Plaintiff Janice G. Coclough brings this action against her former employer, Akal Security, Inc., and two former supervisors, Lois Epps and Josiah Eaves, under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, see 42 U.S.C. §§ 2000e et seq. , the District of Columbia Human Rights Act ("DCHRA"), see
Based on the defendants' representations that Epps now is represented by counsel and that she joins in their dispositive motion, see Def. Lois Epps' Opp'n to Pl.'s Mot. for Entry of Default Against Lois Epps ¶¶ 4-5, ECF No. 30, the plaintiff's motions are denied. For the reasons discussed below, the defendants' motion is granted in part and denied in part, without prejudice.
I. BACKGROUND
Akal Security, Inc. ("Akal") entered into a contract with the District of Columbia for security services at the Superior Court of the District of Columbia ("Superior Court"). Mem. of P. & A. in Support of Defs. Akal Security, Inc. and Josiah Eaves's Mot. to Dismiss Pl.'s Second Am. Compl., or, in the Alternative, for Summ. J. ("Defs.' Mem.") at 2, ECF No. 25-2. The plaintiff described Akal as "one of the largest contract security companies in the country" which "provides security services and personnel to courthouses across the country including ... the Superior Court[.]" Pl.'s Second Am. Compl for Declaratory J., Injunctive Relief, and Monetary Damages ("SAC") ¶ 11.
The plaintiff was an Akal employee in its Security Service Program assigned to the Superior Court from October 4, 2010, SAC ¶ 15, until her termination on July 17, 2016, Defs.' Mem., Ex. A (Charge of Discrimination No. 570-2016-01588 dated June 23, 2016 ("EEOC Charge") ) at 1. Lois Epps and Josiah Eaves were the plaintiff's supervisors. SAC ¶¶ 12-13. The "[p]laintiff was a member of a bargaining unit whose terms and conditions of employment [were] governed by a collective bargaining agreement ... between Akal and the International Union, Security, Police and Fire Professionals of America and its Local 443," which agreement was in effect from October 1, 2013 through September 30, 2016. Defs.' Mem. at 3; see generally Defs.' Opp'n to Pl.'s Mot. for Leave to File Second Am. Compl., Ex. A (Collective Bargaining Agreement Between AKAL Security Corporation, Inc. and the INTERNATIONAL UNION OF SECURITY, POLICE, AND FIRE PROFESSIONAL[S] OF AMERICA (SPFPA) and [its] Local 443 ("CBA") ), ECF No. 21-1. The CBA "cover[ed] seniority, job opportunities, grievance procedures, discipline, hours of work and overtime, wages, leaves of absence, testing, training, and re-qualification, and various other employment topics for LCSOs and other bargaining unit positions." Defs.' Mem. at 5. For some period of time, the plaintiff held the positions of In-Service Instructor and Shop Steward. See SAC ¶¶ 73, 94.
The plaintiff described a "discriminatory and unprofessional atmosphere" pervading the courthouse.
According to the plaintiff, "[o]n a daily basis through 2014-2016 when [she] would patrol the courthouse with a female coworker, male security personnel in the control room,"
In October 2014, the plaintiff was "passed over for a promotion to [Lead Court Security Officer ('LCSO']."
By this time, because of the plaintiff's advocacy on behalf of herself and female coworkers, she "was perceived as a troublemaker by her supervisors."
In March 2015, Eaves asked the plaintiff to undertake payroll duties by learning to complete time and attendance records.
The plaintiff arranged a meeting with Eaves and Epps "to discuss the reassignment of the payroll duties" and "insubordination issues involving her subordinates and sexual harassment by Akal employees."
On June 10, 2016, the plaintiff attended annual in-service training conducted by LCSO Gloria Shelton.
The "[p]laintiff went to the U.S. Equal Employment Opportunity Commission ('EEOC') on June 10, 2016 to file a discrimination charge [.]"
