Clara Mae BOWERS, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 10-2056(ESH).
United States District Court, District of Columbia.
June 2, 2011.
Patricia B. Donkor, Office of the Attorney General, D.C., Washington, DC, for Defendant.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Clara Mae Bowers, a black female of African descent, has sued her former employer, the District of Columbia, and is proceeding pro se. Plaintiff claims that she was discriminated against on the basis of her “race, color, and gender” while employed as a teacher at the Walker Jones Educational Center (“WJEC“) within the District of Columbia Public Schools (“DCPS“) in violation of the Civil Rights Act of 1964,
BACKGROUND
I. FACTUAL HISTORY
Plaintiff was employed as a middle school teacher with DCPS from around September 2000 to late 2007. (Complaint [“Compl.“] ¶ 3.) During the time she alleges discrimination and breach of contract (i.e., September 2006 to December 2007), plaintiff taught at WJEC. (Id.) Plaintiff alleges that defendant engaged in discriminatory acts by giving her negative evaluations in violation of prescribed evaluation procedures. (Id. ¶¶ 6-7.) Plaintiff alleges that she was given a disproportionate number of special education students without support from a special education teacher, a support service that she claims was accorded to white teachers and male teachers. (Id. ¶ 7.) This, in turn, caused her teaching to suffer because she was unable to manage the students by herself. (Id. ¶ 8.) Plaintiff asserts that during evaluations of her performance, defendant failed to fulfill several obligations set forth in the employment contract, including written notice when an evaluation occurred, preconference meetings, and a review of lesson plans and ancillary materials. (Id. ¶¶ 19-20.) The combination of the overloaded class and the unfair evaluation techniques created several poor reviews of plaintiff‘s performance. (Id. ¶¶ 19-21.)
Plaintiff claims defendant targeted her because of her race, color, and gender, and as a result, unfairly placed her on a ninety-day evaluation program on November 13, 2006, which in turn resulted in her termination in late 2007. (Id. ¶¶ 10-11, 25.) On either November 30, 2007 or December 7, 2007, defendant fired plaintiff as a result of poor evaluations. (Id. ¶¶ 12-13, 25; Defendant‘s Reply to Plaintiff‘s Opposition to Defendant‘s Motion to Dismiss (“Reply“)
II. PROCEDURAL HISTORY
Plaintiff filed her Complaint in D.C. Superior Court on September 28, 2010. (See Compl. at 1.) The Complaint contains three counts. First, plaintiff claims that defendant violated Title VII of the Civil Rights Act of 1964 by unfairly targeting her because of her race, color, and gender. (Id. ¶¶ 5-14.) Second, plaintiff claims that these same actions violated the DCHRA. (Id. ¶¶ 15-16.) Third, plaintiff claims that defendant‘s failure to follow the evaluation procedures outlined in her employment contract constituted a breach of contract. (Id. ¶¶ 17-25.)
Defendant removed the case to the federal court (see Notice of Removal [Dkt. # 1]), but then filed a Motion to Dismiss claiming that plaintiff had failed to exhaust her administrative remedies, to meet the statute of limitations, and to comply with D.C.‘s administrative regime for resolving contract disputes. (Def.‘s Mot. at 1). Plaintiff filed an Opposition, supplemented by several evaluation documents generated during plaintiff‘s employment with defendant. (See Plaintiff‘s Opposition to Defendant‘s Motion to Dismiss (“Opposition“) [“Pl.‘s Opp.“].) In response, defendant filed a Reply, attached to which was some of plaintiff‘s EEO paperwork. (See Def.‘s Rep.) Plaintiff subsequently filed a Supplemental Opposition to the motion, supplemented by additional paperwork from the evaluation process. (See Pl.‘s Supp. Opp.) Plaintiff also filed a Supplemental Response to defendant‘s Motion. (See Supplemental Response to Defendant‘s Motion for Summary Judgment [“Pl.‘s Supp. Resp.“])
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, 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 Fed.Appx. 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, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), “[t]o survive a motion to dismiss [under
Since the Court will be relying on matters outside the pleadings, the current 12(b)(6) motion must be treated as a motion for summary judgment under Rule 56.
