UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHARLINE SMITH-THOMPSON, : : Plaintiff, : Civil Action No.: 09-0046 (RMU) : v. : Re Document No.: 2 : DISTRICT OF COLUMBIA, : : Defendant. :

MEMORANDUM OPINION

DENYING THE DEFENDANT’S MOTION TO DISMISS; DENYING WITHOUT PREJUDICE THE DEFENDANT’S MOTION IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the court on the defendant’s motion to dismiss or, in the

alternative, for summary judgment. The plaintiff, a female correctional officer stationed

at the District of Columbia Jail, alleges that the defendant permitted her to be sexually

harassed by a fellow officer and retaliated against her in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the D.C. Human Rights

Act (“DCHRA”),

et seq. The plaintiff has also asserted a claim

for intentional infliction of emotional distress (“IIED”). The defendant moves to dismiss

or, in the alternative, for summary judgment, arguing that the plaintiff’s Title VII sexual

harassment claims are time-barred, that the plaintiff has failed to state a claim for

retaliation under Title VII, that the plaintiff failed to exhaust her administrative remedies

with respect to certain of her retaliation claims and that the doctrine of res judicata bars

the plaintiff’s DCHRA and IIED claims.

For the reasons discussed below, the court denies the defendant’s motion to

dismiss the Title VII sexual harassment claims as time-barred and denies without prejudice the defendant’s motion in the alternative for summary judgment. In addition,

the court denies the defendant’s motion to dismiss the plaintiff’s retaliation claims for

failure to state a claim and failure to exhaust her administrative remedies. The court,

however, grants as conceded the defendant’s motion to dismiss the DCHRA and IIED

claims.

II. BACKGROUND

A. Factual Allegations

The plaintiff is a female correctional officer who has been stationed at the District

of Columbia Jail since 1989. 2d Am. Compl. ¶ 6. After being laid off due to a reduction

in force in 2002, she was rehired in September 2004.

. Upon returning to duty, the

plaintiff began working alongside correctional officer Pablo Rodriguez. Both officers

were supervised by Sergeant Luis Stephens.

.

The plaintiff alleges that “soon after” she began working with Rodriguez in 2004,

he began to sexually harass her.

. As alleged in the complaint, Rodriguez

repeatedly directed comments of a sexual nature toward the plaintiff.

. On

one occasion, Rodriguez allegedly grabbed the plaintiff and “tried to push her head into

his ‘private parts.’”

. On yet another occasion, Rodriguez allegedly called the

plaintiff asking her about oral sex while broadcasting the call over the intercom.

The plaintiff alleges that she complained about Rodriguez’s behavior to Sergeant

Stephens, who admonished Rodriguez to discontinue his behavior and persuaded the

2 plaintiff to give Rodriguez another chance.1

. Rodriguez, however, persisted

in his harassing conduct.

. In June 2005, the plaintiff brought her complaints to

the attention of Lieutenant Gloria Profit, who allegedly informed the plaintiff that there

was nothing she could do about Rodriguez’s behavior.

. The plaintiff then sent

an e-mail to Deputy Warden Larry Corbett regarding Rodriguez’s behavior.

.

Corbett allegedly informed the plaintiff that all employees alleging sexual harassment

were required to proceed through the Office of the Special Inspector, which had been

established by court order to address the D.C. Department of Correction’s (“DOC”)

failure to enforce its policy against sexual harassment and retaliation. See Neal v. Dir.,

D.C. Dep’t of Corr.,

, at *2-3 (D.D.C. Aug. 9, 1995) (Lamberth, J.).

The plaintiff alleges that Corbett stated that the Office of the Special Inspector was her

sole avenue of filing a complaint regarding Rodriguez’s behavior. Pl.’s Aff. ¶ 4. The

plaintiff alleges that Profit and other supervisors also advised her that she was required to

proceed through the Special Inspector. 2d Am. Compl. ¶ 17. The plaintiff filed a

complaint with the Special Inspector on June 19, 2005, which commenced an

investigation into the plaintiff’s allegations. Pl.’s Aff. ¶¶ 3-4; Pl.’s Opp’n at 6.

The plaintiff alleges that throughout this period, Rodriguez continued to sexually

harass her. 2d Am. Compl. ¶¶ 18-20. She alleges that nearly every time she spoke to

Rodriguez, he would respond with sexual innuendo, and that this behavior occurred every

weekend the plaintiff worked with Rodriguez.

