Cooper v. Henderson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
MELISSA COOPER, )
)
Plaintiff, )
)
v. ) Civil Action No. 14-1526(EGS)
)
KAYA HENDERSON, )
Chancellor of the District )
of Columbia Public Schools, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Melissa Cooper (“Ms. Cooper”) brings this action
against Kaya Henderson, in her official capacity as the
Chancellor of the District of Columbia Public Schools (“DCPS”)
alleging (1) disability discrimination, failure to accommodate,
and retaliation for protected activity, in violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.; (2) discrimination on the basis of race and gender and
retaliation for protected activity, in violation of the Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e et seq.; (3) discrimination on the basis of age and
retaliation for protected activity, in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq.; and (4) retaliation for protected activity in violation of
the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et
seq. Am. Compl., Docket No. 25. Chancellor Henderson moves to
dismiss the amended complaint. See generally Def.’s Mot., Docket
No. 27. Upon consideration of the motion, the response and reply
thereto, the applicable law, the entire record, and for the
reasons stated below, Chancellor Henderson’s motion to dismiss
is GRANTED in part, and DENIED in part.
I. BACKGROUND
Ms. Cooper is an African-American female over the age of
forty. Am. Compl., ¶ 8. Ms. Cooper was hired by DCPS in 1980 to
serve as a special education teacher at Roosevelt Senior High
School. Id. ¶¶ 8, 10. At some point during Ms. Cooper’s tenure
at DCPS, she suffered an injury to her foot and requested leave
to receive surgery. Id. ¶ 13. Following surgery, Ms. Cooper
required crutches and an orthopedic boot to ambulate. Id. ¶ 14.
Ms. Cooper’s classroom was located on the upper floor of
Roosevelt Senior High School. Id. When she returned from her
surgery, she requested access to an elevator to accommodate her
injury. Id. The only functioning elevator in the building was a
freight elevator in a remote wing of the building, approximately
one city block from the building’s entrance. Id. ¶ 15. Use of
the freight elevator involved use of a freight key and lifting a
wrought iron door. Id. ¶ 14. In order to use the freight
elevator, Ms. Cooper had to find someone with a key. Id. ¶ 15.
The one individual with a key was often unavailable or difficult
2
to locate, causing Ms. Cooper to be late for class. Id. Ms.
Cooper also requested a parking spot close to the building’s
entrance, but her request went unanswered. Id. ¶ 17.
Ms. Cooper alleges that the principal and assistant
principal of Roosevelt Senior High frequently harassed her about
her age, and that the harassment intensified after she returned
from medical leave. Id. ¶ 16. Ms. Cooper alleges that she was
reprimanded for arriving late to class and meetings. Id. ¶ 17.
When she attempted to explain herself to management, her
teaching rating was lowered by ten points. Id. ¶ 18.
Ms. Cooper alleges that she duly reported every action she
believed to be discriminatory to the administration, the school
principal, and her union, but received little response. Id. ¶
20. She alleges that she received non-work-related telephone
calls from the principal at all hours of the day and night,
which she believes were intended to harass and intimidate her.
Id. ¶ 23. She alleges that she was reprimanded in front of her
students on a regular basis, which she believes was intended to
humiliate her. Id. ¶ 24. Ms. Cooper believes the harassing
conduct was intended to force her to retire. Id. ¶ 26. She
alleges that various members of the administration reminded her
of her seniority and inquired as to her retirement plans. Id. ¶
26.
3
Ms. Cooper was discharged from her employment with DCPS on
August 10, 2012. Def.’s Ex. 1, Docket No. 27-1 at 3. Ms. Cooper
alleges that her discharge was discriminatory, and in
retaliation for exercising rights under the FMLA. Compl. ¶¶ 29,
79. She further alleges that after her termination, her
retirement paperwork was not processed for nearly two years,
during which time she was without income or benefits. Id. ¶ 28.
Ms. Cooper believes the delay in processing her retirement
paperwork was in retaliation for her previous complaints to
school management regarding discrimination. Id.Ms. Cooper filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on December 20, 2013.
Def’s. Ex. 1 at 3. The allegations in the charge read as
follows:
I was hired in 1980 as a Special Education Teacher. On
August 10, 2012, I was discharged. Prior to my discharge,
I requested a reasonable accommodation in which I was
denied. I was subjected to harassment.
My employer provided no specifics concerning my
termination of employment.
