MONTGOMERY v. OMNISEC INTERNATIONAL SECURITY SERVICES, INC.

Filing 13

MEMORANDUM OPINION. Signed by Judge Ellen S. Huvelle on August 20, 2013. (lcesh2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
PHYLLIS MONTGOMERY,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 13-0402 (ESH)
)
OMNISEC INTERNATIONAL
)
SECURITY SERVICES, INC.,
)
)
Defendant.
)
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Phyllis Montgomery, proceeding pro se, has filed suit against her former
employer, Omnisec International Security Services, Inc. (“Omnisec”), alleging discrimination
based on age, race, and gender, as well as retaliation based on her involvement in union
activities. Currently before the Court is defendant’s motion to dismiss plaintiff’s complaint.
(Defendant’s Motion to Dismiss, Apr. 4, 2013 [ECF No. 8] (“Mot.”).) For the reasons stated
below, defendant’s motion will be granted in part and denied in part.
BACKGROUND
Plaintiff is an African-American female over the age of fifty. (Plaintiff’s Response to
Defendant’s Motion to Dismiss, July 10, 2013 [ECF No. 11] (“Opp’n”) at 1.) She was formerly
employed by Omnisec as a Special Police Officer, and she served as a union Shop Steward. (Id.
at 1-2.) She was terminated on October 19, 2010. (Id. at 2.) At the time of her termination, she
was involved in managing her first grievance procedure. (Id.) On April 22, 2011, plaintiff filed
a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission
(“EEOC”). (Mot. Ex. 1, EEOC Charge.) In it, she checked the box to indicate that she had been

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discriminated based on her age. (Id.) She did not check the boxes for discrimination based on
race, color, or sex. (Id.) In her description of the “particulars,” she described the circumstances
of her termination and then stated that she believed she had been discriminated against “due to
my age, 51, in violation of the Age Discrimination in Employment Act of 1967.” (Id.)
On February 27, 2013, plaintiff filed a pro se complaint against Omnisec in the Superior
Court for the District of Columbia. (See Complaint, Feb. 27, 2013 [ECF No. 1-1] (“Compl.”).)
In it, she alleged discrimination based on age, race, and gender. (Id.) She also appeared to
allege retaliation based on her role as a union Shop Steward. (Id.) Defendant removed the case
to this Court on March 28, 2013. (Defendant’s Notice of Removal of Civil Action [ECF No. 1].)
ANALYSIS
I.

FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
“Title VII requires that a person complaining of a violation file an administrative charge

with the EEOC and allow the agency time to act on the charge” before filing suit in federal court.
Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). A subsequent Title VII lawsuit “is
limited in scope to claims that are like or reasonably related to the allegations of the charge and
growing out of such allegations.” Id. (internal quotation marks omitted). “EEOC complaints are
to be liberally construed, because they are often drafted ‘by persons unschooled in technical
pleading.’” Caldwell v. ServiceMaster Corp., 966 F. Supp. 33, 49 (D.D.C. 1997) (quoting
Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727 (D.C. Cir. 1978)). Indeed, “it
is well settled that a vaguely worded charge is not fatal to a Title VII plaintiff's case.” Id.
However, “it is also true that the requirement of some specificity in a charge is not a mere
technicality.” Park, 71 F.3d at 907 (internal quotation marks omitted). “A liberal interpretation
of an administrative charge cannot be used to ‘permit a litigant to bypass the Title VII

