly paid by the U.S. Department of the Treasury rather than by the
District and that, therefore, her employment could not have contributed to any DCPS budgetary
shortage. See Am. Compl. ¶ 55; Pl.’s Mem. Opp’n. at 2, 10. 8 Regardless of the accuracy of this
allegation, the plaintiff’s claim fails. The plaintiff’s allegation simply attempts to pour new wine
into old wine skins. Issue preclusion forbids precisely this type of argumentation. See Yamaha,
961 F.2d at 254–55 (“Preclusion cannot be avoided simply by offering evidence in the second
proceeding that could have been admitted, but was not, in the first.”). In the WTU Litigation, the
court afforded the parties ample opportunity to present evidence of pretext and, indeed, the
Union solicited testimony from five separate witnesses, including testimony by a former special
education teacher and a guidance counselor. See WTU Preliminary Injunction Ruling at 5.
Thus, the Union had the opportunity to present the evidence the plaintiff now alleges, but, for
whatever strategic or other reason, the Union decided to put forth alternative evidence on the
issue of pretext, and the court ruled against them. This Court will not upset this judicial
determination. See Otherson v. Dep’t of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (“[I]ssue
preclusion aims to avert needless relitigation and disturbance of repose . . . .”).
Accordingly, the Court finds that the same issue presented in the WTU litigation is now
before the Court in the instant litigation—whether the RIF was a pretext to discharge senior
teachers.
8
The plaintiff has cited no credible evidence in support of this allegation. Nevertheless, the Court notes that both
the District and the Federal Government (through the Department of Treasury) share responsibility for the DCPS
retirement system, see District of Columbia Retirement Protection Act of 1997, Public Law 105–33, § 11011, 111
Stat. 251; 31 C.F.R. § 29.301, and that the plaintiff may be referencing that a portion of her retirement income is
paid for by the Federal Government.
15
b) Parties Requirement
Issue preclusion may not be asserted against one who was not a party in the first case.
See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971) (“Some
litigants—those who never appeared in a prior action—may not be collaterally estopped without
litigating the issue.”). “The rules that identify the parties affected by issue preclusion . . . are
often described as rules of ‘privity’ and ‘mutuality.’” 18 Charles Alan Wright, et al., FEDERAL
PRACTICE & PROCEDURE: JURISDICTION § 4416 (2d ed.). “The term privity signifies that the
relationship between two or more persons is such that a judgment involving one of them may
justly be conclusive upon the others, although those others were not party to the lawsuit.” Gill
and Dufus Servs., Inc., v. A. M. Nural Islam, 675 F.2d 404, 405 (D.C. Cir. 1982). Union
members are considered to be in privity with their union for purposes of res judicata. See Adams
v. Pension Ben. Guar. Corp., 332 F. Supp. 2d 231, 239 n.8 (D.D.C. 2004) (“Courts have
recognized that unions are in privity with their membership for the purposes of res judicata.”);
Heade v. Washington Metro. Area Transit Auth., No. 09-02460, 2010 WL 938462, at *2 n.2
(D.D.C. Mar. 12, 2010) (“Plaintiff's contention that the arbitration's findings do not bar her claim
because she was not a party to that proceeding is also without merit. . . . [since] she was in
privity with her union.”); see also Hitchens v. County of Montgomery, 98 F. App'x 106, 114 (3d
Cir. 2004) (“[C]ourts have held union members to be in privity with the union and have held that
a decision against a union can bind union members in a subsequent action.” (citing Handley v.
Phillips, 715 F. Supp. 657, 666–67 (M.D. Pa. 1989); Stokes v. Bd. of Tr. of Temple Univ., 683 F.
Supp. 498, 502 (E.D. Pa. 1988)); Monahan v. Dep’t. of Corr., 214 F.3d 275, 285–86 (2d Cir.
2000) (recognizing that union members’ “interests [are] adequately represented” by the union);
Meza v. Gen. Battery Corp., 908 F.2d 1262, 1268 (5th Cir. 1990) (“Federal courts have long
16
recognized that individual members of labor unions . . . can be bound by judgments in suits
brought by the union . . . .”).