I believe I have been discriminated against in violation
of the Americans With Disabilities Act of 1990 because
of my disability and in retaliation (hostile work
environment and whistle blower). I believe I have been
discriminated against in violation of the Age
Discrimination In Employment Act of 1967 because of my
age (58). Race + Hostile Work Environment. 1
1 While the body of the charge is typed, the phrase “Race +
Hostile Work Environment” is handwritten in pen and initialed by
Ms. Cooper. See Def.’s Ex. 1.
4
My request for a reasonable accommodation did not cause
undue hardship for my employer. Being denied the
request, resulted in me being late to classes and
meetings.
Id. On the charge, Ms. Cooper checked the boxes for “Race,”
“Retaliation,” “Age,” “Disability,” and “Other,” next to which
she wrote “Hostile Work Environment.” Id. In the box entitled
“Date(s) Discrimination Took Place,” the “Earliest” date of
discrimination is type-written as August 10, 2012, the date of
Ms. Cooper’s termination. Id. For the “Latest” date of
discrimination, it appears Ms. Cooper crossed out the type-
written entry of August 10, 2012, and wrote in November 30,
2013. Id. Ms. Cooper signed the charge on November 25, 2013,
five days prior to her alleged “Latest” date of discrimination.
Id. Ms. Cooper also checked the box entitled “Continuing
Action.” Id.The EEOC issued Ms. Cooper a Dismissal and Notice of Rights
informing her that any lawsuit must be filed within 90 days of
her receipt of the notice. Id. at 1-2. The handwritten date on
the Notice indicates it was mailed May 30, 2014. Id. at 1. Ms.
Cooper filed her lawsuit on September 8, 2014. 2
2 While Ms. Cooper’s initial complaint was uploaded to the
Court’s electronic docket on September 9, 2014, the “Civil Cover
Sheet” accompanying the complaint is dated September 8, 2014.
For purposes of ruling on the instant motion to dismiss, given
that the Court must draw all reasonable inferences in the
5
Chancellor Henderson now moves to dismiss Ms. Cooper’s
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). See generally Def.’s Mot. Chancellor Henderson raises
four arguments in support of her motion: (1) the District of
Columbia (“the District”) is the proper defendant in this action
and Ms. Cooper’s failure to name the District is grounds for
dismissal of her amended complaint; (2) Ms. Cooper’s gender
discrimination claim is barred because Ms. Cooper failed to
exhaust her administrative remedies by asserting this claim in
her charge before the EEOC; (3) Ms. Cooper’s Title VII, ADA, and
ADEA claims are barred for failure to timely file these claims
with the EEOC, and for failure to timely bring these claims
before this Court following the EEOC’s issuance of a right-to-
sue notice; and (4) Ms. Cooper’s FMLA claims are barred for
failure to bring suit within the two-year limitations period
applicable to FMLA claims. Id. at 1-2.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) “tests the legal sufficiency of a complaint.” Browning
v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). 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
plaintiff’s favor, the Court will presume the complaint was
filed on September 8, 2016.
6
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007) (internal quotation marks omitted). While detailed
factual allegations are not necessary, the plaintiff must plead
enough to “raise a right to relief above the speculative level.”
Id.When ruling on a Rule 12(b)(6) motion, the Court may
consider “the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint, and
matters about which the Court may take judicial notice.”
Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002).
The Court must construe the complaint liberally in the
plaintiff’s favor and grant the plaintiff the benefit of all
reasonable inferences deriving from the complaint. Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court
must not accept inferences that are “unsupported by the facts
set out in the complaint.” Id. “Nor must the court accept legal
conclusions cast in the form of factual allegations.” Id.“[O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
7
III. DISCUSSION
A. The District of Columbia will be substituted for
Chancellor Henderson as defendant in this action.
Chancellor Henderson first argues that because Ms. Cooper’s
lawsuit is an employment discrimination action for money
damages, the proper defendant in this action is Ms. Cooper’s
employer, the District of Columbia, and not Chancellor
Henderson. Def.’s Mot. at 1, 3-4. Ms. Cooper responds that the
lawsuit was not intended to sue Chancellor Henderson in her
individual capacity, and that she named Chancellor Henderson
“solely in her official capacity in order to reach the state
agency.” Pl.’s Opp., Docket No. 29 at 1-2. 3
There is little dispute that the proper defendant in an
action by a District employee for employment discrimination is
the District of Columbia itself. See Smith v. Janey, 664 F.
