                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

LESLIE M. CORNISH,                                 :
                                                   :
       Plaintiff,                                  :      Civil Action No.:       13-1140 (RC)
                                                   :
       v.                                          :      Re Document No.:        11
                                                   :
DISTRICT OF COLUMBIA,                              :
                                                   :
       Defendant.                                  :

                                  MEMORANDUM OPINION

      GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND
                             FOR SUMMARY JUDGMENT


                                       I. INTRODUCTION

       Plaintiff Leslie M. Cornish (“Cornish”), an employee at the Superior Court of the District

of Columbia (the “Superior Court”), brought this action against the District of Columbia (the

“District”) alleging violations of numerous statutes, including Title I of the Americans with

Disabilities Act of 1990 (“ADA”), Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation

Act”), Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Pay Act of 1963 (“Equal

Pay Act”), and the D.C. Human Rights Act (“DCHRA”). In addition, Cornish asserts common

law claims for breach of contract, intentional infliction of emotional distress, negligent infliction

of emotional distress, and negligent supervision. The District has moved to dismiss many, but

not all, of Cornish’s causes of action under Rule 12(b)(6) for failure to state a claim, as well as

for summary judgment on the Title VII claims based on failure to exhaust administrative

remedies and on various other claims for unliquidated damages based on failure to comply with

D.C. Code § 12-309. Upon consideration of the District’s motion, and the memoranda in support

thereof and opposition thereto, the Court will grant in part and deny in part the motion.
                                      II. BACKGROUND

                                     A. Factual Allegations

       Cornish is an African-American woman employed at the Superior Court since August

2008. See 2d Amend. Compl., ECF No. 8, at ¶¶ 4, 6. She began working as a program specialist

in the Superior Court’s Paternity and Child Support Branch (“P&S Branch”) at a pay grade of

JS-11, and in April 2011 she was reassigned to the Superior Court’s Budget and Finance

Division, which is the position she currently holds. See id. ¶ 6. Sherry Coppet (“Coppet”) and

Delores Henderson (“Henderson”), both of whom are African-American, were employees in the

P&S Branch during Cornish’s tenure with the department. See id. ¶ 7. Coppet was the P&S

Branch chief during the relevant period, and from August 2008 to March 2011 she served as

Cornish’s immediate supervisor. See id. ¶¶ 7-8. During that same period, Henderson served as

an Intake/Calendar Section supervisor, a position subordinate in rank to that of Cornish. See id.

¶ 8. In March 2011, Henderson was promoted to P&S Branch supervisor, making her Cornish’s

immediate supervisor. See id. ¶ 9.

              1. Allegations of Harassment and Discrimination in the P&S Branch

       Cornish alleges that she suffered “innumerable acts of often shocking hostility and

degrading treatment” while working in the P&S Branch. See id. ¶ 10. In particular, Cornish

alleges that the hostility began during her initial interview for a position in the P&S Branch,

when a clerk at the front desk told her that she “wasn’t going to make it” in the department

because she was “too pretty” and dressed too nicely for Coppet’s liking. Id. ¶ 11. The clerk’s

forewarning soon bore itself out through repeated “derogatory comments” from Coppet and

Henderson about Cornish’s “conventionally feminine appearance and carefully coordinated

apparel,” which Cornish alleges were made because the women “resented her deviation from




                                                 2
what they considered conforming dress and personal appearance for an African American

woman.” Id. ¶ 12. For example, a co-worker once overheard Henderson compliment Cornish on

her appearance and then comment behind Cornish’s back, “Oh, she thinks she’s so cute.” Id. ¶

13. And sometimes when other people complimented Cornish, Coppet and Henderson would go

into what one co-worker called “hater mode,” which was when they ordered co-workers not to

give Cornish any compliments. See id.

       Coppet and Henderson disparaged Cornish for being from Baltimore, Maryland, by

playing on the alleged stereotype held by African-American women from Washington, D.C.

about African-American women from Baltimore being prone to crude and violent behavior. See

id. ¶ 14. For instance, one time after Cornish wished Coppet a “good morning,” Coppet reacted

by “feign[ing] a dramatic, apprehensive reaction,” and saying that she thought Cornish was

“going to hit me or something.” Id. On another occasion, Henderson remarked, “We almost

forced out the Baltimore in her,” after a meeting in which Henderson and Coppet had “harassed

and bullied” Cornish into becoming “flustered and agitated.” Id.

       The behavior of Coppet and Henderson allegedly became increasingly more hostile over

time, and they frequently insulted, humiliated, and intimidated Cornish in front of co-workers.

See id. ¶¶ 15-16. For instance, Henderson called Cornish by her first name rather than using

“Mr.” or “Ms.” like she did for other co-workers. See id. ¶ 18. In addition, Henderson, allegedly

with Coppet’s encouragement, would question or countermand the directions Cornish gave to

other employees, and Henderson would order Cornish to complete certain assignments even

though her position and pay grade were below Cornish’s. See id. ¶ 20. Together, Henderson and

Coppet also regularly forced Cornish to perform tasks below her pay grade, such as

administrative and clerical duties, while they “giggl[ed]” and “snicker[ed]” when Cornish was




                                                3
instructed on these tasks by lower-ranked employees. See id. ¶ 21. On other occasions, the two

women forced Cornish to stay beyond the time she was supposed to leave by giving assignments

with arbitrary deadlines, often for that same night or the next morning. See id. ¶ 22.

