MEMORANDUM OPINION AND ORDER
Plaintiff has sued the defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that he was subjected to a hostile work environment resulting from sexual harassment and retaliation. Defendant 1 has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or alternatively for summary judgment pursuant to Fed.R.Civ.P. 56. This motion must be denied.
I. The Complaint
Plaintiffs complaint is in the form of a memorandum presented to the Equal Employment Opportunity Commission (“EEOC”) as his appeal from the agency’s adoption of a decision against him rendered by an administrative law judge. The following facts are alleged in the complaint and are based on exhibits submitted to the administrative law judge, including testimony taken at depositions.
Plaintiff is a custodial worker at the Walter Reed Army Medical Center. He used the second floor men’s locker room to remove his uniforms and put on his street clothes at the end of every shift. Plaintiff asserts that in May 1997, Francine Apari-cio, who holds a supervisory position at the medical center, “for no apparent reason” “barged into the room five to ten times without knocking or announcing herself.” Compl. at 2-3. Plaintiff alleges that the locker room was so small that Aparicio would be standing a few feet away from the lockers, changing areas, and sinks, and would be able to see the place where the men undressed. Once, he asserts, she came in as he took his shirt off. Id. at 3. Although Plaintiff complained to his supervisor and to Lawrence Winston, the Chief of the Environmental Services Branch (“ESB”), Aparicio continued her visits. Id. Another time, after plaintiff had filed a written complaint, Aparicio entered the locker room, went over to plaintiff, and (without asking) reached in and took a pen out of his shirt pocket. Id. Plaintiff complained again to his supervisor. Aparicio then received a written warning but when she complained to Winston and then to the Deputy Head of Administration, the latter called Winston with his concern that Apar-icio, “a union officer, might have been undeservedly reprimanded.” Id. Aparicio then “returned to the locker room and stood over [plaintiff] saying ‘I’m back. What are you going to do about it?’ ” Id. Washington then complained to Winston’s direct superior, who, based on Winston’s “general past practices,” probably discussed the matter with Winston, but apparently nothing was done to address the situation. Id. at 3-4.
Plaintiff alleges that because of Apari-cio’s “repeated, unabated intrusions” he was “embarrassed and uncomfortable and chose to change in bathrooms and vacant areas on other floors.” Compl. at 4. He alleges that Aparicio’s intrusion into the men’s locker room violated a policy signed in April 1995, which “required a chaperon for persons entering locker rooms of the opposite sex.”
Id.
The policy was adopted after “a female custodial worker accused Winston of sexually harassing]
Plaintiff further alleges that Ms. Apari-cio received two promotions after he lodged his sexual harassment complaint against her. Id. at 4-5. Plaintiff, on the other hand, received two leave restrictions and an unsatisfactory rating. Id. at 4. Plaintiff suggests the first leave restriction, in February 1998, was imposed in retaliation for the sexual harassment complaint he had filed. Id. at 5-6, 8-9. 2 After plaintiff filed a reprisal complaint relating to the leave restriction, Winston declined to exercise his discretion to excuse plaintiffs absence from certain training courses, which had been held at a time when plaintiff was sick. 3 Winston then approved an unsatisfactory rating because plaintiff had missed the training. Id. at 7. Four months later, in July 1998, after an EEO investigator “pointed out a number of procedural errors,” Winston removed the leave restriction. Id. at 7-8. Less than a month later, however, Ms. Aparicio, who had been promoted to an assistant supervisor position, signed a new warning letter that alleged leave abuse by plaintiff, and a second leave restriction followed less than 60 days later. Id. at 8.
II. The Defendant’s Motion to Dismiss
Defendant’s motion to dismiss is based on two grounds: first, that the complaint fails to meet the requirements of Rule 8 of the Federal Rules of Civil Procedure, and second, that the claim is barred by the statute of limitations.
A. Compliance with Rule 8
Defendant first argues that the complaint should be dismissed because it is simply a copy of a motion for reconsideration filed with the EEOC and does not comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint should contain
(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks.
This complaint was filed by plaintiff without the assistance of counsel. Such complaints are held “to less stringent standards than formal pleadings drafted by lawyers,”
Haines v. Kerner,
B. The Statute of Limitations
Defendant next argues that the complaint must be dismissed because it was filed more than ninety days after plaintiffs receipt of the right to sue letter from the Equal Employment Opportunity Commission (“EEOC”), in violation of 42 U.S.C. § 2000e — 5(f)(1). The facts, as shown by the Court files, are these. The EEOC right to sue letter was mailed to plaintiff on October 31, 2000. Defendant’s Motion to Dismiss (“Def.’s Mot.”), Exhibit (“Ex.”) F. Plaintiff submitted his complaint to this Court on January 30, 2001, with a petition for leave to proceed in forma pauperis. The Court’s copies of these documents bear a stamp showing that they were received by the Clerk on January 30, 2001. (Dkt. ## 1, 2). The Clerk of the Court will not accept for filing a complaint that is not accompanied by a fifing fee until after the Court has granted a petition for leave to proceed in forma pauperis. The application to proceed in forma pauperis was granted on February 26, 2001, and the complaint was then accepted by the Clerk as filed the next day (February 27, 2001).
