UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) AMY E. CUNNINGHAM, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:17-cv-1769 (TSC) ) ) MYLAN PHARMACEUTICALS, INC., ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Amy E. Cunningham brings this action against her former employer, Mylan

Pharmaceuticals, Inc. (“MPI”), alleging sex discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000), and age discrimination in violation of the Age

Discrimination in Employment Act of 1967 (“ADEA”),

(a). Compl. p.1. MPI

seeks partial dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that some

of Cunningham’s claims are time barred. ECF No. 29, Def. Mot. to Dismiss. For the reasons set

forth below, the court will DENY the motion and permit Cunningham to amend her Complaint.

I. BACKGROUND

MPI hired Cunningham in April 2010 as “Director of ARV Business Development,”

which involved managing MPI’s “business development and commercial portfolio” of

antiretroviral drugs in Africa. Compl. ¶ 5. Her office was based in Tanzania, where she lived

during her employment. 1

. Cunningham asserts that from the beginning of her

1 Cunningham originally filed her complaint in Virginia, where she now resides, but MPI filed a motion to dismiss due to lack of jurisdiction and improper venue. ECF No. 4. The Virginia 1 employment, her India-based male co-workers and managers subjected her to discrimination.

. Specifically, she claims she was “pigeonholed in a narrow role by her male supervisors”

and “was never permitted to advance in management,” thereby impeding her professional

development.

. Although Cunningham considered accepting a position with the United

States Agency for International Development in 2011, she was encouraged to remain at MPI by

two female MPI executives, who promised her a new reporting structure in which she would be

allowed to take on additional responsibilities.

.

Cunningham claims that despite these promises, she continued to suffer gender and age-

based discrimination. She provides various examples of MPI employees failing to give her

credit for her work and failing to provide her with opportunities for assuming greater

responsibility.

. On one occasion, despite promises that Cunningham would

receive “supervisory responsibility over the commercial activity in Africa,” MPI awarded a

supervisory position to one of her male Indian co-workers.

. On another occasion, after

Cunningham requested more responsibility, her supervisor replied, “you are over 50 years old;

why are you so keen to take more on - just relax and don’t work so hard?”

.

Cunningham contends that this statement reflected the “general sentiment” among MPI’s male

supervisors that older foreign women “should not take on senior positions in the India structure

or in the Africa” region.

. Cunningham also alleges that her recommendations on

projects or for improving system operations “were almost always ignored,” and that junior male

co-workers were given responsibility for implementing projects that she masterminded.

.

court denied the motion to dismiss and instead transferred the case to the District of Columbia, which her contract designates as her “home location” and where MPI maintains an office. ECF Nos. 18, 21; Compl. ¶ 4; ECF No. 14 p. 6. 2 Cunningham also contends that MPI excluded her from important meetings, withheld

important information from her, and undermined her work. Although she communicated with

her managers on a weekly basis, on one occasion she met a new high level MPI executive and

discovered that “the guys ‘(her Indian managers)’” had falsely informed the executive that they

did not know what she did and had not heard from her in months.

. MPI did not

acknowledge her weekly reports, nor did it acknowledge her requests to receive her team

members’ trip reports.

. Although Cunningham traveled to other African countries

up to fifteen times per year, she “received little or no guidance on planning and no feedback or

acknowledgment upon submitting her trip reports.”

. Cunningham asserts that she was

“routinely” shut out “as a contributing member” of her unit, “consistently left . . . off e-mails and

excluded . . . from meetings.”

. Her supervisors “frequently neglected” to tell her when

other team members were visiting African countries over which she had responsibility.

.

Even though Cunningham and a male co-worker were to jointly supervise various operations in

Africa, she was “never allowed joint planning or joint discussions on overall work.”

.

Moreover, she was “not apprised of information regarding new product launches” and her direct

supervisor “provided no guidance or feedback on her work.”

. Indeed, she did not

receive a written performance evaluation for five years.

.

Cunningham claims that MPI terminated her in July 2016 because of a “cultural bias

against female leaders.”

. She filed a Charge of Discrimination with the U.S. Equal

Employment Opportunity Commission (“EEOC”) on August 26, 2016, in which she alleged

discrimination based on sex and age.

; Defs. Ex. A.

