                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA

 TANGA PAYNE,
         Plaintiff,
         v.
                                                       Civil Action No. 18-562 (CKK)
 DEPARTMENT OF YOUTH
 REHABILITATION SERIVCES,
         Defendant.

                              MEMORANDUM OPINION
                                (February 21, 2019)

       Presently before the Court is Defendant’s [12] Motion to Dismiss Plaintiff’s

Amended Complaint for age discrimination pursuant to the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq. [Count I]; gender

discrimination pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§§ 2000e et seq. [Count II]; and sexual orientation discrimination in violation of the District

of Columbia Human Rights Act of 1977 (“DCHRA”), D.C. Code § 2-1401.01 et seq.

Plaintiff Tanga Payne’s action is predicated on her being twice denied — allegedly because

of her gender, age and sexual orientation — a position as a Supervisor Youth Development

Representative (“SYDR”) at the Department of Youth Rehabilitation Services. See Am.

Compl. at 4-6. According to the Plaintiff, these positions were filled by “male heterosexual

candidates at least 10 years younger than [Plaintiff] despite [Plaintiff’s] vastly superior

experience and qualifications.” Am. Compl. at 3.

        As a preliminary matter, the Court notes that Defendant Department of Youth

Rehabilitation Services (“Defendant” or “DYRS”) asserts that it is non sui juris, a claim

that Plaintiff does not contest, and this necessitates a dismissal without prejudice of

Plaintiff’s Amended Complaint so that the District of Columbia may be substituted as the

                                              1
defendant.     For purposes of judicial efficiency, this Court shall hold in abeyance

Defendant’s non sui juris claims until March 8, 2019, while Plaintiff shall be permitted to

amend her Amended Complaint to substitute the Defendant. Furthermore, the Court will

consider the merits of Defendant’s other claims in support of dismissal, namely, whether

Plaintiff has exhausted her ADEA claim, whether Plaintiff’s DCHRA sexual orientation

discrimination claim was timely, and whether Plaintiff has alleged a causal nexus between

gender and her non-selection regarding her Title VII gender discrimination claim. Upon

consideration of the pleadings, 1 the relevant legal authorities, and the record for purposes

of this motion, the Court GRANTS IN PART AND DENIES IN PART Defendant’s [12]

Motion to Dismiss. Plaintiff’s sexual orientation discrimination claims are DISMISSED

WITH PREJUDICE.            Plaintiff’s claims for gender and age discrimination remain

standing. Defendant’s non sui juris claims are held in abeyance until March 8, 2019, while

Plaintiff shall be permitted to amend her Amended Complaint in order to substitute the

District of Columbia as the Defendant. If Plaintiff does not substitute the District of

Columbia as a Defendant, the Court will dismiss her Amended Complaint.




1
    The Court’s consideration has focused on the following documents:

      •   Am. Compl, ECF No. 7;
      •   Def.’s Mot. to Dismiss the Am. Compl., ECF No. 12, and Def.’s Memo in support
          thereof, ECF No. 12-1;
      •   Pl.’s Memo. of Points and Auth. in Opp’n to Def,’s Mot. to Dismiss, ECF No. 14;
      •   Def.’s Reply in support of Mot. to Dismiss the Am. Compl., ECF No. 15.

The Court has received and reviewed the additional evidence of administrative proceedings
submitted by Plaintiff, ECF Nos. 14-1, 14-2, and 14-3, but these do not have bearing on
the pending motion. As indicated herein, the Court takes judicial notice of the Charge of
Discrimination, ECF No. 12-1 and the Dismissal and Notice of Rights, ECF No. 15-1.

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                                   I. LEGAL STANDARD

        Defendant moves to dismiss for “failure to state a claim upon which relief can be

granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). A motion to dismiss is

designed to “test[ ] the legal sufficiency of a complaint.” Browning v. Clinton, 292 F. 3d

235, 242 (D.C. Cir. 2002). “[A] complaint [does not] suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint

must allege facts that, if accepted as true, sufficiently “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

        In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the complaint,”

or “documents upon which the plaintiff’s complaint necessarily relies even if the document

is produced not by the plaintiff in the complaint but by the defendant in a motion to

dismiss.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117,

119 (D.D.C. 2011) (internal quotation marks and citation omitted). The court may also

consider documents in the public record of which the court may take judicial notice. Abhe

& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). For example, a court may

consider an EECO complaint and Notice of Charge without converting a motion to dismiss

into a motion for summary judgment because such records are “public document[s] of

which a court may take judicial notice.” Ahuja v. Detica Inc., 742 F. Supp. 2d 96, 101-02

(D.D.C. 2010) (citing Wiley v. NEBF Invs., No. 09-CV-223, 2010 WL 114953, at *1 n. 1



                                                 3
(D.D.C. January 12, 2010)).