As indicated, plaintiff had ninety days from the date he received the final decision of the EEOC to file suit in this Court. The certificate of mailing attached to the EEOC’s denial of request for reconsideration states that “the Commission will presume that [its] decision was received within five (5) calendar days after it was mailed.” (Dkt.# 4.) The presumption, therefore, is that plaintiff received the.decision by November 5, 2000. The ninetieth day from this presumptive date was February 3, 2001. The complaint was therefore technically filed 114 days after plaintiff is presumed to have received the decision, or 24 days beyond the statutory fifing deadline.
The ninety day period is not a jurisdictional statute but rather is a statute of limitations and thus subject to equitable tolling.
See Smith-Haynie v. District of Columbia,
The cases defendant cites in support of his position that this case should be dismissed on statute of limitation grounds did not involve a delay caused by the Court’s administrative procedures.
See Irwin v. Department of Veterans Affairs,
III. The Motion for Summary Judgment
A. Defendant’s declarations
Defendant contends that plaintiff cannot establish a prima facie case either of a hostile work environment caused by sexual harassment or of retaliation. In addition, defendant argues that plaintiff has failed to show that defendant’s alleged legitimate, nondiscriminatory reasons for his actions were pretextual. In support of his motion, he offers a Report of Investigation prepared by an in-house investigator and dated July 9, 1998, Def.’s Mot., Exs. A, B, the findings of the EEOC Administrative Law Judge issued on February 10, 1999, id., Ex. C, the Department of the Army’s final decision on plaintiffs administrative complaint dated February 24, 1999, id., Ex. D, the March 2, 2000, decision of the EEOC, id., Ex. E, and the EEOC’s denial of the request for reconsideration that was issued on October 31, 2000, id., Ex. F. Defendant has also presented two declarations, one from Lawrence Winston, id., Ex. G, and the second from Leon Jackson, a custodial work supervisor at the hospital, id., Ex. H.
Mr. Winston states that plaintiff has been employed at Walter Reed since 1993. During the time involved in the complaint, plaintiff was assigned to the third shift, working from 10:30 p.m. until 7:15 a.m. Ms. Aparicio was assigned to the shift that began at 7:15 a.m. During the transition between shifts, third shift employees turn in their uniforms and sign out, and first shift employees pick up their uniforms and sign in. Id., Ex. G (Winston Decl. ¶¶ 1, 2).
Winston states that there is a “combination locker room and break area” on the second floor of the main building “adjacent to the ESB’s administrative offices.” Id. ¶ 3. He describes the break area as being furnished with tables, chairs, and a microwave oven for both male and female employees to use during breaks. He states that this area was used by both male and female employees to sign in for and out after work and also served as a “quasi business/administrative area because in addition to having employees sign in and out there, management also posted information in this area.” Id.
After plaintiff complained about Ms. Aparicio’s “presence in the break area” and because the male latrine and locker room are near the break area, Winston counseled Ms. Aparicio and “instructed” her to knock before entering. ‘Within the same month,” Winston continued, plaintiff
Winston contends, without further explanation, that plaintiff and Ms. Aparicio “had some personal disagreements unrelated” to the complaints about the break area, which may have “precipitated his complaints.” Winston Decl. ¶ 5. Winston viewed the complaints as “a minor coworker difference or common workplace inconvenience.” Id.
With respect to the leave restriction that was placed on plaintiff by Leon Jackson, Winston states that he concluded that the action was “necessary” because of “the significant amount of unscheduled absences that Mr. Washington had.” Winston Decl. ¶ 6. Because his policy had been “to first warn employees about their unscheduled absences and their impact on mission accomplishment before issuing a leave restriction letter,” Winston rescinded the letter. Id. Ultimately, however, plaintiff was placed on leave restriction by the Fourth Floor Supervisor, Michael Ward, “because he continued to have significant amounts of unscheduled absences.” Id.
