AMY BERMAN JACKSON, District Judge.
Plaintiff brings this action asserting five statutory and common law claims for discrimination and retaliation arising out of her employment as a parking enforcement officer for the defendant District of Columbia. Defendant has moved to dismiss or, in the alternative, for summary judgment. [Dkt. # 5]. Because plaintiff failed to bring her common law, Title VII, and Americans with Disabilities Act ("ADA") claims within the applicable time limits, the Court will grant defendant's motion for summary judgment.
Plaintiff Darlene Redding worked as a Parking Enforcement Officer for the District of Columbia Department of Public Works from 2001 to 2008. Compl. ¶ 7; Pl.'s Opp. at ¶¶ 5, 17; Ex. A to Def.'s Supp. Reply. She is allegedly afflicted with schizoaffective disorder, mood disorder, psychosis, depressive episodes, and "cardiopathic/hypertension." Compl. ¶ 8.
Plaintiff alleges that sometime between October 2004 and October 2005, she was sexually assaulted by two male coworkers.
On July 3, 2007, plaintiff filed a signed Charge of Discrimination form ("Charge Form") with the D.C. Office of Human Rights ("OHR") and cross-filed with the Washington Field Office of the EEOC, alleging that she was discriminated against, retaliated against, and subjected to a hostile work environment based on her gender and disability. Pl.'s Opp. at ¶ 18; Ex. A to Def.'s Supp. Reply; Def.'s Supp. Reply at 1-3. As evidence, she cited the sexual assault as well as other incidents. Ex. A to Def.'s Supp. Reply, authenticity conceded by plaintiff, see [Dkt. # 16]. The signed form also stated "I will advise the agencies if I change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures." Id.
The OHR issued a Letter of Determination rejecting all three claims on May 27, 2008. Ex. B to Def.'s Supp. Reply, authenticity conceded by plaintiff, see [Dkt. # 16]; Def.'s Supp. Reply at 1-3. The letter was mailed to plaintiff's counsel. Id. Plaintiff asserts that she was also informed that a "Right to Sue Letter" (also known as a "Dismissal and Notice of Rights") would follow, which would permit her to file an action in court. Pl.'s Opp. at ¶ 21.
The EEOC issued the Right to Sue Letter on February 24, 2009. Ex. C to Def.'s Supp. Reply; Def.'s Supp. Reply at ¶¶ 14-16.
Pl.'s Opp. at ¶ 23-24. After that conversation, a second copy of the Right to Sue Letter was mailed to plaintiff, and she filed the complaint in this case within ninety days of receiving it. Id. ¶ 25.
Plaintiff filed her complaint on October 22, 2010. [Dkt. # 1]. Counts I through III allege gender discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964,
Defendant contends that Counts I through IV are barred by plaintiff's failure to file this action within ninety days of the issuance and receipt of the Right to Sue Letter.
"To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft, 129 S.Ct. at 1949. And "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950.
A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," id.
When considering a motion to dismiss under Rule 12(b)(6), the complaint
A defendant may raise a statute of limitations affirmative defense via a Rule 12(b)(6) motion when the facts that give rise to the defense are clear from the face of the complaint. Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C.Cir. 1998). "[B]ecause statute of limitations issues often depend on contested questions of fact, dismissal is appropriate only if the complaint on its face is conclusively time-barred." Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996), citing Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir.1981).
Summary judgment is appropriate "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). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the nonmoving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id.; see also Laningham v. U.S. Navy, 813 F.2d 1236 (D.C.Cir.1987). In assessing a party's motion, "[a]ll underlying facts and inferences are analyzed in the light most favorable to the nonmoving party." N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247, 106 S.Ct. 2505.
The Court may also decide statute of limitations questions at the summary judgment stage. Hancock v. HomEq Servicing Corp., 526 F.3d 785, 785 (D.C.Cir. 2008) (affirming the District Court's grant of summary judgment because the statute of limitations barred the claims); Nelson v. Am. Red Cross, 26 F.3d 193, 196, 198 (D.C.Cir.1994) (same).