The plaintiff does not dispute that she was a member of the Union, and the record bears
this out. Indeed, the plaintiff was represented by Union counsel before the District of Columbia
Office of Employee Appeals. See D.C.’s Mem., Ex. 1. Accordingly, the Court finds that the
plaintiff was a party to the prior lawsuit.
c) Actually and Necessarily Determined by a Court of Competent
Jurisdiction Requirement
For issue preclusion to apply, the issue must also have been “actually and necessarily
determined” by a “court of competent jurisdiction.” Martin v. Dep't of Justice, 488 F.3d 446,
454 (D.C. Cir. 2007). “A determination ranks as necessary or essential only when the final
outcome hinges on it.” Bobby v. Bies, 556 U.S. 825, 835 (2009). In the WTU Litigation, the
plaintiffs argued that “the RIF was a subterfuge for an improper mass discharge, which would be
arbitrable under the [Collective Bargaining Agreement].” WTU Preliminary Injunction Ruling at
19. Accordingly, it was necessary for the court to determine whether the RIF was a pretext— in
which case the removal of the teachers was improper because it was not conducted pursuant to
the Collective Bargaining Agreement—or whether the RIF resulted from budgetary concerns.
The court’s determination was explicit: “[T]he Court finds that the plaintiff has shown virtually
no likelihood of success on the merits of its claim that the RIF was not really a RIF and instead
should be considered a mass discharge.” Id. This finding was confirmed subsequently when the
court dismissed the case. See WTU Motion to Dismiss Ruling at 4 (“The Court therefore finds
that based on the undisputed material facts in the record, the RIF was undertaken in the fall of
2009 in response to a budget shortfall, and it was indeed a RIF.”). The issue of whether the RIF
was a pretext for a mass discharge of teachers was necessarily determined in the prior litigation,
17
and resolved in favor of DCPS. Moreover, the D.C. Superior Court was competent to make this
determination. See Crabbe v. Nat’l Self Serv. Storage, 955 F. Supp. 2d 1, 4 (D.D.C. 2013);
Johnson v. Sullivan, 748 F. Supp. 2d 1, 12 (D.D.C. 2010) (“Without question, the Superior Court
is a court of competent jurisdiction . . . .”). Accordingly, and consistent with the above, the
Court finds that the issue presented—whether the RIF was a pretext to discharge senior
teachers—was actually and necessarily determined by a court of competent jurisdiction in a prior
proceeding.
d) No Basic Unfairness Requirement
In examining “unfairness” for the purposes of issue preclusion, the D.C. Circuit has been
primarily concerned with whether “the losing party clearly lacked any incentive to litigate the
point in the first trial, but the stakes of the second trial are of a vastly greater magnitude.”
Yamaha, 961 F.2d at 254; see also Venetian Casino Resort, L.L.C. v. N.L.R.B., 484 F.3d 601,
610 (D.C. Cir. 2007) (“We can discern no difference between the incentives that the Venetian
may have had in its Ninth Circuit litigation and its incentives here.”); Beverly Health & Rehab.
Servs., Inc. v. N.L.R.B., 317 F.3d 316, 323 (D.C. Cir. 2003) (“Beverly had every incentive to—
and did—litigate the issue before the Sixth Circuit so that there is no unfairness in holding
Beverly to the result reached there.”). If the other requirements of issue preclusion are met,
“courts should refuse to give the first judgment preclusive effect on grounds that the party lacked
adequate incentive to litigate in the first proceeding only upon a ‘compelling showing of
unfairness.’” Otherson, 711 F.2d at 277.
The Union had significant incentives to litigate the original action as the Union faced the
prospect of losing 266 teachers. Moreover, the Union was able to bring significant resources to
bear in pursuit of their litigation. See Monahan, 214 F.3d at 287-88 (finding that it would not be
unfair to collaterally estop union members because, in part, “an association suing to vindicate the
18
interests of its members can draw upon a pre-existing reservoir of expertise and capital. . . [and]
often have specialized expertise and research resources relating to the subject matter of the
lawsuit that individual plaintiffs lack.” (quoting Int’l Union, United Auto., Aerospace, and Agric.
Implement Workers of Am. v. Brock, 477 U.S. 274, 289 (1986))). Accordingly, because of the
significant stakes of the prior litigation, and the resources available to the Union, the Court
determines that it would not be unfair to impose issue preclusion in this case.
e) Application of Issue Preclusion to the Instant Case
As discussed above, all the requirements for issue preclusion are met in the instant action.
The Court now turns to the impact of that determination on the instant case. The District argues
that “the doctrine of issue preclusion bars the Plaintiff from bringing any claim regarding age
discrimination.” D.C.’s Mem. at 6. This argument muddles the related but distinct doctrines of
issue preclusion and claim preclusion. While claim preclusion “foreclos[es] successive litigation
of the very same claim,” issue preclusion by contrast “refers to the effect of a prior judgment in
foreclosing successive litigation of an issue . . . .” New Hampshire v. Maine, 532 U.S. 742, 748–
49 (2001) (emphasis added). Therefore, issue preclusion cannot bar a subsequent claim.
