COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Marnie Hammel filed suit against Marsh USA Inc. and Marsh & McLennan Companies, Inc. ("MMC"), alleging violations of the District of Columbia Human Rights Act ("DCHRA"), D.C. Code Ann. § 2-1401.01 et seq., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Pregnancy Discrimination Act
As Defendants' main arguments in their Motion to Dismiss pertain to the statute of limitations and other procedural aspects of this case, the Court's discussion of the facts will focus on the procedural, not factual, history of Plaintiff's claims. For the purposes of this motion, the Court accepts as true the well-pleaded allegations in Plaintiff's Complaint.
Plaintiff alleges that the "primary acts of discrimination and retaliation at issue. . . occurred between April 2009 and July 11, 2012," leading to her constructive discharge in July 2012. Compl. ¶¶ 3, 54, ECF No. [1-1]. Shortly after her constructive discharge, Plaintiff filed a complaint with the U.S. Equal Employment Opportunity Commission ("EEOC") on July 17, 2012, which was cross-filed pursuant to a work-sharing agreement on the same date with the District of Columbia's Office of Human Rights ("DCOHR"). Id. ¶¶ 3, 54, 56. The EEOC transferred Plaintiff's complaint from the EEOC Washington Field Office to the EEOC Oklahoma District Office on July 15, 2013. Id. ¶ 4. On February 10, 2014, Plaintiff contacted the Oklahoma EEOC office and inquired about the status of her case. Id. ¶ 5. Plaintiff alleges that she was then informed "for the first time that her case had been closed and a notice of rights had been issued on August 26, 2013." Id. During this conversation, Plaintiff asked the EEOC to send her a copy of the right to sue letter. Id. Plaintiff received the copy of her right to sue letter on February 14, 2014. Id. Plaintiff alleges that she never received the August 26, 2013, notice at the time it was issued. Id. After receiving the EEOC right to sue letter in February 2014, Plaintiff filed a notice of withdrawal of her complaint with the DCOHR on March 11, 2014. Id. ¶ 6.
On April 25, 2014, Plaintiff filed suit, in the Superior Court of the District of Columbia, alleging twenty counts: 13 counts under the DCHRA, 5 counts under Title VII, and 2 counts under the Pregnancy Discrimination Act.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain "`a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the. . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court must construe the complaint in the light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). "[A] complaint [does not] suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
A motion to dismiss may be granted on statute of limitations grounds only if apparent from the face of the complaint. See Nat'l R.R. Passenger Corp. v. Lexington Ins. Co., 357 F.Supp.2d 287, 292 (D.D.C.2005) ("A defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint"). "Because statute of limitations defenses often are based on contested facts, the court should be cautious in granting a motion to dismiss on such grounds; `dismissal is appropriate only if the complaint on its face is conclusively time-barred.'" Rudder v. Williams, 47 F.Supp.3d at 50, 2014 WL 2586335, at *2 (D.D.C. June 10, 2014) (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996)).
Defendants first argue that both Plaintiff's DCHRA claims and Plaintiff's Title VII claims are barred by their respective statute of limitations. The Court finds that neither statute of limitations bars Plaintiff's claims.
Pursuant to the DCHRA, "[a] private cause of action [under the statute] shall be
Id. (emphasis added).
Defendants argue that Plaintiff's DCHRA claims are untimely filed because Plaintiff filed her discrimination suit in the Superior Court of the District of Columbia one year and nine months after her constructive discharge. Defs.' Mot. at 11. Defendants contend that the administrative complaint Plaintiff filed with the EEOC, which was automatically cross-filed with the DCOHR, did not toll the statute of limitations because Plaintiff ultimately withdrew her complaint with the DCOHR. Id. Defendant's point to the language in the DCHRA statute of limitations stating that "where the complainant has withdrawn a complaint, such person shall maintain all rights to bring suit as if no complaint had been filed." Id. at 10. Defendants interpret this language to state that when a complainant withdraws a complaint, any tolling period that accrued during the pendency of the complaint before the administrative body is erased and the complainant must file suit in court within one year of the discriminatory act. Id. at 10-11.
