CUNNINGHAM v. MYLAN PHARMACEUTICLALS, INC.

Filing 33

MEMORANDUM AND OPINION re Defendant's Motion for Partial Dismissal 29 . Signed by Judge Tanya S. Chutkan on 9/29/18. (DJS)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiff,
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v.
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MYLAN PHARMACEUTICALS, INC., )
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Defendant.
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AMY E. CUNNINGHAM,

Civil Action No. 1:17-cv-1769 (TSC)

MEMORANDUM OPINION
Plaintiff Amy E. Cunningham brings this action against her former employer, Mylan
Pharmaceuticals, Inc. (“MPI”), alleging sex discrimination in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000), and age discrimination in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a). Compl. p.1. MPI
seeks partial dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that some
of Cunningham’s claims are time barred. ECF No. 29, Def. Mot. to Dismiss. For the reasons set
forth below, the court will DENY the motion and permit Cunningham to amend her Complaint.
I.

BACKGROUND

MPI hired Cunningham in April 2010 as “Director of ARV Business Development,”
which involved managing MPI’s “business development and commercial portfolio” of
antiretroviral drugs in Africa. Compl. ¶ 5. Her office was based in Tanzania, where she lived
during her employment. 1 Id. ¶ 10. Cunningham asserts that from the beginning of her

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Cunningham originally filed her complaint in Virginia, where she now resides, but MPI filed a
motion to dismiss due to lack of jurisdiction and improper venue. ECF No. 4. The Virginia
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employment, her India-based male co-workers and managers subjected her to discrimination. Id.
¶ 12. Specifically, she claims she was “pigeonholed in a narrow role by her male supervisors”
and “was never permitted to advance in management,” thereby impeding her professional
development. Id. ¶ 11. Although Cunningham considered accepting a position with the United
States Agency for International Development in 2011, she was encouraged to remain at MPI by
two female MPI executives, who promised her a new reporting structure in which she would be
allowed to take on additional responsibilities. Id. ¶¶ 12-15.
Cunningham claims that despite these promises, she continued to suffer gender and agebased discrimination. She provides various examples of MPI employees failing to give her
credit for her work and failing to provide her with opportunities for assuming greater
responsibility. Id. ¶¶ 18, 24-27. On one occasion, despite promises that Cunningham would
receive “supervisory responsibility over the commercial activity in Africa,” MPI awarded a
supervisory position to one of her male Indian co-workers. Id. ¶ 18. On another occasion, after
Cunningham requested more responsibility, her supervisor replied, “you are over 50 years old;
why are you so keen to take more on - just relax and don’t work so hard?” Id. ¶ 43.
Cunningham contends that this statement reflected the “general sentiment” among MPI’s male
supervisors that older foreign women “should not take on senior positions in the India structure
or in the Africa” region. Id. ¶ 44. Cunningham also alleges that her recommendations on
projects or for improving system operations “were almost always ignored,” and that junior male
co-workers were given responsibility for implementing projects that she masterminded. Id. ¶¶
25-26.

court denied the motion to dismiss and instead transferred the case to the District of Columbia,
which her contract designates as her “home location” and where MPI maintains an office. ECF
Nos. 18, 21; Compl. ¶ 4; ECF No. 14 p. 6.
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Cunningham also contends that MPI excluded her from important meetings, withheld
important information from her, and undermined her work. Although she communicated with
her managers on a weekly basis, on one occasion she met a new high level MPI executive and
discovered that “the guys ‘(her Indian managers)’” had falsely informed the executive that they
did not know what she did and had not heard from her in months. Id. ¶ 23. MPI did not
acknowledge her weekly reports, nor did it acknowledge her requests to receive her team
members’ trip reports. Id. ¶¶ 28, 35. Although Cunningham traveled to other African countries
up to fifteen times per year, she “received little or no guidance on planning and no feedback or
acknowledgment upon submitting her trip reports.” Id. ¶ 28. Cunningham asserts that she was
“routinely” shut out “as a contributing member” of her unit, “consistently left . . . off e-mails and
excluded . . . from meetings.” Id. ¶ 22. Her supervisors “frequently neglected” to tell her when
other team members were visiting African countries over which she had responsibility. Id. ¶ 23.
Even though Cunningham and a male co-worker were to jointly supervise various operations in
Africa, she was “never allowed joint planning or joint discussions on overall work.” Id. ¶ 27.
Moreover, she was “not apprised of information regarding new product launches” and her direct
supervisor “provided no guidance or feedback on her work.” Id. ¶¶ 24, 27. Indeed, she did not
receive a written performance evaluation for five years. Id. ¶ 29.
Cunningham claims that MPI terminated her in July 2016 because of a “cultural bias
against female leaders.” Id. ¶¶ 20, 39. She filed a Charge of Discrimination with the U.S. Equal
Employment Opportunity Commission (“EEOC”) on August 26, 2016, in which she alleged
discrimination based on sex and age. Id. ¶ 48; Defs. Ex. A.