. The plaintiff alleges that

Rodriguez’s behavior caused her to be nervous and forced her to leave her work station

1 The investigative report created by the Department of Correction’s Office of the Special Inspector states that the plaintiff’s “allegations of conduct in 2005 were resolved in mediation and voluntarily dismissed by both parties.” Pl.’s Opp’n, Ex. 2 at 3. The parties do not address the effect, if any, of the prior voluntary dismissal on the instant action. See generally Def.’s Mot.; Pl.’s Opp’n; Def.’s Reply.

3 for prolonged periods to avoid being around Rodriguez, for which she was reprimanded.

. The plaintiff alleges that she endured this behavior from Rodriguez from

September 2004 to June 2005. Pl.’s Aff. ¶ 2.

On March 20, 2006, the Special Inspector concluded its investigation and

generated a report recommending that “a probable cause finding be made with regard to

the claim of hostile work environment.” Pl.’s Mot., Ex. 2 at 22.2 After receiving the

Special Inspector’s report, the plaintiff contacted the District of Columbia Office of

Human Rights (“DCOHR”) in late March or early April 2006 to determine what steps she

needed to take to enforce her rights. Pl.’s Aff. ¶ 7. The plaintiff was allegedly told by a

DCOHR employee that because she had already received a favorable finding from the

Office of the Special Inspector, she was not permitted to file a complaint with the

DCOHR.

On May 21, 2006, the plaintiff alleges that she was forced to stop working

because she was experiencing headaches, chest pain and depression. 2d Am. Compl. ¶

39. In July 2006, a DOC psychiatrist diagnosed the plaintiff with Major Depressive

Disorder.

. The psychiatrist recommended that the plaintiff be separated from

working with Rodriguez “because her symptoms [were] related to Mr. Rodriguez’s

harassing conduct in the workplace.”

. The psychiatrist further recommended

that the plaintiff take a three- to four-week absence for treatment and then be returned to

light duty.

The plaintiff, however, was placed on absent without leave (“AWOL”)

status, meaning that she was not paid during her absence.

. The plaintiff

alleges that she was ordered to report back to work on November 27, 2006 and that upon

2 The parties do not specify what remedial action, if any, the Special Inspector recommended.

4 her return, she was harassed and retaliated against by her co-workers and supervisors.

. Within two hours of reporting to work, a supervisor instructed her to go home,

which she did.

B. Procedural History

On August 11, 2006, the plaintiff filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”). Def.’s Mot., Ex. 4. The

administrative charge indicates that she simultaneously cross-filed the charge with the

DCOHR.

On August 17, 2006, the plaintiff filed a complaint in the Superior Court

for the District of Columbia against Rodriguez and the District of Columbia (“the

District”), alleging sexual harassment and retaliation under Title VII and the DCHRA,

IIED against the District and assault and battery against Rodriguez. See Def.’s Mot., Ex.

1. On November 14, 2006, the District removed the case to federal court.

. The

plaintiff subsequently withdrew her Title VII claims for failure to exhaust her

administrative remedies, and the case was remanded to the Superior Court, at which time

the plaintiff filed an amended complaint.

at 1-2 & Ex. 2.

The plaintiff received a right to sue letter from the EEOC on November 17, 2008.

2d Am. Compl. ¶ 31. On December 2, 2008, the plaintiff moved in the Superior Court

for leave to file a second amended complaint incorporating her Title VII claims. Def.’s

Mot. at 2. The Superior Court granted the plaintiff’s motion.

Ex. 3. At the same

time, however, the Superior Court granted the District’s motion to dismiss the DCHRA

and IIED claims asserted against it.

at 2 & Ex. 3.

On January 8, 2009, the District again removed this case to federal court based on

federal question jurisdiction. See Notice of Removal. The defendant filed the instant

5 motion on January 15, 2009. See generally Def.’s Mot. On May 15, 2009, the plaintiff

filed a notice of dismissal of her claims against Rodriguez, leaving the District as the sole

remaining defendant in this case. See Line of Dismissal as to Defendant Rodriguez Only.

III. ANALYSIS

A. Legal Standard for a Rule 12(b)(6) Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint.

Browning v. Clinton,

(D.C. Cir. 2002). The complaint need only set

forth a short and plain statement of the claim, giving the defendant fair notice of the

claim and the grounds upon which it rests. Kingman Park Civic Ass’n v. Williams,

(D.C. Cir. 2003) (citing FED. R. CIV. P. 8(a)(2) and Conley v. Gibson,

(1957)). “Such simplified notice pleading is made possible by the liberal

opportunity for discovery and the other pre-trial procedures established by the Rules to

disclose more precisely the basis of both claim and defense to define more narrowly the

disputed facts and issues.” Conley,

(internal quotation marks omitted).