        Accordingly, for purposes of the pending motion, the Court takes judicial notice of

the Charge of Discrimination filed by the Plaintiff with the Maryland Commission on Civil

Rights, ECF No. 12-2, and the Dismissal and Notice of Rights by the United States Equal

Employment Opportunity Commission, (Baltimore Field Office), ECF No. 15-1. See

Grant v. Dep’t of Treasury, 194 F. Supp. 3d 25, 28 n.2 (D.D.C. 2016) (A “Final Agency

Decision . . . [is] [an] official, public document[] subject to judicial notice”). Judicial notice

is taken solely for the purposes of ascertaining when the Charge of Discrimination was

filed with the Maryland Commission on Civil Rights (May 4, 2015), the claims addressed

therein, and the date that the United States Equal Employment Opportunity Commission,

Baltimore Field Office, issued a Dismissal and Notice of Rights (December 2, 2017).

                                      II. DISCUSSION


    A. DYRS is Non Sui Juris and Cannot be Sued


        District of Columbia government agencies may not sue or be sued unless

specifically permitted by statute. Ray v. District of Columbia, 535 A.2d 868, 870 n.2 (D.C.

1987); see also Wilson-Greene v. Dept of Youth Rehab. Services, Civ. Action No. 06cv2262

(RJL), 2007 WL 2007557, *2 (D.D.C. July 9, 2007) (dismissing Title VII claims against

DYRS because it is non sui juris); see also ReedJospeph-Minkins v. D.C. Dept. of Youth

Rehab. Services, Civil Action No. ELH-17-45, 2018 WL 3049509 (D. Md. June 20, 2018)

(where defendant argued that DYRS may not be sued and asserted that the District of

Columbia was the proper party, the court sua sponte ordered the substitution of the District

of Columbia for DYRS).



                                                4
       Because DYRS is not subject to suit and the District of Columbia will not be

prejudiced by a substitution nor will the substitution affect the substance of Plaintiff’s

claims, the Court concludes that substitution is appropriate in this case. Accordingly,

Defendant’s non sui juris claims are held in abeyance for ten business days while Plaintiff

shall be permitted to amend her Amended Complaint in order to substitute the District of

Columbia as the Defendant.


   B. Exhaustion of ADEA Claim


       The ADEA requires employees to exhaust administrative remedies by filing a

charge of discrimination with the EEOC or a local equivalent. Washington v Washington

Metropolitan Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998); see 29 U.S.C. § 626

(d)(1)(B) (discussing the timing for filing a charge). A plaintiff who files a timely charge

may proceed with a subsequent civil suit in federal court that is “limited in scope to claims

that are like or reasonably related to the allegations of the charge and growing out of such

allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (DC. Cir. 1995), cert denied, 519 U.S.

811 (1996); see Thompson v. District of Columbia, 272 F. Supp. 3d 17, 22 (D.D.C. 2017)

(requiring “some specificity in a charge” because a “liberal interpretation of an

administrative charge” would permit a litigant to avoid the requirements of an

administrative proceeding). If discriminatory acts alleged by Plaintiff in the complaint

were “not articulated in the administrative charge, are not reasonably related to the

allegations in the charge, and do not fall within the scope of any administrative

investigation that can reasonably be expected to follow, [plaintiff] may not proceed with

these additional claims without first exhausting the administrative process.” Shipman v.



                                             5
Amtrak, 241 F. Supp. 3d 114, 123 (D.D.C. 2017) (Kollar-Kotelly, J.), aff’d, 2017 WL

4217244 (D.C. Cir. Aug. 1, 2017).

       In the instant case, Plaintiff checked the box for “sex” as the basis for her

discrimination claim in her Charge of Discrimination, ECF No. 12-2. “While the boxes

aid a claimant in identifying the nature of her charge, a claimant is not necessarily limited

to the boxes she selected if she provides a basis for her claims in her written explanation.”