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 of 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 [her] 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 non-moving party‘s opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or
II. TITLE VII EXHAUSTION
A. Legal Framework
“[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, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). 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.
B. Plaintiff‘s Complaint Was Untimely
Defendant argues that plaintiff‘s EEO charge was filed beyond the 180-day deadline for filing a charge, and thus she has failed to exhaust her administrative remedy for that claim. The Court agrees. Plaintiff alleges that she was discriminated against from September 2006 through November 2007, culminating in her termination. (Compl. ¶¶ 6-14.) Plaintiff‘s date of termination occurred either on November 30, 2007 or December 7, 2007.2 (Def.‘s
Plaintiff alleges that she filed a simultaneous charge with the D.C. Office of Human Rights on July 14, 2008. (Pl.‘s Supp. Opp. 15; Pl.‘s Supp. Resp. at 1, 4). This does not, however, trigger the 300-day deadline. As the Supreme Court noted in Morgan: “In a State that has an entity with the authority to grant or seek relief ..., an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice....” Morgan, 536 U.S. at 109, 122 (emphasis added); see also
III. DISTRICT OF COLUMBIA NOTIFICATION REQUIREMENTS
An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage.
Section 12-309 “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.‘” Dunmore, 662 A.2d at 1359 (quoting Hardy v. District of Columbia, 616 A.2d 338, 340 (D.C.1992)). “The rationale underlying the Section 309 notice requirement is to (1) protect the District of Co-
Defendant first argues that Count II is barred because plaintiff failed to give timely notice under section 12-309. (Def.‘s Rep. at 4.) The Court agrees. Plaintiff was terminated on November 30, 2007, or alternatively on December 7, 2007, with the alleged workplace discrimination occurring before the termination date.3 (Compl. ¶¶ 6-13; Def.‘s Rep. at Ex. 3; Pl‘s Supp. Opp. at 6-7.) Plaintiff‘s § 12-309 letter was filed with the District on June 12, 2008. (Def.‘s Rep. at Ex. 2; Pl.‘s Opp. at 7.) The six-month deadline after plaintiff‘s November date of termination would have been April 30, 2008, twelve days before plaintiff filed her § 12-309 letter. In the alternative, the six-month deadline after plaintiff‘s December date of termination would have been June 7, 2008, five days before plaintiff filed her § 12-309 letter. Although both instances show that plaintiff filed her letter only a few days after the allowed deadline, D.C. law is clear: the six-month timeframe is to be read strictly and narrowly against the claimant. See Dunmore, 662 A.2d at 1359-60. Thus, plaintiff failed to give defendant timely notice under section 12-309.
Plaintiff argues that a letter that she sent to the D.C. Mayor on May 21, 2007, exhausts her administrative remedies. (Pl.‘s Supp. Resp. at 1, Ex. 2.) The letter, however, predates plaintiff‘s alleged termination date and does not put the District on notice of a lawsuit as it only informs the Mayor that plaintiff would like to meet with him, not that she would like the matter investigated or that she is planning on filing a lawsuit. (Id. at Ex. 2.)
Defendant next argues that section 12-309‘s notice requirement should defeat plaintiff‘s breach of contract claim. (Def.‘s Rep. at 4.) Unfortunately, defendant seems to confuse contract claims and tort claims. As the D.C. Court of Appeals has noted:
[W]e have never actually applied § 12-309 to a claim for breach of contract.... Arguably, § 12-309 could apply to a contract claim against the District in which the District was not aware of either the breach or of the injury produced by the breach—if such a category of cases actually exists. At odds with this somewhat attenuated interpretation, however, is the plain language of the statute, which applies to actions for unliquidated “damages to person or property.”