It is not necessary for the plaintiff to plead all elements of his prima facie case in the

complaint, Swierkiewicz v. Sorema N.A.,

(2002), or “plead law or

match facts to every element of a legal theory,” Krieger v. Fadely,

(D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, the plaintiff must allege “any set of facts consistent with the allegations.”

Bell Atl. Corp. v. Twombly,

(2007) (abrogating the oft-quoted language

from Conley,

, instructing courts not to dismiss for failure to state a

claim unless it appears beyond doubt that “no set of facts in support of his claim [] would

6 entitle him to relief”); Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc.,

,

16 n.4 (D.C. Cir. 2008) (affirming that “a complaint needs some information about the

circumstances giving rise to the claims”). While these facts must “possess enough heft to

‘sho[w] that the pleader is entitled to relief,’” a complaint “does not need detailed factual

allegations.” Twombly,

. In resolving a Rule 12(b)(6) motion, the

court must treat the complaint’s factual allegations – including mixed questions of law

and fact – as true and draw all reasonable inferences therefrom in the plaintiff’s favor.

Macharia v. United States,

(D.C. Cir. 2003); Holy Land Found. for

Relief & Dev. v. Ashcroft,

(D.C. Cir. 2003); Browning,

. While many well-pleaded complaints are conclusory, the court need not accept as

true inferences unsupported by facts set out in the complaint or legal conclusions cast as

factual allegations. Warren v. District of Columbia,

(D.C. Cir. 2004);

Browning,

.

A defendant may raise the affirmative defense of statute of limitations 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,

(D.C. Cir. 1998).

Because statute of limitations issues often depend on contested questions of fact,

however, the court should hesitate to dismiss a complaint on statute of limitations

grounds based solely on the face of the complaint. Firestone v. Firestone,

(D.C. Cir. 1996). Rather, the court should grant a motion to dismiss only if the

complaint on its face is conclusively time-barred. Id.; Doe v. Dep’t of Justice,

(D.C. Cir. 1985). If “no reasonable person could disagree on the date” on

which the cause of action accrued, the court may dismiss a claim on statute of limitations

7 grounds. Smith v. Brown & Williamson Tobacco Corp.,

(D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A.,

, 463

n.11 (D.C. Cir. 1989)).

B. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c); see also Celotex Corp. v. Catrett,

(1986); Diamond v.

Atwood,

(D.C. Cir. 1995). To determine which facts are “material,” a

court must look to the substantive law on which each claim rests. Anderson v. Liberty

Lobby, Inc.,

(1986). A “genuine issue” is one whose resolution could

establish an element of a claim or defense and, therefore, affect the outcome of the action.

Celotex,

; Anderson,

.

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as

true. Anderson,

. A nonmoving party, however, must establish more than

“the mere existence of a scintilla of evidence” in support of its position.

. To

prevail on a motion for summary judgment, the moving party must show that the

nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of

proof at trial.” Celotex,

. By pointing to the absence of evidence

proffered by the nonmoving party, a moving party may succeed on summary judgment.

8 The nonmoving party may defeat summary judgment through factual

representations made in a sworn affidavit if he “support[s] his allegations . . . with facts

in the record,” Greene v. Dalton,

, 675 (D.C. Cir. 1999) (quoting Harding v.

Gray,

(D.C. Cir. 1993)), or provides “direct testimonial evidence,”

Arrington v. United States,

(D.C. Cir. 2006). Indeed, for the court to

accept anything less “would defeat the central purpose of the summary judgment device,

which is to weed out those cases insufficiently meritorious to warrant the expense of a

jury trial.” Greene, 164 F.3d at 675.

C. The Plaintiff’s Sexual Harassment Claim

Title VII requires an employee to file a charge of discrimination with the EEOC

within 180 days of the alleged unlawful employment practice, or within 300 days of the

alleged unlawful employment practice if the person aggrieved has initially instituted a

proceeding with a state or local agency. 42 U.S.C. § 2000e-5(e)(1); see also Park v.

