UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TONY EDWARD SAVAGE,

Plaintiff, v. Civil Action No. 18-2007 (TJK) DISTRICT OF COLUMBIA et al.,

Defendants.

MEMORANDUM OPINION

Tony Savage filed this suit against the District of Columbia and several employees of its

Department of Corrections (DOC) in August 2018, over six years after pursuing a charge of

discrimination with the District of Columbia Office of Human Rights (OHR) about the same

matter. ECF No. 1. In his operative complaint, he alleges that on September 13, 2011,

Defendants rescinded a DOC employment posting for which he applied and was qualified

because they did not want to hire him on account of his disability. ECF No. 16 (“Compl.”)

¶¶ 14–15. He alleges violations of the District of Columbia Human Rights Act (DCHRA),

et seq., the Americans with Disabilities Act (ADA),

et seq.,

and

, and he also brings a common-law claim of negligent failure to select,

train, and supervise.

¶¶ 16–21. Before the Court are Savage’s Motion for Leave to File a

Second Amended Complaint, ECF No. 22, and Defendants’ Motion for Judgment on the

Pleadings, ECF No. 34, in which they assert, among other things, that Savage’s claims are

untimely. For the reasons explained below, the Court will deny Savage leave to amend on

futility grounds, grant Defendants’ motion, and dismiss the case with prejudice. I. Legal Standards

Federal Rule of Civil Procedure 15(a)(2) provides that when a party moves for leave to

amend its complaint, the court should “freely give leave [if] justice so requires.” That said, a

district court may deny such a motion when the amendment would be futile, including where the

amended complaint “would not survive a motion . . . for judgment on the pleadings.” Jung v.

Ass’n of Am. Med. Colls.,

(D.D.C. 2005).

A party moving for judgment on the pleadings “must show that no material issue of fact

remains to be solved and that it is entitled to judgment as a matter of law.” Judicial Watch, Inc.

v. U.S. Dep’t of Energy,

(D.D.C. 2012); see also Fed. R. Civ. P. 12(c).

Although a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c)

“is functionally equivalent to a Rule 12(b)(6) motion,” Rollins v. Wackenhut Servs., Inc.,

(D.C. Cir. 2012), where “matters outside the pleadings are presented to . . . the

court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.

12(d). “Summary judgment is appropriately granted when, viewing the evidence in the light

most favorable to the non-movants and drawing all reasonable inferences accordingly, no

reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.–Islamic Relations

Action Network, Inc.,

(D.C. Cir. 2016).1

1 The Court denied without prejudice Defendants’ first motion for judgment on the pleadings because they had yet to file an answer. See Minute Order of September 29, 2019 (citing Murphy v. Dep’t of the Air Force,

, 48–49 (D.D.C. 2018)). The Court warned that if Defendants filed a post-answer motion relying on materials outside the pleadings, as they do here, the Court would treat it as one for summary judgment and “Plaintiff should be prepared, in his opposition, to ‘present all the material that is pertinent to [the] Motion.’”

(quoting Fed. R. Civ. P. 12(d)).

2 II. Analysis

Defendants moved for judgment on the pleadings on the ground, among others, that all of

Savage’s claims in the operative complaint are time-barred. See ECF No. 34. Savage, for this

part, sought leave to amend, although the claims asserted in his proposed amended complaint are

materially identical to those in the operative complaint. See ECF No. 22.2 As explained below,

Savage may not proceed with his DCHRA claims because he elected to avail himself of

administrative remedies, and his remaining claims are untimely. Thus, permitting him to amend

his complaint would be futile, and this action must be dismissed.

First, as Savage appears to concede, his DCHRA claim is “barred due to [his] election to

seek an administrative remedy.” ECF No. 35 at 8; see Carter v. District of Columbia,

(D.C. 2009) (“[T]he jurisdiction of the court and OHR are mutually exclusive in the

first instance. Thus, where one opts to file with OHR, he or she generally may not also file a

complaint in court.” (quoting Brown v. Capitol Hill Club,

(D.C. 1981)));

ECF No. 24 at 10 (“Plaintiff concedes that DCHRA claims are unavailable due to his election of

administrative remedies, pursuant to DC Code Sec. 2-1403.16(a) . . . .”). The record reflects that

Savage chose to file a complaint with OHR, was fully heard, and lost. See ECF No. 34-1; ECF

No. 34-3; ECF No. 35 at 6.

Second, Savage’s ADA claim fails because he did not file suit within 90 days of

receiving a notice of his right to sue from the Equal Employment Opportunity Commission

(EEOC). 42 U.S.C. §§ 2000e-5(f)(1), 12117(a). The EEOC issued Savage his notice on

December 14, 2012, which the Court presumes that he received three days later. See ECF No.

