Reedjoseph-Minkins v. DC Government Dept. of Youth Rehabilitation Services et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 6/20/2018. (kw2s, Deputy Clerk)(c/m 6.20.18)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ATHRYN E. REEDJOSPEPHMINKINS,
Plaintiff,
Civil Action No. ELH-17-45

v.
DC GOVERNMENT DEPT OF YOUTH
REHABILITATION SERVICES et al.
Defendants.

MEMORANDUM OPINION
In this employment discrimination case, the self-represented plaintiff, Athryn E.
Reedjoseph-Minkins, has sued her employer, the DC Government Department of Youth
Rehabilitation Services (the “Department” or “DC DYRS”), two of her supervisors, Clinton
Lacey and Linda Harlee Harper, and a human resources staff member, Arnita Evans. ECF 1.
Plaintiff alleges that she suffered discrimination on the basis of her sex (female) and disability
(“PTSD, Anxiety, Incontinence Issues [], Diabetic, [and] Depression”), as well as retaliation. Id.
at 5. Suit is founded on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e to 2000e-17, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§§ 12112 to 12117. ECF 1 at 4.
Pursuant to Fed. R. Civ. P. 12(b)(6), defendants have moved to dismiss plaintiff’s
Complaint in its entirety, on the grounds that plaintiff’s claims are untimely, unexhausted, and
brought against improper parties. ECF 16. The motion is supported by a memorandum of law
(ECF 16-1) (collectively, “Motion”).

Defendants also submitted plaintiff’s Charge of

Discrimination, filed with the Maryland Commission on Human Rights (“MCHR”). ECF 16-2

(“Charge”). Plaintiff opposes the Motion. ECF 23 (“Opposition”). Defendants replied. ECF 24
(“Reply”).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons
that follow, I shall grant the Motion.
I.

Factual and Procedural Background1
A.

Plaintiff works as a correctional officer for the Department. ECF 1-3 (Claim Narrative)
at 1. She alleges that she is a disabled veteran. ECF 1 at 5. Further, plaintiff alleges that she
suffers from incontinence, diabetes, Post-Traumatic Stress Disorder (“PTSD”), anxiety, and
depression. Id.
The Complaint alleges that plaintiff began her employment with the District of Columbia
government in 2004. ECF 1-3 at 1. At that time, she submitted a questionnaire to her employer
stating that she suffered from PTSD, and also had physical disabilities stemming from
unspecified injuries sustained while on active duty. Id.
Plaintiff’s first assignment with the Department was to Oak Hill Youth Center, where she
worked from 2004 to 2009. Id. According to plaintiff, while working there, she was consistently
harassed and threatened, and was refused restroom breaks and lunch breaks for up to eight hours.
Id. The inability to use the restroom often caused plaintiff to urinate or defecate on herself at
work. Id. Plaintiff alleges that she filed a complaint with the “Maryland EEOC” in July 2012,
but that the human resources staff worked to “discredit” her. Id. According to plaintiff, a human

1

As discussed, infra, in view of the procedural posture of the case, I must accept as true
the facts alleged in the Complaint. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637
F.3d 435, 440 (4th Cir. 2011). I am also mindful that plaintiff is pro se, and therefore I must
construe her submissions liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

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resources representative “stated that [plaintiff] did not need to file [a complaint] because it was
going to be turned down.” Id.
Plaintiff was subsequently transferred to another work location in Washington, DC,
which required her to commute almost three hours each way. ECF 1-3 at 1. At this location,
called “Youth Services Center,” plaintiff was sexually harassed by a co-worker who, among
other transgressions, “came up behind [her] and started humping [her] and saying that he was
going to put his ‘DICK’ on [her] leg.” Id. at 1-2. Plaintiff alleges that she informed a supervisor
of the co-worker’s behavior. Id. at 2. The supervisor “stated to file another complaint but to file
with the DC EEOC.” Id.
Thereafter, plaintiff was reassigned to a facility located in Maryland called “New
Beginnings,” where she was assigned to “the Midnight tour.” Id. There, she claims that she
continued to be harassed by her co-workers. Id. In particular, plaintiff alleges that during her
shift her co-workers showed “[s]exually explicit movies depicting Gang Rapes”. Id. Plaintiff
allegedly filed another EEOC complaint in July 2014, and was assigned to a different shift. Id.
Apparently, plaintiff was involved in a motor vehicle accident in August 2014 while on
the way to work.

Id.