Howard Univ.,

(D.C. Cir. 1995) (observing that “Title VII requires that

a person complaining of a violation file an administrative charge with the EEOC and

allow the agency time to act on the charge”). The purpose of the requirement is to allow

“the agency an opportunity to resolve the matter internally and to avoid unnecessarily

burdening the courts.” Wilson v. Pena,

(D.C. Cir. 1996). When an

employee asserts a claim based on a discrete act of discrimination, he or she must file a

charge within either 180 or 300 days of the act or lose the ability recover for it. Nat’l

R.R. Passenger Corp. v. Morgan,

(2002). Claims based on discrete

acts of discrimination that fall outside the statutory period are time-barred.

9 A hostile work environment claim, on the other hand, “is composed of a series of

separate acts that collectively constitute one ‘unlawful employment practice.’”

at 117

(quoting 42 U.S.C. § 2000e-5(e)(1)). Unlike a claim premised on discrete acts of

discrimination, a hostile work environment claim cannot be reduced to a single action on

a single day because “[its] very nature involves repeated conduct” and it is based “on the

cumulative effect of individual acts.” Id. at 115. For such a claim,

[i]t does not matter . . . that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

Id.

The defendant contends that the plaintiff’s sexual harassment claims are time-

barred because she failed to file her administrative complaint within 300 days of the

alleged sexual harassment. Def.’s Mot. at 5. Although the complaint fails to provide

specific dates for any particular incident of sexual harassment by Rodriguez, the plaintiff

has indicated that the sexual harassment she complains of continued until June 2005. Id.

at 5-6. Because the plaintiff did not file her administrative complaint until August 11,

2006 – more than 300 days later – the defendant asserts that the plaintiff’s sexual

harassment claims are time-barred.3 Id. at 6. In addition, the defendant claims that

equitable considerations do not excuse the plaintiff’s behavior because she has failed to

3 The defendant briefly states that the plaintiff has failed to allege that she suffered an adverse employment action. Def.’s Reply at 5. Because this argument was raised for the first time in the defendant’s reply memorandum, it will not be considered by the court. See Cronin v. Fed. Aviation Admin.,

(D.C. Cir. 1996) (noting that “[i]t is well established that [the] court will not entertain arguments raised for the first time in a party’s reply brief”).

10 demonstrate any bad faith on the part of her supervisors or due diligence in pursuing her

claim. Pl.’s Reply at 4-5.

The plaintiff responds that the limitations period should be calculated from June

19, 2005, the date she filed a complaint with the Office of the Special Inspector, and that

the defendant should be equitably estopped from asserting the statute of limitations

defense because the plaintiff’s supervisors directed her to file her complaint with the

Office of the Special Inspector only. Pl.’s Opp’n at 6-7. She notes that filing the

complaint with the Special Inspector satisfied the underlying rationale of Title VII’s

administrative exhaustion requirement, as it put the DOC on notice of her allegations and

gave it an opportunity to address the situation internally. Id. at 9-10. In addition, the

plaintiff asserts that dismissal would be inequitable under these circumstances, given the

confusion that arose from the existence of the Office of Special Inspector – confusion that

led an official within the DCOHR to rebuff the plaintiff’s efforts to file an administrative

complaint with that office in late March or early April 2006. Id. at 8.

The administrative filing requirement “essentially functions as a statute of

limitations for Title VII actions.” Carter v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 2007). Like a statute of limitations, the requirement “is not a

jurisdictional prerequisite to filing suit in federal court, but a requirement that . . . is

subject to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc.,

(1982); see also Brown v. Marsh,

(D.C. Cir. 1985).

The court’s power to equitably excuse noncompliance with administrative filing

deadlines, however, “will be exercised only in extraordinary and carefully circumscribed

instances.” Mondy v. Sec’y of the Army,

(D.C. Cir. 1988). The

11 plaintiff will not be afforded extra time to file without exercising due diligence, and the

plaintiff’s excuse must be more than a “garden variety claim of excusable neglect.” Irwin

v. Dep’t of Veterans Affairs,

(1990). The plaintiff bears the burden of

pleading and proving equitable reasons for noncompliance with administrative filing

requirements. Bayer v. U.S. Dep’t of Treasury,

(D.C. Cir. 1992).

Equitable estoppel “prevents a defendant from asserting untimeliness where the

defendant has taken active steps to prevent the plaintiff from litigating in time.” Currier

v. Radio Free Europe/Radio Liberty, Inc.,

(D.C. Cir. 1998)

(emphasis omitted); see also Bowden v. United States,

(D.C. Cir.