"Title VII `is remedial legislation dependent for its enforcement on laymen,'
As a preliminary matter, the Court cannot dismiss Counts I through IV under Rule 12(b)(6) because the facts that give rise to defendant's time bar argument are not clear on the face of the complaint. See Firestone, 76 F.3d at 1209; cf. Smith-Haynie, 155 F.3d at 577-78. So the Court must consider whether summary judgment is appropriate, which in turn depends on when the ninety day bar began to run.
The ninety day bar is akin to a statute of limitations. See Bethel, 589 F.2d at 641 n. 64; Smith-Haynie, 155 F.3d at 579. As such, the defendant bears the burden of proving the plaintiff's failure to bring the action within the ninety day period. Dahlman, 791 F.Supp.2d at 76, citing Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997).
Defendant contends that the ninety day period started running when plaintiff received the Right to Sue Letter, "shortly after the date that it was mailed on February 24, 2009." Def.'s MTD/SJ at 1; Def.'s Mem. at 10. The Supreme Court identifies the date of a claimant's receipt of the letter as the triggering event, not the date of the EEOC's issuance of it. Plunkett v. Roadway Exp., Inc., 504 F.2d 417 & n. 2 (10th Cir.1974), citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Perry, 738 A.2d at 1225.
"[N]ormally it may be assumed, in the absence of challenge, that a notice provided by a government agency has been mailed on the date shown on the notice" and that "a mailed document is received three days after its mailing." Perry, 738 A.2d at 1225-26, citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525-26 (2d Cir.1996); Griffin v. Acacia Life Ins. Co., 151 F.Supp.2d 78, 80 (D.D.C. 2001); Lucas-Bolden v. Potter, No. 04-2074, 2005 WL 3273725, at *3-4 (D.D.C. Sept. 29, 2005). Here, the parties agree that the Right to Sue Letter was dated February 24, 2009 and addressed to plaintiff at her home address. Ex. C to Def.'s Supp. Reply, authenticity conceded by plaintiff, see [Dkt. # 16]; Def.'s Supp. Reply at ¶¶ 14-20. Thus, plaintiff was entitled to file her Title VII and ADA claims within ninety-three days of that date. Since plaintiff filed the Complaint in this case 605 days after the date on the Right to Sue Letter, her claims are barred.
The Court notes that this case does not involve the rigid imposition of a mere technicality; the complaint was approximately seventeen months late. The Court further notes that plaintiff does not actually make any argument in her memorandum in opposition to defendant's motion for judgment on these grounds.
The D.C. Circuit does not appear to have directly addressed the question of whether the ninety day period starts to run when the Right to Sue Letter is delivered to the plaintiff's mailbox or on the date that the plaintiff opens the mailbox and takes the envelope into her hand. Since either date would be difficult to ascertain, other courts that have addressed the issue have made the choice based upon
These courts have found that a claimant has constructive receipt of a Right to Sue Letter at the time it is delivered to the address on file with the EEOC if she is the one at fault for the delay in obtaining it. Thus, delivery triggers the running of the ninety-day period. For example, in Stallworth, 936 F.2d 522, the plaintiff changed her address without informing the EEOC, so even though her Right to Sue Letter was delivered to the address on file with the EEOC, she never actually received it. Declaring that the "plaintiff is required to assume some minimal responsibility to ensure receipt," the Eleventh Circuit held that that the plaintiff had constructive receipt of the Letter as soon as it was delivered to the address on record, and so the ninety day period began running at that time. Stallworth, 936 F.2d at 524; see also Sylvester, 1986 WL 192664, at *3 ("Where a claimant fails to fulfill his responsibility to notify the EEOC of his current address, he cannot claim an extension of the limitation period because he did not receive the EEOC's notification of the dismissal of his charge.").
On the other hand, where the plaintiff is not at fault for the delay, courts have held that the ninety day period starts running only when she actually receives the Letter. See Bond, 764 F.Supp. at 125 ("Claimants who do not receive their right to sue letters, through no fault of their own, should not be penalized for the delay However, if the delay in receiving the right to sue letter is due to the claimant's own negligence, the ninety day period begins to run when the letter is delivered to the most recent address."); see, e.g., Sousa v. Nat'l Labor Relations Bd., 817 F.2d 10, 10-11 (2d Cir.1987) (finding that plaintiff's failure to check his mailbox for five days was not unreasonable and thus holding that the ninety day period began running only once he found the Right to Sue Letter in his mailbox, not when it was delivered).