In early 2015, she requested “light duty” pursuant to her doctor’s

recommendation. Id. Her request was allegedly denied, and plaintiff was told that “the Agency
did not provide LIGHT DUTY.” Id. However, plaintiff alleges that she later “noticed that
several of [her] co-workers were allowed light duty positions.” Id.
According to plaintiff, she continues to be harassed by her co-workers, and is still
sometimes denied lunch and restroom breaks. Id. at 1. On her Complaint form, plaintiff alleges
that she was “[n]ot allowed to use [the] restroom, . . . . [n]ot allowed lunch breaks . . . and [was]

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held over for up to an hour and not paid overtime.” ECF 1 at 7. And, she indicates that she was
“refused medical treatment from workman’s comp.” Id. at 5.
Plaintiff also alleges that her “vehicle was scratched up” and that her request “to pull the
camera footage for the time of the incident” was refused. ECF 1-3 at 2. It is unclear whether or
how this allegation is related to plaintiff’s other claims.
B.
Plaintiff filed suit on January 6, 2017. ECF 1. Her claims are detailed on a form
complaint (ECF 1), as well as an attached letter narrating the claims. ECF 1-3. Additionally,
plaintiff submitted voluminous unmarked exhibits, including emails between plaintiff and her coworkers and incident reports concerning events loosely related to her claims. These documents
were not posted to ECF. See ECF 1-4 (Filed Separately Sheet). Plaintiff also submitted a “Right
to Sue” letter from the EEOC, dated November 8, 2016. ECF 1-2. The letter and accompanying
documentation relate to EEOC Charge No. 570-2014-01768. Id. at 1, 2, 6.
Plaintiff did not attach the Charge to her Complaint. However, a Charge completed by
plaintiff and submitted by defendants with their Motion is labeled 570-2014-01768. ECF 16-2 at
2. That Charge was filed on March 25, 2015. Id.
Plaintiff alleges in her Complaint that she filed EEOC charges on “several different
dates,” including “9/01/2016” and “5/28/2016.” However, she has provided no documentation
of any submissions on these dates, and the Right to Sue letter she received corresponds only to
the March 25, 2015 charge of discrimination. Therefore, I shall consider that EEOC complaint
to be the predicate charge for purposes of administrative exhaustion.

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The Charge discusses some, but not all, of the allegations in the Complaint. It indicates
that the alleged discrimination occurred between October 1, 2013, and July 31, 2014. ECF 16-2
at 2. However, plaintiff also checked the box indicating a “continuing action.” Id.
In the “particulars” section of the Charge, plaintiff stated, in relevant part, id. at 1-2:
Beginning in October 2013, while assigned to the Washington DC location [of
DC DYRS], I was told by SYDR[2] J. Chamberlain that I was not allowed to use
the bathrooms at the New Beginnings location because I had been transferred. I
was later told by SYDR S. Dowell, SYDR S. Johnson, and SYRD G. JohnsonBye that I was not allowed to use the bathroom while on duty, which caused
problems with my disability. Beginning in October 2013, I began to be sexually
harassed by Demetrius Jackson. Mr. Jackson started asking me questions about
my breasts and stated that he wanted to date me. He also offered me $300 for sex
several times. I complained to James Lester (Deputy Superintendent), but nothing
was done to resolve the matter. On December 25, 2013, I was forces [sic] to work
a 17.5 hour shift without any breaks which caused problems with my disability.
On January 12, 2014, Mr. Jackson came up behind me and stated “I am going to
put my dick your leg [sic].” I reported this to Superintendent Willie Fulilove. I
began to be harassed by C. Wilborne and T Matthews with threats of harm and
intimidation. C. Wilborne told the male residents on B200 to tell PDS [3] that I
was allowing them to feel my body and this was reported. On January 26, 2014, I
was transferred back to the Laurel location. I continued to receive harassing
phone calls to my home from D. Jackson with heavy breathing and laughing.
Beginning in February 2014, William Raper, Arvin Webb, and Mr. Hasaan
Shahid began to show movies with strong sexual content and gang rapes. I
requested to have the movies turned off and complained to Julius Layton (Night
Supervisor), Union VP Y Ward and Shop Steward R Miller to no avail. After I
complained about the movies, I started being harassed by Tasha Williams,
Melinda Simms and Jennifer Ratliff-Unit Manager whom [sic] stated that she
wanted me to search the residents [sic] rooms while they were asleep at night
which is against the Agency’s Policy and Procedures.
It does not appear that plaintiff amended her Charge to add more dates or additional allegations.
II.

Standards of Review

As noted, defendants have moved to dismiss the Complaint for failure to state a claim,
pursuant to Fed. R. Civ. P. 12(b)(6). ECF 16. However, defendants also seek to dismiss
2

Plaintiff does not define the abbreviation.

3

This abbreviation is not defined.