Nevertheless, issue preclusion may conclusively establish facts such that the plaintiff’s claim
must fail as a matter of law. Such is the case here.
The plaintiff’s ADEA and DCHRA claims both require proof that DCPS’s stated
justification for her removal was pretextual. See Barnett v. PA Consulting Grp., Inc., 715 F.3d
354, 358 (D.C. Cir. 2013) (holding that to determine whether “the employer intentionally
discriminated against the employee” the court examines “if there is evidence from which a
reasonable jury could find that the employer’s stated reason for the firing is pretext . . . .”); Vatel
v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011) (“We analyze discrimination
claims under the D.C. Human Rights Act in the same way that we analyze discrimination claims
19
under the federal anti-discrimination laws. . . . Once an employer has offered a legitimate reason
for an employee's dismissal, the question at the summary judgment stage is whether the
employee has ‘produced sufficient evidence for a reasonable jury to find that the employer's
asserted non-discriminatory reason was not the actual reason . . . .’” (internal citations omitted)).
The prior WTU Litigation already determined this precise issue: “The Court therefore finds that
. . . the RIF was undertaken in the fall of 2009 in response to a budget shortfall, and it was indeed
a RIF.” WTU Motion to Dismiss Ruling at 4. As a result, the plaintiff’s claim of age
discrimination under the ADEA and the DCHRA must fail as a matter of law. The District’s
motion is granted and summary judgment shall be entered in favor of the District as it relates to
the plaintiff’s age discrimination claims.
2. Administrative Exhaustion
The District next argues that the plaintiff failed to exhaust her administrative remedies
with respect to her Title VII race discrimination claim and that, therefore, her claim must fail.
See D.C.’s Mem. at 12. The Court agrees.
Under Title VII, a plaintiff must exhaust all administrative remedies. See United Air
Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4 (1977); McDonnell Douglas Corp. v. Green, 411 U.S.
792, 798, (1973); Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir.
1998) (“Before suing under . . . Title VII, an aggrieved party must exhaust his administrative
remedies . . . .”); see also 42 U.S.C. § 2000e–5(f)(1). Title VII requires “aggrieved persons” to
file a charge with the EEOC within 180 days after the alleged unlawful employment practice
occurred, but this period is extended to 300 days when the person has initially instituted a
procedure with a state or local agency. 42 U.S.C. § 2000e–5(e)(1). In the District of Columbia,
20
a plaintiff has 300 days to file a charge with the EEOC. See Carter v. George Washington Univ.,
387 F.3d 872, 879 (D.C. Cir. 2004).
“A Title VII lawsuit following the EEOC charge is limited in scope to claims that are
‘like or reasonably related to the allegations of the charge and growing out of such allegations.’”
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. Western and S. Life
Ins. Co., 31 F.3d 497, 500 (7th Cir.1994)). This provides “the charged party notice of the claim
and ‘narrow[s] the issues for prompt adjudication and decision.’” Park, 71 F.3d at 907 (quoting
Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 472 n.325). A plaintiff may amend an EEOC charge
“to cure technical defects or omissions” or to allege “additional acts which constitute unlawful
employment discrimination.” 29 C.F.R. §1601.12(b). Such amendments on the same subject
matter as the original charge will be deemed to “relate back to the date the charge was first
received,” thereby permitting the amended allegations to potentially fall within the 300 day
requirement. Id. Courts in this district have not permitted suits to proceed, however, where a
plaintiff files a suit alleging a new substantive theory of discrimination that was not addressed in
the original EEOC charge or that was only addressed in an amendment that occurred outside the
300-day window. See, e.g., Scott v. Dist. Hosp. Partners, L.P., No. 13-0600, 2014 WL 3702855,
at *4 (D.D.C. July 28, 2014) (“Because disability discrimination is a new substantive theory,
separate from her 2011 EEOC charge of age and race discrimination, it does not grow out of the
subject matter of the original charge.”); Marshall v. Honeywell Tech. Solutions, Inc., 536 F.