       The events around Thanksgiving 2010 provide an example of what Cornish allegedly

endured at work. On Wednesday, November 24, 2010, the day before Thanksgiving and hours

after Cornish’s co-workers had left under a grant of early dismissal, Cornish was forced to

continue working to finish a project Coppet had assigned to her late that afternoon. See id. ¶ 24.

While Cornish worked, Coppet walked by and said “good night” before turning off the office

lights. See id. Later that night, a co-worker found Cornish sitting at her darkened workstation

“extremely shaken and in severe distress.” Id. In the early hours of the next morning, Cornish

awoke at home to discover that she had suffered a stroke while sleeping. See id. ¶ 25. The

stroke left Cornish partially paralyzed, able to take steps only to the left, and with limited speech

abilities. See id. Cornish alleges that “the extreme stress and constant psychic shocks and insults

of her mistreatment at work directly or indirectly precipitated her stroke.” Id. In the months

after the stroke, Cornish walked with a limp that sometimes required her to use a cane, had

difficulty walking up and down stairs, had limpness in her hands, had slurred speech, and

suffered bouts of dizziness and fatigue. See id. ¶ 27.

       Cornish returned following the stroke in January 2011 as a part-time employee in the

P&S Branch, and then as a full-time employee in February 2011. See id. ¶ 26. On her first day

back, Cornish found her workstation and desk piled high with so much uncompleted work that

she could barely sit. See id. ¶ 29. A Superior Court employee eventually had to ask co-workers

to remove some of the piles from Cornish’s desk because she could not physically manage the

heavy lifting required to clear the workspace. See id. ¶ 30. On her second day of work,




                                                  4
Henderson remarked to co-workers within earshot of Cornish, “Look at the way she’s limping,”

and Henderson later asked Cornish, “Why [do] you walk like that?” Id. ¶ 31. Co-workers also

observed Coppet and Henderson laughing at Cornish and mimicking how she struggled to walk

after the stroke. See id. At other times, Coppet ordered Cornish to perform routine errands on

foot despite her physical disabilities. See id. ¶ 33. Cornish alleges that in addition to demeaning

her, these errands were imposed to prevent her from leaving work for medical appointments, and

on some days Cornish’s co-workers carried her personal belongings to meet her elsewhere in the

courthouse so as to spare her the struggle of walking back to the office before leaving. Id. ¶ 34.

       In early 2011, a supervisory position in the P&S Branch became open, but Cornish was

passed over in favor of Henderson, despite Cornish being more senior in rank and scoring higher

on the required diagnostic tests. See id. ¶ 35. Coppet was on the three-person selection panel for

this position, and she gave Cornish a “much lower overall score” than did the other two panel

members, though Cornish still emerged with the highest total score. See id. ¶ 36. When

challenged about her biased opinion of Cornish during panel deliberations, Coppet allegedly said

that “the consensus score is whatever I say it is because the person is working for me,” and “I

don’t care what y’all say.” Id. ¶ 37. Toni Gore, another member of the selection panel, reported

Coppet’s attitude toward Cornish to Dianne King, who was Coppet’s supervisor, but no remedial

action was taken. See id. ¶ 38. In the end, Coppet recommended Henderson for the position

without notifying Gore or providing her an opportunity to comment. See id.

       In the meantime, Coppet and Henderson continued to harass Cornish by, for example,

calling a meeting late in the day on April 12, 2011, so Cornish had to miss a physical therapy

appointment, despite her prior requests for permission to leave on time that day. See id. ¶ 39. A

couple days later, Cornish allegedly became so ill because of further harassment from Coppet




                                                 5
and Henderson that she visited the Superior Court’s health unit, where she reported symptoms of

weakness, dizziness, and uncontrollable shaking similar to what she suffered the morning after

the stroke. See id. ¶ 41. The nurse on duty advised Cornish that each time co-workers made her

feel this way, she should return to the health unit to document the mistreatment and its effect on

her well-being. See id. The next day, Cornish’s treating physician recommended through a

written prescription that she transfer to a different workplace environment, have her workload

reduced, or otherwise have her workplace stress relieved or mitigated given the ongoing

symptoms. See id. ¶ 42. Upon returning to work on April 19, 2011, Cornish showed the

prescription to Coppet, who responded by “berat[ing]” Cornish and claiming that the prescription

was “unintelligible.” See id. ¶ 43. At a meeting later that day with Coppet and Henderson,

Cornish was informed that a transfer and workload reduction “would not happen,” and instead,

Cornish was ordered to register for the Superior Court’s “emotional intelligence” course. Id.

       On April 20, 2011, Cornish met with the Superior Court’s ADA officer, H. Clifton

Grandy. See id. ¶ 44. As she explained her experiences to Grandy, Cornish began shaking and

crying, and Grandy asked if she needed medical attention. See id. ¶ 45. Cornish explained that

these were the stress-related symptoms regularly caused by her workplace conditions. See id.

