DEMISSIE v. STARBUCKS CORPORATE OFFICE AND HEADQUARTERS

Filing 12

MEMORANDUM ORDER AND OPINION granting defendant's 4 Partial Motion to Dismiss. It is hereby ORDERED that defendant's motion to dismiss plaintiff's complaint as untimely filed is WITHDRAWN; that defendant's partial motion to dis miss plaintiff's complaint on exhaustion grounds is GRANTED; and plaintiff's claims of race- and gender-based discrimination and retaliation based on a reduction in hours are DISMISSED WITH PREJUDICE. An initial scheduling conference is set for March 19, 2014 at 9:30 a.m. in Courtroom 23A. (See Memorandum Opinion and Order for Details.) Signed by Judge Ellen S. Huvelle on February 25, 2014. (lcesh1, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RAHEL A. DEMISSIE,
Plaintiff,
v.

Civil Action No. 13-2002 (ESH)

STARBUCKS CORPORATE OFFICE
AND HEADQUARTERS,
Defendant.

MEMORANDUM OPINION AND ORDER
Rahel Demissie, an Ethiopian-born plaintiff proceeding pro se, has sued Starbucks
Corporate Office and Headquarters (“Starbucks”), alleging that the company violated Title VII
by failing to “equally apply [its] rules and regulations” regarding pay raises and work scheduling
“to all employees based on race, gender or national origin” and by retaliating against her for
“report[ing] the situation” to human resources. (Compl., Nov. 4, 2013 [Dkt. No. 1] at 3.) Before
the Court is defendant’s partial motion to dismiss plaintiff’s complaint for failure to exhaust
administrative remedies. (Mot. to Dismiss (“Mot.”), Jan. 13, 2014 [Dkt. No. 4] at 6-7.)1 For the
foregoing reasons, the Court will grant defendant’s partial motion to dismiss.

1

Defendant initially moved to dismiss the entire complaint as untimely filed. (See Mot. at 5-6.)
However, in its reply brief, defendant stipulated it would “withdraw its contention that plaintiff’s claim is
untimely” to the extent that the “delay in filing [her] Complaint solely was due to plaintiff’s pending in
forma pauperis application.” (Reply in Support of Mot. to Dismiss Pl.’s Compl., Feb. 21, 2014 [Dkt. No.
11] at 4.) Because plaintiff submitted her complaint to the Court within the ninety-day statutory limit, see
42 U.S.C. § 2000e-5(f)(1), and the “filing” date for her complaint was delayed only because of the
Court’s consideration of her concurrent in forma pauperis application, plaintiff’s complaint was timely
filed. See Ruiz v. Vilsack, 763 F. Supp. 2d 168, 172 (D.D.C. 2011) (tolling the ninety-day Title VII
statute of limitations during a court’s review of a related in forma pauperis application).