Leon Jackson, the supervisor who imposed the rescinded leave restriction, has been a Custodial Work Supervisor in the ESB since 1996. When he became plaintiffs first level supervisor in November 1997, he noted that plaintiffs file contained documents indicating that plaintiff “had poor work attendance and took an excessive amount of sick and annual leave.” Jackson Decl. ¶¶ 1, 2. Plaintiffs previous supervisor had issued a letter of warning in September 1997, indicating that the record suggested leave abuse and that the situation would be reviewed in 60 days to determine whether plaintiffs leave should be restricted. Jackson Decl. ¶ 2.
6
Plaintiff was out of work for several weeks at the time Jackson took over as his supervisor. When he returned, they discussed the leave issue, Jackson “counseled” plaintiff and “explained that if there was no improvement in his leave usage” he would be put on leave restriction.
Id.
Thereafter, plaintiff then was absent “on sick leave for a long period of time.” When plaintiff returned in February 1998, Jackson concluded that because plaintiff “took too much leave and was not maintaining a regular work schedule” he should be placed on leave restriction. Jackson Decl. ¶ 3. Leave restriction is designed to make sure that the employee only takes leave “for recognized legitimate purposes” and “cautiously” so that it will be available for an “unexpected illness or injury.”
Id.
Jackson specifically denies having imposed the restriction in retaliation for prior EEO activity, and states that he “was not aware of any prior EEO activity by” plaintiff at the time he issued the restriction. Jackson Decl. ¶ 4. Neither Winston nor Jackson is aware of any discrimination against
B. Plaintiff's Opposition
In opposition to the motion for summary judgment, 7 plaintiff has provided a list of 14 material facts that he contends are in dispute. First, he challenges the description of the changing room as a “break room,” noting that it contained lockers, shower stalls, and a rest room with urinals. Although there was a microwave oven, a small refrigerator, and a table in the men’s locker room, similar equipment was also available in the women’s locker room. Opposition at 2, ¶ A.
Next, plaintiff contends that a specific policy addressing the separate male and female locker rooms had been instituted in 1995. This policy required that females entering the male locker room be chaperoned by a supervisor. The policy had been formally adopted after a complaint was lodged against Lawrence Winston for entering the women’s locker room. Thus, plaintiff asserts that Winston is incorrect when he states that he developed the policy in response to plaintiffs complaint about Ms. Aparicio. Opposition at 2-3, ¶¶ B, C, J, K, M. Moreover, plaintiff denies that Winston posted the “new policy” on the male locker room door; rather, plaintiff posted it.” Opposition at 2, ¶ K.
Significantly, plaintiff has provided to the Court a copy of a memorandum dated April 25, 1995, addressed to the female worker who had complained about- Winston’s invasion of the women’s locker room, and a copy of the written policy from 1995 stating that employees must be accompanied by a chaperone when entering the locker room of the other sex, after everyone inside “has acknowledged a visitor, of the opposite sex is about to” enter the room. These documents, the genuineness of which defendant has not challenged, directly contradict Winston’s statement that he formulated that policy in response to plaintiffs complaint about Ms. Aparicio.
Plaintiff also contends that it was “common knowledge that the locker room was not [open to] both sexes.” Opposition at 2, ¶¶ D, E. Plaintiff states that the male locker room was not “a ‘quasi-business administrative area,”’ that “most if not all information was convey[ed] thru circulated memorandums and staff meeting,” and that in any event there “was a bulletin board in the female locker room.” Opposition at 2, ¶1. Moreover, he states that “Ms. Aparicio knew full well this was a time when men would be getting off from work and would be changing” and could have asked that someone bring her the sign-in sheet. Opposition at 2, 1Í1ÍF, G.
As to his retaliation claim, plaintiff states as a material fact that Ms. Aparicio was promoted and as a result of the promotion became his supervisor. Opposition at 3, 1ÍL. Plaintiff further states that he had doctor’s slips justifying his absences as the result of illness. Opposition at 3, ¶ N.
Plaintiff has submitted with his opposition a statement by two co-workers corroborating his contention that the male locker room was not a unisex break room. He also submitted a “Letter of Counseling” to Ms. Aparicio dated May 15, 1997, from Chris Brown, who apparently was a supervisor. In the letter, Brown states that he had been “informed by several of the male employees that [Ms. Aparicio was] constantly entering the male lockerroom una-nounced (sic) while they are undressing.” Although Brown had instructed Ms. Apari-cio not to enter the room without first
C. Discussion
A motion for summary judgment should be granted if the moving party demonstrates that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.;
see Celotex Corp. v. Catrett,
Preliminarily, defendant argues that the Court should accept his statement of material facts as the uncontroverted facts of the case. He bases this argument on Local Civil Rule 7.1(h), which authorizes the court “to assume the facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”
8
However, plaintiff is a layman who prepared his opposition to the motion himself. Therefore, the Court “does not abuse its discretion by declining to invoke the requirements of the local rule in ruling on a motion for summary judgment.”