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administrative process.’” Caldwell, 966 F. Supp. at 49 (quoting Park, 71 F.3d at 907). The same
exhaustion requirement applies to claims brought under the Age Discrimination in Employment
Act (“ADEA”). See Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.
Cir. 1998). “It is the defendant's burden to prove by a preponderance of the evidence that the
plaintiff failed to exhaust administrative remedies.” Na'im v. Rice, 577 F. Supp. 2d 361, 370
(D.D.C. 2008).
Plaintiff’s complaint alleges discrimination based on age, race, and gender. However, in
her EEOC Charge, plaintiff only checked the box for discrimination based on “age.” (Mot. Ex.
1, EEOC Charge.) Moreover, nothing in the written description of her claim in any way
indicated that she was also alleging race and gender discrimination; to the contrary, it clearly and
unambiguously stated that she believed she had been discriminated against “due to [her] age,
51.” (Id.) It is well established that in the absence of any indication in her EEOC Charge that
plaintiff alleged discrimination based on race and gender, she may not proceed with those claims
in court. See, e.g., Williams v. Spencer, 883 F. Supp. 2d 165, 174 (D.D.C. 2012) (plaintiff failed
to exhaust administrative remedies for her race discrimination claim because she “did not check
‘race’ or ‘color’ as the basis of her discrimination charge, nor does the written explanation in her
EEOC complaint describe a suspicion or allegation of discrimination based on race or color”);
Bailey v. Verizon Commc’ns, Inc., 544 F. Supp. 2d 33, 37-38 (D.D.C. 2008) (plaintiff could not
bring claims for gender and race discrimination where she only checked the box for age
discrimination and noting that “[i]f a plaintiff’s EEOC charge makes a class of allegation
altogether different from that which she later alleges when seeking relief in federal district court,
she will have failed to exhaust administrative remedies”); Hunt v. Dist. of Columbia Dep’t of
Corr., 41 F. Supp. 2d 31, 36 (D.D.C. 1999) (holding that plaintiff failed to exhaust

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administrative remedies for her gender discrimination claim because she only checked the boxes
for age discrimination and retaliation).
Plaintiff’s only response to this argument is that her cover letter to her EEOC Intake
Questionnaire stated that she was the “oldest female African American Special Police Officer at
Thurgood Marshall Federal Judiciary building.” (Opp’n at 5.) However, merely stating her race
and gender is not sufficient to put her employer on notice that she believed she had been
discriminated against on those bases. Indeed, in Riggsbee v. Diversity Servs., Inc., 637 F. Supp.
2d 39 (D.D.C. 2009), the plaintiff checked only “race” as a basis of discrimination, but later
sought to bring Title VII claims for both race and gender discrimination. See id. at 42-43. The
plaintiff claimed that she had adequately exhausted her administrative remedies for her gender
discrimination claim because the narrative accompanying her EEOC complaint stated that she
was a “black female” and that she was replaced by a “white male.” See id. at 43. However, the
very next sentence stated that she believed the reason given to her for her termination “was
pretext to mask unlawful racial discrimination against me on the basis of my race and color.” Id.
The Court held that her EEOC complaint had not adequately alleged gender discrimination
because,
[B]eyond the[] two references to “male” and “female,” the EEO complaint
contains nothing that implies an allegation of sex discrimination. Indeed, her one
paragraph narrative in the EEO complaint underscores her charge that the
discrimination alleged is limited to “race”—the box she checked.
Id. (internal citations omitted).
The same conclusion is appropriate here. On her EEOC Charge, the only box plaintiff
checked was for age discrimination, and her narrative clearly stated: “I believe I have been
discriminated against due to my age, 51.” (Mot. Ex. 1, EEOC Charge.) The mere fact that she
identified her gender and race in the cover letter to her Intake Questionnaire was insufficient to
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overcome her own characterization of her claim. As in Hunt, plaintiff’s employer “could not
even arguably have been on notice that she was also complaining of discrimination on the basis
of gender” or race. 41 F. Supp. 2d at 36. The Court will therefore grant defendant’s motion to
dismiss with respect to plaintiff’s claims for discrimination based on race and gender.
II.

FAILURE TO STATE A CLAIM
Defendant next argues that plaintiff has failed to plead adequate facts to allege a plausible

claim for relief based on age, race, or gender discrimination. (Mot. at 5-7.) As explained above,
plaintiff has failed to exhaust her administrative remedies with respect to her claims for race and
gender discrimination. (See supra Section I.) Thus, the only question is whether she has
adequately stated a claim of age discrimination.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the pleaded factual
content “allows the [C]ourt to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint must do more than
set forth “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action . . . .’” Id. (quoting Twombly, 550 U.S. at 555). In ruling on a motion to dismiss, a court
may ordinarily consider only the facts alleged in the complaint, documents attached to or
incorporated by reference in the complaint, matters about which the Court may take judicial
notice, and any documents appended to a motion to dismiss whose authenticity is not disputed, if
they are referred to in the complaint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech.
Servs., Inc., 722 F. Supp. 2d 20, 24 (D.D.C. 2010). Moreover, a pro se plaintiff’s complaint will