After the meeting, Grandy called Herbert L. Jackson, the Superior Court’s Equal Employment

Opportunity (“EEO”) officer, and urged him to meet with Cornish. See id. Cornish and Jackson

soon met, and Cornish filed a D.C. Courts EEO complaint alleging that Coppet and Henderson

had “harassed, intimidated, bullied, emotionally abused, and discriminated against her based on

disability and personal appearance, throughout her tenure at the P&S Branch.” See id. ¶ 46.

Cornish then was placed on one week’s paid administrative leave. See id. ¶ 47.




                                                 6
                   2. Temporary Transfer to the Budget and Finance Division

       On April 27, 2011, Cornish described her workplace harassment in a meeting with Duane

Delaney, the Clerk of the Superior Court. See id. ¶ 48. Delaney decided to place Cornish on “a

special temporary work assignment” in the Budget and Finance Division under Section 360 of

the District of Columbia Courts’ Comprehensive Personnel Policies (“D.C. Courts’ personnel

policy”). See id. Delaney informed Cornish that the assignment would last for three months so

as to coincide with the expected duration of the investigation into Coppet and Henderson. See id.

¶ 57. In her position at the Budget and Finance Division, Cornish performed the duties of a

“reconciliation specialist,” which is the person responsible for analyzing Superior Court financial

records and reconciling them with the U.S. Treasury Department’s general ledger and with

records of the U.S. General Services Administration. See id. ¶ 49.

       Cornish’s salary remained at the JS-11 pay grade following her assignment to the Budget

and Finance Division. See id. ¶ 51. She alleges, however, that male employees in the division

who perform equal or less complex duties have been compensated at “one or two higher pay

grades.” See id. ¶ 49. Specifically, Cornish alleges that she performs many of the same duties as

two male employees, both of whom are accounting officers at the JS-13 pay grade, as well as

some of the same duties as another male reconciliation specialist who is a JS-12 employee. See

id. ¶ 50. Further, Cornish works in the Reporting and Controls Branch of the Budget and

Finance Division, where she is a “full participant in the working unit and is subject to the same

performance assessments as every other worker there, including annual and semi-annual

performance evaluations” in which she has consistently received high ratings despite being

afforded less training opportunities than co-workers. See id. ¶ 52.




                                                 7
       At the end of her first three months in the division, Cornish approached Dana Friend,

head of the Budget and Finance Division and the Superior Court’s chief financial officer, about

ending the temporary assignment and the possibility of a permanent transfer to the Budget and

Finance Division. See id. ¶ 58. But Friend informed Cornish that Delaney had decided to

continue the detail for three more months. See id. Around April 24, 2012, Cornish contacted

Hamer Legette, the deputy chief of the Budget and Finance Division and deputy chief financial

officer of the Superior Court, about formally converting to permanent status, obtaining training

and advancement opportunities, and receiving a salary increase. 1 See id. ¶ 53. Legette said he

was unaware that Cornish’s pay grade was JS-11 because she performed JS-13-level tasks, and

he assured her that he would “take care of” the salary issue. See id. ¶ 54. The next morning,

Cornish informed Friend about her conversation with Legette. See id. ¶ 55. Later that day,

Friend and Valerie Young, Cornish’s immediate supervisor in the division, met with Cornish

about her salary inquiries. See id. At the meeting, Friend reported that Delaney would not end

Cornish’s Budget and Finance Division assignment and would not offer a pay increase. See id.

Delaney did, however, authorize Cornish to attend the training sessions offered to co-workers.

See id. ¶ 56. At the time of filing suit, which was more than two years after the assignment

began, Cornish still remained in the Budget and Finance Division, and she had not received a pay

grade adjustment. See id. ¶ 59.

       Finally, Cornish alleges that she continues to suffer “permanent psychic and emotional

scars” from the harassment Coppet and Henderson inflicted on her. See id. ¶ 61. For instance,

prior to the alleged abuse, Cornish did not suffer severe headaches and did not have trouble

       1
               Cornish alleges that this meeting occurred in April 2013, see 2d Amend. Compl.,
ECF No. 8, at ¶ 53, but subsequent paragraphs suggest that it actually happened in April 2012.
See id. ¶ 55. The exact date, however, is largely irrelevant for purposes of resolving the
District’s motion.


                                                8
sleeping, yet now she has frequent migraines, chronic insomnia, and recurring nightmares about

her experience in the P&S Branch, as well as “bouts of shaking and shivering, weakness in her

arms, hands, legs and feet, and other symptoms of post-traumatic stress.” See id. Further,

Cornish allegedly “remains frightened and intimidated at the prospect of crossing paths with”

Coppet and Henderson inside the Superior Court. See id. ¶ 62.

                     3. December 2009 Superior Court Internal Investigation

       In December 2009, Dianne King, director of the Superior Court’s Family Court Division,

undertook an investigation into allegations of misconduct by Coppet and Henderson. See id. ¶

64. Cornish alleges that the goal of this investigation was to inform Delaney about the basis of

various complaints concerning Coppet and Henderson, as well as to determine whether Coppet

was fit for a promotion to the P&S Branch chief position. See id.