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plaintiff’s claims as unexhausted. ECF 16-1 at 16. If true, this would deprive the Court of
subject matter jurisdiction. See Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th
Cir. 2013). Therefore, I shall construe the Motion as one under Fed. R. Civ. P. 12(b)(1), as well.
A. Rule 12(b)(1)
A challenge to a federal court’s subject matter jurisdiction is reviewed pursuant to Fed. R.
Civ. P. 12(b)(1).

Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a

preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East
West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Evans v. B.F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999). A test of subject matter jurisdiction under Rule 12(b)(1) may
proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in
the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge,
asserting “‘that the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736
F.3d 296, 300 (4th Cir. 2013). A factual challenge can also assert that facts outside the four
corners of the complaint preclude the exercise of subject matter jurisdiction. Id.
Defendants bring a factual challenge because they argue that plaintiff failed to exhaust
her administrative remedies under Title VII and the ADA. ECF 5-1 at 8. Defendants argue that
the failure to exhaust deprives the Court of subject matter jurisdiction as to these claims. Id.
In considering a factual challenge, “the district court is entitled to decide disputed issues
of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. In that circumstance,
the court “may regard the pleadings as mere evidence on the issue and may consider evidence
outside the pleadings without converting the proceeding to one for summary judgment.” Velasco
v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru

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v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009) (“Unless ‘the jurisdictional facts are intertwined
with the facts central to the merits of the dispute,’ the district court may . . . resolve the
jurisdictional facts in dispute by considering evidence . . . such as affidavits.”) (Citation omitted).
B. Rule 12(b)(6)
A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss
under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408
(4th Cir. 2010), aff’d sub nom. McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion
by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter
of law “to state a claim upon which relief can be granted.”
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the rule is to provide the defendants with “fair notice” of the claims and the
“grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading
standard for ‘all civil actions’ . . . .” (citation omitted)); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not
countenance dismissal of a complaint for imperfect statement of the legal theory supporting the

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claim asserted.” Johnson v. City of Shelby, Miss., ___ U.S. ____, 135 S. Ct. 346, 346 (2014) (per
curiam).
Nevertheless, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to
satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual
matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of
those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at
556 (internal quotations omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
allegations contained in the complaint” and must “draw all reasonable inferences [from those
facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015);
Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But,
a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain,
478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating
the legal conclusions from the factual allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations allow the court to reasonably infer”
that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia,
655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

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Courts generally do not “‘resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243
(citation omitted). The purpose of the rule is to ensure that defendants are “given adequate
notice of the nature of a claim” made against them. Twombly, 550 U.S. at 555-56 (2007). But,
“in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule
12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord
Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009); see also
U.S. ex rel. Oberg v. Penn. Higher Educ. Assistance Agency, 745 F.3d 131, 148 (4th Cir. 2014).
However, because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,”
Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the
face of the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis
added in Goodman).
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
court ordinarily “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557
(4th Cir. 2013); see Bosiger, 510 F.3d 442, 450 (4th Cir. 2007). However, without converting a
motion to dismiss to a motion for summary judgment, a court may properly consider documents
expressly incorporated into the complaint or attached to the motion to dismiss, “‘so long as they
are integral to the complaint by reference and authentic.’” U.S. ex rel. Oberg, 745 F.3d at 136
(quoting Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Six v.
Generations Federal Credit Union, ___ F.3d ___, 2018 WL 2435430, at *2 (4th Cir. May 31,

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2018); Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015); Anand v.
Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am. Chiropractic Ass’n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004). To be “integral” a document must
be one “that by its ‘very existence, and not the mere information it contains, gives rise to the
legal rights asserted.’” Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.
Supp. 2d 602, 611 (D. Md. 2011) (citation omitted) (emphasis in original). See also Fed. R. Civ.
P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading
for all purposes.”).
However, “before treating the contents of an attached or incorporated document as true,
the district court should consider the nature of the document and why the plaintiff attached it.”
Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d
449, 455 (7th Cir. 1998)). “When the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the
contents of the document, crediting the document over conflicting allegations in the complaint is
proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a
document for purposes other than the truthfulness of the document, it is inappropriate to treat the
contents of that document as true.” Id.
A court may also “consider a document submitted by the movant that was not attached to
or expressly incorporated in a complaint, so long as the document was integral to the complaint
and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied,
138 S. Ct. 558 (2017); Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467
(4th Cir. 2012).

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As noted, plaintiff submitted an exhibit with the original Complaint. See ECF 1-2
(Notice of Right to Sue). And, defendants attached plaintiff’s Charge to their Motion. ECF 162. Because these exhibits are integral to the Complaint, I may consider them without converting
the Motion to one for summary judgment. See, e.g., Goines, 822 F.3d at 166.
III.