Supp. 2d 1, 8 (D.D.C. 2009) (“there is no individual liability
under Title VII, the ADEA or the ADA.”); see also Blue v.
District of Columbia, 850 F. Supp. 2d 16, 22 (D.D.C. 2012)
(“Courts in this District have held on numerous recent occasions
that DCPS is non sui juris – that is, non-suable as an entity
separate from the District of Columbia.”). Therefore, the
relevant dispute for purposes of resolving Chancellor
3 Ms. Cooper’s surreply further clarifies that her intention was
to sue the District “as a government agency.” Pl.’s Surrep.,
Docket No. 33, ¶ 16.
8
Henderson’s motion is the effect of Ms. Cooper’s failure to name
the District as a defendant in her amended complaint. Chancellor
Henderson argues that Ms. Cooper’s failure to name the District
is grounds for dismissal of the lawsuit. Def.’s Mot. at 1. Ms.
Cooper argues that the Court should construe Chancellor
Henderson’s motion to dismiss as a motion to substitute the
District for Chancellor Henderson as the defendant, and should
order substitution of the District rather than dismiss the
action. Pl.’s Opp. at 3.
Chancellor Henderson’s motion to dismiss argues that
substituting the proper party or allowing Ms. Cooper leave to
amend her complaint would be futile as Ms. Cooper’s claims would
not survive a motion to dismiss. Def.’s Mot. at 4. Based on the
Court’s contemporaneous determination that Ms. Cooper’s amended
complaint does survive a motion to dismiss in part, see infra
Section III.B-III.E, the Court rejects this argument as a basis
for dismissing Ms. Cooper’s amended complaint.
Chancellor Henderson’s reply brief raises several
additional arguments in support of dismissing Ms. Cooper’s
amended complaint for failure to name the proper party, each of
which will be addressed in turn. First, Chancellor Henderson
argues that Ms. Cooper “does not refute or even address
[Chancellor] Henderson’s argument that she is not a proper
defendant” and accordingly, “the Court should deem those
9
arguments unopposed and grant Chancellor Henderson’s motion to
dismiss.” Def.’s Rep., Docket No. 31 at 3. Chancellor Henderson
misunderstands Ms. Cooper’s argument: Ms. Cooper does not
dispute that Chancellor Henderson is not a proper party, but
argues that substitution, rather than dismissal, is appropriate
under the circumstances. Pl’s. Mot. at 1-3; Pl.’s Surrep.,
Docket No. 33 at 5. Hence, Ms. Cooper has not waived her
opposition to Chancellor Henderson’s motion to dismiss for
failure to name the proper defendant.
Second, Chancellor Henderson argues that the Court should
not construe Ms. Cooper’s motion to dismiss as a motion to
substitute the proper party because “Chancellor Henderson has
not moved to substitute the District for her, nor has [Ms.
Cooper] moved to amend her complaint to name the District as a
defendant.” Def.’s Rep., at 2 (emphasis in original). Ms. Cooper
responds that even though she has not formally requested
substitution, the Court may sua sponte order substitution of the
proper defendant. Pl.’s Surrep., Docket No. 33 at 4. 4
4 Ms. Cooper asserts that the basis for this substitution is
found in Federal Rule of Civil Procedure 25(d) which provides
for automatic substitution of public officers named in their
official capacity when that officer “dies, resigns, or otherwise
ceases to hold office while the action is pending.” Fed. R. Civ.
P. 25(d). Ms. Cooper’s reliance on Rule 25(d) is misplaced.
First, Chancellor Henderson remains Chancellor of DCPS, and
second, there is no individual liability under Title VII, the
ADA, or the ADEA. See Smith, 664 F. Supp. 2d at 8. Hence,
contrary to Ms. Cooper’s assertion, Rule 25(d) is an improper
10
Where a plaintiff, through unknowing mistake, names an
improper defendant in her complaint, many courts in this
district have sua sponte ordered substitution of the proper
defendant. Sampson v. D.C. Dep’t of Corr., 20 F. Supp. 3d 282,
285 (2014) (sua sponte ordering substitution of the District of
Columbia where plaintiff had named the D.C. Department of
Corrections); Paul v. Didizian, 292 F.R.D. 151, 151 n. 1 (D.D.C.
