UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) EVELYN LYLES, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1424 (ESH) ) DISTRICT OF COLUMBIA ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Evelyn Lyles, a sixty year old female, has sued her former employer, the District
of Columbia Department of Mental Health (“DMH”). Plaintiff claims that DMH discriminated
against her on the basis of her sex, age, and disability, and retaliated against her for engaging in
protected activity in violation of the DC Human Rights Act, D.C. Code § 2-1401.01 et seq., the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
Before the Court is defendant‟s motion to dismiss, or in the alternative, for summary judgment.
For the reasons set forth below, defendant‟s motion will be granted in part and denied in part.
BACKGROUND
I. FACTUAL HISTORY
Plaintiff was an employee of DMH from 1979 until 2009. (Second Amended Complaint
with Jury Demand (“Complaint”) [“Compl.”] ¶ 1; Defendant‟s Motion to Dismiss [“Def.‟s
Mot.”] at Ex. B.) Plaintiff served as a Vocational Rehabilitation Specialist from 1994 until
October 2008. (Compl. ¶¶ 1, 16.) In August 2009, her position was terminated due to a
reduction in force (“RIF”). (Compl. ¶ 1.) A. Sexual Harassment
From March 2007 until October 2008, plaintiff alleges that Steven Miller, her
subordinate, sexually harassed her on a weekly basis by propositioning her, making lewd
gestures, and touching her buttocks and breasts. (Compl. ¶ 10.) Plaintiff requested several times
from June to November 2007 that her first-level supervisor, Carroll Parks, either (1) terminate or
transfer Miller or (2) transfer plaintiff. (Compl. ¶ 11.) Plaintiff eventually contacted DMH
Human Resources when Parks failed to act. (Id.) In November 2007, Parks transferred Miller
to a different position in the same department where plaintiff still encountered Miller on a daily
basis. (Id.) From that point through October 2008, plaintiff repeatedly asked Parks to transfer
her or Miller, but Parks allegedly told her that he did not care how she felt or what she wanted.
(Id.)
As a result of Miller‟s harassment and Parks‟ refusal to remedy the situation, plaintiff
alleges that she suffered “severe emotional pain and distress,” triggering post-traumatic stress
disorder (“PTSD”). (Compl. ¶¶ 10, 12.) Plaintiff‟s PTSD and resulting depression “required
significant treatment by her psychiatrist and primary care physician” and substantially limited
her life activities, including “eating, sleeping, driving, parenting, and social interaction.”
(Compl. ¶¶ 12, 13.)
B. Disability
In January 2008, plaintiff contacted DMH Director Stephen Baron to again request to be
transferred out of her office based on her disabilities caused by the hostile work environment
created by Miller. (Comp. ¶ 14.) On February 15, 2008, plaintiff initiated contact with DMH
EEO liaison Al Boone which led to the filing of a formal EEO charge on June 4, 2008. (Compl.
¶¶ 5, 14; Def.‟s Mot. at Ex. B.) On or about June 27, 2008, plaintiff‟s primary care physician
2 contacted Baron to request a nonhostile, nonthreatening work environment for plaintiff based on
her medical conditions. (Compl. ¶ 14.) On July 2, 2008, Baron referred plaintiff to Juanita
Price, the CEO of the Community Services Agency within DMH, for reassignment. (Id.) On
October 28, 2008, DMH detailed plaintiff to the position of Community Services Worker at the
Day Services Program. (Compl. ¶ 16.) The reassignment was designed to last at least 120 days
and was extended to March 2009 when plaintiff took sick leave. (Id.; Plaintiff‟s Opposition to
Defendant‟s Motion to Dismiss [“Pl.‟s Opp.”] at Ex. 2.) As a Community Services Worker,
plaintiff alleges that her “duties and responsibilities were significantly diminished” from her
previous position as a Vocational Rehabilitation Specialist because, in part, she was now
subordinate to staff members. (Compl. ¶ 16.)
C. Age
In December 2008 and January 2009, plaintiff applied for two positions, both which
would have been promotions from her position as a Vocational Rehabilitation Specialist.