Robinson Reeder v. Am. Council on Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008), aff’d, 417

Fed. App’x 4 (D.C. Cir. 2011). In this case, even though the box for “age” was not checked,

this Court may examine the Plaintiff’s narrative explanation “to determine whether [it]

fairly embrace[s] [another] claim.” Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 3d 71,

76 (D.D.C. 2009) (internal quotation marks omitted).               A review of Plaintiff’s

accompanying narrative in her Charge of Discrimination reveals that she emphasizes age

as a factor involved in the promotion decision insofar as Plaintiff specifies that she is “over

the age of 40,” and a woman “age 40” was offered the position while a man “age 30” was

awarded the position. Charge of Discrimination, ECF No. 12-2; contra McIver v. Mattis,

318 F. Supp. 3d 245, 250 (D.D.C. 2018) (denying exhaustion of a disability discrimination

claim where that box was left unchecked, and the details section of the Charge failed to

provide any information that could be read to “express or even hint” at plaintiff’s disability

claim) (quoting Park, 71 F. 3d at 907).

       Plaintiff’s assertions relating to her age and gender are reasonably related and arise

in the context of the same factual allegations underlying her claim that DYRS failed to




                                              6
select her for the positions for which she applied. 2 This Court concludes accordingly that

a reasonable reading of Plaintiff’s Charge of Discrimination permits the inference that

Plaintiff contemplated the existence of and/or intended to assert age discrimination in

addition to gender discrimination, and the ensuing administrative investigation could

reasonably have been expected to address both age and gender discrimination in connection

with Plaintiff’s allegations of discriminatory non-promotion. The Court finds therefore

that Plaintiff’s ADEA claim survives Defendant’s motion to dismiss.


      C. Plaintiff’s DCHRA Claim is Barred by the Statute of Limitations Unless the
         Statute is Tolled
         Pursuant to D.C. Code § 2-1403.16, the DCHRA has a one-year limitations period,

but an administrative charge timely filed with the District of Columbia Office of Human

Rights (“OHR”) tolls this limitations period. See D.C. Code § 1-1403.16 (a) (“A private

cause of action [under the statute] shall be filed in a court of competent jurisdiction within

one year of the unlawful discriminatory act” but this may be tolled by “[t]he timely filing

of a complaint with the Office, or under the administrative procedures established by the

Mayor pursuant to § 2-1403.03.”) 3 Charges of discrimination filed with the EEOC are

automatically cross-filed with the OHR with the effect that the statute of limitations is

tolled for DCHRA claims. Hatter v. Washington Metropolitan Area Transit Auth., 105 F.

Supp. 3d 7, 10 (D.D.C. 2015); Hammel v. Marsh USA, Inc., 79 F. Supp. 3d 234, 240

(D.D.C. 2015) (Kollar-Kotelly, J.) (string citing cases from the District Court for the



2
 Plaintiff further alleges that she is “openly gay,” while the woman offered the position
was a “non-heterosexual female” and the man awarded the position was a “heterosexual
male.” See Charge of Discrimination, ECF No. 12-2.
3
    The “Office” refers to the DCOHR. D.C. Code § 2-1401.02 (19).

                                              7
District of Columbia Circuit and explaining that “D.C. Circuit district court cases on this

issue follow Estenos [v. PAHO/WHO Fed. Credit Union, 952 A. 2d 878 (D.C. 2008)] and

find the statute of limitations to be tolled during the pendency of an administrative

complaint,“ and this tolling period ends when the plaintiff receives a notice from the EEOC

of his right to sue).

        Because Plaintiff filed this lawsuit on March 12, 2018, Compl., ECF No. 1, the

allegedly unlawful acts must have occurred by March 12, 2017, to be considered timely.

But, Plaintiff asserts that she was denied the position of Supervisory Youth Development

Representative first on July 24, 2014, and then again on November 17, 2014. Plaintiff

asserts however that her filing of a Charge of Discrimination with the Maryland

Commission on Civil Rights on May 4, 2015, which was cross-filed with the EEOC under

a work-sharing agreement between the Maryland Commission and the EEOC, should toll

the DCHRA’s statute of limitations. As explained in more detail below, Defendant asserts

that the statute of limitations is not tolled; however, even if “the complaint she filed in

Maryland tolled the limitations period,” Plaintiff’s “DCHRA claims arising from her first

application for a supervisory position in June 2014 are [still] untimely” when you consider

the timing of the alleged first discriminatory act, the date Plaintiff filed her charge of

discrimination, and the filing date of her civil complaint in this Court. See Def.’s Reply,

ECF No. 15, at 13 (calculating the timeline between the dates). The Court agrees with

those calculations, which make Plaintiff’s DCHRA claim arising from her first non-

selection for a supervisory position untimely and subject to dismissal with prejudice,

regardless of whether the statute of limitations is tolled.




                                               8
        Prior to resolving the parties’ underlying dispute about tolling, the Court shall

address Plaintiff’s digression that she filed her original complaint with the Baltimore,

Maryland EEOC office “upon being directed to file it there by OHR because the underlying

conduct occurred in Prince George’s County, Maryland.” Pl.’s Opp’n, ECF No. 14, at 7.