2013) (sua sponte ordering substitution of the District of
Columbia where pro se plaintiff had named D.C. Office of Risk
Management); Henneghan v. Dist. of Columbia Pub. Sch., 597 F.
Supp. 2d 34, 37 (D.D.C. 2008) (sua sponte ordering substitution
of the District of Columbia where pro se plaintiff had named
DCPS); Di Lella v. Uni. of Dist. of Columbia, 570 F. Supp. 2d 1,
1 n.1 (D.D.C. 2008) (sua sponte ordering substitution of the
Board of Trustees of the University of the District of Columbia
where pro se plaintiff had named the University of the District
of Columbia). While in most of these cases the plaintiff was
proceeding pro se, some courts in this district have sua sponte
ordered substitution where the plaintiff was represented by
counsel. Sampson, 20 F. Supp. 3d at 285; Bennet v. Henderson,
10-CIV-1680, 2011 WL 285871, at *1 (D.D.C. Jan. 28, 2011); (sua
sponte ordering substitution of the District of Columbia for
vehicle for substituting the District of Columbia for Chancellor
Henderson as defendant in this action.
11
Chancellor Henderson). In view of this persuasive authority, the
Court is not convinced that Ms. Cooper’s failure to name the
District in her amended complaint warrants dismissal of her
case.
Finally, Chancellor Henderson argues that substituting the
District of Columbia is inappropriate because Ms. Cooper has yet
to serve either the Mayor or the Attorney General of the
District of Columbia with a summons and complaint. Def.’s Rep.
at 4-6 (citing Arrington v. Dist. of Columbia, 673 A.2d 674, 681
(D.C. 1996)). In Arrington, the plaintiff’s lawsuit named “D.C.
General Hospital” as defendant and attempted to serve process on
the hospital by mailing the summons and complaint to the
hospital’s address in southeast Washington, D.C. Arrington, 673
A.2d at 676. Later, when the plaintiff moved to amend her
complaint to name the District of Columbia, the District opposed
the motion arguing the action was time-barred because the suit
against the District had not been filed, and the District had
not been served, within the applicable statute of limitations.
Id. at 677. The D.C. Court of Appeals, agreeing with the
District, held that the plaintiff’s complaint against the
District was time-barred:
The District had received no notice of the suit prior to
the expiration of the limitations period. Mailing of the
summons and complaint to a hospital at an intersection
in southeast Washington, D.C. provided the District with
no more notice than would have been effected by serving
12
a clerk at the Department of Sanitation or a police
officer at the Fourth District. That is not sufficient.
Like any large metropolis, the District of Columbia is
required to defend thousands of cases every year. The
Corporation Counsel, as the attorney for the District,
must keep track of each of these cases and must settle
or litigate all of them. This formidable task cannot be
carried out successfully if someone who wishes to sue
the District can satisfy her responsibilities, as Ms.
Arrington attempted to do, by filing her complaint
against a different entity and by mailing the complaint
and summons to an address which has no connection
whatever with the defense of lawsuits against the
District. Indeed, an important reason for requiring
plaintiffs to sue the District (rather than a District-
operated instrumentality) and for requiring service on
the Mayor and the Corporation Counsel (rather than on
that instrumentality is to enable the District’s lawyers
to become and remain apprised of their docket and to
conduct their legal business in an organized and
efficient manner.
Id.Arrington, however, is clearly distinguishable from the
present facts. Here, the Office of Attorney General for the
District of Columbia, the same Office charged with representing
the District of Columbia, has been representing Chancellor
Henderson, in her official capacity, throughout this action. 5
Unlike Arrington, this is not a case where the complaint and
summons were sent to an address with “no connection whatever
with the defense of lawsuits against the District.” Indeed, in
5 Chancellor Henderson waived formal service on February 26,
2015, and the Office of the Attorney General for the District of
Columbia entered its appearance on February 27, 2015. See Waiver
of Service, Docket No. 10; Notice of Appearance, Docket No. 8.
13
this case, it appears the District’s lawyers were able to
“become and remain apprised of their docket and to conduct their
business in an organized and efficient manner.” The rationale
underlying Arrington is inapplicable under the circumstances.
Under Federal Rule of Civil Procedure 15(c)(1)(C), an
amendment to a complaint changing the name of the defendant
relates back to the date of the original complaint when the new
party “received such notice of the action that it will not be
prejudiced in defending on the merits” and “knew or should have
known that the action would have been brought against it, but
for a mistake concerning the party’s identity.” Fed. R. Civ. P.