1997) (observing that courts “have excused parties who were misled about the running of

a limitations period, whether by an adversary’s actions, by a government official’s advice

upon which they reasonably relied, or by an inaccurate or ineffective notice from a

government agency required to provide notice of the limitations period”). The defendant

must engage in affirmative misconduct for equitable estoppel to apply. Moore v.

Chertoff,

(D.D.C. 2006) (citing Currier,

);

accord Smith-Haynie v. District of Columbia,

(D.C. Cir. 1998)

(providing that “[t]olling on estoppel grounds is proper . . . where affirmative misconduct

on the part of a defendant lulled the plaintiff into inaction”) (quotations omitted); Hedrich

v. Bd. of Regents of Univ. of Wis. Sys.,

(7th Cir. 2001) (observing

that “to make a claim for equitable estoppel, the plaintiff must present evidence that the

defendant [took] active steps to prevent the plaintiff from suing in time”). Such

misconduct typically involves “acts of wrongdoing such as hiding evidence or promising

not to rely on a statute of limitations defense.” Hedrich,

.

12 An employer does not engage in affirmative misconduct, justifying equitable

estoppel, merely by touting its internal procedures as the appropriate forum for resolving

discrimination complaints. Washington v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1998). The plaintiff in Washington filed an internal complaint

with his employer’s Office of Civil Rights (“OCR”), claiming age and race

discrimination and retaliation.

. The OCR rendered a decision rejecting the

plaintiff’s allegations, stating that he could file an administrative complaint within 180

days of the last instance of discrimination.

Yet the 180-day period had already lapsed

during the period of the OCR’s investigation.

. In opposition to the employer’s

motion for summary judgment, the plaintiff argued that the defendant should have been

equitably estopped from asserting that the plaintiff’s claims were time-barred because the

employer had touted its internal procedures as the appropriate forum for resolving his

discrimination complaint, lulling him into presuming that he had met the requirements for

pursuing his claim.

. The Circuit rejected the argument, holding that the

plaintiff had failed to demonstrate any affirmative misconduct on the part of the

employer.

.

Like the plaintiff in Washington, the plaintiff in this case relied upon her

employer’s direction to use its internal grievance procedures to adjudicate her

discrimination claims.4 Pl.’s Opp’n at 6-7. Washington makes clear that such an

instruction does not, standing alone, constitute affirmative misconduct justifying

equitable estoppel. Washington,

.

4 The Office of the Special Inspector was established to operate “within the [DOC]” to supplement its flawed internal grievance procedures for sexual harassment and retaliation claims. Neal v. Dir., D.C. Dep’t of Corr.,

, at *2-3 (D.D.C. Aug. 9, 1995).

13 Yet the plaintiff’s allegations diverge from the facts of Washington in several key

respects. First, the plaintiff in this case states in her affidavit that Deputy Warden Corbett

told her not only that she should file her complaint with the Office of the Special

Inspector, but also that she “was not allowed to file a complaint anywhere else or to file a

lawsuit prior to filing with the Office of the Special Inspector.” Pl.’s Aff. ¶ 3. Other

supervisors allegedly gave the plaintiff similar instructions. 2d Am. Compl. ¶ 17. In

addition, unlike the plaintiff in Washington, the plaintiff in this case maintains that she

contacted the DCOHR shortly after receiving the results of the Special Inspector’s report,

Pl.’s Aff. ¶¶ 6-7, arguably demonstrating the type of diligence absent in that case, see

Washington,

(noting that the plaintiff failed to demonstrate diligence by

waiting five months after receiving the results of the OCR letter to file an administrative

complaint); see also Bowden,

(observing that “courts have excused

parties, particularly those acting pro se, who make diligent but technically defective

efforts to act within a limitations period”) (citing Irwin,

). Furthermore,

whereas the plaintiff in Washington was represented by counsel during at least part of the

filing period, it is unclear whether the plaintiff in this case was represented by counsel

prior to the time she filed her administrative complaint. See generally Pl.’s Opp’n.

Finally, the plaintiff’s reliance on Corbett’s instruction may well have been objectively

reasonable, in light of the fact that the Office of the Special Inspector was established by

court order and operated with a degree of autonomy from the DOC. See Neal,

, at *3 (stating that “[i]n order to achieve the independence and impartiality

required to restore confidence in the protections against sexual harassment and retaliation

at the Department, the [Special Inspector] shall operate independently of all Departmental

14 staff, including the Director”). Under these unique circumstances, the court cannot

conclude that the plaintiff’s complaint on its face is conclusively time-barred. See

Firestone,

. Thus, the court denies the defendant’s motion to dismiss the

complaint as time-barred.