(Compl. ¶ 17.) The first position was Quality Improvement Coordinator (“QIC”). (Id.) Plaintiff
argues that she was qualified for this position because her previous experience included the
evaluation and assessment of DMH personnel from 1994 to 2000, which matched the duties of
the new position. (Id.) The second position was Home and Community Based Services
Coordinator (“HCBSC”). (Id.) Plaintiff argues that she was qualified for this position because
her previous experience included evaluation of community-based sites and provision of clinical
services to the mentally ill, both duties required by the new position. (Id.) Plaintiff did not
receive either promotion. (Id.) Instead, plaintiff alleges that each position was filled by a
younger person who “had inferior qualifications and experience.” (Compl. ¶ 18.)
3 D. Retaliation
In April 2008, plaintiff‟s supervisor Parks charged her thirty-two hours absent without
leave (“AWOL”) while plaintiff was sick from work. (Compl. ¶ 15.) Plaintiff argues that she
was out due to PTSD and that her doctors submitted paperwork to that effect. (Id.) Plaintiff
alleges that this action was in retaliation for her contact with DMH EEO liaison Boone in
February 2008. (Compl. ¶¶ 14, 15.)
On August 1, 2009, DMH eliminated plaintiff‟s position as a Vocational Rehabilitation
Specialist through a RIF. (Compl. ¶ 1, 19; Pl.‟s Opp. at Ex. 3.) Plaintiff argues that her position
was eliminated in retaliation for filing an EEO claim and that DMH also failed to give her
$37,069.50 in severance pay. (Compl. ¶¶ 19, 20.)
Based on the above facts, plaintiff asserts that defendant retaliated against her in six
ways: (1) defendant charged her thirty-two hours AWOL; (2) defendant detailed her to the Day
Treatment Program, which had significantly diminished duties and responsibilities from her
previous position; (3) defendant failed to place her back in her previous position; (4) defendant
failed to promote her to either QIC or HCBSC; (5) defendant terminated her job through a RIF;
and (6) defendant failed and refused to pay severance after her termination. (Compl. at ¶ 34.)
II. PROCEDURAL HISTORY
On June 4, 2008, plaintiff filed an Equal Employment Opportunity Commission
(“EEOC”) Charge of Discrimination alleging that she had been discriminated against based on
her sex, disability, age, and personal appearance, and that she had suffered retaliation. (Def.‟s
Mot. at Ex. B.) The sex charge alleged that the “Acting Leader” had used inappropriate
language, patted her on the buttocks, and made lewd gestures with his hands. (Id.) In addition,
plaintiff noted that she had complained to her superiors but that no action had been taken. (Id.)
The disability charge alleged that plaintiff had notified supervisors of her disability in 2005 but
4 contains no further details on the specific disability or subsequent actions in response to the
disability. (Id.) The disability charge also alleges that plaintiff suffered an ankle injury on
December 6, 2007, while moving a desk, and that plaintiff‟s superior held up her workman‟s
compensation paperwork. (Id.) The age charge alleges that employees over forty were informed
at a staff meeting that they would need to look for another job. (Id.) Plaintiff also alleges that
the CEO told plaintiff that, “You look really good for your age,” and that plaintiff‟s supervisor
asked her how old she was on several occasions. (Id.) The personal appearance charge alleges
that several employees told plaintiff that she was small for someone her age. (Id.) The
retaliation charge alleges that plaintiff‟s supervisor threatened to place plaintiff on AWOL
without checking her leave balance. (Id.)
On January 16, 2009, plaintiff filed an amended charge with the EEOC. (Pl.‟s Opp. at
Ex. 2.) That charge alleges that plaintiff suffers from a mental impairment and that defendant
both failed to accommodate that disability and placed plaintiff in a position outside of her
medical restrictions. (Id.) It also alleges that plaintiff was denied promotions because of her age
and in retaliation for filing an EEO charge. (Id.) Finally, it alleges that plaintiff‟s transfer to the
Day Treatment Program was in retaliation for filing an EEO charge. (Id.)
Plaintiff received a right-to-sue letter from the EEOC on July 26, 2010, and filed the
present civil claim on August 24, 2010. Before the Court are plaintiff‟s original EEO charge,
plaintiff‟s amended EEO charge, and several documents generated during the EEO‟s subsequent
investigation.