Supp. 2d 59, 67 (D.D.C. 2008) (“[W]here administrative complaints for discrimination based on
sex, race and retaliation do not mention critical facts relevant to an age discrimination claim, the
later filed age claims do not relate back.”); Thrash v. Library of Cong., No. 04-0634, 2006 WL
463251, at *6 (D.D.C. Feb. 24, 2006) (“[T]he court determines that the defendant did not have
21
notice of the plaintiff’s charges of age discrimination for a refusal to transfer the plaintiff based
on her administrative charges of race and gender discrimination.”); Wilson v. Commc'ns Workers
of Am., 767 F.Supp. 304, 306 (D.D.C. 1991) (holding that because the “amendment added a new
substantive theory which is fundamentally distinct from the original race discrimination
charge[,]” it “did not relate to, or grow out of [the plaintiff's] original EEOC charge”).
For Title VII claims, the failure to properly exhaust administrative remedies is an
affirmative defense and the defendant bears the burden of proof. Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997); Colbert v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Ellison v.
Napolitano, 901 F. Supp. 2d 118, 124 (D.D.C. 2012); Dahlman v. Am. Ass'n of Retired Persons,
791 F. Supp. 2d 68, 76 (D.D.C. 2011) (collecting cases). If the defendant meets this burden, then
the burden shifts, and the plaintiff must “plead[] and prov[e] facts supporting equitable
avoidance of the defense.” Bowden, 106 F.3d at 437; see also Terveer v. Billington, No. 12-
1290, 2014 WL 1280301, at *8 (D.D.C. Mar. 31, 2014). “[A]pplication of the doctrine of
equitable tolling is solely within the Court's discretion.” Fortune v. Holder, 767 F. Supp. 2d 116,
121 (citing Smith–Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998)). The
Court will only exercise its equitable tolling power in a limited number of “extraordinary and
carefully circumscribed instances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir.
1988); see also Smith v. Dalton, 971 F. Supp. 1, 3 (D.D.C. 1997) (“The tolling power is to be
exercised only in extraordinary circumstances . . . .”); Strong–Fischer v. Peters, 554 F. Supp. 2d
19, 24–25 (D.D.C. 2008). These instances include where “(1) ‘a claimant has received
inadequate notice,’ (2) ‘where affirmative misconduct on the part of a defendant lulled the
plaintiff into inaction,’ (3) ‘where the court has led the plaintiff to believe that she had done
everything required of her,’ or (4) ‘where a motion for appointment of counsel is pending and
22
equity would justify tolling the statutory period until the motion is acted upon.’” Bass v. Bair,
514 F. Supp. 2d 96, 99 (D.D.C. 2007) (quoting Mondy, 845 F.2d at 1057).
As discussed above, on December 5, 2009, the plaintiff filed a charge with the EEOC
alleging age discrimination and retaliation—but not race discrimination. See December 5, 2009
EEOC Charge. On October 21, 2011, 718 days after the plaintiff’s termination, the plaintiff filed
an “addendum” to her EEOC charge in which she requested that “law [42 U.S.C. § 1983] and the
charge of violation of my Civil Rights [be] added to my initial charge of discrimination (age and
race).” See October 21, 2011 EEOC Addendum. Despite the reference to “race” in the
addendum, the plaintiff’s initial EEOC charge did not contain an allegation of racial
discrimination. See December 5, 2009 EEOC Charge. On November 15, 2012, 1109 days after
the plaintiff’s termination, the plaintiff filed an entirely new charge with the EEOC, in which she
alleged race discrimination in addition to the original charges of age discrimination and
retaliation. See November 15, 2012 EEOC Charge.
The District argues that the plaintiff is barred from litigating her Title VII race
discrimination claim because she failed to file a charge of race discrimination with the EEOC
within 300 days, as required. See D.C.’s Mem. at 12–15. The District is correct. The plaintiff’s
addendum was filed 718 days after the alleged discrimination, and plaintiff’s full EEOC charge
was filed 1109 days after the alleged discrimination. These are plainly outside the applicable
time limits. Moreover, the plaintiff’s subsequent filings cannot be said to “relate back” to the
original EEOC charge, as they add an entirely new substantive theory. See, e.g., Marshall, 536
F. Supp. 2d at 67 (“[W]here administrative complaints for discrimination based on sex, race and
retaliation do not mention critical facts relevant to an age discrimination claim, the later filed age
claims do not relate back.”); Wilson, 767 F. Supp. at 306 (holding that because the “amendment
23
added a new substantive theory which is fundamentally distinct from the original race
discrimination charge[,]” it “did not relate to, or grow out of the [plaintiff's] original EEOC
charge”). The District has met its burden to prove a failure to exhaust, and so the plaintiff must
prove facts that support the equitable tolling of the defense. Bowden, 106 F.3d at 437. The
plaintiff has alleged no facts in the complaint, or briefing, to support a claim for equitable tolling
nor can the Court point to any facts in the record to justify the tolling of the exhaustion
requirement.
