UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) MILDRED MUSGROVE, ) ) Plaintiff, ) ) Civil Action No. 06-1861(EGS) v. ) ) THE GOVERNMENT OF THE ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )

MEMORANDUM OPINION

The plaintiff, Mildred Musgrove, filed a Complaint against

the District of Columbia Public Schools (“defendant” or “District

of Columbia”) alleging retaliatory discharge, hostile work

environment, denial of service, and age and gender

discrimination. Before this Court is a Motion to Dismiss by the

defendant. After careful consideration of defendant’s motion,

plaintiff’s opposition, and applicable case law, this Court

DENIES defendant’s Motion to Dismiss.

I. BACKGROUND

Plaintiff, Mildred Musgrove, was the principal at Anacostia

High School from 1997 until 2003. She had been a teacher and

principal with the District of Columbia Public Schools since

1970. In February 2003, she was placed on administrative leave

for disregarding the superintendent's directive regarding locked doors in the school in violation of the D.C. Fire Code. She was

eventually terminated,1 which she grieved. The grievance

resulted in arbitration, and she settled the case, whereby she

was reinstated as a principal with back pay. The settlement

notwithstanding, plaintiff did not resume her role as a

principal.2

On May 19, 2004, plaintiff filed a claim with the District

of Columbia Office of Human Rights (“OHR”) alleging retaliatory

discharge, hostile work environment, violations of equal pay, and

denial of service. In her Complaint, plaintiff makes specific

allegations of harassment, retaliation, and discrimination,

including violations of the Equal Pay Act and the D.C. Human

Rights Act (“DCHRA”). The same claim was cross-filed with the

Equal Employment Opportunity Commission (“EEOC”), where the

parties went through mediation and an investigation. After a

clerical error was corrected, the EEOC issued a right to sue

1 The reasons given for termination were “(1) Discourteous treatment of the public supervisor, or other employees and (2) Violation of the rules, regulations or lawful orders of the Board of Education or any directive of the Superintendent of Schools.” 2 On July 9, 2004, plaintiff received a letter from the defendant informing her that she was being appointed principal at Coolidge Senior High School. She was instructed to report for duty on July 12, 2004. When she reported to the school, she was unable to get in touch with her supervisor, or anyone who knew of her appointment as principal at Coolidge. Her continued attempts to contact her supposed supervisor were to no avail.

2 letter on August 7, 2006.3 Plaintiff filed suit in this Court on

November 1, 2006.

On July 11, 2008, defendant filed a motion to dismiss

arguing that (1) plaintiff’s claims are untimely; (2) plaintiff

failed to comply with

; (3) plaintiff’s claims

are barred by the one-year statute of limitations and the

settlement agreement she entered into; and (4) punitive damages

are not recoverable against the District of Columbia.

On February 3, 2009, this Court directed the parties to

address the applicability, if any, of the Lilly Ledbetter Fair

Pay Act of 2009, to this matter. As a result, defendant withdrew

its timeliness argument.

II. DISCUSSION

A. Standard of Review

To survive a motion to dismiss a complaint for failure to

state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6), a plaintiff must make

3 Musgrove case was mistakenly administratively dismissed by OHR because of mistaken identity. This problem was correct by the OHR Director Kenneth Saunders. Saunders attempted to administratively close the case a second time in 2005; he rescinded the dismissal. On July 21, 2005, the EEOC sent plaintiff a right to sue letter for Simone Greggs, who worked at the Hard Rock Café in Washington, D.C. – another case of mistaken identity. It took a year before plaintiff was able to correct these identity issues and receive a proper right to sue letter from the EEOC.

3 sufficiently detailed factual allegations in her complaint. See

Bell Atlantic Corp. v. Twombly,

(2007). The

allegations must “raise a right to relief above the speculative

level.”

(citation omitted). “In evaluating a Rule 12(b)(6)

motion, the Court must accept as true all of the factual

allegations contained in the complaint and grant the plaintiff

the benefit of all inferences that can be derived from the facts

alleged.” Eleson v. United States,

(D.D.C. 2007) (internal citations and quotation marks omitted).

“However, ‘a plaintiff's obligation to provide the grounds of

[her] entitlement to relief [in her complaint] requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.’”

(quoting

Twombly,

). The Court is “not bound to accept as

true a legal conclusion couched as a factual allegation” when

considering a motion to dismiss. Trudeau v. Fed. Trade Comm’n,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)). In determining whether a complaint

fails to state a claim, the Court “may consider only the facts

alleged in the complaint, any documents either attached to or

incorporated in the complaint and matters of which [the Court]

may take judicial notice.” EEOC v. St. Francis Xavier Parochial

Sch.,

(D.C. Cir. 1997) (footnote and citation

omitted).

4 B.

has a notice provision requiring a

plaintiff who files suit “against the District of Columbia for

unliquidated damages” to give notice “within six months after the

injury or damage was sustained . . . in writing to the Mayor of

the District of Columbia of the approximate time, place, cause,

and circumstances of the injury or damage.”

.

The notice requirement is a condition precedent to filing a suit

against the District of Columbia. Gwinn v. District of Columbia,

(D.C. 1981). “Section 12-309 is not, and

does not function as, a statute of limitations. Rather, it

imposes a notice requirement on everyone with a tort claim

against the District of Columbia, and compliance with its terms

is ‘mandatory as a prerequisite to filing suit against the

District.’” District of Columbia v. Dunmore,

(D.C. 1995) (quoting Hardy v. District of Columbia,

(D.C. 1992)).