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Plaintiff began working at Starbucks in January of 2010. (Compl. at 1.) Under company
policy, Starbucks employees are periodically eligible for pay increases based on regular
performance evaluations. (Id. at 2.) Plaintiff alleges that she and other foreign-born employees
who work with her in the same Starbucks store have not been evaluated by store managers for
pay increases. (Id.) In that time period, plaintiff alleges that other employees were given
automatic performance evaluations and pay increases. (Id.)
Plaintiff raised the issue of performance reviews with the Starbucks district manager, but
received no relief. (Id.) Plaintiff subsequently raised the issue to a human resources officer, who
informed plaintiff’s direct manager and new district manager about her complaint. (Id. at 2-3.)
Plaintiff alleges that she was subsequently retaliated against when she was informed that she and
her sister could not work at the same Starbucks store and when management reduced her hours
beginning on September 17, 2012. (Id. at 3.)
On November 14, 2012, plaintiff filed a charge of discrimination with the D.C. Office of
Human Rights and the U.S. Equal Employment Opportunity Commission (“EEOC”). (Charge of
Discrimination, Nov. 14, 2012 [Dkt. No. 4-1] at 1.) In that charge, plaintiff alleged she had been
“discriminated against based on [her] National Origin (Ethiopian)” when her manager failed to
give her performance evaluations and raises and informed her that she and her sister could no
longer work at the same Starbucks store. (Id.) She also claimed that she “believed that [she] had
been retaliated against.” (Id.) On August 15, 2013, the EEOC dismissed plaintiff’s charge and
notified plaintiff of her right to sue under Title VII. (See Dismissal and Notice of Rights, Aug.
15, 2013 [Dkt. No. 4-3] at 1.)
“To survive a motion to dismiss, 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
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U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling
on a motion to dismiss, the Court may consider not only the facts alleged in the complaint, but
also documents attached to or incorporated by reference in the complaint and documents
attached to a motion to dismiss for which no party contests authenticity. See U.S. ex rel. Folliard
v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 24 (D.D.C. 2010).
Plaintiffs bringing claims pursuant to Title VII must first exhaust their administrative
remedies. See Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). “The filing of an
administrative charge with the EEOC is a jurisdictional prerequisite to maintaining a Title VII
action in federal district court.” Wiley v. Johnson, 436 F. Supp. 2d 91, 95 (D.D.C. 2006). Even
after filing a charge with the EEOC, an employee may not bring a civil action for employment
discrimination unless she has first received a notice of “final action” taken by the commission.
See 42 U.S.C. § 2000e–16(c); Williams v. Dodaro, 576 F. Supp. 2d 72, 82 (D.D.C.2008).
Moreover, any lawsuit subsequent to such “final action” is limited to claims that are “like or
reasonably related to the allegations of the charge and growing out of such allegations,” such that
the employer may have fair notice of the claims against it. Park, 71 F.3d at 907. Although the
rules of exhaustion “should not be construed to place a heavy, technical burden” on plaintiff,
Fennell v. AARP, 770 F. Supp. 2d 118, 126 (D.D.C.2011) (internal quotation marks omitted), a
failure to exhaust administrative remedies “will ordinarily bar a judicial remedy.” Bowe-Connor
v. Shinseki, 923 F. Supp. 2d 1, 5 (D.D.C. 2013).
Several of plaintiff’s claims fail for lack of administrative exhaustion. First, because
plaintiff only alleged discrimination on the basis of national origin in her EEOC charge, she has
failed to exhaust her current claims of discrimination on the basis of race and gender.
Accordingly, plaintiff’s gender- and race-based discrimination claims will be dismissed. See,
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e.g., Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35 (D.D.C. 2008) (dismissing racial discrimination
claim on exhaustion grounds because complainant only made a claim of national origin
discrimination in administrative complaint).
Similarly, plaintiff failed to exhaust her claim that defendant retaliated against her by
reducing her hours. “[R]etaliation claims that occurred prior to the filing of a claim must be
administratively exhausted.” Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 278 (D.D.C. 2011)
(collecting cases). In this case, even though plaintiff’s alleged reduction in hours began nearly a
month before she filed her EEOC charge, she did not mention the reduction in the charge, nor
did she amend the charge to allege a retaliatory reduction in hours. See Carson v. Sim, 778 F.
Supp. 2d 85, 92-93 (D.D.C. 2011) (dismissing unexhausted claims where plaintiff provided no
evidence he attempted to exhaust administrative remedies). Indeed, plaintiff’s only retaliation
claim before the EEOC was that her manager had informed her that she and her sister could not
work at the same Starbucks store. (See Charge of Discrimination at 1.) Plaintiff’s alleged
reduction in hours is not reasonably related to plaintiff’s claims before the EEOC such that it
would fall within the scope of “the administrative investigation that can reasonably be expected
to follow” plaintiff’s EEOC charge. See Park, 71 F.3d at 907 (internal quotation marks omitted);
see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (holding that “[e]ach
incident of discrimination and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice’” for which an administrative charge must be
filed). Accordingly, the Court will dismiss plaintiff’s retaliation claim based on a reduction in
hours. See Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68-69 (D.D.C. 2007).2

2

In her opposition to defendant’s motion to dismiss, plaintiff alleges several additional retaliatory
acts, including that defendant required her to lift heavy items and placed her on an undetermined leave of

4

In sum, the Court will dismiss plaintiff’s claims of race and gender discrimination and
retaliation relating to the reduction in hours on the grounds of failure to exhaust. As a result, the
case moving forward will be limited to plaintiff’s allegations that defendant (1) discriminated
against plaintiff on the basis of her national origin by failing to give her regular performance
reviews and pay increases, and (2) retaliated against plaintiff by informing her that she and her
sister could no longer work at the same Starbucks store.
For these foregoing reasons, it is hereby
ORDERED that defendant’s motion to dismiss plaintiff’s complaint as untimely filed is
WITHDRAWN; it is further
ORDERED that defendant’s partial motion to dismiss on exhaustion grounds is
GRANTED; it is further
ORDERED that plaintiff’s claims of race- and gender-based discrimination and
retaliation based on a reduction in hours are DISMISSED WITH PREJUDICE; it is further
ORDERED that an initial scheduling conference is set for March 19, 2014 at 9:30 a.m.
in Courtroom 23A.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: February 25, 2014

absence beginning in September 28, 2013. (Opp’n to Def.’s Mot. of Dismissal, Feb. 10, 2014 [Dkt. No.
8] at 5.) The Court will not consider these allegations, as they were not alleged in plaintiff’s November 4,
2013 complaint. King v. Triser Salons, LLC, 815 F.Supp.2d 328, 332 (D.D.C. 2011) (“Although
plaintiff’s opposition to the motion to dismiss proffers additional facts, the Court may only consider the
facts set forth in the complaint when evaluating a motion to dismiss.”).

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