Accordingly, because the plaintiff failed to exhaust her administrative remedies, the
District’s motion for summary judgment is granted as it relates to the plaintiff’s claim for racial
discrimination in violation of Title VII.
3. Statute of Limitations
The plaintiff’s remaining claims asserted against the District consist of federal claims
under Section 1983 and for race discrimination, in violation of Title VI, as well as a host of state
law claims including Wrongful Discharge, Defamation, Fraudulent Misrepresentation, and race
discrimination in violation of the DCHRA. 9 These claims are all barred by the applicable statute
of limitations. The Court will first examine the plaintiff’s federal law claims before addressing
the plaintiff’s state law claims.
a) Federal Claims
“When a federal action contains no statute of limitations, courts will ordinarily look to
analogous provisions in state law as a source of a federal limitations period.” Doe v. Dep't of
Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). Since Section 1983 does not have a built-in
statute of limitations, the general three-year statute of limitations imposed by District of
9
The plaintiff’s claim that DCPS’s action constituted unlawful age discrimination in violation of the DCHRA was
addressed in Section III.A.1.
24
Columbia law on claims for personal injury, see D.C. Code § 12-301(8), applies. See 42 U.S.C.
§ 1983; Savage v. District of Columbia, No. 02-7135, 2003 WL 843326, at *1 (D.C. Cir. Feb. 25,
2003) (“The district court properly applied a three-year statute of limitations in this case brought
pursuant to 42 U.S.C. § 1983.”); Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998)
(“[I]n states with multiple statutes of limitations, claims under section 1983 are governed by the
residual or general personal injury statute of limitations . . . .”); see also Philogene v. District of
Columbia, 864 F. Supp. 2d 127, 132 (D.D.C. 2012); Lewis v. Bayh, 577 F. Supp. 2d 47, 51–52
(D.D.C. 2008). Likewise, courts apply a three-year statute of limitations for claims of
discrimination under Title VI. See, e.g., Hajjar-Nejad v. George Washington Univ., 873 F. Supp.
2d 1, 15 (D.D.C. 2012) (“In this Circuit, the statute of limitations for Title VI claims is three
years.”); Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 71 (D.D.C. 2010) (“[A]ll of the
federal discrimination claims asserted in the amended complaint are subject to dismissal if not
brought within three years of the accrual of the alleged injury.”); Richards v. Duke Univ., 480 F.
Supp. 2d 222, 237–38 (D.D.C. 2007) (noting that Title VI lacks its “own statute of limitations”
and that “courts have borrowed the statute of limitations from . . . § 1983, which in turn, rel[ies]
on the respective personal injury statute of limitations in a jurisdiction”). Accordingly, the Court
will apply a three year statute of limitations to both remaining federal claims.
The plaintiff's discrimination complaint arises from her termination, and termination is
“[a] discrete . . . discriminatory act [which] occurred on the day that it happened . . . .” Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002) (internal quotation marks omitted);
see Coppinger–Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (concluding that the statute of
limitations began to run when the complainant learned of her actual injury, i.e., the decision to
terminate her employment). As such, at the absolute latest, “the plaintiff’s claim accrued on the
25
date of [her] termination.” 10 Fortune, 767 F. Supp.2d at 121; see also Gordon v. Office of the
Architect of the Capitol, 750 F. Supp. 2d 82, 92–93 (D.D.C. 2010) (concluding that the
limitations period began to run on the date the complainant was informed that she had not been
selected for a position).
The plaintiff was terminated on November 2, 2009, which started the three-year clock for
purposes of the statute of limitations. See Am. Compl. ¶ 32. She filed the instant action on June
28, 2013, or nearly three years and eight months after her claim accrued, and nearly eight months
after the statute of limitations expired. Moreover, as discussed above, the plaintiff’s plight
presents none of the extraordinary and carefully circumscribed instances justifying the doctrine
of equitable tolling. Her claims, therefore, are barred by the applicable three-year statute of
limitations and summary judgment is therefore granted in favor of the defendant as to the
plaintiff’s claims under Section 1983 and Title VI. 11
b) State Law Claims
The relevant statutes of limitation for the plaintiff’s remaining state law claims—which
include wrongful discharge, fraudulent misrepresentation, defamation, and violations of the
DCHRA—also bar recovery. The plaintiff’s claims for wrongful discharge and fraudulent
misrepresentation both lack specified statute of limitations and are therefore subject to the
10
The plaintiff received notice of her pending termination on October 2, 2009. See Pl. Mem. Opp’n at 10. Since the
plaintiff’s claims are time-barred using either October 2, 2009 (the date of notice) or November 2, 2009 (the date of
termination), and because the District argues for the later date, see D.C.’s Mem. at 17, the Court will use the
November 2, 2009 date for purposes of the statute of limitations analysis.