I was employed with [Akal] since October 4, 2010, until I was terminated on June 17, 2016 . My job classification was Lead Court Security Officer.
Between July 2015 to June 2016, Coworkers[ ] have been harassing me about having lunch with my coworker who is also female. They would make reference as to the nature of our relationship. I have not disclosed my preference ; I have informed both District Supervisors about many incidents. They have not taken any actions to resolve the situation.
On June 10, 2016 , I was in a training class, led by LSSO Gloria Shelton. I was checking and sending a text on my phone due to urgent family matters. Gloria Shelton, the instructor observe someone pass a phone and directed me to "Janice[.]" I have not had any problems with any other class until this one, I asked what problems are you having? She then stated to put the phone away. I informed her that I could not put the phone away, it was very important,could you just continue with the class and I will once I am finished.
Gloria Shelton stated "get out of the class[.]" I stated to her that I am not going to leave the classroom, this is very important. Gloria Shelton, then said "I tell you what" and left the classroom. She radioed for an emergency and later both my District Supervisors responded along with another L[C]SO. Within the hour Project Manager Mr. Lawrence [F]rost responded, and directed me to the supervisors office, I waited for approximately 40 minutes, and once he responded, he stated, "I was here to see you anyway, because he had complaints that I was creating a hostile work environment[.]" Later after the union representative responded, I was sent back to the classroom and took my final exam, I went home. While at home, I received a phone call from District Supervisor Lois Epps, that I am suspended until further notice.
I believe I have been retaliated against for engaging in protected activity in violation of Title VII .
EEOC sent Akal a notice of the plaintiff's charge of discrimination, which Akal received on June 29, 2015. Errata to Defs. Akal Security Inc. and Josiah Eaves's Mot. to Dismiss, or, in the Alternative, for Summ. J., Ex. 1 (Notice of Charge of Discrimination, Charge No. 570-20016-01588, dated June 21, 2016) at 1, ECF No. 12-2. According to the EEOC, the plaintiff charged employment discrimination under Title VII.
The EEOC determined that, "[b]ased on its investigation, [it was] unable to conclude that the information obtained establishes violations of the statutes." Pl.'s Mem. in Opp'n to Def. Akal Security, Inc. and Josiah Eaves's Mot. to Dismiss Pl.'s Am. Compl. & Mot. for Summ. J., Ex. 3 (Dismissal and Notice of Rights, EEOC Charge No. 570-2016-01588 dated July 13, 2016), ECF No. 18-1. The plaintiff did not receive a copy of this right-to-sue notice until September 27, 2016.
On January 10, 2017, the plaintiff contacted EEOC to file a new charge of discrimination on the ground that her termination was in retaliation for having filed
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), the "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Wood v. Moss , --- U.S. ----,
In considering a motion to dismiss for failure to plead a claim on which relief can be granted, the court must consider the complaint in its entirety, accepting all factual allegations in the complaint as true, even if doubtful in fact, and construe all reasonable inferences in favor of the plaintiff. Twombly ,
III. DISCUSSION
The defendants seek dismissal of the plaintiff's Second Amended Complaint on four grounds: (1) that the plaintiff failed to exhaust administrative remedies for her Title VII discrimination claims; (2) that defendants Epps and Eaves cannot be held individually liable under Title VII; (3) that plaintiff's DCHRA claims are preempted by Section 301 of the Labor Management Relations Act ("LMRA"); and (4) that the plaintiff's Whistleblower Act claim is untimely and preempted by Section 301 of the LMRA. See Defs.' Mot. at 1. Each of these arguments is addressed seriatim .
A. Exhaustion of Administrative Remedies (Counts I and III)
"A Title VII plaintiff must file an administrative complaint with the EEOC ... prior to, and as a mandatory prerequisite to, filing a federal judicial complaint."