Defendant argues that plaintiff still has not notified the

mayor under the statute. Plaintiff argues that not only did she

notify the District of Columbia under § 12-309, but also that the

statute does not apply because there is no way she could have

known within six months after her termination that she would

inevitably file suit against defendant because she had a

statutory right to file her case with OHR or with the EEOC –

5 which could have continued for longer than six months.

As an initial matter, this Court finds that plaintiff did

give defendant notice of her intention to file a claim. In a

letter dated September 24, 2004, plaintiff’s attorney informed

the District of Columbia that plaintiff was prepared to proceed

to trial. See Letter from E. Lindsey Maxwell II, Esq. to Valerie

Jones, Sept. 20, 2004. The letter clearly states that

plaintiff’s claims are based on age and gender discrimination,

among other things. On September 21, 2004, the District of

Columbia responded to plaintiff’s attorney by letter stating that

the plaintiff’s correspondence was being transferred to the

Attorney General for the District of Columbia. See Letter from

to Valerie Jones to E. Lindsey Maxwell, Sept. 21, 2004.

According to the D.C. Court of Appeals, the purpose of § 12-

309 is to “provide an early warning to District of Columbia

officials regarding litigation likely to occur in the future.”

Pitts v. District of Columbia,

(D.C. 1978).

Section 12-309 also serves to “permit the District to conduct an

early investigation of the facts and circumstances surrounding

such claims.”

In Mazloum v. District of Columbia

Metropolitan Police Department,

(D.D.C. 2007),

this Court held that “the content requirements of the notice

given to the District . . . ‘are to be interpreted liberally, and

in close cases [courts are to] resolve doubts in favor of finding

6 compliance with the statute.’” (quoting Shaw v. District of

Columbia,

(D.D.C. May 8, 2006)).

Plaintiff’s letter clearly warned District of Columbia

officials that litigation was likely to occur in the future, and

the District of Columbia had sufficient time to conduct an early

investigation of the facts and the circumstances surrounding

plaintiff’s claims. Interpreting the statute liberally,

plaintiff gave notice under the statute. Her claims are not

barred by § 12-309. Having decided that plaintiff complied with

the statute, it is not necessary for this Court to decide whether

the statute applies to plaintiff’s claims.

C. Statute of Limitations and the Settlement Agreement

I. Statute of Limitations

provides that a cause of action must

be filed "within one year of the unlawful discriminatory act, or

the discovery thereof."

. "The filing of a

complaint with the [D.C.] Office [of Human Rights] . . . shall

toll the running of the statute of limitations while the

complaint in pending."

Defendant argues that plaintiff did

not timely file the DCHRA complaint, and that plaintiff’s

equitable claims are barred by the statute of limitations under

the DCHRA. Plaintiff argues that she did timely file her claims.

Plaintiff filed her claims with OHR on May 19, 2004,

alleging there that the initial discriminatory discharge occurred

7 on July 16, 2003. She, therefore, met the one-year deadline for

her initial filing; plaintiff’s claims tolled the statute of

limitations. Her claim, however, was administratively dismissed

on May 24, 2005. Plaintiff’s administrative dismissal was an

error; she presented documentation to the Court documenting the

clerical mistake. A proper right to sue letter was issued on

August 7, 2006, and the case was reopened. Plaintiff then

properly filed suit on November 1, 2006, well within the ninety-

day limit that the EEOC letter announced in its August 7, 2007

right to sue letter.

ii. Settlement Agreement

Defendant also claims that the settlement agreement covers

the claims of discrimination and that plaintiff’s claims are

barred by it. In the settlement agreement, plaintiff agreed to

"release and to not pursue or file any action or complaint of any

nature in any forum regarding her termination." The question is

whether her discrimination claim is covered by this release. It

is not. The language of the settlement agreement indicates that

it only covered her termination. Her termination letter

indicates that she was terminated for insubordination and

violations of two specific sections of the D.C. Fire Code. The

allegations in this suit are age and gender discrimination claims

that have nothing to do with insubordination or violations of the

D.C. Fire Code.

8 D. Punitive Damages

Defendant argues that punitive damages against the District

of Columbia are only recoverable in "extraordinary

circumstances." Butera v. District of Columbia,

(D.C. Cir. 2001). The term “extraordinary circumstances”

refers to circumstances “‘where a jurisdiction's taxpayers are

directly responsible for perpetrating the policies that caused

the plaintiff's injuries’ or ‘where a municipality or its

policymakers have intentionally adopted the unconstitutional

policy that caused the damages in question.’”

(quoting

Daskalea v. District of Columbia,

(D.C. Cir.

2000)). Plaintiff specifically claims that there is a culture of

gender discrimination against female high school principals in

the District of Columbia. If true, plaintiff’s allegations

present circumstances upon which a jury might find that

“extraordinary circumstances” could warrant the awarding of

punitive damages. This issue is not ripe for a motion to

dismiss.

III. CONCLUSION

Defendant’s Motion to Dismiss is DENIED. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

9 Signed: Emmet G. Sullivan United States District Judge March 16, 2009

10