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II.

LEGAL STANDARD

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim tests the
legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “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 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
when it alleges sufficient facts to permit the court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). When
considering a defendant’s motion to dismiss for failure to state a claim, “the court must construe
the complaint in a light most favorable to the plaintiff and must accept as true all reasonable
factual inferences drawn from well-pleaded factual allegations.” Ahuja v. Detica, Inc., 742 F.
Supp. 2d 96, 102 (D.D.C. 2010) (citation omitted). 2
III.

DISCUSSION

A plaintiff bringing a claim under Title VII must first file a charge with the EEOC either
180 or 300 days “after the alleged unlawful employment practice occurred.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 104 (2002) (citing 42 U.S.C. § 2000e-5(e)(1)). The
180-day deadline is extended to 300 calendar days if a state or local agency prohibits
employment discrimination on the same basis as Title VII. See Greer v. Bd. of Trs. of Univ. of
D.C., 113 F. Supp. 3d 297, 306–07, 307 n.7 (D.D.C. 2015) (citation omitted). Because the
District of Columbia does have such an employment discrimination law, the applicable

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Both parties cite to Cunningham’s EEOC charge. Because Cunningham references the EEOC
charge in her Complaint, the court may consider the charge without converting MPI’s motion to
dismiss into a motion for summary judgment. See Hudson v. Children’s Nat’l Med. Ctr., 645 F.
Supp. 2d 1, 5 n.5 (D.D.C. 2009) (citation omitted).
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limitations period here is 300 days. See id.; D.C. Code § 2-1401.01 et seq.
MPI seeks dismissal of all of Cunningham’s sex discrimination claims occurring before
October 31, 2015 (i.e., more than 300 days prior to the filing of Cunningham’s August 26, 2016
EEOC charge). Cunningham responds that MPI’s conduct amounted to a hostile work
environment and, because some conduct occurred within the 300-day limitations period, her
claims involving conduct that occurred before October 31 are not time-barred. ECF No. 31, Pl.
Resp.
MPI counters that Cunningham’s pre-October 31, 2015 allegations describe a series of
discrete and isolated incidents which do not rise to the level of a hostile work environment claim, and
point to the fact that Cunningham did not use the term “hostile environment” in her EEOC charge or
her Complaint. The court finds MPI’s arguments unpersuasive.
A. Timeliness
While the Supreme Court has held that “discrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges,” it has also made
clear that “hostile work environment claims are different in kind from discrete acts” because
“[t]heir very nature involves repeated conduct.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113, 115 (2002) (citation omitted). “A hostile work environment claim is composed of a
series of separate acts that collectively constitute one unlawful employment practice.” Id. at 117
(internal quotations and citation omitted). “Accordingly, hostile work environment claims are
subject to a different limitations rule”: if “an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Singletary v. D.C., 351 F.3d 519, 526–27 (D.C. Cir. 2003)

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(citation omitted), rev’d on other grounds, 351 F.3d 519 (D.C. Cir. 2003).
The D.C. Circuit has cautioned, however, that this rule does not create “an open sesame
to recovery for time-barred violations.” Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir.
2011). “Both incidents barred by the statute of limitations and ones not barred can qualify as
part of the same actionable hostile environment claim only if they are adequately linked into a
coherent hostile environment claim—if, for example, they ‘involve the same type of employment
actions, occur relatively frequently, and are perpetrated by the same managers.’” Id. (alterations
omitted) (quoting Morgan, 536 U.S. at 120–21).
To establish a hostile work environment claim, a plaintiff must show that she “was
subjected to discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of [her] employment and create an abusive working
environment.’” Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (internal
quotations and citations omitted). In evaluating a harassment claim, courts look “to the totality
of the circumstances, including the frequency of the discriminatory conduct, its severity, its
offensiveness, and whether it interferes with an employee’s work performance.” Baloch v.
Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (citation omitted). If Cunningham alleges
facts sufficient to support a hostile environment claim, and at least one instance of the alleged
conduct occurred with the limitations period (i.e., after October 31, 2015), then her claims will
not be time-barred.
Cunningham has established that at least one instance of alleged misconduct—her
termination—occurred after October 31, 2015, and she has sufficiently pled allegations which
would support a claim of hostile work environment. She alleges that over a five-year period,
MPI managers repeatedly discriminated against her by, inter alia, failing to: 1) give her credit for