As for the defendant’s motion in the alternative for summary judgment, the court

notes that when the instant motion was fully submitted, the parties had yet to develop the

factual underpinning of this case through discovery. Indeed, the plaintiff’s equitable

estoppel argument is, at present, supported by nothing more than the spare allegations set

forth in her complaint and affidavit. See Pl.’s Opp’n at 6-10; see also Pl.’s Aff. ¶¶ 3-4.

These allegations are silent as to several matters that could be relevant to the resolution of

the timeliness issue, such as the dates on which the incidents of sexual harassment

occurred, the specific nature of the comments made by Corbett, Profit and other

supervisors regarding how the plaintiff was required to proceed with her claim and

whether the plaintiff was represented by counsel during any portion of this process. See

Pl.’s Opp’n at 6-10; Pl.’s Aff. ¶¶ 3-4. As previously noted, it is the plaintiff’s burden to

prove that equitable considerations justify her noncompliance with the filing requirement.

See Bayer,

. Accordingly, the court denies the defendant’s motion for

summary judgment based on the plaintiff’s failure to file a timely administrative charge,

without prejudice to consideration of a renewed motion on these grounds after the parties

have developed the factual record through discovery.

B. The Plaintiff’s Retaliation Claims

The plaintiff alleges that the defendant retaliated against her by refusing to

separate her from Rodriguez after she complained about his harassing behavior, 2d Am.

15 Compl. ¶ 36, permitting her co-workers to direct negative comments towards her

regarding her involvement in protected activity, id. ¶ 37, refusing to put her on light duty

as recommended by her physician, id., placing her on unpaid leave after her medical

condition forced her to take a leave of absence in late May 2006, id. ¶ 38, and ordering

her to leave work and go home on November 27, 2006, id. ¶ 42.

The defendant contends that the plaintiff has failed to plead a prima facie case of

retaliation insofar as she has failed to plead any facts to support her claim that she was

placed on unpaid leave for retaliatory purposes. Def.’s Mot. at 6-7. In addition, the

defendant argues that the plaintiff failed to exhaust her administrative remedies with

respect to her claim that she was instructed to leave work on November 27, 2006.5 Id. at

7.

The plaintiff maintains that she has stated a valid prima facie case of retaliation.

Pl.’s Opp’n at 10-11. Furthermore, the plaintiff asserts that because her claim based on

the events of November 27, 2006 is “like or reasonably related to” the allegations

contained in her administrative charge, she adequately exhausted her administrative

remedies. Id. at 11-12. In the alternative, the plaintiff argues that she need not exhaust

her administrative remedies with respect to her retaliation claims. Id. at 12. The court

addresses each of these issues in turn.

5 The defendant argues that the plaintiff’s retaliation claims are time-barred. Def.’s Reply at 5-7. The court need not address these arguments, as they were raised for the first time in the defendant’s reply memorandum. See Cronin,

. At any rate, the plaintiff’s administrative charge alleges that the defendant continued to retaliate against her even as of the time she filed with the EEOC in August 2006. See Def.’s Mot., Ex. 4. Accordingly, the court cannot conclude from the face of the pleadings that the plaintiff’s retaliation claims are conclusively time-barred. See Firestone v. Firestone,

(D.C. Cir. 1996).

16 1. The Plaintiff Has Pleaded a Legally Cognizable Retaliation Claim Based on Her Placement on AWOL Status

To establish a prima facie case of retaliation, a plaintiff must show that (1) she

engaged in a statutorily protected activity, (2) a reasonable employee would have found

the challenged action materially adverse and (3) there existed a causal connection

between the protected activity and the materially adverse action. Burlington N. & Santa

Fe Ry. Co. v. White,

(2006); Jones v. Bernanke,

(D.C. Cir. 2009). The plaintiff’s burden is not great: she “merely needs to establish facts

adequate to permit an inference of retaliatory motive.” Forman v. Small,

(D.C. Cir. 2001).

In the retaliation context, the term “adverse action” “encompass[es] a broader

sweep of actions than those in a pure discrimination claim.” Baloch v. Kempthorne,

, 1198 n.4 (D.C. Cir. 2008). Thus, “[r]etaliation claims are ‘not limited to

discriminatory actions that affect the terms and conditions of employment’ and may

extend to harms that are not workplace-related or employment-related so long as ‘a

reasonable employee would have found the challenged action materially adverse.’”