The defendants contend that the plaintiff "only filed a Charge with the EEOC alleging retaliation by Akal," id. at 10, and move to dismiss her gender discrimination (Count II) and sexual harassment (Count III) claims under Title VII on the ground that she failed to exhaust administrative remedies, id. at 11. As support, they point out that the plaintiff checked only the "RETALIATION" box in the "DISCRIMINATION BASED ON" section of the EEOC Charge form, without checking a box indicating discrimination based on some other factor, such as sex. Defs.' Mem. at 11; see id. , Ex. A at 1.
The plaintiff characterizes her EEOC Charge as one "alleging gender and sexual orientation discrimination and retaliation," SAC ¶ 4, and criticizes the defendants for requesting dismissal simply "because [she] failed to check a box," Pl.'s Opp'n to Defs.' Mot. to Dismiss Second Am. Compl. ("Pl.'s Opp'n") at 4, ECF No. 26. She refers to three sentences in the narrative portion of the EEO Charge, see id. at 3, which read: "Between July 2015 and June 2016, Coworkers[ ] have been harassing me about having lunch with my coworker who is also female. They would make reference as to the nature of our relationship. I have not disclosed by preference," id. (emphasis removed); see Defs.' Mem., Ex. A at 1. According to the plaintiff, this language adequately describes gender discrimination: "only because the plaintiff is female would having lunch with a female coworker give rise to speculation "about her undisclosed sexual preference." Pl.'s Opp'n at 3. If she were a male having lunch with a female coworker, presumably there would be no "harassment or discrimination." Id. Therefore, the plaintiff argues, her "charge constitutes a written statement sufficiently precise to identify the parties, and to give a short description of the action or practices complained of." Id. (citing 42 U.S.C. § 2000e-5(b) ).
"A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard Univ. ,
The boxes on the EEOC charge form "aid a claimant in identifying the nature of her charge, [but] a claimant is not necessarily limited to the boxes she selected if she provides the basis for her claim in her written explanation." Robinson-Reeder ,
The shortcoming of the plaintiff's EEOC Charge is not merely a failure to check a box. The plaintiff proceeds as if the reader must isolate three sentences of her narrative statement, which referred to events that appeared to precede the dates on which the alleged retaliation occurred, while ignoring clear indicia of a retaliation claim. She checked off the "RETALIATION" box and she concluded her statement by stating, "I believe I have been retaliated against for engaging in protected activity in violation of Title VII." Not even the EEOC construed the plaintiff's EEOC Charge as alleging gender discrimination or sexual harassment: its notice to Akal reflected a retaliation claim under Title VII occurring at the earliest on June 10, 2016, the date of the plaintiff's suspension and initial intake interview at the EEOC, and at the latest on June 17, 2016, the date of the plaintiff's termination. It is too far a stretch to conclude that the plaintiff's EEOC Charge included gender discrimination and sexual harassment claims, and the defendants' motion to dismiss Counts I and III is granted.
B. Liability of Individual Defendants Eaves and Epps (Counts I, II and III)
A Title VII discrimination claim may be brought against the plaintiff's employer. See 42 U.S.C. §§ 2000e(b), 2000e-2(a). Although a supervisor may be named a party defendant in a lawsuit under Title VII, he or she is not liable in his or her individual capacity for any discriminatory action of the employer. See Gary v. Long ,
C. Preemption (Counts IV, V, VI, and VII)
Under the DCHRA, an employer shall not "fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to [her] compensation, terms, conditions, or privileges of employment, including promotion ..., or otherwise adversely affect
"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in [the LMRA] ... may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties."
The plaintiff first argues that Section 301 does not apply because Akal does not fit the definition of the term "industry affecting commerce." Pl.'s Opp'n at 4. For purposes of the LMRA, this term "means any industry or activity in commerce or in which a labor dispute would burden or obstruct commerce or tend to burden or obstruct commerce or the free flow of commerce."