3 II. LEGAL STANDARD

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the

legal sufficiency of a complaint. Browning v. Clinton,

(D.C. Cir. 2002). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). A claim is plausible

when it alleges sufficient facts to permit the court “to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal,

(citation omitted). When

considering a defendant’s motion to dismiss for failure to state a claim, “the court must construe

the complaint in a light most favorable to the plaintiff and must accept as true all reasonable

factual inferences drawn from well-pleaded factual allegations.” Ahuja v. Detica, Inc.,

(D.D.C. 2010) (citation omitted). 2

III. DISCUSSION

A plaintiff bringing a claim under Title VII must first file a charge with the EEOC either

180 or 300 days “after the alleged unlawful employment practice occurred.” Nat’l R.R.

Passenger Corp. v. Morgan,

(2002) (citing 42 U.S.C. § 2000e-5(e)(1)). The

180-day deadline is extended to 300 calendar days if a state or local agency prohibits

employment discrimination on the same basis as Title VII. See Greer v. Bd. of Trs. of Univ. of

D.C.,

, 306–07, 307 n.7 (D.D.C. 2015) (citation omitted). Because the

District of Columbia does have such an employment discrimination law, the applicable

2 Both parties cite to Cunningham’s EEOC charge. Because Cunningham references the EEOC charge in her Complaint, the court may consider the charge without converting MPI’s motion to dismiss into a motion for summary judgment. See Hudson v. Children’s Nat’l Med. Ctr.,

, 5 n.5 (D.D.C. 2009) (citation omitted).

4 limitations period here is 300 days. See id.;

et seq.

MPI seeks dismissal of all of Cunningham’s sex discrimination claims occurring before

October 31, 2015 (i.e., more than 300 days prior to the filing of Cunningham’s August 26, 2016

EEOC charge). Cunningham responds that MPI’s conduct amounted to a hostile work

environment and, because some conduct occurred within the 300-day limitations period, her

claims involving conduct that occurred before October 31 are not time-barred. ECF No. 31, Pl.

Resp.

MPI counters that Cunningham’s pre-October 31, 2015 allegations describe a series of

discrete and isolated incidents which do not rise to the level of a hostile work environment claim, and

point to the fact that Cunningham did not use the term “hostile environment” in her EEOC charge or

her Complaint. The court finds MPI’s arguments unpersuasive.

A. Timeliness

While the Supreme Court has held that “discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely filed charges,” it has also made

clear that “hostile work environment claims are different in kind from discrete acts” because

“[t]heir very nature involves repeated conduct.” Nat'l R.R. Passenger Corp. v. Morgan,

(2002) (citation omitted). “A hostile work environment claim is composed of a

series of separate acts that collectively constitute one unlawful employment practice.”

(internal quotations and citation omitted). “Accordingly, hostile work environment claims are

subject to a different limitations rule”: if “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.” Singletary v. D.C.,

, 526–27 (D.C. Cir. 2003)

5 (citation omitted), rev’d on other grounds,

(D.C. Cir. 2003).

The D.C. Circuit has cautioned, however, that this rule does not create “an open sesame

to recovery for time-barred violations.” Baird v. Gotbaum,

(D.C. Cir.

2011). “Both incidents barred by the statute of limitations and ones not barred can qualify as

part of the same actionable hostile environment claim only if they are adequately linked into a

coherent hostile environment claim—if, for example, they ‘involve the same type of employment

actions, occur relatively frequently, and are perpetrated by the same managers.’”

(alterations

omitted) (quoting Morgan, 536 U.S. at 120–21).

To establish a hostile work environment claim, a plaintiff must show that she “was

subjected to discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive to alter the conditions of [her] employment and create an abusive working

environment.’” Ayissi–Etoh v. Fannie Mae,

(D.C. Cir. 2013) (internal

quotations and citations omitted). In evaluating a harassment claim, courts look “to the totality

of the circumstances, including the frequency of the discriminatory conduct, its severity, its

offensiveness, and whether it interferes with an employee’s work performance.” Baloch v.

Kempthorne,

(D.C. Cir. 2008) (citation omitted). If Cunningham alleges

facts sufficient to support a hostile environment claim, and at least one instance of the alleged

conduct occurred with the limitations period (i.e., after October 31, 2015), then her claims will

not be time-barred.