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be held to “less stringent standards than formal pleadings drafted by lawyers.” Atherton v. D.C.
Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89,
94 (2007)). However, even a pro se complaint “must plead ‘factual matter’ that permits the court
to infer ‘more than the mere possibility of misconduct.’” Id. at 681-82 (quoting Iqbal, 556 U.S.
at 679).
In employment discrimination cases involving ADEA or Title VII claims, a plaintiff need
not plead facts establishing a prima facie case. Carson v. Sim, 778 F. Supp. 2d 85, 93 (D.D.C.
2011) (citing Twombly, 550 U.S. at 569); Fennell v. A.A.R.P., 770 F. Supp. 2d 118, 127 (D.D.C.
2011) (citing Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008)).
However, a plaintiff “must nevertheless plead sufficient facts to show a plausible entitlement to
relief.” Fennell, 770 F. Supp. 2d at 127. There are two essential elements of an age
discrimination claim under the ADEA: (1) that the plaintiff suffered an adverse employment
action, (2) because of the plaintiff’s age. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008). Defendant does not appear to dispute that plaintiff has alleged an adverse
employment action, as her complaint clearly states that she was terminated. However, defendant
does claim that plaintiff failed to “allege[] that discrimination was the basis for her termination,
nor [did] she provide any facts upon which one could infer discrimination.” (Mot. at 7.)
The Court disagrees. Admittedly, plaintiff did not expressly assert a causal relationship
between her termination and the discrimination she allegedly suffered. Instead, she alleged in
one sentence that she was discriminated against, and in the next sentence, that she was
terminated. (See Compl.) A liberal construction of plaintiff’s pro se pleading, however, leads to
the undeniable conclusion that plaintiff believes the two facts were causally linked. Moreover,
she pointed to at least two pieces of evidence to suggest that Omnisec was motivated by

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discriminatory animus. First, she alleged that when the company experienced financial troubles,
it selectively terminated individuals who were over forty years old. (Id.) And second, she
clearly stated that she “endured younger officers being treated better and given better Post
assignments,” even though she “had seniority and more experience than them.” (Id.)
It is well established that one way for a plaintiff to prove that her employer’s reasons for
an adverse employment action were pretextual is to “offer evidence that similarly-situated
employees outside the protected class were treated ‘more favorably in the same factual
circumstances.’” Montgomery v. Gotbaum, 920 F. Supp. 2d 73, 80-81 (D.D.C. 2013) (quoting
Brady, 520 F.3d at 495). Defendant argues that plaintiff’s allegations were insufficient because
she “failed to identify a comparator who was not of the same . . . age who received more
favorable treatment than she did.” (Mot. at 7.) However, the cases defendant cites in support of
that assertion arose on motions for summary judgment, and therefore apply an inappropriately
high standard. See Montgomery v. Chao, 546 F.3d 703 (D.C. Cir. 2008); Waterhouse v. District
of Columbia, 298 F.3d 989 (D.C. Cir. 200). At the motion to dismiss stage, plaintiff’s complaint
pleads adequate facts to allege a plausible claim of discrimination. See Gray v. Universal Serv.
Admin. Co., 581 F. Supp. 2d 47, 55 (D.D.C. 2008) (denying motion to dismiss discrimination
claim because the plaintiff had alleged that her termination was based on her race and that she
was treated less favorably than other employees of other races); Winston v. Clough, 712 F. Supp.
2d 1, 10 (D.D.C. 2010) (denying motion to dismiss discrimination claim because plaintiff alleged
that his suspension was motivated by his race and claimed that other employees outside of his
protected class had not been reprimanded for similar conduct); Ghawanmeh v. Islamic Saudi
Acad., 672 F. Supp. 2d 3, 15-16 (D.D.C. 2009) (declining to dismiss plaintiff’s race
discrimination claim despite the fact that she did not specifically identify the other similarly

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situated individuals who were not fired for the same conduct). Thus, defendant’s motion to
dismiss with respect to plaintiff’s age discrimination claim will be denied.
III.