15(c)(1)(C). For example, in Kangethe v. Dist. of Columbia, the
plaintiff initially filed his lawsuit against the D.C. Office of
Employment Services (“DOES”), a non-suable entity within the
District of Columbia. 75 F. Supp. 3d 433, 438 (D.D.C. 2014).
When the plaintiff amended his complaint to name the District,
the court held that the plaintiff’s complaint against the
District related back to the filing of the original complaint
because the plaintiff “mailed even his first complaint to the
Attorney General’s office” and because “the office has
represented the defendant in this case continuously since it was
filed naming DOES.” 75 F. Supp. 3d at 438-39. Similarly, in this
case, because the D.C. Attorney General’s Office has been
defending this lawsuit since Chancellor Henderson waived formal
14
service, the Court finds that the District will not be
prejudiced in defending this action on the merits. Further, the
District either knew or should have known that but for Ms.
Cooper’s mistake in naming Chancellor Henderson rather than the
District, this action would have been brought against the
District. See Kangethe, 75 F. Supp. 3d at 437-39; see also
Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1996)
(“The commentary to Rule 15(c) clearly indicates that the rule
is intended to be a means for correcting the mistakes of
plaintiffs suing official bodies in determining which party is
the proper defendant.”)(internal citations omitted).
Moreover, “it is well settled that the Federal Rules of
Civil Procedure are to be liberally construed to effectuate the
general purpose of seeing that cases are tried on the merits and
to dispense with the technical procedural problems and thus that
amendments pursuant to Rule 15(c) should be freely allowed.”
Bayatfshar v. Aeronautical Radio, Inc., 934 F. Supp. 2d 138, 145
(D.D.C. 2013) (quoting Staren v. American Nat’l Bank & Trust Co.
of Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976) (alterations
omitted)). Therefore, the Court does not find that Ms. Cooper’s
mistake in naming Chancellor Henderson rather than the District
is grounds for dismissal of the amended complaint.
Accordingly, the Court DENIES Chancellor Henderson’s motion
to dismiss for failure to name the proper party, and sua sponte
15
substitutes the District of Columbia for Chancellor Henderson as
the defendant in this action.
B. Ms. Cooper will be permitted to proceed to discovery
on her ADA, Title VII, and ADEA claims only with
respect to her claim that the District delayed in
processing her retirement paperwork in retaliation for
her protected activity.
Chancellor Henderson argues that Ms. Cooper’s ADA, Title
VII, and ADEA claims must be dismissed because Ms. Cooper failed
to timely exhaust these claims before the EEOC. Def.’s Mot. at
6-8. Ms. Cooper responds with a general assertion that these
claims were timely exhausted. Pl.’s Opp. at 9-10. Before filing
a lawsuit under the ADA, Title VII, or ADEA, a plaintiff must
exhaust her administrative remedies by filing a charge of
discrimination with the EEOC within 180 days of the alleged
unlawful employment practice. 29 U.S.C. § 626(d)(1); 42 U.S.C. §
2000e-5(e)(1). 6 If the complainant has first instituted
proceedings with a state or local agency, the limitations period
is extended to 300 days. See Ashraf-Hassan v. Embassy of France
6 The ADA does not include its own statute of limitations, but
adopts the procedures set forth in Title VII. 42 U.S.C. §
12117(a) (“The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this
title shall be the powers, remedies, and procedures this
subchapter provides . . . to any person alleging discrimination
on the basis of disability in violation of any provision of this
chapter.”).
16
in U.S., 878 F. Supp. 2d 164, 170 (D.D.C. 2012); Gordon v. Dist.
of Columbia, 605 F. Supp. 2d 239, 244 (D.D.C. 2009).
The amended complaint alleges a number of allegedly
discriminatory and retaliatory incidents that occurred prior to
Ms. Cooper’s termination on August 10, 2012, 7 alleges that Ms.
Cooper’s termination was itself discriminatory and retaliatory
in nature, and alleges that following her termination her
retirement paperwork was neglected and not processed for two
years in retaliation for her protected activity. Am. Compl., ¶¶
16-18, 23-29.