(quoting Burlington N.,

).

The plaintiff may establish a causal connection “by showing that the employer

had knowledge of the employee’s protected activity, and that the [retaliatory] personnel

action took place shortly after that activity.” Cones v. Shalala,

(D.C.

Cir. 2000) (quoting Mitchell v. Baldrige,

(D.C. Cir. 1985)); accord Clark

County Sch. Dist. v. Breeden,

(2001) (noting that the temporal

connection must be “very close”: a three- or four-month period between an adverse

17 action and protected activity is insufficient to show a causal connection, and a twenty-

month period suggests “no causality at all”).

Plainly, the plaintiff engaged in protected activity when she lodged a complaint

with the Office of the Special Inspector on June 19, 2005, assisted in the Special

Inspector’s investigation and contacted the DCOHR to pursue her claim. See 42 U.S.C. §

2000e-3(a) (prohibiting adverse employment actions based on the fact that an employee

“has made a charge, testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII]”). It is equally clear that placement on unpaid

leave status constitutes a materially adverse employment action. See Taylor v. Solis,

(D.C. Cir. 2009) (holding that an employee suffered a materially adverse

employment action when she was temporarily placed on AWOL status despite the fact

that she was ultimately given back-pay for the period of her absence).

The sole issue before the court, therefore, is whether the plaintiff has adequately

pleaded the existence of a causal connection between her involvement in protected

activity and her placement on leave without pay. The record before the court does not

make clear precisely when the plaintiff was placed on unpaid leave, when her

participation in the Special Inspector’s investigation concluded or whether officials

within the DOC were aware that she had contacted the DCOHR. See generally 2d Am.

Compl. Yet, drawing all reasonable inferences in favor of the plaintiff, these allegations

suggest that the defendant placed the plaintiff on unpaid leave shortly after, and because,

she engaged in protected activity. At this early stage of the proceedings, such allegations

are sufficient to survive a motion to dismiss. See Rochon v. Gonzales,

(D.C. Cir. 2006) (observing that “in order to survive a motion to dismiss, all [the]

18 complaint has to say . . . is ‘the [defendant] retaliated against me because I engaged in

protected activity’”) (quoting Sparrow v. United Air Lines, Inc.,

(D.C. Cir. 2000)); Vance v. Chao,

(D.D.C. 2007) (holding that

“[a]t this early stage of the proceedings, plaintiff can meet her prima facie burden of

causation simply by alleging that the adverse actions were caused by her protected

activity”); see also Swierkiewicz,

(holding that the plaintiff need not

plead all elements of his prima facie case in the complaint); Beckham v. Nat’l R.R.

Passenger Corp.,

(D.D.C. 2008) (denying the defendant’s motion

to dismiss based on lack of temporal proximity because the plaintiff had satisfied her

burden at that early stage of the proceedings). Thus, the plaintiff’s failure to specify in

her complaint the precise dates of her involvement in protected activity does not warrant

dismissal of her complaint at this juncture. Accordingly, the court denies the defendant’s

motion to dismiss the plaintiff’s retaliation claim.

2. The Plaintiff’s Retaliation Claim Should Not Be Dismissed for Failure to Exhaust Administrative Remedies

Prior to the Supreme Court’s decision in Morgan in 2002, courts generally held

that a plaintiff was not required to separately exhaust her administrative remedies for

retaliation claims arising after the filing of an administrative complaint. See McKenzie v.

Ill. Dep’t of Transp.,

(7th Cir. 1996); Gupta v. East Tex. State Univ.,

(5th Cir. 1981); Sussman v. Tanoue,

(D.D.C.

1999); Webb v. District of Columbia,

(D.D.C. 1994). These

decisions implemented the “continuing violation doctrine,” under which an

administrative charge was construed to encompass all claims “like or reasonably related

to” the allegations contained in the charge. See Park,

.

19 In Morgan, however, the Supreme Court rejected the “continuing violation

doctrine,” holding that “discrete discriminatory acts are not actionable if time barred,

even when they are related to acts alleged in timely filed charges.”

.

Morgan thus made clear that claims based on discriminatory or retaliatory acts that

occurred more than 180 or 300 days before the filing of the administrative charge are

time-barred, regardless of whether they are “like or reasonably related to” allegations

contained in the administrative charge.