       Although King and Coppet had a “close personal relationship,” see id. ¶ 65, the

investigation uncovered, among other things, that “[o]verall, the deputy clerks in the branch

allege that Ms. Henderson and Ms. Coppet exhibit disrespectful, loud, harsh and unprofessional

communication towards the staff. Further, they exert intimidating, degrading, hostile,

humiliating and aggressive behavior when interacting with staff.” Id. ¶ 66. The investigation

also found that Coppet and Henderson “exhibit workplace bullying in the forms of verbal abuse,

unfair treatment, public humiliation and criticism, to name a few.” Id. As a result, the report

concluded that Coppet and Henderson should “receive training in interpersonal skills, emotional

intelligence, human resources, supervisory practices, and personnel policies” — but no training

or disciplinary action ever was taken. See id. ¶ 67. In fact, Coppet was promoted despite the

findings of the investigation. See id.




                                                 9
                                     4. EEO Office Investigations

       Separately, the Superior Court’s EEO Office ordered two external investigations into the

allegations in the administrative complaint Cornish filed with Jackson, the Superior Court’s EEO

officer. See id. ¶ 68. The first investigation was conducted by DSZ & Associates and lasted

from June 16 to July 10, 2011. See id. ¶ 69. DSZ was charged with looking into

       [w]hether the Aggrieved [Cornish] is being subjected to disparate treatment and
       [was] subsequently [i.e., after the stroke in November 2010] subjected to
       discrimination based on her disability at the hands of Sherry Coppet and Delores
       Henderson, both of whom allegedly subjected the Aggrieved to hostile,
       demeaning, rude, disrespectful, and intimidating behavior commencing in 2008,
       and continuing to present.

Id. ¶ 69. On August 5, 2011, the EEO Office issued the first Report of Investigation (“ROI”)

summarizing the investigation’s findings. See id. ¶ 70. The ROI contained several sworn

statements by P&S Branch employees, as well as factual findings that supported Cornish’s

allegations of harassment. See id.

       Cornish explains, however, that the EEO Office “apparently found the first EEO

investigation lacking or insufficient” because some of Coppet’s and Henderson’s “subordinates

had not been candid as witnesses while those two women were their superiors.” Id. ¶ 71. As a

result, in October 2011 the EEO Office issued a Notice of Acceptance for a second investigation

to address the following questions:

       Issue 1: Whether Complainant is being subjected to disparate treatment and
       subsequently (to November 2010) subjected to discrimination based on her
       disability at the hands of Sherry Coppet and Delores Henderson, both of whom
       allegedly subjected Complainant to hostile, demeaning, rude, disrespectful,
       intimidating, and bullying behavior commencing in 2008, and continuing to
       present.

       Issue 2: Whether Complainant was subjected to discrimination based on personal
       appearance and disability or subjected to disparate treatment, when during the
       interview process for the position of Support Branch Supervisor, she was treated
       unfairly and, subsequently, not promoted to that supervisory position.



                                                 10
Id. ¶ 71. On April 26, 2012, the EEO Office issued a second ROI. Like the first report, the

second ROI contained detailed accounts of how Coppet and Henderson “harassed, intimidated,

bullied and abused” Cornish, and “discriminated against [Cornish] and subjected her to a hostile

work environment, first because of her personal appearance, in particular the professionally

poised, decorous, well-groomed and traditionally feminine way she presented herself, and later

because of the physical disabilities” following the stroke. Id. ¶¶ 72-73.

       The two ROIs also contained evidence that Coppet had arbitrarily assigned Cornish tasks

which required her to walk long distances even though she struggled to walk after the stroke, as

well as evidence that Coppet and Henderson repeatedly “humiliated” and “berated” Cornish at

work, both before and after the stroke. See id. ¶¶ 74-75. Finally, the reports included statements

showing that Superior Court management had “failed to take corrective action” when alerted

multiple times over a period of years about the hostile work environment Coppet and Henderson

had created within the P&S Branch. See id. ¶ 77.

       On August 10, 2012, Cornish received an “EEO Formal Investigation Complaint Finding

and Determination” letter written by Jackson. See id. ¶ 78. The letter found that “[c]onsidering

the entire evidence record and the witness testimony … Ms. Coppet and Ms. Henderson did use

their position and actual (or apparent) authority to habitually harass, intimidate, and bully

[Cornish].” Id. ¶ 79. In regard to other Superior Court supervisors, the EEO letter found

“significant evidence that the division officials knew or should have known of this behavior for

quite a while and provided no significant remedy.” Id. ¶ 80. Finally, the EEO letter urged the

D.C. Courts to “take seriously complaints about supervisors’ (and higher level officials’)

unprofessional behavior in [managing] subordinate staff,” endorsed “appropriate disciplinary

action against” Coppet’s and Henderson’s “unwarranted behaviors,” and recommended that the




                                                 11
Superior Court “provide the appropriate remedy” to Cornish. Id. ¶ 81. Cornish alleges,

however, that the Superior Court has failed to provide her with any remedy despite these

findings. See id. ¶ 82. In particular, Cornish remains on “temporary assignment” in the Budget

and Finance Division at the same pay grade, while Coppet and Henderson have gone

unpunished. Id.