Discussion

Defendants move to dismiss plaintiff’s claims on several grounds. They assert that the
claims are untimely, as none of the dated allegations in plaintiff’s Charge are alleged to have
occurred within the statutory 300 day period prior to the Charge’s filing. ECF 16-1 at 6-10.
Moreover, defendants contend that many allegations in plaintiff’s Complaint are not reasonably
related to the incidents described in the Charge, and are therefore unexhausted. Id. at 12-16.
And, defendants further argue that, despite the volume of documents that plaintiff submitted with
her Complaint, these do not provide enough substance to save her claims. Id. at 10-12.
Additionally, defendants seek the dismissal of all claims against Lacey, Harper, and
Evans. Id. at 16. Furthermore, defendants argue that no statute provides for suit against DC
DYRS, and it should therefore be dismissed. Id. at 17.
A. Employment Discrimination Statutes
1. Title VII
Title VII prohibits an employer from discriminating against “any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1); see BoyerLiberto v. Fontainebleau Corp., 786 F.3d 264, 298 (4th Cir. 2015) (en banc); Freeman v. Dal–
Tile Corp., 750 F.3d 413, 420 (4th Cir. 2014). It also prohibits an employer from retaliating
against an employee because the employee filed a grievance or complaint regarding an

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employment practice that allegedly violated Title VII’s antidiscrimination provision. See 42
U.S.C. § 2000e–3(a); DeMasters v. Carilion Clinic, 796 F.3d 409, 415 (4th Cir. 2015).
In a retaliation case, the Fourth Circuit has said that, to establish a prima facie case of
discrimination under Title VII, a plaintiff must show: “‘(1) that she engaged in a protected
activity,’ as well as ‘(2) that her employer took an adverse employment action against her,’ and
‘(3) that there was a causal link between the two events.’” Boyer-Liberto, 786 F.3d at 281
(quoting EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)); see also
Lovett v. Cracker Barrel Old Country Store, Inc., 700 F. App’x 209, 212 (4th Cir. 2017);
Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d, 566 U.S. 30 (2012).
An “adverse employment action” is one that “‘constitutes a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’” Hoyle v.
Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 761 (1998)). Single acts that may not be cognizable as adverse actions on
their own may, over time, cumulatively amount to an unlawful employment practice when they
amount to a hostile work environment. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002); see also Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Hoyle, 650 F.3d at
333-34.
The Supreme Court has explained that the definition of “adverse employment action” in
the context of a claim for retaliation is not limited to the definition as used in the context of a
substantive discrimination claim. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S.
53, 64 (2006) (“BNSF”). Rather, “the adverse action component of Title VII’s antiretaliation
provision can be satisfied by showing that the employer took ‘materially adverse’ action in

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response to an employee engaging in a protected activity, ‘which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Williams v. Prince William Cnty., Va., 645 F. App’x 243, 245 (4th Cir. 2016)
(quoting BNSF, 548 U.S. at 68). Conduct as seemingly “trivial” as a “change in an employee’s
work schedule” or a “supervisor’s refusal to invite an employee to lunch” may, under some
circumstances, constitute adverse employment actions in the context of retaliation. BNSF, 548
U.S. at 69.
With respect to the causation element, plaintiff must show that the “unlawful retaliation
would not have occurred in the absence of the alleged wrongful action or actions of the
employer.” Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015) (citation
omitted). “A plaintiff who can show that retaliation ‘was the real reason for the [adverse
employment action],’ . . . will necessarily be able ‘to show that the harm would not have
occurred in the absence of - that is, but for - the defendant’s conduct’ . . . .” Id. at 252 (citations
omitted) (alteration in Foster).
2. ADA
The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities,” 42 U.S.C.
§ 12101(b)(1), and “to provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities.” Id. § 12101(b)(2). The ADA contains five
titles: Title I, Employment; Title II, Public Services; Title III Public Accommodations; Title IV,
Telecommunications; and Title V, Miscellaneous Provisions.