The phrase “damages to person or property” is distinctly inapplicable to claims based on a breach of contract. Black‘s Law Dictionary defines the word “damages” as follows:
“A pecuniary compensation or indemnity, which may be recovered in the courts by any person who has suffered loss, detriment, or injury, whether to his [or her] person, property, or rights, through the unlawful act or omission or negli-
gence of another. A sum of money awarded to a person injured by the tort of another.”
Thus, according to the plain meaning of the language of § 12-309, it applies only to actions sounding in tort.... [O]ur reading of the language is consistent with the District‘s greater need to receive notice in order to ascertain the facts in the tort context, where the District will often be unaware of any injury caused by a breach of its duty, than in the contractual context, where—almost by definition—the District is on notice that any breach will result in an injury. District of Columbia v. Campbell, 580 A.2d 1295, 1301-02 (D.C.1990) (citing Black‘s Law Dictionary 351-52 (5th ed. 1979)) (citation omitted). As Count III is labeled “Contract Breach,” and the claim raises a breach of contract cause of action, defendant‘s attempt to apply § 12-309 to a contract claim must be rejected.
IV. PLAINTIFF‘S CONTRACT CLAIM
Finally, plaintiff contends that defendant breached her employment contract by failing to properly observe and evaluate plaintiff‘s job performance as a teacher. (Compl. ¶¶ 19-24.) Plaintiff contends that defendant‘s failure to follow its contractual protocol led to her termination. (Id. ¶ 25.) Defendant counters that plaintiff failed to exhaust her administrative remedies as required by the Comprehensive Merit Personnel Act (“CMPA“) which provides District employees with an administrative process to dispute “personnel ratings, employee grievances, and adverse actions.” Johnson v. District of Columbia, 552 F.3d 806, 810 (D.C.Cir.2008).
Although mindful that documents filed by pro se litigants are held to less stringent standards than those applied to formal pleadings drafted by lawyers, Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C.Cir.2008), plaintiff‘s complaint will be dismissed pursuant to
“The CMPA was enacted to provide employees of the District of Columbia an impartial and comprehensive administrative scheme for resolving employee grievances.” Holman v. Williams, 436 F.Supp.2d 68, 74 (D.D.C.2006). Further, “[t]he District of Columbia Court of Appeals consistently has held that, with only one exception,4 the CMPA is the exclusive avenue for aggrieved employees of the District of Columbia to pursue work-related complaints.” Id. (citing Baker v. District of Columbia, 785 A.2d 696, 697-98 (D.C.2001); Robinson v. District of Columbia, 748 A.2d 409, 411-12 (D.C.2000); Stockard v. Moss, 706 A.2d 561, 567 (D.C. 1997)) (footnote added).
The CMPA requires employees of DCPS to appeal an adverse action to the Office of Employee Appeals (“OEA“), whose final decision is appealable to the Superior Court. Thompson v. District of Columbia, 978 A.2d 1240, 1242-43 (D.C. 2009) (citing Wash. Teachers’ Union, Local # 6 v. D.C. Pub. Sch., 960 A.2d 1123, 1134 (D.C.2008); Nelson v. District of Columbia, 772 A.2d 1154, 1156 (D.C.2001)); see also
In this case, plaintiff‘s claim that defendant breached her employment
Although it is unclear whether plaintiff has fully pursued the CMPA process, at the very least she has failed to prove that she ever received a final decision from the OEA. Moreover, any final OEA decision would be appealable only to the Superior Court, not to this Court. The Court therefore dismisses plaintiff‘s breach of contract claim for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, defendant‘s motion for summary judgment is granted as to Counts I and II. Count III is dismissed without prejudice for lack of subject matter jurisdiction. A separate order will accompany this Memorandum Opinion.
ELLEN SEGAL HUVELLE
UNITED STATES DISTRICT JUDGE