                                         B. The Lawsuit

       On August 8, 2013, Cornish filed a second amended complaint that contains twelve

causes of action against the District for violations of multiple federal and state laws. In

particular, Cornish asserts claims under Title I of the ADA and Section 504 of the Rehabilitation

Act for hostile work environment (Count I), failure to accommodate (Count II), and disparate

treatment (Count III) on the basis of disability. The complaint also includes claims under Title

VII for hostile work environment (Count IV) and disparate treatment (Count V) on the basis of

race and sex, and a claim for violation of the Equal Pay Act (Count VI). In addition, Cornish

asserts claims under the DCHRA for hostile work environment (Count VII) and disparate

treatment (Count VIII) based on personal appearance. Finally, she alleges state law claims for

breach of contract (Count IX), intentional infliction of emotional distress (Count X), negligent

infliction of emotional distress (Count XI), and negligent supervision (Count XII).

       Now before the Court is the District’s motion to dismiss many of Cornish’s claims, as

well as for summary judgment on several others. See generally Def.’s Mem. Supp. Mot.

Dismiss, ECF No. 11. Through this motion, the District seeks the following relief: dismissal of

the Title VII claims in Counts IV and V for failure to state a claim and, alternatively, for

summary judgment on those claims for failure to exhaust administrative remedies; dismissal of

the Equal Pay Act claim in Count VI for failure to state a claim; dismissal of the DCHRA claims




                                                 12
in Counts VII and VII on the basis that the statute does not apply to Superior Court employees;

dismissal of the claims for breach of contract in Count IX, negligent infliction of emotional

distress in Count XI, and negligent supervision in Count XII for failure to state a claim; and

summary judgment on the claims for unliquidated damages in Counts VII-VIII and X-XII for

failure to comply with the six-month notice requirement in D.C. Code § 12-309. 2


                                    III. LEGAL STANDARDS

                                A. Rule 12(b)(6) Motion to Dismiss

        To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint

must contain sufficient factual allegations, accepted as true, to “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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 v. Iqbal, 556 U.S.

662, 678 (2009). When performing this analysis, a court must “accept as true all of the factual

allegations contained in the complaint and draw all inferences in favor of the nonmoving party.”

Autor v. Pritzker, 740 F.3d 176, 179 (D.C. Cir. 2014). But a “pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

557). Although a court generally cannot consider matters beyond the pleadings, it may consider


        2
                The District originally also moved to dismiss the ADA claims in Counts I-III and
the Title VII claims in Counts IV-V as time-barred, as well as the Rehabilitation Act claims in
Counts I-III for lack of subject matter jurisdiction. See generally Def.’s Mem. Supp. Mot.
Dismiss, ECF No. 11. The District, however, withdrew its arguments as to these issues in its
reply brief, while preserving the right to seek summary judgment on the claims later. See Def.’s
Reply Supp. Mot. Dismiss, ECF No. 22, at 1 n.1.


                                                  13
“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[.]” See Ward v. D.C.

Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal citations and

quotation marks omitted).

                          B. Rule 56 Motion for Summary Judgment

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and [thus] the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); accord. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). “A fact is material

if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about a

material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When Rule 56 is invoked, the moving party

has the initial burden of demonstrating the absence of a genuine dispute as to any material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear

the burden of persuasion at trial, its burden “may be discharged by ‘showing’ — that is, pointing

out to the district court — that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325.

       Once the moving party has met its burden, to defeat the motion the nonmoving party

must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (citation

omitted). Although the Court must view this evidence in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s favor, see Grosdidier v.

Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013), the nonmoving party




                                                 14
must show more than “[t]he mere existence of a scintilla of evidence in support of” his position

— “there must be evidence on which the jury could reasonably find for [the nonmoving party].”

Anderson, 477 U.S. at 252. Moreover, the nonmoving party “may not rest upon mere allegation

or denials of his pleading but must present affirmative evidence showing a genuine issue for

trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal citation and

quotation marks omitted).


                                         IV. ANALYSIS

       For the reasons discussed below, the Court grants in part and denies in part the District’s

motion. Specifically, the Court grants summary judgment to the District on the Title VII race

and sex discrimination claims because Cornish failed to exhaust the administrative remedies

before filing suit. The Court, however, denies the District’s Rule 12(b)(6) motion to dismiss the

Equal Pay Act claim in Count VI, but the Court grants the District’s motion to dismiss the breach

of contract claim in Count IX and the negligent infliction of emotional distress claim in Count

XI. Next, the Court grants the District’s motion to dismiss the DCHRA claims in Counts VII

and VIII because the statute does not apply to Superior Court employees. Finally, the Court

grants summary judgment to the District on the unliquidated damages claims for intentional

infliction of emotional distress in Count X, negligent infliction of emotional distress in Count XI,

and negligent supervision in Count XII because Cornish failed to provide timely notice in

accordance with D.C. Code § 12-309.