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Plaintiff does not specify the Title under which she brings her claims. Based on my
review of the Amended Complaint, however, it appears that Title I and Title II are the most
relevant to this case.
Title I prohibits discrimination “against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a); see also Summers v. Altarum Inst., Corp., 740 F.3d 325,
328 (4th Cir. 2014) (“The ADA makes it unlawful for covered employers to ‘discriminate
against a qualified individual on the basis of disability.’”). A “qualified individual” is defined as
a person who, “with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
Unlawful discrimination under Title I of the ADA “can include the failure to make
‘reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or employee. . . .’” Wilson v. Dollar
Gen. Corp., 717 F.3d 337, 344 (4th Cir. 2013) (quoting § 12112(b)(5)(A)). Moreover, “denying
employment opportunities to a job applicant or employee who is an otherwise qualified
individual with a disability” may qualify as “discrimination against a qualified individual on the
basis of disability.” 42 U.S.C. § 12112(b)(5)(B).
Title II of the ADA prohibits public entities, including “any State or local government”
and “any department, agency, special purpose district, or other instrumentality of a State or
States or local government,” 42 U.S.C. § 12131(1), from discriminating “by reason of” disability
against a “qualified individual with a disability.” Id. § 12132. Under Title II, a “qualified
individual with a disability” is defined as an individual with a disability “who, with or without

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reasonable modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or the participation in programs or
activities provided by a public entity.” Id. § 12131(2); see also Seremeth v. Bd. of Cty. Comm’rs
of Frederick Cty., 673 F.3d 333, 338 (4th Cir. 2012).
I infer that the claims here are lodged under Title I of the ADA, concerning employment,
because the allegations of the Complaint and the Charge pertain to hardships suffered in the
context of plaintiff’s job, rather than services available to the public. See ECF 1-3; ECF 16-2.
B. Individual Defendants
As a threshold matter, defendants move to dismiss all of plaintiff’s claims against the
individual defendants, Clinton Lacey, Linda Harlee Harper, and Arnita Evans. ECF 16-1 at 16.
In support, defendants assert that plaintiff has pleaded no allegations against either Lacey or
Harper. Id. This is accurate. Moreover, neither Title VII nor the ADA provides for actions
against individual defendants. See Jones v. Sternheimer, 387 F. App’x 366, 368 (4th Cir. 2010)
(“Title VII [and] the ADA . . . do not provide for causes of action against defendants in their
individual capacities.”); Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999) (noting
that “Title VII does not provide a remedy against individual defendants who do not qualify as
‘employers’” and extending that holding to the ADA). Therefore, claims against all three
individual defendants shall be dismissed.
C. The Department as Defendant
Defendants seek to dismiss all claims against the Department on the basis that, because it
is “an agency of the District of Columbia government, DC DYRS may neither sue nor be sued in
the absence of a statutory provision permitting it.” ECF 16-1 at 17. Instead, defendants assert

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that the District of Columbia, rather than the Department, is the proper party. ECF 24 at 4. They
cite Crockett v. Mayor of D.C., 279 F. Supp. 3d 100, 2017 WL 4286184 (D.D.C. 2017), for the
proposition that “‘subordinate agencies within the District of Columbia government are not
subject to suit, unless’ such an action is ‘specifically [provided for] by statute.’“ Id. at *10
(citation omitted).
However, in the next paragraph of that case, Judge Randolph Moss noted, id. (quoting
Cooper v. Henderson, 174 F. Supp. 3d 193, 200 (D.D.C. 2016)): “‘Where a plaintiff, through
unknowing mistake, names an improper defendant in her complaint, many courts in this district
have sua sponte ordered substitution of the proper defendant.’” Judge Moss therefore concluded,
id.: “Because[the plaintiff] is proceeding pro se, because designation of the proper party
defendants does not affect the substance of his claims, and because the District [of Columbia]
would not be unfairly prejudiced by substitution, the Court concludes substitution is the proper
course here.”
I shall follow Judge Moss’s example. The Court will order the substitution of the District
of Columbia for DC DYRS as a defendant in this action.
D. Exhaustion and Timeliness
1.
Under Title VII, a plaintiff must file a charge with the EEOC before filing suit in a
federal court. 42 U.S.C. § 2000e-5(f)(1); see Calvert Grp., 551 F.3d at 300. And, Title I of the
ADA “incorporates [Title VII’s] enforcement procedures . . . including the requirement that a
plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before
pursuing a suit in federal court.” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012)
(internal citations omitted).

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The regulation regarding the contents of a charge filed with the EEOC, 29 C.F.R.
§ 1601.12, indicates that any charge should contain, inter alia, the “full name, address and
telephone number of the person making the charge,” the “full name and address of the person
against whom the charge is made, if known,” and a “clear and concise statement of the facts,
including pertinent dates, constituting the alleged unlawful employment practices.”

Id.