11
Additionally, the plaintiff’s claims were not tolled during the pendency of the plaintiff’s EEOC inquiry. The
Supreme Court has held that the statute of limitations continues to run on a claim that requires no administrative
exhaustion even while the plaintiff pursues administrative remedies on a separate claim that requires exhaustion.
See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 465–66 (1975) (holding that civil rights complainants with
pending EEOC charges should file their Section 1981 claims in court and request a stay until the charges are
resolved); Carter v. District of Columbia, 14 F. Supp. 2d 97, 102 (D.D.C. 1998) (“[B]ecause a Section 1981 claim is
‘separate from and independent of’ Title VII, the statute of limitations on a Section 1981 . . . claim is not tolled by
the pendency of administrative action on a Title VII claim.” (quoting Johnson, 421 U.S. at 466)); Peart v. Latham &
Watkins LLP, 985 F. Supp. 2d 72, 85 (D.D.C. 2013) (same); see also Adams v. District of Columbia, 740 F. Supp.
2d 173, 182 (D.D.C.2010) (“A limitations period does not toll when a plaintiff is not required but chooses to exhaust
his administrative remedies before pursuing a claim in court.”).
26
general three-year limitations period proscribed in D.C. Code §12-301(8). See Kamen v. Int’l
Brotherhood of Elec. Works, 505 F. Supp. 2d 66, 78 (D.D.C. 2007) (“In the District of Columbia,
the statute of limitations applicable to a claim of wrongful discharge in violation of public policy
is the three-year ‘catch-all’ statute of limitations set forth in D.C. Code § 12–301(8).”);
Hallidorson v. Sandi Grp., 934 F. Supp. 2d 147, 154–55 (D.D.C. 2013) (“Under District of
Columbia law, claims for fraud . . . are governed by a three-year statute of limitations.”). For the
reasons discussed above with respect to the plaintiff’s federal claims, the statutes of limitation
bar the plaintiff’s claims for wrongful discharge and fraudulent misrepresentation.
The plaintiff’s claim of race discrimination in violation of the DCHR also falls outside
the applicable statute of limitations. A plaintiff has two-years from accrual to bring a claim
under the DCHRA. See D.C. Code § 2-1403.16(a). “The timely filing of a complaint with the
[D.C. Human Rights] Office . . . toll[s] the running of the statute of limitations while the
complaint is pending.” Id. So, too, does the timely filing of an EEOC Charge. 12 In the instant
case, the plaintiff filed a charge with the EEOC on December 5, 2009 for age discrimination. See
December 5, 2009 EEOC Charge. The plaintiff did not file a charge with the EEOC alleging
race discrimination—which would have tolled the statute of limitations with respect to her
12
Although the plaintiff filed a charge with the EEOC and not the D.C. Office of Human Rights, such filing still
tolled the plaintiff’s DCHRA claim. Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008)
(“[A]ppellant's timely filing with the EEOC, of which [D.C. Office of Human Rights] promptly received a copy
under the existing agreement between the federal and local agencies, sufficed to toll the limitations period for filing
in court.”); see also Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1372 (D.C. Cir. 2008) (interpreting
work-sharing agreement and finding that agreement designates the EEOC as the “agent for the purpose of receiving
and drafting charges” for the D.C. Office of Human Rights, and vice versa, such that “for all intents and purpose, the
[D.C. Office of Human Rights] receives charges filed with the EEOC”); Brewer v. District of Columbia, 891 F.
Supp. 2d 126, 132 n. 5 (D.D.C. 2012) (finding state filing requirement satisfied because under the EEOC's
“worksharing agreement” with the DCOHR, the EEOC sends complaints that it receives to the DCOHR); Slate v.
Pub. Defender Serv. for the Dist. of Columbia, No. 13-00798, 2014 WL 1315238, at *16 (D.D.C. Apr. 2, 2014).
27
DCHR race discrimination claim—until November 15, 2012, or three years after her
termination. 13 The plaintiff’s claim, therefore, is barred by the statute of limitations.