Ms. Cooper’s charge of discrimination is dated November 25,
2013, and bears a stamp indicating it was received by the EEOC
on December 20, 2013. Def.’s Ex. 1. 8 Ms. Cooper does not allege
that she first filed a charge with the D.C. Office of Human
7 While the amended complaint does not indicate the date of Ms.
Cooper’s termination, the EEOC charge of discrimination, which
Ms. Cooper references in the amended complaint, states that she
was terminated on August 10, 2012.
8 “While a court may not consider ‘matters outside the pleadings’
in evaluating a motion to dismiss under Rule 12(b)(6) without
converting the motion to one for summary judgment under Rule 56,
see Fed. R. Civ. P. 12(d), documents that are referenced in, or
are an integral part of the complaint are deemed not ‘outside
the pleadings.’” Peters v. Dist. of Columbia, 873 F. Supp. 2d
158, 179 n. 20 (D.D.C. 2012). Ms. Cooper references her EEOC
charge in her complaint. Am. Compl. at ¶ 30. Hence, the Court
may consider the charge of discrimination without converting
Chancellor Henderson’s motion to dismiss into a motion for
summary judgment.
17
Rights, hence the 180-day deadline, rather than the 300-day
extended deadline, applies. Therefore, in order to timely
exhaust her administrative remedies with respect to her
termination, Ms. Cooper needed to file a charge of
discrimination with the EEOC by no later than February 6, 2013.
Her charge, dated November 25, 2013 and marked received by the
EEOC on December 20, 2013 comes too late. 9 Accordingly, Ms.
Cooper’s ADA, Title VII, and ADEA claims concerning her
termination, or any conduct occurring before her termination
must be dismissed for failure to timely file a charge of
discrimination before the EEOC.
Ms. Cooper’s claims under the ADA, Title VII, and ADEA must
be limited to events occurring on or after the date 180 days
prior to the date her charge was filed with the EEOC. In her
amended complaint, Ms. Cooper alleges that her employer
neglected and delayed processing her retirement paperwork in
retaliation for her protected activity. Am. Compl., ¶ 28. She
does not specify the date upon which her retirement paperwork
was processed, except to say that it was two years after her
discharge. Id. This indicates the delay in processing her
paperwork took place through about August 20, 2014. Therefore,
9 The Court notes that even if the 300-day limitations period
applied, Ms. Cooper’s claims relating to her termination or
conduct before that date would still be time-barred.
18
the delayed processing of Ms. Cooper’s retirement paperwork
would have been ongoing at the time she filed her charge.
On her EEOC charge, Ms. Cooper checked the boxes for both
“retaliation” and “continuing action.” Def.’s Ex. 1 at 3. Though
the written allegations in the EEOC charge fail to mention the
delay in processing her retirement paperwork, the Court
considers it plausible that the “continuing action” designation
was intended to refer to the ongoing alleged retaliation
concerning the processing of her retirement paperwork. Further,
because this retaliation was ongoing at the time Ms. Cooper
filed her charge with the EEOC, the charge is deemed timely.
Accordingly, Chancellor Henderson’s motion to dismiss Ms.
Cooper’s claims pursuant to the ADA, Title VII, and ADEA is
GRANTED in part, and DENIED in part. Ms. Cooper will be
permitted to proceed to discovery on her claims concerning the
allegedly retaliatory delayed processing of her retirement
paperwork. The remainder of her ADA, Title VII, and ADEA claims
are dismissed as time-barred.
C. Ms. Cooper’s gender discrimination claim must be
dismissed due to her failure to raise this claim
before the EEOC.
Chancellor Henderson also argues that Ms. Cooper’s gender
discrimination claims under Title VII must be dismissed because
these claims were not raised in Ms. Cooper’s charge before the
EEOC. Def.’s Mot. at 8-9. Ms. Cooper responds that her amended
19
complaint alleges that she filed a charge of sex discrimination
with the EEOC prior to filing suit in this Court. Pl.’s Opp. at
9.
As stated above, before commencing an action based on Title
VII in federal court, a plaintiff must first exhaust her
administrative remedies by filing a timely charge of
discrimination with the EEOC. Lewis v. City of Chicago, Ill.,
560 U.S. 205, 210 (2010). The 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), cert. denied, 519 U.S. 811 (1996). Specifically, a
plaintiff’s claims “must arise from the administrative
investigation that can reasonably be expected to follow the
charge of discrimination.” Id. (citing Chisholm v. U.S. Postal
Serv., 665 F.2d 482, 491 (4th Cir. 1981)). “While the boxes [on
the EEOC charge form] aid a claimant in identifying the nature
of her charge, a claimant is not necessarily limited to the
boxes she selected if she provides the basis for her claim in
her written explanation.” Robinson-Reeder v. Am. Council on
Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008).