BREACH OF COLLECTIVE BARGAINING AGREEMENT CONTRACT
Defendant’s third and final argument relates to the portion of plaintiff’s complaint that

states: “I received retaliation from Omnisec International Security Services Inc. for being a Shop
Steward [and] representing an officer’s grievances procedures.” (Compl.) In her opposition, she
further explains that she requested and was entitled to a Step 3 Grievance meeting and an
Arbitration, but that Omnisec refused to participate. (Opp’n at 6-7.) Additionally, she complains
that the “Union did not form an Arbitration panel[] or meeting as Plaintiff requested.” (Id. at 7.)
Thus, liberally construing plaintiff’s complaint, she appears to be alleging that Omnisec breached
the collective bargaining agreement (“CBA”) by failing to follow the grievance and arbitration
provisions provided for therein, and that the Union breached its duty of fair representation by
failing to form an arbitration panel as it was required to do under the CBA.
Defendant correctly points out that such “hybrid” actions, as they are known, are
governed by a six-month statute of limitations. See N’Diaye v. Commc’ns Workers of Am.,
No. 12-1731, 2013 WL 2462110, at *3 (D.D.C. June 7, 2013) (“The Supreme Court held that the
six-month statute of limitations under Section 10(b) of the National Labor Relations Act applies
to hybrid claims when a plaintiff sues his or her union for breach of duty of fair representation
and his or her employers for breach of the collective bargaining agreement.” (citing DelCostello
v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169-70 (1983))). The six months begin to run “from the
later of (1) when the employee discovers, or in the reasonable exercise of diligence should have
discovered, the acts constituting the alleged [breach] by the employer, or (2) when the employee
knows or should have known of the last action taken by the union which constituted the alleged

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breach of its duty of fair representation.” Watkins v. Commc’ns Workers of Am., Local 2336,
736 F. Supp. 1156, 1159 (D.D.C. 1990) (internal quotation marks and citations omitted). Where,
as here, the employee was terminated “before the Union was called upon to process the
employee’s grievance, the timeliness of the suit turns upon the date when the fair representation
claim accrued.” Id.
Plaintiff was terminated on October 19, 2010. (Opp’n at 2.) It appears from her
opposition that the last action taken with respect to her grievance was in January 4, 2011, when
the Union requested an arbitration with Omnisec for the second time. (Opp’n at 7.) Plaintiff
filed her lawsuit in Superior Court on February 27, 2013, over two years after the last action was
taken on her grievance. Her complaint was thus filed well outside the six-month statute of
limitations window for a claim of this kind. Defendant’s motion to dismiss this portion of
plaintiff’s complaint will therefore be granted. 1
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss plaintiff’s complaint will be
granted in part and denied in part. A separate Order accompanies this Memorandum Opinion.

___
/s/
___
ELLEN SEGAL HUVELLE
United States District Judge
Date: August 20, 2013
1

The Court is cognizant that the Union was not named as a defendant in this matter, and thus
plaintiff may not have intended to bring a hybrid claim, but rather to sue only her employer for
breach of the CBA. However, her claim would fare no better if styled in that way. As defendant
points out, “[a] claim that arises from and requires interpretation of a [CBA] is preempted by
Section 301(a) of the Labor Management Relations Act and must be dismissed for failure to state
a claim.” Lawson v. P.E.P.C.O., 721 F. Supp. 2d 1, 7 (D.D.C. 2010) (citing Bush v. Clark
Constr. & Concrete, 267 F. Supp. 2d 43, 46 (D.D.C. 2003)). Moreover, even if this Court
liberally construed plaintiff’s complaint as stating a claim under Section 301(a), it too would run
afoul of a six-month statute of limitations, this time from Section 10(b) of the National Labor
Relations Act. See 29 U.S.C. § 160(b).
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