A. Counts IV and V: Summary Judgment for Failure to Exhaust Title VII Administrative

                                              Remedies

       Title VII makes it unlawful for an employer “to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment, because of such


                                                15
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The

District moves for summary judgment on the Title VII claims in Counts IV and V on the basis

that Cornish failed to exhaust the administrative remedies for race and sex discrimination. See

Def.’s Mem. Supp. Mot. Dismiss, ECF No. 11, at 22. Specifically, the District argues that in her

complaint with the EEO Office for the D.C. Courts, Cornish selected only the box for

discrimination based on disability and left blank the boxes for race and sex discrimination. See

id. at 23; see also EEO Office Complaint, ECF No. 11-2, Ex. 2 at 10. In addition, the District

argues that Cornish’s EEO complaint and subsequent Equal Employment Opportunity

Commission (“EEOC”) charge mentioned only “disability,” “appearance,” and “place of

residence” discrimination as the bases for her claims, not race or sex discrimination. In response,

Cornish argues that sex discrimination can be inferred from the fact that Coppet and Henderson,

both females, harassed other female employees, and race discrimination can be inferred because

remarks about Cornish’s personal appearance actually were based on a stereotype about African-

American women from Baltimore. See Pl.’s Mem. Opp’n Mot. Dismiss, ECF No. 19, at 27-29.

                        1. Title VII Administrative Process and Exhaustion

        The Title VII statutory scheme requires a plaintiff to exhaust her administrative remedies

before filing a civil action in federal court. See Robinson-Reeder v. Am. Council on Educ., 532

F. Supp. 2d 6, 12 (D.D.C. 2008). “Because untimely exhaustion of administrative remedies is an

affirmative defense, the defendant bears the responsibility of pleading and proving it.” Bowden

v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Brown v. Marsh, 777 F.2d 8, 13

(D.C. Cir. 1985)). The exhaustion of administrative remedies is not a jurisdictional prerequisite

to suit in this Court, but rather “a requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling.” Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393




                                                   16
(1982). In a Title VII case, “[i]t is appropriate to grant a defendant’s motion for summary

judgment when a plaintiff fails to demonstrate exhaustion of administrative remedies.” Greer v.

O’Neill, No. CIV.A. 01-1398, 2003 WL 25653036, at *2 (D.D.C. Sept. 25, 2003) (citing Siegel

v. Kreps, 654 F.2d 773 (D.C. Cir. 1981)).

       Requesting exhaustion of Title VII administrative remedies encourages voluntary

conciliation and cooperation, and “ensure[s] that the federal courts are burdened only when

reasonably necessary.” Brown, 777 F.2d at 14. Thus, a claimant may only assert in federal

district court allegations that were contained in the administrative charge or 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 (D.C. Cir. 1995) (citation omitted). In other words, claims

being asserted in federal court “must arise from ‘the administrative investigation that can

reasonably be expected to follow the charge of discrimination.’” Id. (quoting Chisholm v. U.S.

Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)); see also Rattigan v. Gonzales, 503 F. Supp. 2d

56, 69 (D.D.C. 2007) (dismissing claim when the discriminatory act was not mentioned in the

administrative charge, was not reasonably related to the allegations in the charge, and was not

“within the scope of the administrative investigation that can reasonably be expected to follow”

the charge).

       Although the boxes on the administrative complaint form “aid a claimant in identifying

the nature of her charge, a claimant is not necessarily limited to the boxes she selected if she

provides the basis for her claim in her written explanation.” Robinson-Reeder, 532 F. Supp. 2d

at 13; see also Maryland v. Sodexho, Inc., 474 F. Supp. 2d 160, 162 (D.D.C. 2007) (explaining

that “the law does not hold an employee to the use of magic words to make out a proper

discrimination charge[,]” but the employee still must “alert the EEOC and the charged employer




                                                 17
with the nature of the alleged wrongdoing”). As such, determining whether Cornish exhausted

her Title VII race and sex discrimination claims requires more than merely looking at which

boxes she marked on the charge forms.

                    2. Failure to Exhaust Race and Sex Discrimination Claims

       Upon review of the administrative record, the Court finds that Cornish failed to provide

notice during the administrative process that she was asserting a claim of race or sex

discrimination. Her allegations of discrimination based on “personal appearance” and the mere

mention of Baltimore — as well as related alleged discrimination based “place of residence” and

unspecified “stereotypes” in the later EEOC charge — did not reasonably or foreseeably equate

to Title VII claims for race or sex discrimination. See, e.g., EEO Office Complaint, ECF No. 11-

2, Ex. 2 at 9-10 (only checking box for disability discrimination); 3 EEO Complaint Finding and

Determination, ECF No. 19-11, Ex. 4 at 9 n.11 (“[T]he Complainant’s main claim is that she

suffered bullying, intimidation, and harassment that manifested in disability, personal

appearance, and promotion disparities.”); id. at 5-11 (discussing only disability and personal

appearance discrimination); id. at 10 (stating that Cornish “clarified” that the basis for her

“personal appearance harassment claim” was Coppet and Henderson “always commenting about

how her hair was always done and how her clothes, jewelry and shoes were always well

coordinated,” and making no reference to race or sex discrimination); id. at 12-13 (making no

mention of race or sex discrimination in “Finding and Determination” section of EEO report);

Cornish EEO State., ECF No. 19-8, Ex. 7 at 2 (stating that “I was more [] afraid of what Ms.