ANALYSIS
I. LEGAL STANDARDS
Despite some confusion in this jurisdiction regarding “whether a failure to exhaust
administrative remedies is properly brought in a Rule 12(b)(1) motion, as a jurisdictional defect,
5 or in a Rule 12(b)(6) motion for failure to state a claim,” recent cases “favor treating failure to
exhaust as a failure to state a claim.” Hansen v. Billington, 644 F. Supp. 2d 97, 102 (D.D.C.
2009) (listing cases); see also Kilby-Robb v. Spellings, 309 F. App‟x. 422, 423 n.1 (D.C. Cir.
2009) (“[T]he mandatory exhaustion requirement is not jurisdictional.”).
As the Supreme Court recently held in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), “[t]o
survive a motion to dismiss [under Rule 12(b)(6) of the Federal Rules of Civil Procedure], a
complaint must contain sufficient factual matter, accepted as true, to „state a claim to relief that is
plausible on its face.‟” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint must be dismissed under Rule 12(b)(6) if it consists only of “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements.” Id.
“Where a complaint pleads facts that are „merely consistent with‟ a defendant‟s liability, it „stops
short of the line between possibility and plausibility of entitlement to relief.‟” Id. (quoting
Twombly, 550 U.S. at 557) (internal quotation marks omitted). The allegations in plaintiff‟s
complaint are presumed true at this stage and all reasonable factual inferences must be construed
in the plaintiff‟s favor. Maljack Prods., Inc. v. Motion Picture Ass’n of Am., 52 F.3d 373, 375
(D.C. Cir. 1995). “However, „the court need not accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the complaint.‟” Hughes v. Abell, 634 F. Supp.
2d 110, 113 (D.D.C. 2009) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.
Cir. 1994)). In deciding a Rule 12(b)(6) motion, a court may consider only “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.” Hansen, 644 F. Supp. 2d at 102
(internal quotation omitted).
6 If the Court relies on matters outside of the pleadings, then the 12(b)(6) motion must be
treated as a motion for summary judgment under Rule 56. Fed. R. Civ. P. 12(d). Under Rule 56,
a motion for summary judgment shall be granted if “the pleadings, depositions, answers to
interrogatories, . . . admissions on file, . . . [and] affidavits . . . show that there is no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). “A
dispute about a material fact is not „genuine‟ unless „the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.‟” Haynes v. Williams, 392 F.3d 478, 481 (D.C.
Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled to summary
judgment against “a party who 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.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255; see also Wash. Post Co. v. U.S. Dep’t of Health & Human Servs., 865 F.2d 320, 325 (D.C.
Cir. 1989). The nonmoving party‟s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P.
56(e); Celotex, 477 U.S. at 324. If the nonmovant fails to point to “affirmative evidence”
showing a genuine issue for trial, Anderson, 477 U.S. at 257, or “[i]f the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50
(internal citations omitted). “While summary judgment must be approached with special caution
7 in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by
affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun v.
Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126, 1999
WL 825425, at *1 (D.C. Cir. Sept. 27, 1999) (internal citation omitted).
II. EXHAUSTION
“[A] timely administrative charge is a prerequisite to initiation of a Title VII action in the
District Court.” Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (citing Brown
v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976)). This requirement applies to actions under
the ADEA and the ADA as well. See Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365,
1367-68 (D.C. Cir. 2008) (applying the requirement to ADEA claims); Marshall v. Fed. Express
Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (applying the requirement to ADA claims). If the
matter is not resolved informally, the complainant may file a formal complaint against the
agency, which the agency must investigate within 180 days of filing. 29 C.F.R. §§ 1614.105(d),
106(e)(2), 108(e). A complainant must file her formal charge within 180 or 300 days after the
alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). “Each discrete
discriminatory act starts a new clock for filing charges alleging that act” and “[t]he charge,
therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory
act occurred.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Once the
agency investigation concludes, the employee has the right to (1) request a hearing and decision
from an administrative judge, or (2) request an immediate final decision from the agency. 29
C.F.R. § 1614.108(f). The employee may appeal a decision of the administrative judge or the
agency to the EEOC or file a civil action in federal district court within 90 days of the receipt of
a notice of final action. 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.401, 1614.407.