In her charge before the EEOC, Ms. Cooper did not check the
box for discrimination on the basis of “sex,” nor did she
provide any allegations of sex or gender discrimination in her
20
written complaint. As Ms. Cooper failed to raise any allegation
of sex or gender discrimination in her charge before the EEOC,
Ms. Cooper may not proceed with her gender discrimination claim
in this Court. Moreover, the amended complaint contains no facts
from which gender discrimination can be inferred. Hence, even if
Ms. Cooper had exhausted her administrative remedies with
respect to her gender discrimination claim, her gender
discrimination claim could be dismissed for failure to state a
plausible claim. Accordingly, the Court finds an additional
basis for dismissing Ms. Cooper’s gender discrimination claims.
Chancellor Henderson’s motion to dismiss Ms. Cooper’s gender
discrimination claims is therefore GRANTED.
D. With respect to Ms. Cooper’s surviving claim for
retaliation under the ADA, Title VII, and the ADEA,
Ms. Cooper is entitled to discovery on the issue of
whether she filed suit in this Court within 90 days of
receiving her right-to-sue notice.
Chancellor Henderson argues that Ms. Cooper’s Title VII and
ADA claims must be dismissed because she failed to file suit
within 90 days of receiving her right-to-sue notice. Def.’s Mot.
at 7-8. Chancellor Henderson argues that because the notice is
dated May 30, 2014, and Ms. Cooper’s lawsuit was filed on
September 8, 2014 – that is, 101 days later, Ms. Cooper’s
lawsuit was not timely filed. Id. at 7. Ms. Cooper responds by
referring to her amended complaint wherein she alleges that
“this lawsuit has been commenced within 90 days of receipt of
21
the Notice of Right to Sue.” Pl.’s Opp. at 10 (citing Am.
Compl., ¶ 4) (emphasis added).
“A person aggrieved under Title VII who seeks to file a
civil action must do so within ninety days from receipt of the
EEOC right-to-sue notice.” Griffin v. Acacia Life Ins. Co., 151
F. Supp. 2d 78, 80 (D.D.C. 2001); see also 42 U.S.C. § 2000e-
5(f)(1) (“If a charge filed with the Commission . . . is
dismissed by the Commission . . . the Commission . . . shall so
notify the person aggrieved and within ninety days after the
giving of such notice a civil action may be brought against the
respondent named in the charge.”); Blackwell v. SecTek, Inc., 61
F. Supp. 3d 149, 154 n. 3 (D.D.C. 2014) (noting that because the
ADA incorporates Title VII procedures, a plaintiff must bring a
lawsuit pursuant to the ADA within 90 days of receipt of the
right-to-sue notice). 10
“When the date that a right-to-sue notice was received is
unknown or disputed, courts routinely presume that the notice
was received either three days or five days after it was
received.” Mack v. WP Co., LLC, 923 F. Supp. 2d 294, 299 (D.D.C.
10Although Chancellor Henderson does not argue that Ms. Cooper’s
ADEA claim must be dismissed for failure to file suit within 90
days of receipt of the right-to-sue notice, the ADEA contains
the same requirement. 29 U.S.C. § 626(e); Greer v. Bd. Trustees
Univ. Dist. of Columbia, 113 F. Supp. 3d 297, 306 (D.D.C. 2015).
Accordingly, Ms. Cooper’s claims for retaliation under the ADEA
may also be dismissed if she failed to file suit within 90 days
of her receipt of the right-to-sue notice.
22
2013) (citing Nkengfack v. Am. Ass’n of Retired Persons, 818 F.
Supp. 2d 178, 181 (D.D.C. 2011); Ruiz v. Vilsack, 763 F. Supp.
2d 168, 171 (D.D.C. 2011)). That presumption, however, may be
rebutted by contrary evidence. Greer, 113 F. Supp. 3d at 306.
Ms. Cooper is entitled to discovery on the issue of when
she received her right-to-sue notice from the EEOC. Applying the
more generous 5-day presumption from the May 30, 2014 mailing
date, Ms. Cooper would have received the notice June 5, 2014,
and hence, her lawsuit filed on September 8, 2014, or 95 days
later, appears untimely. But Ms. Cooper must be afforded an
opportunity to rebut the three-day or five-day presumption, and
she will be permitted to conduct discovery for that purpose.