Defendant challenges Plaintiff’s statement, noting that because the “DCHRA allows any

person claiming to be aggrieved by an unlawful discriminatory practice of the District

government to file an administrative complaint with the DCOHR,” D.C. Code § 2-1403.03

(b), there is accordingly “no policy of referring District government employees to another

state to file an administrative complaint.” Def.’s Reply at 13, n.7. Without any further

explanation or argument on this point, it is unclear whether Plaintiff is raising the “lulling

doctrine,” which is a “limited exception” to the “generally strict application of statutes of

limitations.” East v Graphic Arts Indus. Joint Pension Trust, 718 A.2d 153, 156 (D.C.

1998). Furthermore, even if Plaintiff is relying on “lulling” to toll the statute of limitations,

that standard is unmet because it requires that a defendant “affirmatively induce[]” a

plaintiff to delay bringing an action, and “concrete evidence” must be presented to

demonstrate this. Coates v. Edgewood Management Corporation, 258 F. Supp. 3d 107,

114 (D.D.C. 2017). Plaintiff has neither asserted affirmative inducement nor presented any

concrete evidence of the same and thus, no lulling argument is warranted.

        Turning next to the crux of the Defendant’s argument against tolling, the Defendant

explains that:

        DCOHR and the Maryland Commission are both fair employment practices
        agencies (FEPAs). FEPAs enter into work-sharing agreements not with the EEOC
        as such, but with its local field offices within each state. Under these work-sharing
        agreements, charges filed with the EEOC’s Washington field office are considered
        cross-filed with DCOHR, and charges filed with the EEOC’s Baltimore field office
                are considered cross-filed with the Maryland Commission. But there is no

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       work- sharing agreement under which charges like Plaintiff’s, which was filed
       with the Maryland Commission, are deemed cross-filed with DCOHR. And
       [pursuant to the statute], only charges filed with the DCOHR toll the DCHRA’s
       limitations period.


Def.’s Reply, ECF No. 15, at 10-11. See Palacios v. MedStar Health, Inc., 298 F. Supp. 3d

87, 93-94 (D.D.C. 2018) (“[T]the statute of limitations is tolled by the filing of a charge

with the D.C. Office of Human Rights, not just the filing of any administrative charge.”)

(emphasis in original). But see Schuler v. PricewaterhouseCoopers, 514 F. 3d 1365, 1372-

4 (D.C. Cir. 2008) (where the United States Circuit Court for the District of Columbia

found that a charge of discrimination filed with the EEOC’s New York district office by a

D.C. employee of a New York-based firm was sufficient to “deem[ ] [it] received” by the

DCOHR and to satisfy the requirements of 29 U.S.C. § 633 (b), thus allowing plaintiff’s

ADEA claim to proceed). Defendant distinguishes this case on grounds that: (1) the Circuit

Court interpreted a provision of federal law as opposed to the “dissimilar language” of the

D.C. Code provision at issue here; (2) Section 633(b) sets an exhaustion requirement while

D.C. Code Section 2-1403.16 sets a tolling provision; and (3) the Schuler plaintiff explicitly

told the EEOC that his complaint should be cross-filed with the DCOHR. See Def.’s Reply,

ECF No. 15, at 1-12.

       This Court concludes that Defendant’s reading of the DCHRA tolling statute is

correct, with the effect that Plaintiff’s administrative complaint failed to toll the statute of

limitations because Plaintiff’s administrative complaint was filed with the Maryland EEOC

office as opposed to the District of Columbia EEOC office. Because any charge of

discrimination filed with the EEOC in the District of Columbia is “automatically cross-

filed with the [DCOHR] . . . pursuant to a ‘worksharing agreement’ between the two



                                              10
agencies,” it is established that “the timely filing of a charge with the EEOC, and the

automatic cross-filling of a claim with the DCOHR that follows, is sufficient to toll the

one-year statute of limitations for filing a claim with the DCHRA.” Ellis v. Georgetown

Univ. Hosp., 631 F. Supp. 2d 71, 78 (D.D.C. 2009) (collecting cases). In contrast,

Plaintiff’s charge of discrimination filed with the Maryland EEOC office did not cross-file

Plaintiff’s claim of discrimination with the D.C. Office of Human Rights, which was

necessary to toll the statute of limitations.         Accordingly, Plaintiff’s claims of sexual

orientation discrimination pursuant to the DCHRA are barred by the statute of limitations

and they shall be DISMISSED WITH PREJUDICE.