8 In filing a civil action in district court following an EEO charge, an employee may only
file claims that are “like or reasonably related to the allegations of the [EEO] charge and grow[]
out of such allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citing Cheek
v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)) (internal quotation marks omitted).
“At a minimum, the Title VII claims must arise from „the administrative investigation that can
reasonably be expected to follow the charge of discrimination.‟” Id. (quoting Chisholm v. U.S.
Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). The Title VII exhaustion requirement also
means that “discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.” Morgan, 536 U.S. at 113.
Although the allegations in the EEO charge and the civil complaint must be reasonably
related, “[d]ocuments filed by an employee with the EEOC should be construed, to the extent
consistent with permissible rules of interpretation, to protect the employee's rights and statutory
remedies.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 406 (2008). Thus, “the fact that
[plaintiff] describe[s] her allegations with greater specificity in these proceedings does not
establish that she failed adequately to present them at the administrative level.” Williams v.
Dodaro, 576 F. Supp. 2d 72, 82-83 (D.D.C. 2008). Further, the ultimate purpose of the
exhaustion requirement is to put the agency on notice, not to create insurmountable procedural
hurdles for a claimant:
Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary. Congress wanted to give each agency “the opportunity as well as the responsibility to right any wrong that it might have done.” Congress never, however, wanted the exhaustion doctrine to become “a massive procedural roadblock to access to the courts.” Rather, “Congress contemplated that the exhaustion doctrine would be held within limits consonant with the realities of the statutory scheme.”
9 . . . This court has . . . “stress [ed], in particular, that judges slight the legislature's central command if they fail to recall that Title VII was devised as a measure that would be kept accessible to individuals untrained in negotiating procedural labyrinths.” The Loe court made it clear that adequacy of notice is the core of Title VII's administrative exhaustion requirements, and that “the strictures of common law pleading have no place in a scheme largely dependent upon self-service in drawing up administrative charges.”
Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (internal citations omitted) (quoting President
v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980); Loe v. Heckler, 768 F.2d 409, 416-20 (D.C. Cir.
1985)); see also Hampton v. Schafer, 561 F. Supp. 2d 99, 102 (D.D.C. 2008) (citing Brown).
The same standard applies in the ADA context: “[E]very detail of the eventual complaint
need not be presaged in the EEOC filing, but the substance of an ADA claim . . . must fall within
the scope of „the administrative investigation that can reasonably be expected to follow the
charge of discrimination.‟” Marshall, 130 F.3d at 1098 (quoting Park, 71 F.3d at 907).
A. Exhaustion of Title VII Claims
1. Sexual Harassment
Defendant originally argued that plaintiff failed to exhaust her administrative remedies as
to her Title VII sexual harassment claim in Count I. (Def.‟s Mot. at 14-16.) However, defendant
concedes in its Reply that plaintiff has exhausted those remedies. (Defendant‟s Reply to
Plaintiff‟s Opposition to Defendant‟s Motion to Dismiss (“Reply”) [“Def.‟s Rep.”] at 2-3.) The
Court agrees. Thus, defendant‟s motion to dismiss as to the exhaustion of plaintiff‟s Title VII
sexual harassment claim will be denied.
2. Retaliation
Plaintiff asserts six separate acts of retaliation in response to her filing of an EEO charge.
Plaintiff asserts that (1) defendant charged her thirty-two hours AWOL; (2) defendant detailed
her to the Day Treatment Program, which had significantly diminished duties and responsibilities
10 from her previous position; (3) defendant failed to place her back in her previous position; (4)
defendant failed to promote her to either QIC or HCBSC; (5) defendant terminated her job
through a RIF; and (6) defendant failed and refused to pay severance after her termination.
(Compl. ¶ 34.) Defendant asserts that five of these claims were not reasonably related to
plaintiff‟s EEO charge. (Def.‟s Rep. at 13-16.)1
In terms of retaliation, plaintiff‟s original EEO charge states: “Sometime in January 2008,
the Director of Adult Services has threatened to place me on absence without leave without
checking my leave balance.” (Def.‟s Mot. at Ex. B.) Plaintiff‟s amended EEO charge states:
I have been denied promotions . . . because I have opposed and complained about what I in reasonable good faith believe to be discrimination at work.