See Burke v. Gould,
In order to prevail in a case under Title VII, the plaintiff initially must establish a
prima facie
case of prohibited discrimination or retaliation.
McDonnell Douglas Corp. v. Green,
To support a claim that he was subjected to a hostile work environment, a plaintiff must show that the “workplace [was] permeated with ‘discriminatory intimidation, ridicule, and insult’ ... that [was] ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.’ ”
Harris v. Forklift Systems, Inc.,
Here, plaintiff claims that a female work leader on five to ten occasions entered the men’s locker room at a time when he and other shift workers would be changing their clothes and perhaps showering.
10
He states that when he complained, the woman returned to the locker
Title VII prohibits retaliation against any employee because “he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a), A
prima facie
case alleging retaliation under Title VII is established when the plaintiff demonstrates “(1) that [he] engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action against him; and (3) that a causal connection existed between [the protected activity and the adverse action].”
Barnes v. Small,
Defendant contends that a leave restriction is not an adverse personnel action. An adverse personnel action is one that results in “objectively tangible harm.”
Brown v. Brody,
A causal connection between the protected activity and the adverse action sufficient to raise a
prima facie
case can be established by “showing that the employer had knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.”
Mitchell v. Baldrige,
In denying defendant’s motion for summary judgment, it is noted that the motion was filed before any discovery had been conducted. While summary judgment can properly be granted at this stage of the proceedings in some cases, this is not one of those cases. Employment discrimination cases tend to deal with elusive concepts of motive and intent. Thus, it is often difficult for a plaintiff to offer direct proof of an employer’s discrimination. For that reason, summary disposition of Title VII cases is not favored and the court “must be extra-careful to view all the evidence in the light most favorable” to the plaintiff.
Ross v. Runyon,
Plaintiff has filed a request for a ¡court order reinstating a complaint he filed with the Walter Reed Army Medical Center EEO office in October 2001. Defendant has responded, noting that the EEO office has conceded that it erred in closing the complaint and has reopened the complaint. Plaintiffs request will, therefore be denied as moot.
An appropriate order signed this day accompanies this Memorandum Opinion.
ORDER
Accordingly, it is by the Court this 21st day of October, 2002,
ORDERED that Defendant’s motion to dismiss [Dkt. #8-1] is DENIED; it is
FURTHER ORDERED that Defendant’s motion for summary judgment [Dkt. # 8-1] is DENIED; it is
FURTHER ORDERED that plaintiffs motion for leave to file a sur-reply is GRANTED; it is
FURTHER ORDERED that plaintiffs motion for an order reinstating his complaint at Walter Reed’s Equal Employment Opportunity Office [Dkt. # 15-1] is DENIED as moot;
FURTHER ORDERED that plaintiffs motion for appointment of counsel [Dkt. # 11-1] is GRANTED; the Clerk is directed to appoint counsel for plaintiff from the Civil Pro Bono Panel of the Court; it is
FURTHER ORDERED that defendant shall file an answer to the complaint within 20 days of the date of this order.
Notes
. The current Secretary of the Army, Thomas E. White, has been substituted for his predecessor by operation of law and pursuant to Fed.R.Civ.P. 25(d)(1).
. Plaintiff contends that the leave restriction was unwarranted because his absences had been for legitimate medical reasons. Id. at 5-6.
. Plaintiffs immediate supervisor had not advised him of the make up dates for the training. Id. at 7.
. The Court will grant plaintiff's motion for leave to file the sur-reply, which plaintiff states he prepared with volunteer legal assistance.
. Defendant does not object to the delay resulting from the fact that the case was stayed for six months after it was filed, pending receipt of a right to sue letter. [Dkt. # 3], The stay was lifted by order signed August 24, 2001, and a summons was issued thereafter. [Dkt. #5.]
. This occurred four months after plaintiff’s complaint about Ms. Aparicio, which was made in May 1997.
. Plaintiff's opposition, entitled "Plaintiff Request for Denial of Defendant's Motion to Dismiss and Summary Judgment,” will be cited as "Opposition.”
. The same provision appears in Local Civil Rule 56.1.
. In
Burke,
the Court pointed out that "[t]he plain language of Local Rule 56.1 does not require the district court to enter judgment because of the nonmoving party’s default in complying with the local rule. It provides that the district court
‘may
assume the facts identified by the moving party in its statement of material facts are admitted' (emphasis added) in the absence of a statement of genuine issues filed in opposition to the motion for summary judgment.”
Burke,
. In plaintiff’s opposition to defendant's motion, he states that the room in question contained shower stalls. Opposition, at 2.
. The record does not contain details of plaintiff's leave record or the restriction placed on his ability to take leave.