Cunningham has established that at least one instance of alleged misconduct—her

termination—occurred after October 31, 2015, and she has sufficiently pled allegations which

would support a claim of hostile work environment. She alleges that over a five-year period,

MPI managers repeatedly discriminated against her by, inter alia, failing to: 1) give her credit for

6 her work, 2) give her proper supervisory authority over her subordinates, 3) notify her about

important meetings, 4) notify her about antiretroviral product releases relating to her area of

coverage, 5) include her in management planning discussions, 6) respond to her

communications, 7) provide guidance and feedback relating to business projects and travel

outside her home base, and 8) provide her with written evaluations. These allegations of

discriminatory conduct—touching on all areas of Cunningham’s employment—were logically

related, involved similar types of conduct, occurred repeatedly, and were perpetrated by the same

managers. Moreover, the allegations are sufficient to support a finding that she was subjected to

discriminatory conduct “sufficiently severe or pervasive to alter the conditions of [her]

employment.” Ayissi–Etoh,

(citation omitted).

B. Failure to Exhaust

The court is also unpersuaded by MPI’s argument that Cunningham failed to exhaust her

administrative remedies with respect to her hostile work environment claim because she did not

mark the corresponding box for hostile work environment on her EEOC charge, and did not use

the words “hostile work environment” in her Complaint. These facts do not automatically

preclude her from going forward with her claim.

The primary purpose of the exhaustion requirement is to provide the EEOC and

defendants with sufficient notice to begin the investigative process. See Peters v. D.C.,

(D.D.C. 2012). Therefore, the exhaustion requirement “should not be

construed to place a heavy technical burden on individuals untrained in negotiating procedural

labyrinths.” Park v. Howard Univ.,

(D.C. Cir. 1995) (citations and internal

quotation marks omitted). Because exhaustion is not “a mere technicality,” however, a plaintiff's

claims in her subsequent Title VII suit are “limited in scope to claims that are like or reasonably

7 related to the allegations of the charge and growing out of such allegations.”

(citation

and internal quotations omitted). Applying this rule, the D.C. Circuit found in Park v. Howard,

(D.C. Cir. 1995), that a plaintiff had not exhausted her administrative remedies

because her EEOC charge failed to mention a hostile work environment and, more importantly,

the charge lacked “any factual allegations supporting such a claim.”

In contrast, the allegations in Cunningham’s EEOC charge satisfy the exhaustion

requirement because she consistently used terminology that indicated the alleged discrimination

was pervasive and ongoing. For example, Cunningham asserted that:

• “During my entire time at Mylan in Tanzania I was pigeonholed in a narrow role by my male supervisors stationed in India. I was never permitted to advance in management and hindered in pursuit of professional growth.” Defs. Ex. A ¶ 5.

• “Messrs. Deshpande and Kanda routinely shut me out as a contributing member of the unit. Both consistently left me off-emails and excluded me from meetings. . . . I attended such meetings only when I happen [sic] to learned of them through other means.” Id. ¶10.

• “My recommendations on expanding business and improving systems and operations were almost always ignored, yet later adopted with no recognition of my input or leadership. . . .” Id. ¶ 13.

• “My direct supervisor in India virtually never responded to my e-mails. . . . Mr. P. Deshpande never allowed joint planning or joint discussions on overall work in Africa.” Id. ¶ 15.

These allegations were sufficient to put MPI and the EEOC on notice that Cunningham was

claiming persistent discriminatory conduct, even though she did not “check the box” for hostile

work environment. See Seed v. Pruitt,

, 255–56 (D.D.C. 2017) (noting that

“plaintiffs need not use any magic words in a charge much less the specific term ‘hostile work

environment’”) (citation and some internal quotation marks omitted).

Likewise, although Cunningham does not use the term “hostile work environment” in her

8 Complaint, her allegations are consistent with those asserted in her EEOC charge:

• “During her entire tenure at Mylan [she] was pigeonholed. . . .” Compl. ¶ 11.

• “Ms. Cunningham faced discrimination by her male Indian colleagues since commencing employment in 2010.” Id. ¶ 12.

• “As will be explained below, Ms. Cunningham was terminated . . . because cultural bias against female leaders by her male Indian managers in the global unit ensured that she was never supported in her work and denied credit for her numerous commercial accomplishments.” Id. ¶ 20.

A plaintiff’s claims in her Title VII suit are “limited in scope to claims that are like or reasonably

related to the allegations of the charge and growing out of such allegations.” Park,

(citation and internal quotation marks omitted). A review of both the EEOC charge and the

Complaint indicate that Cunningham has met this standard.

IV. CONCLUSION

For the reasons set forth above, the court will DENY MPI’s motion for partial dismissal

and allow Cunningham to amend her complaint to explicitly assert a hostile work environment

claim.

Date: September 29, 2018 2018.09.29 19:52:56 -04'00' TANYA S. CHUTKAN United States District Judge

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