§ 1601.12(a); see also Mekonnen v. AIMCO Properties, L.P., PWG-12-1304, 2013 WL 588976,
at *3 (D. Md. Feb. 13, 2013). Further, the regulation clarifies that “a charge is sufficient when
the Commission receives from the person making the charge a written statement sufficiently
precise to identify the parties, and to describe generally the action or practices complained of.”
29 C.F.R. § 1601.12(b). After filing, a charge may be amended to clarify or amplify any
allegations. Id.
This “exhaustion requirement ensures that the employer is put on notice of the alleged
violations so that the matter can be resolved out of court if possible.” Miles v. Dell, Inc., 429
F.3d 480, 491 (4th Cir. 2005); see also Jones v. Southpeak Interactive Corp. of Delaware, 777
F.3d 658, 670 (4th Cir. 2015) (“We recognize that a primary objective of exhaustion
requirements is to put parties on notice of the allegations against them.”).

Notably, the

exhaustion requirement is not “simply a formality to be rushed through so that an individual can
quickly file his subsequent lawsuit.” Chacko v. Patuxent Institution, 429 F.3d 505, 510 (4th Cir.
2005). Rather, together with the agency investigation and settlement process it initiates, the
requirement “‘reflects a congressional intent to use administrative conciliation as the primary
means of handling claims, thereby encouraging quicker, less formal, and less expensive
resolution of disputes.’” Balas, 711 F.3d at 407 (quoting Chris v. Tenet, 221 F.3d 648, 653 (4th

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Cir. 2000)). “Allowing [the EEOC] first crack at these cases respects Congress’s intent . . . .”
Sydnor, 681 F.3d at 593.
An aggrieved person must file a complaint with the EEOC within 180 days of the alleged
discrimination, except in a “deferral” jurisdiction, where the period is 300 days. See 42 U.S.C.
§ 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); Edelman v. Lynchburg Coll., 300 F.3d
400, 404 & n.3 (4th Cir. 2002). Maryland is a deferral state. See, e.g., Dewitt v. Clean Harbors
Envtl. Servs., Inc., RDB-16-1705, 2017 WL 3116609, at *3 (D. Md. July 21, 2017).
The exhaustion requirements of Title VII and the ADA also function as a jurisdictional
bar in federal court, where plaintiffs have failed to comply with it. See Balas, 711 F.3d at 406.
Failure to comply generally mandates dismissal of a suit. Lorenzo v. Rumsfeld, 456 F. Supp. 2d
731, 734 (E.D. Va. 2006) (citing Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th
Cir. 1985)).
Even when a plaintiff has filed a claim with the EEOC, a court cannot consider matters
that were not properly raised during the EEOC process. To determine whether a plaintiff has
“properly alleged [a claim] before the EEOC” in a manner satisfying the exhaustion requirement,
courts “may look only to the charge filed with that agency.” Balas, 711 F.3d at 408 (emphasis
added); see also Chacko, 429 F.3d at 506 (“This charge frames the scope of future litigation.”);
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (“The
allegations contained in the administrative charge of discrimination generally operate to limit the
scope of any subsequent judicial complaint.”). Although courts “recognize that EEOC charges
often are not completed by lawyers and as such must be construed with utmost liberality,” courts
are “not at liberty to read into administrative charges allegations they do not contain.” Balas,
711 F.3d at 408 (citations and quotation marks omitted). Rather, courts are constrained by the

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four corners of the charge and the inference of “‘any charges that would naturally have arisen
from an investigation thereof.’” Id. at 407-08 (citations omitted).
However, “[t]he touchstone for exhaustion is whether plaintiff’s administrative and
judicial claims are ‘reasonably related,’ not precisely the same.” Sydnor, 681 F.3d at 595. The
Court explained in Sydnor, id. at 594: “[A]n administrative charge of discrimination does not
strictly limit a Title VII suit which may follow. Instead, so long as a plaintiff’s claims in her
judicial complaint are reasonably related to her EEOC charge and can be expected to follow
from a reasonable administrative investigation, she may advance such claims in her subsequent
civil suit.” Accord Southpeak Interactive Corp. of Del., 777 F.3d at 669; Calvert Group, Ltd.,
551 F.3d at 300; Evans, 80 F.3d at 963.
2.
Plaintiff filed her Charge with the Maryland Commission on Civil Rights on March 25,
2015. ECF 16-2 at 2. It was cross-filed with the EEOC. Id. Plaintiff checked the boxes on her
Charge indicating that she had been discriminated against on the basis of sex and disability, and
that she had suffered retaliation. Id. These are the same basic claims she alleges in her
Complaint. See ECF 1; ECF 1-3.
Defendants assert that all of plaintiff’s claims are untimely. They point out that a
plaintiff must present claims of discrimination to the EEOC or an equivalent body within 300
days of an incident. ECF 16-1 at 6-7. Because plaintiff filed her Charge on March 25, 2015, any
alleged discriminatory act must have occurred or continued after May 29, 2014, 300 days before
March 25, 2015. Id. at 7. However, none of the events described in plaintiff’s Charge are
clearly alleged to have occurred on or after May 29, 2014. See ECF 16-2. Rather, the last date
mentioned in the particulars section of the Charge is “February 2014,” when plaintiff’s co-

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workers are alleged to have begun showing sexually explicit movies. See id. at 2. As a result,
defendants maintain that none of plaintiff’s claims is properly exhausted. ECF 16-1 at 8.
In her Opposition, plaintiff does not address defendants’ legal arguments.