I formerly worked as a Therapist up until the that [sic] time I made my EEOC complaint in 6/08. Since then, [defendant] removed my job responsibilities, prohibited me from providing direct services to my patients, and left me in a job without responsibilities, all in an effort to force me to quit.
(Pl.‟s Opp. at Ex. 2.)
Defendant asserts that plaintiff‟s first claim of retaliation, charging her thirty-two hours
AWOL, is not reasonably related to her EEO charge because her charge only contains the
January 2008 threat of placing her on AWOL and no subsequent charge of actually placing her
on AWOL. (Def.‟s Rep. at 15-16.) The Court agrees that the two claims are not reasonably
related. Even if a threat and the subsequent execution of that threat were closely enough related
that raising an EEO charge for the former would exhaust remedies for the latter, the facts in this
instance do not withstand scrutiny. Plaintiff alleges that the threat occurred in January 2008.
1 Defendant concedes that the second claim of retaliation is reasonably related to plaintiff‟s EEO charge. (Def.‟s Rep. at 2-3.) Accordingly, defendant‟s motion to dismiss will be denied as to that claim of retaliation.
11 (Compl. ¶ 14.) Plaintiff did not initiate contact with the EEO, however, until a month later in
February 2008 (which eventually resulted in the filing of a formal complaint in June 2008).
(Compl. ¶¶ 5, 14; Def.‟s Mot. at Ex. B.) Thus, plaintiff‟s claim alleging that she was threatened
with being placed on AWOL in January 2008 could not be retaliation for filing an EEO charge
because plaintiff had not yet initiated the EEO process when the alleged threat was made.
Therefore, plaintiff‟s current claim that defendant retaliated against her by charging her thirty-
two AWOL hours is not reasonably related to her EEO charge.
Defendant asserts that plaintiff‟s third claim of retaliation, defendant‟s failure to place
plaintiff back in her original position after assigning her to the Day Treatment Program, is not
reasonably related to her EEO charge because the charge does not mention that allegedly adverse
action. (Def.‟s Rep. at 15.) The Court agrees. Defendant‟s reassignment of plaintiff to the Day
Treatment Program is a distinct and separate act from its alleged failure to place plaintiff back in
her former position; thus, exhaustion of the former does not relate to exhaustion of the latter.
Because neither the original EEO charge nor the amended EEO charge mentions that plaintiff
requested to be transferred back to her old position, or that defendant refused to do so, the two
claims are not reasonably related.
Defendant asserts that plaintiff‟s fourth claim of retaliation, defendant‟s failure to
promote plaintiff to QIC or HCBSC, is not reasonably related to the general assertion in her EEO
charge that she was denied promotions in retaliation for filing her initial EEO charge because the
amended EEO charge is not specific enough to connect the two. (Def.‟s Rep. at 15.) The Court
disagrees. It has long been settled that EEO charges be construed liberally in the context of
exhaustion to favor complainants who, as a group, are largely unskilled in the formalities of legal
pleading. See Brown, 777 F.2d at 14; see also Hampton, 561 F. Supp. 2d at 102.
12 The Court finds the exhaustion of plaintiff‟s fourth claim of retaliation to be similar to the
situation addressed by the Williams court. See 576 F. Supp. 2d at 82-83. In Williams, the court
rejected an employer‟s argument that a more general assertion in an EEO charge was
unconnected to a more specific iteration of the same claim in the civil complaint. See id.
Notably, the court stated that “the fact that [plaintiff] describe[s] her allegations with greater
specificity in these proceedings does not establish that she failed adequately to present them at
the administrative level.” Id.
Plaintiff‟s original EEO charge was initiated in February 2008 and formally filed in June
2008. Plaintiff then applied for, and failed to get, promotions to QIC and HCBSC in December
2008 and January 2009. Plaintiff‟s amended EEO charge was then filed later in January 2009.
That charge stated that, “I have been denied promotions . . . because I have opposed and
complained about what I in reasonable good faith believe to be discrimination at work.” (Pl.‟s
Opp. at Ex. 2.) That the Complaint now before the Court, drafted by an attorney, specifies those
two promotions in a more particularized manner does not make the amended EEO charge
unrelated to the present claim. Further, plaintiff‟s amended EEO charge was sufficient to put
defendant on notice that the period between February 2008, when she first began the EEO
process, and January 2009, when she filed the charge, was a period in which plaintiff felt that she
had been denied promotions in retaliation for her EEO charges. Accordingly, plaintiff exhausted
her administrative remedy as to this retaliation claim.