2 The Court notes that Savage’s filings violate Local Rule 5.1(d), which requires that every document be double-spaced. See ECF Nos. 22, 32, 35.

3 34-2 at 5; ECF No. 1-1, Savage v. District of Columbia Dep’t of Corrections, No. 13-cv-00312

(RJL) (D.D.C. Mar. 11, 2013); Baldwin Cty. Welcome Ctr. v. Brown,

, 148 n.1

(1984) (per curiam) (citing former Fed. R. Civ. P. 6(e)). Savage brought his ADA claim over

five years later, see ECF No. 1, well outside the required 90-day window.

Third, Savage’s claim under

is barred by the applicable three-year

statute of limitations. See Earle v. District of Columbia,

(D.C. Cir. 2012)

(citing

(8)). “As a general rule, [a] claim normally accrues when the factual

and legal prerequisites for filing suit are in place.”

(alteration in original) (internal

quotations omitted). Savage’s Section 1983 claim is premised on Defendants’ “denial of

employment,” Compl. ¶ 21; ECF No. 22-1 ¶ 21, and thus Defendants argue that this claim

accrued on September 13, 2011, when DOC rescinded the relevant employment posting, ECF

No. 34 at 8. Savage filed this suit on August 28, 2018, see ECF No. 1, almost seven years later,

well outside the three-year window. And while neither party raised the potential effect of the

discovery rule on Savage’s claim, the Court notes that it would not, in any case, render his claim

timely.3

Fourth, for similar reasons that his Section 1983 claim is untimely, Savage’s negligence

claim fails to meet the three-year statute of limitations. See

(8).

None of Savage’s arguments to the contrary save his claims. He argues that the statutes

of limitations did not begin to run until April 30, 2018, when the D.C. Superior Court denied his

3 When “the relationship between the injury and the tortious conduct is obscure,” the “discovery rule” provides that a claim will not accrue for statute-of-limitations purposes until a plaintiff has actual or inquiry notice of his cause of action. C.B. Harris & Co., Inc. v. Wells Fargo & Co.,

(D.D.C. 2015). At the very latest, Savage had notice of his Section 1983 cause of action on December 29, 2011, when he filed an OHR charge of discrimination based on the same conduct. See ECF No. 34-1 at 2. And, as noted above, he filed suit in August 2018, still well beyond the three-year statute of limitations.

4 petition for review of his OHR decision. See ECF No. 35 at 7. But he cites no legal authority for

that proposition, or that his prior related litigation in this Court—which was dismissed—tolls the

statute of limitations either. Indeed, “once a suit is dismissed, even if without prejudice, ‘the

tolling effect of the filing of the suit is wiped out and the statute of limitations is deemed to have

continued running from whenever the cause of action accrued, without interruption by that

filing.’” Ciralsky v. C.I.A.,

(D.C. Cir. 2004) (quoting Elmore v. Henderson,

(7th Cir. 2000)).

Finally, Savage’s conclusory request for equitable tolling based on “the tortured course of

this case” fails to show that such tolling is warranted. ECF No. 35 at 8. The Court notes that the

ADA’s 90-day limitations period can be equitably tolled. See Smith-Haynie v. District of

Columbia,

, 579–80 (D.C. Cir. 1998). But such an exception should be afforded

“only in extraordinary and carefully circumscribed instances.”

at 580 (quoting Mondy v.

Sec’y of the Army,

(D.C. Cir. 1988)). Savage has not shown that his case

merits this extraordinary relief. See Jordan v. Quander,

(D.D.C.

2012) (“Plaintiff alone bears the burden of establishing an equitable basis for excusing h[is]

failure to file h[is] complaint within the 90-day limitations period.”). Moreover, as a general

rule, District of Columbia law does not recognize an equitable-tolling exception to the three-year

statute of limitations that governs his Section 1983 and negligence claims. See Bundy v.

Sessions,

(D.D.C. 2019).

At bottom, Savage’s claims are untimely or, in the case of his DCHRA claim, otherwise

foreclosed by statute. And the minor changes he makes in his proposed amended complaint do

not affect these conclusions. See ECF No. 22-1. Accordingly, permitting Savage to amend his

complaint would be futile and, for the same reasons, his operative complaint must be dismissed.

5 III. Conclusion

For all the above reasons, Savage’s Motion for Leave to File a Second Amended

Complaint, ECF No. 22, will be denied; Defendants’ Motion for Judgment on the Pleadings,

ECF No. 34, will be granted; and this action will be dismissed with prejudice. A separate order

will issue.

SO ORDERED.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: December 9, 2019

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