Plaintiff contends, on the other hand, that the language of the statute clearly indicates that her DCHRA claims are timely because the statute of limitations is tolled while an administrative complaint is pending before the DCOHR. Pl.'s Opp'n at 14. Plaintiff argues that the withdrawal of her administrative complaint with the DCOHR had no effect on the tolling of her claims because the tolling period ended when the EEOC's right to sue letter automatically terminated her DCOHR case based on administrative convenience — an event that occurred prior to Plaintiff withdrawing her complaint from the DCOHR "in an abundance of caution." Id. at 17. Plaintiff further argues that, in any event, the statute of limitations would have still been tolled between the cross-filing of her complaint with the DCOHR and when her complaint was withdrawn. Id.
The Court agrees with Plaintiff that her DCHRA claims were timely filed. The District of Columbia Court of Appeals has clearly held that "timely filing a claim
Pursuant to the worksharing agreement between the DCOHR and the EEOC, "the EEOC's issuance of a right to sue notice automatically results in the DCOHR's termination of the case based on administrative convenience, enabling the plaintiff to file suit under the . . . DCHRA." Miller, 52 F.Supp.3d at 69, 2014 WL 2932531, at *5 ("[O]nce the EEOC charge was filed, the DCHRA's one year statute of limitation was tolled until the plaintiff received a notice from the EEOC of his right to sue"). As the EEOC issued Plaintiff's right to sue letter before Plaintiff withdrew her complaint from the DCOHR, the Court views as dispositive the EEOC's issuance of the right to sue letter — not Plaintiff's subsequent withdrawal of her complaint with the DCOHR.
Defendants' reliance on Coleman v. Potomac Elec. Power Co., No. 04-7043, 2004 WL 2348144 (D.C.Cir. Oct. 19, 2004) and Kamen v. Int'l Bhd. of Elec. Workers (IBEW), AFL-CIO, 505 F.Supp.2d 66 (D.D.C.2007) to argue that Plaintiff's claims were not tolled during the pendency of her administrative complaint is unavailing. In holding that "[t]he filing of an administrative complaint does not toll the DCHRA's one-year statute of limitations," Coleman, 2004 WL 2348144, at *1, the Coleman and Kamen courts relied on Anderson v. U.S. Safe Deposit Co., 552 A.2d 859 (D.C.1989), a 1989 D.C. Court of Appeals case that bases its holding on the language of an older version of the DCHRA statute which did not contain the tolling provision. In 1997, the DCHRA was amended to add a tolling provision for claims during the pendency of the DCOHR administrative process. See Zelaya, 587 F.Supp.2d at 283. In 2002, the tolling provision was further amended to provide for tolling during any administrative process, whether before DCOHR or EEOC. Id. Plaintiff's Complaint encompasses actions that all occurred well after the DCHRA was amended to include an explicit tolling provision. Accordingly, Kamen and Coleman, which rely on Anderson — a case analyzing whether a tolling period should be read into the DCHRA statute in the absence of an explicit tolling provision — are irrelevant to the Court's analysis.
Plaintiff asserts that Defendants' alleged discriminatory acts led to her constructive discharge in July 2012. Plaintiff filed a complaint with the EEOC on July 17, 2012, which, pursuant to the worksharing agreement, was cross-filed with the DCOHR on the same date, beginning the tolling of Plaintiff's DCHRA claims. The EEOC issued Plaintiff a right to sue letter on August 26, 2013, but Plaintiff did not receive the letter until February 14, 2014. Plaintiff filed suit in the Superior Court of the District of Columbia on April 25, 2014. Accordingly, whether the Court views Plaintiff's DCHRA claims as tolled for a total of thirteen months or eighteen
Defendants next argue that Plaintiff's Title VII claims are barred by the statute of limitations. Pursuant to Title VII of the Civil Rights Act of 1964, a Plaintiff must file a civil action claiming discrimination "within ninety days after the giving of [an EEOC dismissal] notice." 42 U.S.C. § 2000e-5(f)(1). Specifically, the 90-day clock begins the day after the date of receipt of the EEOC right to sue letter. Akridge v. Gallaudet Univ., 729 F.Supp.2d 172, 178 (D.D.C.2010) (citing Fed. R. Civ. P. 6(a)(1)). It is presumed that the right to sue letter was mailed on the same date of its issuance, see Anderson v. Local 201 Reinforcing Rodmen, 886 F.Supp. 94, 97 (D.D.C.1995), and, if the date on which plaintiff received the letter is unknown, it is presumed that the letter was received three days after it was mailed, see Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). The 90-day period for filing a civil action is like a statute of limitations subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). "When a plaintiff can demonstrate that she failed to receive the right to sue letter because of `fortuitous circumstances,' `events beyond [her] control' or `no fault' or her own, the limitations periods may be tolled." Ryczek v. Guest Services, Inc., 877 F.Supp. 754, 758 (D.D.C.1995) (quoting Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir.1982)).