Defendant asserts that plaintiff‟s fifth claim of retaliation, eliminating plaintiff‟s position
through a RIF, is not reasonably related to her EEO charge because it does not appear in either
her original EEO charge or her amended EEO charge. (Def.‟s Rep. at 15.) The Court agrees.
Plaintiff‟s EEO charges outline three allegedly retaliatory acts of discrimination. The first is
13 denial of promotions, the second is a threat to place plaintiff on leave, and the third is plaintiff‟s
reassignment to the Day Treatment Program. As neither complaint raises the elimination of
plaintiff‟s position in any way, the current claim has not been exhausted.
Defendant asserts that plaintiff‟s sixth claim of retaliation, failing to pay plaintiff‟s
severance, is not reasonably related to her EEO charge because it does not appear anywhere in
either her original EEO charge or her amended EEO charge. (Def.‟s Rep. at 15.) The Court
agrees. As neither complaint, in any way, raises defendant‟s failure to pay severance in any way,
the current claim has not been exhausted.
B. Exhaustion of ADA Claims
Plaintiff claims that defendant discriminated against her as a result of her disability—
PTSD and major depression. (Compl. ¶¶ 14, 24-28.) Specifically, plaintiff claims that she
suffered an adverse employment action when defendant transferred her to the Day Treatment
Program. (Compl. ¶¶ 16, 27, 28.) Defendant argues first, that it is unclear what claim plaintiff is
proceeding with, and second, that plaintiff‟s EEO claim and present claim are not reasonably
related.
Defendant first argues that the Complaint is unclear about plaintiff‟s disability claims.
(Def‟s Rep. at 4-5.) Specifically, defendant contends that it is unclear whether plaintiff is
proceeding on a failure-to-accommodate claim. (Id.) Defendant does not contest that plaintiff is
also proceeding on an adverse-employment-action claim as clearly stated in Count II of the
Complaint. (See id.; see also Compl. ¶¶ 27, 28.) Although both claims would have been
exhausted, plaintiff‟s only claim in Count II is the adverse employment action resulting from her
transfer to the Day Treatment Program. (Compl. ¶¶ 27, 28.) The Court reads plaintiff‟s
assertion that defendant failed to accommodate her disability in the “Facts” section of her
Complaint (Compl. ¶ 14) as background for the formal claim in Count II. Thus, the Court
14 interprets plaintiff‟s claim as the clearly stated accusation in Count II, that she suffered an
adverse employment action when she was transferred to the Day Treatment Program.
Defendant next argues that plaintiff‟s claim before the court is not reasonably related to
her EEO charge for several reasons. First, defendant argues that plaintiff‟s initial EEO charge is
not reasonably related to the present claim because the EEO charge focuses solely on an ankle
injury, making any discussion of mental illness merely “background” information to the physical
injury claim. (Def.‟s Mot. at 16-17; Def.‟s Rep. at 4-7.) The Court agrees. In relation to her
disability, plaintiff‟s initial EEO charge states:
In 2005, I notified [defendant] of my disability.
On December 6, 2007, I injured my ankle while moving a desk. The Director of Adult Services held up my paperwork because he had refused to sign them. My workman's compensation claim was denied and I am scheduled to go before an Administrative Hearing Judge on July 14, 2008.
I also requested that the Director of Adult Services not yell at me and to move my office because the alleged harasser was working in the same location.
(Def.‟s Mot. at Ex. B.) The word “disability” in the first sentence, when read in the context of
the rest of the charge, seems to be related to a physical disability that was exacerbated by the
2007 ankle injury, not a separate mental disability. Even if “disability” were reasonably
referring to a mental impairment like PTSD or major depression, the charge fails to claim
discrimination based on that disability. The denial of the workman‟s compensation claim and
the disagreement over moving plaintiff‟s office also seem to be related to the ankle injury (or, at
most, to the sexual harassment claim preceding the disability claim). (See id.)