Finally, the plaintiff’s defamation claim is subject to a one-year statute of limitations.
See D.C. Code § 12-301(4); Amobi v. District of Columbia, 882 F. Supp.2d 78, 83 (D.D.C. 2012)
(“[I]n the District of Columbia, there is a one-year statute of limitations for defamation claims . .
. .”). “Defamation occurs on publication, and the statute of limitations runs from the date of
publication.” Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 882 (D.C.
1998); see also Jin v. Ministry of State Security, 254 F. Supp. 2d 61, 68 (D.D.C. 2003) (same).
“Moreover, the District of Columbia follows the ‘single publication’ rule, whereby publication of
defamatory matter ‘gives rise to but one cause of action for libel, which accrues at the time of the
original publication.’” Jin, 254 F. Supp. 2d at 68 (quoting Ogden v. Ass'n of the United States
Army, 177 F. Supp. 498, 502 (D.D.C.1959)). The plaintiff alleges that former-Chancellor Rhee
defamed her in comments made in the February 2010 edition of Fast Company. See Pl.’s Reply
at 8. The plaintiff did not bring the instant action, however, until June 28, 2013, or over three
years after the alleged defamatory statement. Accordingly, the one-year statute of limitations
bars her claim.
B. Federal Defendants’ Motion to Dismiss
The plaintiff alleges identical claims against the Federal Defendants and these claims fail
for the same reasons identified above. The plaintiff’s claims against the Federal Defendants also
fail for several independent reasons discussed briefly below.
13
As discussed earlier, see Section III.A.2, the plaintiff’s October 21, 2011 EEOC Addendum did not “relate back”
to the plaintiff’s first EEOC Charge and thus will not serve to save her DCHRA claim.
28
1. ADEA, Title VII, and Wrongful Discharge Claims
The plaintiff attempts to bring claims against the Federal Defendants for violations of the
ADEA and Title VII. Yet, the ADEA and Title VII afford protection only for “employees in a
direct employment relationship with the employer and applicants for employment.” Koch v.
Holder, 930 F. Supp. 2d 14, 17 (D.D.C. 2013) (internal quotations omitted); see also Spirides v.
Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979) (dismissing Title VII claim brought by non–
employee); Delbert v. Duncan, 923 F. Supp. 2d 256, 259 (D.D.C. 2013). A plaintiff may bring a
discrimination claim against a non-employer defendant in limited situations where the defendant
“control[s] access to such employment and . . . den[ies] such access by reference to invidious
criteria.” Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir. 1973); see also
Redd v. Summers, 232 F.3d 933, 940–41 (D.C. Cir. 2000). In the present case, the plaintiff was
employed by DCPS (not the Department of Justice and not the U.S. Attorney’s Office) and her
employment does not meet any of the limited situations that permit liability against a non-
employer. Her ADEA and Title VII claims therefore fail as a matter of law.
The plaintiff’s claims against the Federal Defendants also fail because the defendant
failed to exhaust her administrative remedies as to the Federal Defendants. Indeed, the Federal
Defendants were never identified in any of the plaintiff’s EEOC Charges, which named only the
D.C. Public Schools as the plaintiff’s employer. 14 See December 5, 2009 EEOC Charge;
October 21, 2011 EEOC Addendum; November 15, 2012 EEOC Charge. Accordingly, the
plaintiff failed to exhaust her administrative remedies with respect to the Federal Defendants and
her Title VII and ADEA claims fail on this independent basis. See Johnson v. Ashcroft, No. 00-
cv-2743, 2001 WL 34366564, at *3 (D.D.C. June 21, 2001) (dismissing for failure to exhaust
14
The October 21, 2011 EEOC Addendum also lists Mayor Vincent Gray.
29
administrative remedies where the plaintiff did “not name either of the federal defendants” in the
plaintiff’s EEOC complaint).
The plaintiff’s Complaint also asserts a claim of wrongful discharge related to her
termination. Yet, Title VII and the ADEA provide the exclusive remedy for federal employees
alleging race and age discrimination. See Brown v. General Services Administration, 425 U.S.
820 (1976) (holding that Title VII “provides the exclusive judicial remedy for claims of
discrimination in federal employment.”); Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir.
1991) (“It is undisputed that the ADEA provides the exclusive remedy for a federal employee
who claims age discrimination.”). Accordingly, the plaintiff cannot bring her wrongful
discharge claim against the Federal Defendants.
2. Section 1983
The plaintiff also seeks to bring a Section 1983 claim against the Federal Defendants.