Accordingly, with respect to Ms. Cooper’s claims for
retaliation with respect to the processing of her retirement
paperwork, Ms. Cooper is entitled to discovery on the issue of
whether she filed this lawsuit within 90 days of her receipt of
the right-to-sue notice. Chancellor Henderson’s motion to
dismiss Ms. Cooper’s ADA and Title VII claims for failure to
timely file suit in this Court is therefore DENIED.
E. Ms. Cooper has alleged a willful FMLA violation, and
is therefore entitled to a three-year statute of
limitations.
Chancellor Henderson argues that Ms. Cooper’s FMLA claims
are barred by a two-year statute of limitations. Def.’s Mot. at
8-9. Ms. Cooper argues that she has alleged a willful violation
23
of the FMLA, thereby entitling her to a three-year statute of
limitations. Pl.’s Opp. at 4-9. The FMLA prohibits employers
from interfering with or denying an employee’s right to take
leave under the Act, and further prohibits an employer from
discharging or discriminating against an employee who returns
from leave. 29 U.S.C. § 2615(a); Dahlman v. Am. Ass’n of Retired
Persons, 791 F. Supp. 2d 68, 79 (D.D.C. 2011). An action under
the FMLA must be brought within two years of the alleged
violation, or within three years if the violation is alleged to
have been willful. 29 U.S.C. § 2617(c). “The three-year statute
of limitations for willful violations does not apply unless the
complaint contains some express or implied allegation of willful
conduct.” Hodge v. United Airlines, 666 F. Supp. 2d 14, 23
(D.D.C. 2009)(citing Sampson v. Citibank, F.S.B., 53 F. Supp. 2d
13, 19 (D.D.C. 1999)). “In the context of FMLA, willful conduct
is generally viewed as an employer that knows its conduct to be
wrong or has shown reckless disregard for the matter in light of
the statute.” Id; see also McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1998)(“The word ‘willful’ is widely used in the
law, and, although it has not by any means been given a
perfectly consistent interpretation, it is generally understood
to refer to conduct that is not merely negligent.”).
Ms. Cooper has alleged a willful violation of FMLA and is
therefore entitled to the three-year statute of limitations. Ms.
24
Cooper alleges that when she returned from FMLA leave, she was
harassed by her superiors, given a ten-point deduction in her
performance evaluation, and eventually terminated. Am. Compl.,
¶¶ 16, 23, 26. Ms. Cooper alleges that these actions were taken
in retaliation for her protected activity with the intent to
humiliate and harass her. Id. ¶¶ 24, 26. While Ms. Cooper does
not use the word “willful” in her complaint, the allegations
clearly set forth an intentional pattern of harassment and
retaliation, and “not merely negligent” behavior. For purposes
of surviving a motion to dismiss, these allegations are
sufficient. See Hodge, 666 F. Supp. 2d at 23 (citing Ricco v.
Potter, 377 F. 3d 599, 603 (6th Cir. 2004)).
Ms. Cooper filed her complaint on September 8, 2014,
approximately two years and one month after her termination.
Compl., Docket No. 1; Def.’s Ex. 1. Therefore, Ms. Cooper filed
suit well-within the three-year statute of limitations for
willful FMLA violations.
Finally, Chancellor Henderson argues that even if the
three-year statute of limitations applied, Ms. Cooper failed to
file suit against her employer, the District of Columbia, within
the three-year limitations period, which expired on August 20,
2015. As discussed above, Ms. Cooper’s claims against the
District of Columbia will relate back to the date she filed her
original complaint in this Court. See supra Section III.A; see
25
also Hartley v. Wilfert, 931 F. Supp. 2d 230, 233 (D.D.C. 2013)
(noting that under the relation-back doctrine, the expiration of
the applicable statute of limitations does not preclude the
plaintiff from substituting the proper defendant so long as the
requirements of Rule 15(c) are met). Accordingly, Chancellor
Henderson’s motion to dismiss Ms. Cooper’s FMLA claim is DENIED.
IV. CONCLUSION
For the reasons stated above, Chancellor Henderson’s motion
is GRANTED in part, and DENIED in part, and the District of
Columbia is substituted for defendant Kaya Henderson. An
appropriate order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2016
26