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her work, 2) give her proper supervisory authority over her subordinates, 3) notify her about
important meetings, 4) notify her about antiretroviral product releases relating to her area of
coverage, 5) include her in management planning discussions, 6) respond to her
communications, 7) provide guidance and feedback relating to business projects and travel
outside her home base, and 8) provide her with written evaluations. These allegations of
discriminatory conduct—touching on all areas of Cunningham’s employment—were logically
related, involved similar types of conduct, occurred repeatedly, and were perpetrated by the same
managers. Moreover, the allegations are sufficient to support a finding that she was subjected to
discriminatory conduct “sufficiently severe or pervasive to alter the conditions of [her]
employment.” Ayissi–Etoh, 712 F.3d at 577 (citation omitted).
B. Failure to Exhaust
The court is also unpersuaded by MPI’s argument that Cunningham failed to exhaust her
administrative remedies with respect to her hostile work environment claim because she did not
mark the corresponding box for hostile work environment on her EEOC charge, and did not use
the words “hostile work environment” in her Complaint. These facts do not automatically
preclude her from going forward with her claim.
The primary purpose of the exhaustion requirement is to provide the EEOC and
defendants with sufficient notice to begin the investigative process. See Peters v. D.C., 873 F.
Supp. 2d 158, 182 (D.D.C. 2012). Therefore, the exhaustion requirement “should not be
construed to place a heavy technical burden on individuals untrained in negotiating procedural
labyrinths.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (citations and internal
quotation marks omitted). Because exhaustion is not “a mere technicality,” however, a plaintiff's
claims in her subsequent Title VII suit are “limited in scope to claims that are like or reasonably

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related to the allegations of the charge and growing out of such allegations.” Id. at 907 (citation
and internal quotations omitted). Applying this rule, the D.C. Circuit found in Park v. Howard,
71 F.3d 904, 907 (D.C. Cir. 1995), that a plaintiff had not exhausted her administrative remedies
because her EEOC charge failed to mention a hostile work environment and, more importantly,
the charge lacked “any factual allegations supporting such a claim.”
In contrast, the allegations in Cunningham’s EEOC charge satisfy the exhaustion
requirement because she consistently used terminology that indicated the alleged discrimination
was pervasive and ongoing. For example, Cunningham asserted that:
•

“During my entire time at Mylan in Tanzania I was pigeonholed in a narrow role by my
male supervisors stationed in India. I was never permitted to advance in management
and hindered in pursuit of professional growth.” Defs. Ex. A ¶ 5.

•

“Messrs. Deshpande and Kanda routinely shut me out as a contributing member of the
unit. Both consistently left me off-emails and excluded me from meetings. . . . I attended
such meetings only when I happen [sic] to learned of them through other means.” Id.
¶10.

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“My recommendations on expanding business and improving systems and operations
were almost always ignored, yet later adopted with no recognition of my input or
leadership. . . .” Id. ¶ 13.

•

“My direct supervisor in India virtually never responded to my e-mails. . . . Mr. P.
Deshpande never allowed joint planning or joint discussions on overall work in Africa.”
Id. ¶ 15.

These allegations were sufficient to put MPI and the EEOC on notice that Cunningham was
claiming persistent discriminatory conduct, even though she did not “check the box” for hostile
work environment. See Seed v. Pruitt, 246 F. Supp. 3d 251, 255–56 (D.D.C. 2017) (noting that
“plaintiffs need not use any magic words in a charge much less the specific term ‘hostile work
environment’”) (citation and some internal quotation marks omitted).
Likewise, although Cunningham does not use the term “hostile work environment” in her

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Complaint, her allegations are consistent with those asserted in her EEOC charge:
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“During her entire tenure at Mylan [she] was pigeonholed. . . .” Compl. ¶ 11.

•

“Ms. Cunningham faced discrimination by her male Indian colleagues since commencing
employment in 2010.” Id. ¶ 12.

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“As will be explained below, Ms. Cunningham was terminated . . . because cultural bias
against female leaders by her male Indian managers in the global unit ensured that she
was never supported in her work and denied credit for her numerous commercial
accomplishments.” Id. ¶ 20.

A plaintiff’s claims in her Title VII suit are “limited in scope to claims that are like or reasonably
related to the allegations of the charge and growing out of such allegations.” Park, 71 F.3d at
907 (citation and internal quotation marks omitted). A review of both the EEOC charge and the
Complaint indicate that Cunningham has met this standard.
IV.

CONCLUSION

For the reasons set forth above, the court will DENY MPI’s motion for partial dismissal
and allow Cunningham to amend her complaint to explicitly assert a hostile work environment
claim.

2018.09.29
19:52:56
-04'00'

Date: September 29, 2018

TANYA S. CHUTKAN
United States District Judge

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