Second, defendant asserts that plaintiff‟s amended EEO charge is not reasonably related
to the present claim because it fails to specifically mention PTSD and fails to specify any
accommodations that she requested. (Def.‟s Rep. at 7-8.) The Court disagrees with defendant
15 insofar as plaintiff‟s lack of specificity means that she fails to exhaust her claim. In relation to
her disability, plaintiff‟s January 2009 amended charge states: “I suffer from a mental
impairment that substantially limits one or more of my major life activities. I requested
accommodations from [defendant] but it has declined without explanation. It also has assigned
me to work outside of my medical restrictions.” (Pl.‟s Opp. at Ex. 2.)
Although defendant is correct to assert that plaintiff must present her EEO charge with
some specificity in order for exhaustion to occur, defendant‟s application of the rule ignores both
the posture of the motion and the light in which the Court should read the EEO charge.
Plaintiff‟s January 2009 amended EEO charge clearly states that she believes that defendant
discriminated against her based on her mental impairment by placing her in a position outside of
her medical restrictions. Given that defendant had worked in the same position since 1994 and
her only reassignment in fourteen years was to the Day Treatment Program immediately
preceding the filing of her amended EEO charge (Compl. ¶ 1), that charge is reasonably related
to the present claim because they are the same adverse action. Here again, the Williams rule is
applicable: plaintiff‟s specification of PTSD from “mental impairment,” and her specification of
the Day Treatment Program position from “work outside of my medical restrictions,” does not
mean that she failed to exhaust because the claims were not reasonably related. Further,
plaintiff‟s statement also fulfills the purpose of the EEO scheme, to put the employer on notice
of a specific act of discrimination.
Third, defendant argues that two documents generated during the investigation, the
District‟s “Statement of Position” to the OHR (Def.‟s Rep. at Ex. A) and plaintiff‟s June 28,
2009 response letter (Pl.‟s Opp. at Ex. 3), were in the context of the first EEO charge; thus, any
discussion of disability based on mental impairment “can only be read as background” to
16 plaintiff‟s ankle injury claim. (Def.‟s Rep. at 5-8.) The Court finds this argument unpersuasive
because defendant‟s Statement of Position and plaintiff‟s letter postdate the amended EEO
charge by at least five months, and all three documents carry the same EEOC charge number
relating to the same case. (Def.‟s Rep. at Ex. A; Pl.‟s Opp. at Ex. 2, 3.) Although defendant
seems to have some difficulty getting through the “stream conscious prose” within the “rambling
single spaced document that purports to be plaintiff‟s response [letter]” (Rep. at 5-8), the Court
finds plaintiff‟s letter to be sufficiently informative. In that letter plaintiff repeatedly mentions
PTSD in the context of the ADA and her employer‟s failure to accommodate that disability.
(Pl.‟s Opp. at Ex. 3.) This magnifies the already sufficiently related claim in plaintiff‟s January
2009 amended EEO charge and provides evidence that the subsequent investigation further put
defendant on notice that plaintiff believed her reassignment to the Day Treatment Program was
discriminatory because it failed to address concerns she had raised about her mental impairment.
Fourth, defendant asserts that an application for additional sick leave hours based on
PTSD that plaintiff filed with the EEO was not enough to put defendant or the EEOC on notice
about a potential lawsuit. (Def.‟s Rep. at 8-9.) Because the Court finds that plaintiff‟s amended
EEO charge is reasonably related to the charge now before the Court, this argument is moot.
Taken together, the Court finds that plaintiff‟s amended EEO charge and the subsequent
investigation were reasonably related to plaintiff‟s present claim. Therefore, plaintiff exhausted
her administrative remedies as to this claim.
C. Exhaustion of ADEA Claims
Plaintiff claims that defendant discriminated against her based on her age by denying her
promotions to two positions, QIC and HCBSC. (Compl. ¶¶ 30-32.) Defendant argues that
plaintiff has failed to exhaust her age discrimination claim because her present claim is not
17 reasonably related to the charges she originally made with the EEO. (Def.‟s Mot. at 17-18;
Def.‟s Rep. at 9-13.) The Court disagrees and will deny defendant‟s motion as to this claim.
Defendant first argues that plaintiff‟s initial EEO charge is unrelated to the present claim.