Rather,

plaintiff restates many of the allegations in her Complaint, and asks the Court not to dismiss her
claims on the basis of her lack of experience with the law. ECF 23 at 5.
To be sure, plaintiff did not identify in her Charge any events occurring after May 29,
2014. However, the Charge states that the discrimination took place between October 1, 2013,
and July 31, 2014. ECF 16-2 at 2. And, plaintiff checked the box indicating that the alleged
violation was a “continuing action.” Id. Therefore, I must consider whether plaintiff’s claims
have been exhausted under the continuing violation doctrine.
The Supreme Court adopted the continuing violation doctrine in Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan, plaintiff sued Amtrak under Title VII,
alleging that he had been subjected to various discrete discriminatory and retaliatory acts, and
had additionally experienced a racially hostile work environment throughout his employment.
536 U.S. at 104. Plaintiff filed a charge with the EEOC alleging that he was “‘consistently
harassed and disciplined more harshly than other employees on account of his race.’[]” Id. at
105. However, many of the alleged discriminatory events that plaintiff complained of took place
outside of Title VII’s 300-day time for filing a charge with the EEOC. Id at 106. Amtrak filed a
motion for summary judgment as to all of the events that took place outside of the filing period,
which the district court granted. Id.
The Ninth Circuit reversed, applying the continuing violation doctrine. Id. at 106-07.
That court determined that a plaintiff may sue on claims that were filed with the EEOC outside
of the period established by Title VII if the claims were part of a series of related acts; some of

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the acts took place within the limitations period; and the plaintiff shows that there is a systematic
policy or practice of discrimination, part of which operated within the limitations period. Id. at
107.

The Ninth Circuit determined that each of plaintiff’s three Title VII claims (i.e.,

discrimination, hostile work environment, and retaliation) was sufficiently related to the postlimitations conduct to establish a continuing violation. Id. at 107-08.
The Supreme Court reversed the Ninth Circuit, in part. With respect to plaintiff’s claims
for discrete discriminatory and retaliatory acts, the Court stated that a party “must file a charge
within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at
110. The Court explained that “discrete discriminatory acts are not actionable if time barred,
even when they are related to acts alleged in timely filed charges.” Id. at 113. And, “[e]ach
discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. The Court
went on to define actions that qualify as discrete, stating, id. at 114:
Discrete acts such as termination, failure to promote, denial of transfer, or
refusal to hire are easy to identify. Each incident of discrimination and each
retaliatory adverse employment decision constitutes a separate actionable
“unlawful employment practice.” Morgan can only file a charge to cover discrete
acts that “occurred” within the appropriate time period.[]
However, the Court affirmed the Ninth Circuit as to plaintiff’s claim for hostile work
environment. 536 U.S. at 115. The Court observed that, unlike discrete acts, hostile work
environment claims occur “over a series of days or perhaps years . . . .” Id. And, the Court said
that, with respect to hostile work environment claims, “a single act of harassment may not be
actionable on its own.” Id. Thus, for hostile work environment claims, the Supreme Court
concluded, id. at 117: “It does not matter, for purposes of [Title VII], that some of the component
acts of the hostile work environment fall outside the statutory time period.”

The Court

continued, id.: “Provided that an act contributing to the claim occurs within the filing period, the

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entire time period of the hostile environment may be considered by a court for the purposes of
determining liability.[]”
The Morgan Court also provided guidance as to the kind of conduct that creates a hostile
work environment. In general, Title VII is violated on the basis of a hostile work environment
where “‘the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ that
is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create
an abusive working environment’ . . . .” Id. at 116 (quoting Harris, 510 U.S. at 21). Factors
include “‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.’” Morgan, 536 U.S. at 116 (quoting Harris, 510 U.S. at
23).
In Guessous v. Fairview Prop. Investments, LLC, 828 F.3d 208, 221 (4th Cir. 2016), the
Fourth Circuit articulated the requirements to prevail on a claim of hostile work environment:
“[A] plaintiff must show that there is ‘(1) unwelcome conduct; (2) that is based on
the plaintiff’s [protected characteristic]; (3) which is sufficiently severe or
pervasive to alter the plaintiff’s conditions of employment and to create an
abusive work environment; and (4) which is imputable to the employer.”
(Quoting Okoli v. Cty. of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)); Accord Pryor v. United
Air Lines, Inc., 791 F.3d 488, 495 (4th Cir. 2015); Boyer-Liberto v. Fontainebleau Corp., 786
F.3d 264, 277 (4th Cir. 2015) (en banc); Chadha v. Northrop Grumman Sys. Corp., RDB-161087, 2017 WL 3226861, at *3 (D. Md. July 31, 2017).
The Fourth Circuit has also “recognized that plaintiffs must clear a high bar in order to
satisfy the severe or pervasive test.” E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th
Cir. 2008); accord Strothers v. City of Laurel, Md., 118 F. Supp. 3d 852, 864 (D. Md. 2015). In
Sunbelt Rentals, the Court said, 521 F.3d at 315-16 (alterations in Sunbelt Rentals):