       3
               Cornish’s EEO complaint form references an attachment that is part of the
complaint, but neither Cornish nor the District includes this attachment with their filings. See
EEO Office Complaint, ECF No. 11-2, Ex. 2 at 10. Although theoretically the attachment could
provide some basis for finding that Cornish raised sex or race discrimination claims
administratively, the Court is comfortable in assuming that Cornish would have included the
document as an exhibit to her opposition memorandum if it actually supported her claim.


                                                 18
Coppet and Ms. Henderson could do to me; try to have me terminated, which is what I witnessed

them do to another employee who resided in Baltimore,” but making no reference to race or sex

discrimination); id. at 3 (“Ms. Coppet and Ms. Henderson singled me out because of my

appearance. They questioned me about how many shoes and suits I owned, how I coordinated

my outfits … and how often I got my hair done and wore different hair styles.”); Paige EEO

Stat., ECF No. 19-9, Ex. 8 at 2 (“I would hear Ms. Henderson talking on the telephone about

[Cornish], saying ‘Who does she think she is, this girl from Baltimore?’”); see also EEOC

Charge, ECF No. 19-12, Ex. at 12 at 3-4 (mentioning disability, personal appearance, place of

residence, and “stereotype” discrimination, but making no mention of race or sex

discrimination).

       Similarly, Cornish tries to give undeserved significance to the fact that Coppet and

Henderson allegedly harassed multiple female employees within the P&S Brach in addition to

Cornish, but some alleged victims being female does nothing to suggest that sex was the basis

for the harassment, as opposed to some other, non-protected characteristic, like personal

appearance. See Pl.’s Mem. Opp’n Mot. Dismiss, ECF No. 19, at 26 (discussing testimony from

female employees in the P&S Branch regarding harassment by Coppet and Henderson). Again,

Cornish’s attempt to offer a post-hoc explanation that was never raised or investigated during the

administrative process fails to satisfy the Title VII exhaustion requirement.

       Ultimately, Cornish, through her complaint before this Court, attempts to construe the

alleged workplace harassment about her fashionable clothing style and her being from Baltimore

as race and sex discrimination. 4 See id. at 11. But there is no evidence that such a connection



       4
              Cornish acknowledges that the alleged stereotype about African-American
women from Baltimore is not common knowledge, which undermines her argument that anyone
within the administrative process equated her claims with race and sex discrimination. See Pl.’s


                                                19
was explicitly or implicitly made at any time during the administrative process such that it might

be said Cornish provided an opportunity for the D.C. Courts EEO Office or the EEOC to

investigate race or sex discrimination issues. See, e.g., Sodexho, 474 F. Supp. 2d at 162 (finding

failure to exhaust when plaintiff “checked only retaliation as the circumstances of the alleged

discrimination” and included no other “indication in the EEOC charge of a claim based on

religion, harassment, hostile work environment, or any workplace behavior occurring while he

was employed”); Brown v. Dist. of Columbia, 251 F. Supp. 2d 152, 162 (D.D.C. 2003) (finding

failure to exhaust sex discrimination and retaliation claims when plaintiff had “checked only the

boxes for allegations of discrimination based on race and disability” and did not otherwise

indicate such allegations); Hunt v. Dist. of Columbia Dep’t of Corrs., 41 F. Supp. 2d 31, 36

(D.D.C. 1999) (finding failure to exhaust when plaintiff “specifically checked the boxes for age

discrimination and retaliation, but she did not check the box for gender discrimination” or

otherwise indicate that “she was alleging gender discrimination”); Sisay v. Greyhound Lines,

Inc., 34 F. Supp. 2d 59, 64 (D.D.C. 1998) (finding failure to exhaust certain claims when

plaintiff “alleged only race discrimination and retaliation in his EEOC charge,” but “[a]bsent

from that complaint [was] any indication of a claim of national origin discrimination either in the

form of express words or factual allegations that would support such a claim”).

       The Court recognizes that “[n]aturally every detail of the eventual complaint need not be

presaged in the [administrative] filing.” Beckham v. Nat’l R.R. Passenger Corp., 636 F. Supp.

2d 111, 115 (D.D.C. 2009) (citation and quotation omitted). It also is true, however, that “the

substance of … a Title VII claim … must fall within the scope of the administrative investigation

that can reasonably be expected to follow the charge of discrimination.” Id. In this instance, the

Mem. Opp’n Mot. Dismiss, ECF No. 19, at 4 (describing this stereotype as “dreadfully familiar
to the affected local subculture but not widely known outside it”).


                                                20
administrative record, though littered with examples of potential disability and personal

appearance discrimination, simply contains no hint of the race and sex discrimination claims

Cornish now attempts to bring. References in the investigation about Cornish being from

Baltimore or Coppet and Henderson making comments about Cornish’s fashion and hairstyle are

too vague and too disconnected from the classes of race and sex to constitute notice of the need

to investigate discrimination on those specific protected bases. See, e.g., id. (finding that

“allegations in the Charge Questionnaire [were] too vague and circumscribed to constitute a

complaint of a racially discriminatory failure to promote” when plaintiff made no allegation that

the employer hired another person into a position for which plaintiff had applied because of

racial considerations).