Defendants argue that Plaintiff's Title VII claims must be dismissed as untimely because they were not filed within ninety days of the EEOC's August 2013 right to sue letter. Defs.' Mot. at 5. Specifically, Defendants argue that the Court should presume that Plaintiff's right to sue letter was received three to five days after the EEOC issued it, and that accordingly, Plaintiff's ninety-day deadline expired in November 2013, five months before Plaintiff filed suit in Superior Court. Id. at 7. Defendants contend that "there is ample evidence that the EEOC Notice was mailed to the correct address." Defs.' Reply at 3.
Plaintiff argues that her Title VII claims were timely filed because she did not actually receive the right to sue letter until February 14, 2014, seventy days before she filed suit in Superior Court. Compl. ¶ 5; Pl.'s Opp'n at 3. Plaintiff contends that the presumption that a letter is received three to five days after it is mailed is a rebuttable presumption, and that she has provided sufficient evidence at the Motion to Dismiss stage to rebut this presumption. Pl.'s Opp'n at 6-8, 11. Plaintiff points to her own sworn affidavit averring that she never received the August 26, 2013, letter and did not know about the letter until she contacted the EEOC on February 10, 2013, learned for the first time her complaint had been dismissed, and was sent a copy of the right to sue letter. Id. at 11; Pl.'s Ex. 2 (Declaration of Marnie M. Hammel), ECF No. [11-3], at 5-11; Pl.'s Ex. 3 (Second Declaration of Marnie M. Hammel), ECF No. [11-3], at 5-15. Plaintiff also points to an August 7,
Although Defendants are correct that when the receipt date of a right to sue letter is unknown or disputed, courts may presume that the letter was received three or five days after it was mailed, Mack v. WP Co., 923 F.Supp.2d 294, 299 (D.D.C. 2013), Plaintiff is correct that this presumption "can be rebutted by evidence to the contrary." Id. at 300 (citing Griffin, 151 F.Supp.2d at 81-82). Specifically, the presumption may be rebutted by "sworn testimony or other admissible evidence" as to the receipt of the letter. McAllister v. Potter, 733 F.Supp.2d 134, 143 (D.D.C. 2010) (quoting Okereh v. Winter, 600 F.Supp.2d 139, 142 (D.D.C.2009), rev'd on other grounds sub nom, Okereh v. Mabus, 625 F.3d 21 (D.C.Cir.2010), and Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir.1996)).
The Court finds that Plaintiff has provided sufficient evidence at this stage to rebut the presumption that the August 26, 2013, right to sue letter was received three to five days after it was mailed. Although Defendants note that the address on Plaintiff's right to sue letter is Plaintiff's correct address, Plaintiff has presented a sworn affidavit averring that she never received the right to sue letter in the mail and that she only received a copy of the letter once she followed up with the EEOC in February 2014. Furthermore, Plaintiff has provided a letter from the EEOC to Plaintiff which was misaddressed (and never received) only two-and-a-half weeks prior to the EEOC mailing its right to sue letter. Plaintiff posits that the mailing label on the right to sue letter was similarly misaddressed, even though the right to sue letter itself contained Plaintiff's proper address. Defendants do not make any argument or provide any evidence to rebut Plaintiff's theory.