Here, plaintiff apparently failed to actually receive the Right to Sue Letter because she failed to collect her mail, not because the EEOC made a mistake that was beyond her control. Indeed, she does not allege that she was hospitalized for the entire ninety day period after the letter was sent; she merely alleges that she "required periodic hospitalization because of her disability." Pl.'s Opp. at ¶ 24 (emphasis added). Plaintiff has provided the Court with no information concerning either the dates or the duration of her hospitalizations; indeed, she has not even specifically indicated that she was in fact hospitalized at the time the letter was mailed. And, while the Court gives plaintiff the benefit of the presumption that she was periodically in the hospital because of her disability, and that the EEOC at some point had notice of the fact that she occasionally required inpatient treatment, plaintiff did nothing to ensure her actual receipt of the Letter for more than a year after she was informed that the Right to Sue Letter would issue. Id. at 4-5. She could have officially changed her address with the EEOC so that all mail was sent to her attorney, or her attorney could have handled that step for her. Alternatively,
While it is true that this case is slightly different than cases where employees failed to check their mailboxes out of sheer negligence, plaintiff does not allege any facts that would suggest that the EEOC was at fault. So, the Court must find that the ninety day limitations period began running on February 27, 2009 — three days after the EEOC sent the Right to Sue Letter to plaintiff's home address. Plaintiff was required to raise her Title VII and ADA claims in court by May 28, 2009 — ninety days later. Since plaintiff did not raise her claims in court until October 22, 2010, when she filed the Complaint in this case a year and a half later, Claims I through IV are barred by the ninety day statutory limit.
Defendant next contends that Count V is barred by the applicable statute of limitations and by plaintiff's failure to file a notice of claim within the statutory six month limit.
As with Counts I through IV, the Court cannot dismiss Count V under Rule 12(b)(6) because the facts that give rise to defendant's statute of limitations argument are not clear on the face of the complaint. See Firestone, 76 F.3d at 1209; cf. Smith-Haynie, 155 F.3d at 577-78. However, since there is no genuine dispute of material fact here, and the Court finds as a matter of law that Count V is barred by the statute of limitations, the Court will grant defendant's motion for summary judgment. See Hancock, 526 F.3d at 785; Nelson, 26 F.3d at 196, 198.
D.C.Code section 12-301 imposes a general three-year statute of limitations on all civil actions brought under D.C. law, except for certain enumerated types of actions for which it designates distinct limitations periods. Defendant claims that Count V falls under subsection four, which imposes a one-year statute of limitations on claims for a list of intentional torts, including assault and battery.
However, as plaintiff argues, there are some situations in which D.C. courts will not apply the one year limitations period under subsection four to an assault and battery claim:
Alley v. Dodge Hotel, 551 F.2d 442, 446 n. 22 (D.C.Cir.1977), citing Mellon v. Seymoure, 12 F.2d 836, 837 (D.C.Cir.1926), Lisner v. Hughes, 258 F. 512 (D.C.Cir. 1919). Although the Court notes that plaintiff does not appear to allege that the two employees who allegedly assaulted her were acting in the scope of their authority, plaintiff certainly does not allege that the sexual assault was the consequence of an express direction by the employer. So, the three year limitations period seems to be the more applicable of the two options. But the Court need not decide that question definitively because Count V is barred under either limitations period.
"Where the fact of an injury can be readily determined, a claim accrues for purposes of the statute of limitations at the time the injury actually occurs." Colbert v. Georgetown Univ., 641 A.2d 469, 472 (D.C.1994) (en banc). Plaintiff's right to maintain her assault and battery action, therefore, began running at the time of the sexual assault. See Pl.'s Opp. at ¶¶ 7-9.
For the foregoing reasons, the Court will deny defendant's motion to dismiss or in the alternative for summary judgment [Dkt. # 5] as to the motion to dismiss and grant it as to the motion for summary judgment. A separate order will issue.