       D. Causal Nexus between Gender and Non-Selection for the SYDR Position


       To state a claim for gender discrimination, Plaintiff must allege a causal nexus

between defendant’s alleged discriminatory motive and the adverse action. Easaw v

Newport, 253 F. Supp. 3d 22, 30 (D.D.C. 2017). A complaint may be dismissed under Rule

12(b)(6) if it consists only of threadbare recitals of the cause of action, supported by mere

conclusory statements. Ashcroft, 556 U.S. at 678; see McNair v. District of Columbia, 213

F. Supp. 3d 81, 87-88 (D.D.C. 2016) (letting stand a claim for race discrimination where

Plaintiff pleaded “at least one racially-motivated adverse employment action” but

dismissing a gender discrimination claim because Plaintiff failed to allege any connection

between her gender and the alleged different treatment that she received).

       In the instant case, Plaintiff alleges that:

       Payne was not selected for either position, and instead, male heterosexual
       candidates at least ten years younger than Payne were hired despite Payne’s vastly
       superior experience and qualifications. Notably, [the] assertion that Payne was
       “too correctional” in outlook is a coded way of referring to Payne’s age, which
       ran contrary to DYRS’s desire to create a modern, ‘new look’ workforce, this and
       other reasons offered by DYRS for its failure to promote Payne are highly

                                              11
       subjective and obviously pre-textural. . . . DYRS fostered a work environment
       that was intolerant to lesbians or to women who failed to fit into its narrow
       definition of femininity.

Am. Compl., ECF. No. [7], at 3.

       When a case is at “the motion to dismiss stage, the district court cannot throw out

a [discrimination] complaint even if the plaintiff did not plead the elements of a prima facie

case.” Brown v. Sessoms, 774 F. 3d 1016. 1023 (D.C. Cir. 2014) (quoting Brady v. Office

of Sergeant at Arms, 520 F. 3d 490, 493 (D.C. Cir. 2008)); Townsend v. United States, 236

F. Supp. 3d 280, 309 (D.D.C. 2017). Nor are “detailed factual allegations” required.

Twombly, 550 U.S. at 555. A plaintiff need only allege facts that give the defendant “fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 513 (2002). Accordingly, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at

678. Consistent with these principles, courts in this Circuit “have consistently recognized

the ease with which a plaintiff claiming employment discrimination can survive . . . a

motion to dismiss.” Fennell v. AARP, 770 F. Supp. 2d 118, 127 (D.D.C. 2011) (Kollar-

Kotelly, J.) (internal quotation marks omitted). The question for the Court then becomes

“whether [the plaintiff has] alleged facts that, taken as true, render [her] claim of

[discrimination] plausible.” Harris v. D.C. Water & Sewer Auth., 791 F. 3d 65, 70 (D.C.

Cir. 2015).

       Upon review of Plaintiff’s Amended Complaint, the Court concludes that Plaintiff

has alleged facts that, taken as true, state a plausible claim for discrimination based on

gender and age. Plaintiff describes her position at the DYRS and some general information



                                             12
about her work history. She claims two specific instances of alleged discrimination relating

to her failure to be promoted despite her qualifications. Plaintiff indicates that she is a

member of a protected class based on her age and gender, and furthermore, that the

candidates who were selected for these positions were not members of a protected class.

Plaintiff inserts some additional commentary as to the Defendant’s possible rationale

behind its decision not to promote Plaintiff.     When combined, these allegations “raise

[Plaintiff’s] right to relief above the speculative level.” Brown, 774 F. 3d at 1023 (quoting

Twombly, 550 U.S. at 555). Accordingly, the Court finds that Plaintiff’s claim for gender

discrimination demonstrates enough of a causal nexus between her gender and the non-

selection for a SYDR position to survive a motion to dismiss.


                               III. CONCLUSION


       For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

Defendant’s [12] Motion to Dismiss. Plaintiff’s sexual orientation discrimination claims

are DISMISSED WITH PREJUDICE. Plaintiff’s claims for gender and age

discrimination remain standing. D Defendant’s non sui juris claims are held in abeyance

until March 8, 2019, while Plaintiff shall be permitted to amend her Amended Complaint

in order to substitute the District of Columbia as the Defendant. If Plaintiff does not

substitute the District of Columbia as a Defendant, the Court will dismiss her Amended

Complaint.

       An appropriate Order accompanies this Memorandum Opinion.



February 21, 2019                                        /s/         ______
                                              COLLEEN KOLLAR-KOTELLY
                                              UNITE STATES DISTRICT JUDGE

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