Circuit courts, as well as judges within this district, have since reached differing

conclusions on whether Morgan requires a plaintiff to separately exhaust her

administrative remedies for retaliation claims arising after the filing of the administrative

complaint. See Hernandez v. Gutierrez,

(D.D.C. Sept. 19,

2009) (noting the disagreement among the courts). Although this Circuit has yet to

address this precise issue, see Weber v. Battista,

(D.C. Cir. 2007),

the Eighth Circuit has held that Morgan does not require a plaintiff to separately exhaust

her administrative remedies “where the subsequent retaliatory acts were of a like kind to

the retaliatory acts alleged in the EEOC charge, which were specified to be of an ongoing

and continuing nature,” Wedow v. City of Kansas City, Mo.,

(8th Cir.

2006) (stating that Morgan required the court to “narrow[] its view of what subsequent

acts are sufficiently related to be within the scope of the properly filed administrative

charge” but did not require the court to “wholly abandon[] the theory that reasonably

related subsequent acts may be considered exhausted”). The Tenth Circuit, on the other

hand, has interpreted Morgan broadly to require exhaustion of remedies for related

“incidents occurring after the filing of [the] plaintiff’s EEO complaint.” Martinez v.

20 Potter,

(10th Cir. 2003) (concluding that “Morgan abrogates the

continuing violation doctrine as previously applied to claims of discriminatory or

retaliatory actions by employers, and replaces it with a framework where each discrete

incident of discriminatory treatment constitutes its own ‘unlawful employment practice’

for which administrative remedies must be exhausted”).

This court is persuaded by the Eighth Circuit’s reasoning. See Hazel v.

Washington Metro. Area Transit Auth.,

, at *8 (D.D.C. Dec. 4, 2006)

(Roberts, J.) (adopting the Eighth Circuit’s reasoning observing that “[i]t would be no

surprise if the D.C. Circuit adopted the analysis of Wedow”). So long as the allegations

underlying the plaintiff’s retaliation claims “were of a like kind to the retaliatory acts

alleged in the EEOC charge, which were specified to be of an ongoing and continuing

nature,” Wedow,

, her failure to separately exhaust her administrative

remedies will not serve as a bar to suit.

Although the plaintiff’s administrative charge appears to allege retaliatory acts of

an ongoing and continuing nature, see Def.’s Mot., Ex. 4, 6 the incompleteness of the

factual record prevents the court from determining at this juncture whether the allegations

in question were “of a like kind” to the retaliatory acts alleged in the EEOC charge. The

complaint states only that on November 27, 2006, the plaintiff returned to work, at which

time “she was further harassed and retaliated against by co-workers and supervisors” and

that “[w]ithin two (2) hours of reporting to work on that date, the Major on duty

instructed her to leave the premises and go home.” 2d Am. Compl. ¶ 42. The plaintiff’s

6 The administrative charge states that “the DOC continues to retaliate against [her] by insisting that she continue to work at the DC Jail with Mr. Rodriguez” and that “when she works at the DC Jail many of her co-workers tell her that she did the wrong thing by filing a complaint against Mr. Rodriguez.” Def.’s Mot., Ex. 4.

21 opposition offers no additional detail regarding the nature of the retaliation and

harassment she suffered, nor does it describe why she was instructed to leave work. See

Pl.’s Opp’n at 11-12.

Given the number of potentially pertinent factual issues that remain unresolved,

the court cannot conclude on the basis of the pleadings alone that the plaintiff failed to

exhaust her administrative remedies. See Payne v. Salazar,

, 52 n.9

(D.D.C. 2009) (concluding that a “motion to dismiss for exhaustion is more appropriately

treated as a motion to dismiss for failure to state a claim under Rule 12(b)(6)”). The

court, therefore, denies the defendant’s motion to dismiss this claim for failure to exhaust

administrative remedies.

IV. CONCLUSION

For the foregoing reasons, the court denies the defendant’s motion to dismiss the

plaintiff’s Title VII sexual harassment claims as time-barred, denies without prejudice the

defendant’s motion for summary judgment on the same issue and denies the defendant’s

motion to dismiss the plaintiff’s Title VII retaliation claims. The court, however, grants

the defendant’s motion to dismiss the DCHRA and IIED claims. An Order consistent

with this Memorandum Opinion is separately and contemporaneously issued this 28th

day of September, 2009.

RICARDO M. URBINA United States District Judge

22