Under 42 U.S.C. § 1983, it is unlawful for a person acting under color of state law to deprive any
other person of any federal constitutional or statutory right. “‘The traditional definition of acting
under color of state law requires that the defendant in a § 1983 action have exercised power
possessed by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.’” Williams v. United States, 396 F.3d 412, 414 (D.C. Cir. 2005)
(quoting West v. Atkins, 487 U.S. 42, 49 (1988)). Although it is possible, in certain limited
circumstances, for federal officials to operate under state law, see Williams, 396 F.3d at 414–15,
the defendant has alleged no such facts in the present case. Indeed, the plaintiff has failed to
allege that the Federal Defendants took any action whatsoever. The plaintiff’s Section 1983
claim against the Federal Defendants fails for this additional reason. 15
15
Even were the Court to construe the plaintiff’s claim as a Bivens action, the claim would still fail as the plaintiff
has failed to identify in her complaint any actions taken by the Federal Defendants. See Harris v. Holder, 885 F.
303. Defamation, Misrepresentation, and Violations of the DCHRA
Sovereign immunity bars the plaintiff’s claims against the Federal Defendants for
defamation, fraudulent misrepresentation, and violations of the DCHRA and those claims are
dismissed for lack of jurisdiction under Rule 12(b)(1). “It is axiomatic that the United States
may not be sued without its consent and that the existence of consent is a prerequisite for
jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983); Banks v. Office of Senate
Sergeant-At-Arms and Doorkeeper of U.S. Senate, 471 F.3d 1341, 1348 (D.C. Cir. 2006). “A
waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text.” Fed.
Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1448 (2012). For example, the Federal Tort Claims
Act (“FTCA”) expressly waives the United States’ immunity from suit as to certain common law
torts, but not as to all common law torts. See 28 U.S.C. §§ 1346(b)(1), 2679(b).
The FTCA bars suits against the United States with regards to claims of “libel, slander,
misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Therefore,
courts in this Circuit regularly dismiss defamation and misrepresentation claims brought against
the United States. See, e.g., Marcus v. Geithner, 813 F. Supp. 2d 11, 16 (D.D.C. 2011); Wilson
v. Dep't of Transp., 759 F. Supp. 2d 55, 64 (D.D.C. 2011); Upshaw v. United States, 669 F.
Supp. 2d 32, 44 (D.D.C. 2009); see also Gardner v. United States, 213 F.3d 735, 737 n.1 (D.C.
Cir. 2000) (“Mr. Gardner's defamation claim against the United States is barred, because suits
for libel or slander are prohibited under the Federal Tort Claims Act.”). Therefore, the plaintiff’s
defamation and misrepresentation claims are dismissed for this independent basis.
Supp. 2d 390, 397–98 (D.D.C. 2012) (“Critical to a Bivens claim is an allegation ‘that the defendant federal official
was personally involved in the illegal conduct.’” (quoting Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C.
Cir. 1997))). Moreover, a Bivens claim based upon the plaintiff’s termination cannot stand because Title VII
“provides the exclusive judicial remedy for claims of discrimination [on the basis of race, sex, or religion] in federal
employment.” Brown v. General Services Administration, 425 U.S. 820, 835 (1976); see also Koch v. White, 967 F.
Supp. 2d 326, 335 (D.D.C. 2013).
31
Moreover, with respect to the plaintiff’s DCHRA claims, “[t]he D.C. Council, not
Congress, enacted the DCHRA, and there is no federal statute that evinces Congress's intent to
waive the United States’ immunity from suit under the DCHRA.” Marcus, 813 F. Supp. 2d at
17. Accordingly, the plaintiff’s DCHRA claim is dismissed for lack of jurisdiction. See id.; see
also Jordan v. Evans, 404 F. Supp. 2d 28, 31 (D.D.C. 2005) (holding that sovereign immunity
bars DCHRA claim against the Department of Commerce).
IV. CONCLUSION
For the reasons stated above, the District’s Motion to Dismiss or in the Alternative for
Summary Judgment is granted. The Federal Defendants’ Motion to Dismiss Federal Defendants
is also granted. An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A. Howell
DN: cn=Hon. Beryl A. Howell, o=U.S.
Date: November 25, 2014 District Court for the District of Columbia,
ou=United States District Court Judge,
email=Howell_Chambers@dcd.uscourts.g
ov, c=US
Date: 2014.11.25 18:17:31 -05'00'
__________________________
BERYL A. HOWELL
United States District Judge
32