(Def.‟s Rep. at 9-10.) This charge states:
Sometime in April 2008, the CEO stated, “You look really good for your age.”
Also in April 2008, a personal message (verbal) was relayed during the general staff meeting that employees (over 40) would have to look for another job.
On occasions, the Director of Adult Services would ask me my age.
(Def.‟s Mot. at Ex. B.) Clearly, this initial charge does not address the denial of promotion based
on age and, thus, is not reasonably related to plaintiff‟s current age discrimination claim.
However, plaintiff‟s amended EEO charge states, “I have been denied promotions
because of my age.” (Pl.‟s Opp. at Ex. 2.) This amended complaint, filed in January 2009,
immediately followed plaintiff‟s failed attempts to gain either the QIC position or the HCBSC
position. That plaintiff‟s present claim is a more specific version of her EEO charge does not
mean the two are unrelated. Reading the EEO charge favorably for the complainant and in the
light that it should not be held to the same standard as a legal pleading, the Court finds that
plaintiff‟s amended EEO charge and the present claim are reasonably related.
Defendant would like the Court to follow Vinson v. Ford Motor Co., 806 F.2d 686 (6th
Cir. 1986), where the Sixth Circuit affirmed the district court‟s judgment notwithstanding the
verdict because the plaintiff, who won an age discrimination claim in a jury trial, had not clearly
stated in his EEO charge that he was demoted because of his age. (Def.‟s Rep. at 13.) However,
defendant misinterprets that case. In Vinson, the plaintiff made two claims based on age
discrimination; one was a discriminatory demotion and the other was a discriminatory failure to
18 promote. Vinson, 806 F.2d at 688. The plaintiff, however, had never noted the demotion on any
EEO forms and only mentioned it once during an EEO interview that focused on his failure-to-
promote claim, which appeared in his initial EEO charge. Id. Thus, the Sixth Circuit upheld the
judgment on the demotion claim because the plaintiff had not exhausted that claim. Id. Here,
plaintiff‟s failure-to-promote claim is dissimilar to the Vinson demotion charge because plaintiff
clearly states in her amended EEO charge that she believes she was denied promotions because
of her age. Accordingly, defendant‟s motion as to this claim will be denied.
III. DCHRA
Plaintiff originally brought parallel claims under the DCHRA for each claim in her
Complaint. (Compl. ¶¶ 22, 28, 32, 34.) After defendant filed its Motion to Dismiss asserting
several reasons why the DCHRA claims were invalid (Def.‟s Mot. at 7-14), plaintiff concedes
that she failed to give timely notice to the Mayor as required by D.C. Code § 12-309 (“An action
may not be maintained against the District . . . unless, within six months after the injury or
damage was sustained, the claimant . . . has given notice in writing to the Mayor . . . of the
approximate time, place, cause, and circumstances of the injury or damage.”).
Further, defendant relies on an October 26, 2010 affidavit from Tamonica Heard, the
Manager of Settlements and Judgments for the Tort Liability Division within the District of
Columbia Office of Risk Management. (Def.‟s Mot. at Ex. A ¶ 1.) In the affidavit, Heard notes
that her office manages all of the correspondence that falls under D.C. Code § 12-309 and that
she was unable to find any evidence that plaintiff had contacted the Mayor.
Defendant‟s motion to dismiss the relevant portions of plaintiff‟s Claims under the
DCHRA will therefore be granted.
19 CONCLUSION
For the foregoing reasons, the Court denies defendant‟s motion for summary judgment as
to the Title VII sexual harassment claim under Count I, the ADA claim under Count II, the
ADEA claim under Count III, and two Title VII retaliation claims under Count IV (i.e., the
adverse treatment resulting from the transfer to the Day Treatment Program and the failure to
promote). The Court grants defendant‟s motion for summary judgment as to the four other
claims of retaliation in Count IV (i.e., charging plaintiff thirty-two hours AWOL, failure to
return plaintiff to her former position, eliminating plaintiff‟s position through RIF, and failing to
pay plaintiff severance). Finally, the Court dismisses all portions of Counts I, II, III, and IV that
have been brought under the DCHRA.
/s/ ELLEN SEGAL HUVELLE United States District Judge
Date: April 14, 2011