In light of this evidence and the fact that courts are typically cautious in granting a motion to dismiss on statute of limitations grounds, the Court is not inclined to dismiss this case on timeliness grounds at this stage. See Rudder, 47 F.Supp.3d at 50, 2014 WL 2586335, at *2 ("Because statute of limitations defenses often are based on contested facts, the court should be cautious in granting a motion to dismiss on such grounds; `dismissal is appropriate only if the complaint on its face is conclusively time-barred.'" (quoting Firestone, at 1209)). Accordingly, the Court finds that Plaintiff's claims were timely filed within the ninety day statute of limitations: Plaintiff received the right to sue letter on February 14, 2014,
Defendants next argue that Plaintiff did not exhaust her administrative remedies against Defendant MMC because she did not name MMC as her employer or as a party in her EEOC charge nor has she "pled or shown that MMC had adequate notice or an opportunity to conciliate on its
Plaintiff responds that she did in fact exhaust her administrative remedies against MMC because MMC is the parent company of Marsh USA and is represented by the same counsel as Marsh USA, and, thus, "had fair warning of administrative charges and had an opportunity to resolve the claim prior to the civil action." Pl.'s Opp'n at 12.
Courts have found that a plaintiff can proceed against a party not named in an EEOC charge when "they have been given actual notice of the EEOC proceeding or have an identity of interest with the party or parties sued before the EEOC." E.E.O.C. v. Metzger, 824 F.Supp. 1, 4 (D.D.C.1993) (emphasis added) (citing Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U.A., 657 F.2d 890, 905 (7th Cir.1981)). It is also important that the unnamed party be "given the opportunity to participate in conciliation proceedings aimed at voluntary compliance." Eggleston, 657 F.2d at 905.
Having reviewed the case law and the facts pled in this case, the Court finds that Plaintiff has not exhausted her administrative remedies against Defendant MMC. In her Opposition to Defendants' Motion to Dismiss, Plaintiff argues only that MMC can be a party to this suit even though it was not named in Plaintiff's EEOC charge because (1) MMC is the parent company of Marsh USA and thus has an identity of interest with Marsh USA, and (2) MMC is represented by the same counsel. Pl.'s Opp'n at 12. Courts have found that simply being the parent company of a subsidiary that is named in the EEOC charge is not enough to find that a plaintiff has exhausted her administrative remedies against the unnamed parent company. See, e.g., Olsen v. Marshall & Ilsley Corp., 267 F.3d 597, 604 (7th Cir.2001) ("[A] parent organization not named in the plaintiff's EEOC charge must be dismissed from the suit unless the plaintiff can show that the parent had notice of the claim against it, as opposed to its subsidiary, and had an opportunity to conciliate on its own behalf." (citing Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989))); Schnellbaecher, 887 F.2d at 127 ("We agree with defendants, however, that the district court properly dismissed the suit against [parent corporation] HSSI. Although HSSI had notice of the charges against Baskin, it did not thereby have any notice of any charges against it, nor did it have any opportunity to conciliate on its own behalf."); Bernstein v. Nat'l Liberty Int'l Corp., 407 F.Supp. 709, 716 n. 6 (E.D.Pa. 1976) ("[P]laintiff sets out numerous reasons as to why NLC must have known that it was the target of plaintiff's charges with the EEOC, the most important of which is that, since NLC is NLIC's parent corporation, it must have been aware that the charge was directed at the entire corporate structure. We do not agree. The important question is whether NLC received notice that it was the subject of an investigation, not whether its subsidiary was under investigation."); De Los Santos v. UBS Fin. Servs., Inc., No. 09-1168, 2010 WL 936150, at *2-3 (D.P.R. 2010) ("Because Plaintiff has not exhausted her administrative remedies against Defendant UBS [only UBS PR], Plaintiff is not entitled to file a civil suit against Defendant UBS alleging Title VII and ADEA claims."). Here, Plaintiff has alleged only that MMC is the parent company. Plaintiff has not even alleged that MMC had notice of the administrative complaint against Marsh USA or that MMC participated