Next, the plaintiff argues that Section 301 otherwise does not preempt her DCHRA claims. See Pl.'s Opp'n at 5. She does not mention the CBA in her Second Amended Complaint, seek enforcement of the CBA, or even raise a claim requiring an interpretation of the CBA. See
"[N]ot every dispute 'tangentially involving a provision of a [CBA] is preempted by [Section] 301 or other provisions of the federal labor law.' " Berry ,
Thus, contrary to the defendants' argument, the CBA presents no basis for dismissal of the plaintiff's DCHRA claims. See Berry ,
D. Whistleblower Claim (Count VIII)
The Employees of District Contractors and Instrumentality Whistleblower Protection Act prohibits a supervisor from "threaten[ing] to take or tak[ing] a prohibited personnel action or otherwise retaliat[ing] against an employee because of the employee's protected disclosure or because of an employee's refusal to comply with an illegal order."
The defendants note that the plaintiff's payroll-related duties began and ended in 2015. Defs.' Mem. at 16. "It is undisputed from the face of [the SAC] that [the plaintiff] claims to have engaged in protected activity under the Whistleblower ... Act in 2015 and suffered an alleged retaliatory conduct (having her payroll duties taken away), also in 2015."
The plaintiff links her termination in part to her complaints to Eaves and Epps
The plaintiff nowhere indicates the actual dates on which the payroll duties were taken away, or on which she became aware of the alleged violation of the Whistleblower Act. These facts are not readily apparent in the Second Amended Complaint or on the current record of this case, and without them, the Court cannot determine whether the whistleblower claim was filed within three years after a violation occurred, or within one year after plaintiff became aware of the violation, whichever occurred first. The Court is mindful of the D.C. Circuit's caution that "courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint." Firestone v. Firestone ,
Alternatively, the defendants argue that the LMRA preempts the plaintiff's Whistleblower Act claim. See generally Defs.' Mem. at 15-17. Specifically, the defendants posit that, "[s]imilar to her DCHRA claims, the [Whistleblower Act] claim is premised upon concerns [the plaintiff] had with 'hours of work and overtime' and the 'grievance procedure' used to address those concerns."
For the reasons discussed above regarding the plaintiff's DCHRA claims, the Court concludes that resolution of the Whistleblower Act claim neither pertains to a right created by the CBA itself nor calls for analysis of the CBA. Therefore, the defendants' motion to dismiss Count VIII is denied without prejudice.
IV. CONCLUSION
The plaintiff failed to exhaust her Title VII gender discrimination and sexual harassment claims, and her supervisors, Eaves and Epps, are not personally liable under Title VII. Accordingly, the defendants' motion to dismiss Counts I and III of the Second Amended Complaint and to dismiss the plaintiff's Title VII claims against defendants Eaves and Epps, in their individual capacities, is granted. The
The plaintiff's Praecipe Requesting Entry of Default Against Defendant Lois Epps, ECF No. 27, and Motion for Entry of Default Against Defendant Lois Epps, ECF No. 28, are each denied.
An Order is issued separately.
Notes
The delay in the plaintiff's receipt of the right-to-sue notice apparently was due to a typographical error. EEOC sent the right-to-sue letter to the plaintiff at 3906 26th Street, N.E., Washington, DC 20018, and the plaintiff's correct address is 3906 20th Street, N.E., Washington, DC 20018.
The original complaint bears a date stamp indicating that the Clerk of Court received the pleading on November 28, 2016. Review of the Court's CM/ECF docket reveals that, on that same date, the plaintiff filed an application to proceed in forma pauperis , which was granted on December 14, 2016. The Clerk of Court officially placed the complaint and application on the docket on December 15, 2016. On these facts, the complaint is treated as filed on November 28, 2016. Similarly, plaintiff's Amended Complaint, ECF No. 3, bears a date stamp indicating that the Clerk of Court received it on December 12, 2016. Although the Clerk of Court placed it on the CM/ECF docket on December 15, 2016, the Amended Complaint is treated as filed on December 12, 2016.