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Workplaces are not always harmonious locales, and even incidents that would
objectively give rise to bruised or wounded feelings will not on that account
satisfy the severe or pervasive standard. Some rolling with the punches is a fact of
workplace life. Thus, complaints premised on nothing more than “rude treatment
by [coworkers],” Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006), “callous
behavior by [one’s] superiors,” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003), or “a routine difference of opinion and personality
conflict with [one’s] supervisor,” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276
(4th Cir. 2000), are not actionable under Title VII.
Here, plaintiff describes a work environment that could plausibly be considered to be
hostile, although she does not explicitly allege a hostile work environment. See ECF 16-2 at 2
(“I began to be harassed by C. Wilborne and T Matthews with threats of harm and
intimidation.”); id. (“I continued to receive harassing phone calls to my home . . . .”). However,
even if plaintiff could clear the “high bar” of the severe or pervasive test, none of the ongoing
harassment she describes can be definitively placed during the 300-day period preceding the
filing of her Charge. Nor has plaintiff indicated in any of her other filings that any of the
undated incidents alleged in her Charge—the showing of sexually explicit movies and the
demand that plaintiff search residents’ rooms at night—occurred during the 300-day window.
See ECF 1-3 at 2; ECF 24 at 4-5.4
Plaintiff alleges, ECF 1-3 at 2: “Once I filed my complaint in July 21, 2014 with the
EEOC I was placed on the AM tour 6:30am-3:00pm at New Beginnings.” This allegation would
fall within the 300-day window prior to the filing of plaintiff’s Charge, but plaintiff does not
discuss this incident in her Charge, nor does she allege that her placement on a different shift was
causally related to any protected activity.

Furthermore, transfer to a new shift does not

4

Moreover, even if the alleged incident in which plaintiff was asked to improperly search
residents’ rooms at night fell within the 300-day statutory period, plaintiff does not allege this or
any related incident in her Complaint.
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necessarily constitute an adverse employment action. See Chika v. Planning Research Corp.,
179 F. Supp. 2d 575, 587 (D. Md. 2002).
Plaintiff also appears to claim that she was retaliated against following the filing of the
instant Charge. See ECF 1 at 5; ECF 1-3 at 2. A claim of retaliation for filing an EEOC charge
may be raised for the first time in federal court and need not be administratively exhausted.
Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Breck v. Maryland State Police, TDC-162075, 2017 WL 2438767, at *4 (D. Md. June 5, 2017). However, there is no factual allegation in
plaintiff’s Complaint that supports a plausible claim of retaliation on this basis. Plaintiff does
not allege any retaliatory action by defendants following the filing of her Charge in March 2015.
I am mindful that plaintiff is pro se, and that her filings must therefore be construed with
the utmost liberality. Erickson, 551 U.S. at 94; Balas, 711 F.3d at 408. “Still, the Court is not an
advocate for a pro se litigant, and the Court cannot assume, or invent, facts outside the record in
order to patch together a viable claim for a pro se plaintiff.” Zaman v. Cmty. Coll. of Baltimore
Cty., JKB-17-3584, 2018 WL 1811520, at *2 (D. Md. Apr. 17, 2018). Because it is not evident
that any of the incidents plaintiff alleged occurred within the 300-day period prior to the filing of
her Charge, I cannot conclude that her claims are timely and properly exhausted. As a result, all
of plaintiff’s claims of discrimination on the basis of disability and sex, as well as any claims of
retaliation, are subject to dismissal, without prejudice, for lack of subject matter jurisdiction.
If plaintiff can allege facts support a claim of retaliation following the filing of her
Charge, she may amend her Complaint by July 9, 2018.
IV.

Conclusion

For the reasons stated, I shall GRANT the Motion, without prejudice. An Order follows,
consistent with this Memorandum Opinion.

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Date: June 20, 2018

/s/
Ellen Lipton Hollander
United States District Judge

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