Likewise, the fact that Marsh USA and MMC are represented by the same counsel is not dispositive. Plaintiff cites to Mayo v. Questech, Inc., 727 F.Supp. 1007, 1012 (E.D.Va.1989), in which a court allowed claims to proceed against defendant directors who were not named in an EEOC charge alleging discrimination by the corporation where the directors served. In holding that the Plaintiff could bring suit against the unnamed directors, the district court noted that the directors were represented by the same counsel as the corporation. Id. However, the district court also relied on the fact that the "conduct of the director defendants was at the heart of the EEOC charge" such that "they were not, as a practical matter, absent from the proceeding." Id. Indeed, although the plaintiff's EEOC charge only named the corporation, the allegations in the plaintiff's charge were focused on the actions of the individual director defendants who each received a copy of the administrative charge. Id. at 1008-10. Accordingly, the district court found the interests of the parties were "so essentially similar" that the naming of the director defendants in the EEOC charge was not required. Id. at 1012. Here, MMC is not at the heart of Plaintiff's EEOC charge nor even Plaintiff's present Complaint. Plaintiff does not name nor even reference MMC in the body of her EEOC charge. See Defs.' Ex. A (EEOC Charge), ECF No. [7-2]. Cf. Shehadeh v. Chesapeake & Potomac Tel. Co. of Maryland, 595 F.2d 711, 728-29 (D.C.Cir.1978) (holding as error dismissal of complaint against company that was not formally named as respondent in EEOC charge but was named in the body of the charge). Further, Plaintiff has not alleged any facts that suggest a "common discriminatory scheme" between Marsh USA and MMC. See Brewster v. Shockley, 554 F.Supp. 365, 368 (W.D.Va.1983). Instead, Plaintiff's EEOC charge focuses exclusively on actions taken by her Supervisor and Managing Directors at Marsh USA. See Defs.' Ex. A (EEOC Charge).
Accordingly, as "Plaintiff has provided no evidence that [the unnamed party] was given the opportunity to participate in the EEOC proceedings or that [the unnamed party] was mentioned in the details of the charge before the EEOC, Metzger, 824 F.Supp. at. 4, the Court finds that Plaintiff has not exhausted her administrative remedies against Defendant MMC and, therefore, the Court dismisses all of Plaintiff's Title VII claims against MMC.
Finally, Defendants argue that Plaintiff's constructive discharge claims — Counts 13 and 18 — must be dismissed because constructive discharge is not an independent cause of action. Defs.' Mot. at 13. Courts in this circuit have held that constructive discharge is not an independent basis for Title VII liability. See, e.g., Kalinoski v. Gutierrez, 435 F.Supp.2d 55, 73-74 (D.D.C.2006); Russ v. Van Scoyoc Associates, Inc., 122 F.Supp.2d 29, 35-36 (D.D.C.2000). Rather, a constructive discharge claim is a component of a discrimination case or is relevant to the scope of potential recovery on discrimination or retaliation claims. See Russ, 122 F.Supp.2d at 35; Kalinoski, 435 F.Supp. at 73-74.
Plaintiff, herself, appears to concede that constructive discharge is not an independent claim. See Pl.'s Opp'n at 18. Plaintiff explains that she "only wishes to
For the foregoing reasons, Defendants' Motion to Dismiss is DENIED IN PART and GRANTED IN PART. Defendants' Motion to Dismiss is DENIED in so far as Plaintiff's DCHRA and Title VII claims are not barred by the statute of limitations. Defendants' Motion to Dismiss is GRANTED in so far as Plaintiff's Title VII claims against Defendant MMC must be dismissed for failure to exhaust administrative remedies. Finally, Defendants' Motion to Dismiss is GRANTED in so far as Plaintiff's constructive discharge claims must be dismissed to the extent they are asserted as independent bases for liability.
An appropriate Order accompanies this Memorandum Opinion.
The Court finds Defendants' argument that the withdrawal of an administrative complaint erases any tolling period that may have accrued unpersuasive. Defendants contend that Zelaya is inapposite because it does not engage with the holdings of Coleman v. Potomac Elec. Power Co., No. 04-7043, 2004 WL 2348144 (D.C.Cir. Oct. 19, 2004), or Kamen v. Int'l Bhd. of Elec. Workers (IBEW), AFL-CIO, 505 F.Supp.2d 66 (D.D.C.2007) — the two cases on which Defendants rely — and because the "rationale applied in Zelaya is not persuasive." Defs.' Mot. at 12 n.4. However, as discussed infra, Coleman and Kamen rely on an older version of the DCHRA statute and thus are no longer relevant. In addition, Defendants offer no compelling argument against the Zelaya rationale and do not cite to any authority for the proposition that Plaintiff's withdrawal of her administrative complaint erases her accrued tolling period.