       Without even the slightest indication that the prior administrative process reasonably

could have recognized the conduct of Coppet and Henderson as potential race or sex

discrimination at the time of the proceedings, there was no opportunity to address such claims

administratively, as is required before filing suit. Nor was there reason to presume that sex or

race discrimination must be investigated: the EEO complaint form mentions both Title VII and

the DCHRA, and because personal appearance is a protected category under the DCHRA, the

EEO Office was reasonable to understand Cornish as raising a DCHRA personal appearance

discrimination claim, rather than discrimination on some other basis also covered by Title VII.

See EEO Office Complaint, ECF No. 11-2, Ex. 2 at 9.

       “[T]he law in this Circuit is clear that an allegation as to one type of discrimination does

not exhaust all administrative remedies as to another type of alleged discrimination.” Howard v.

Fenty, 580 F. Supp. 2d 86, 90 (D.D.C. 2008). The Court therefore finds that Cornish failed to

exhaust her administrative remedies before bringing the Title VII race and sex discrimination




                                                 21
claims. Accordingly, the Court grants summary judgment to the District on Counts IV and V. 5

See Siegel v. Kreps, 654 F.2d 773, 776 (D.C. Cir. 1981) (affirming district court’s dismissal of

plaintiff’s religious discrimination claim because it was raised for the first time in the civil

complaint and thus was not subject to administrative exhaustion); Williams v. Spencer, 883 F.

Supp. 2d 165, 174 (D.D.C. 2012) (dismissing Title VII race and color discrimination claim for

failure to exhaust when on “the EEOC charge form underlying this action, plaintiff did not check

‘race’ or ‘color’ as the basis of her discrimination charge, nor does the written explanation in her

EEOC complaint describe a suspicion or allegation of discrimination based on race or color”);

Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35-36 (D.D.C. 2008) (dismissing plaintiff’s national

origin discrimination claim because plaintiff only identified race discrimination and retaliation

before the EEOC); Brown v. Dist. of Columbia, 251 F. Supp. 2d 152, 162 (D.D.C. 2003)

(granting summary judgment for failure to exhaust when “plaintiff checked only the boxes for

allegations of discrimination based on race and disability, [] did not check the boxes for gender

discrimination or retaliation[,]” and all allegations in the EEOC complaint “related specifically to

race and disability discrimination” such that there was “absolutely no indication that plaintiff

was alleging gender discrimination or retaliation”).

               B. Count VI: Failure to State a Claim Under the Equal Pay Act

       In Count VI, Cornish alleges a violation of the Equal Pay Act, 29 U.S.C. § 206(d), on the

basis that she was compensated at a lower pay level than similarly-situated male employees in

the Budget and Finance Division. The Equal Pay Act establishes the “principle of equal pay for

equal work regardless of sex,” Corning Glass Works v. Brennan, 417 U.S. 188, 190 (1974), and

Congress’s purpose in passing the law was to remedy the “ancient but outmoded belief” that a

       5
               Because the Court grants summary judgment on the basis of failure to exhaust, it
is unnecessary to address the substance of the Title VII claims.


                                                  22
man should be paid more than a woman for performing the same duties. Id. at 195 (internal

quotation marks omitted); see also Goodrich v. Int’l Bhd. of Elec. Workers, 712 F.2d 1488,

1489-90 (D.C. Cir. 1983) (recognizing the Equal Pay Act as “firmly establish[ing] as federal law

the ‘principle of equal pay for equal work regardless of sex’” (quoting Brennan, 417 U.S. at

190)). As such, the Equal Pay Act “prohibits payment of unequal wages for equal work on

grounds of sex, unless the difference is justified by one of four enumerated defenses: a seniority

system, a merit system, a system that measures pay by quality or quantity of production, or any

other factor not based on sex.” Thompson v. Sawyer, 678 F.2d 257, 263 (D.C. Cir. 1982) (citing

29 U.S.C. § 206(d)).

        To establish a violation of the Equal Pay Act, Cornish must allege that (1) she was doing

substantially equal work on the job, the performance of which required substantially equal skill,

effort, and responsibility as the jobs held by members of the opposite sex; (2) the job was

performed under similar working conditions; and (3) she was paid at a lower wage than those

members of the opposite sex. See Smith v. Janey, 664 F. Supp. 2d 1, 12 (D.D.C. 2009); Nyman

v. Fed. Deposit Ins. Corp., 967 F. Supp. 1562, 1577 (D.D.C. 1997). The District moves to

dismiss Count VI under Rule 12(b)(6) on the basis that rather than sex discrimination, Cornish

was paid less than male counterparts because, first, she did not perform the same work as them,

and second, she was a temporary employee in the Budget and Finance Division. 6 See Def.’s

Mem. Supp. Mot. Dismiss, ECF No. 11, at 13.

        Regarding the District’s first argument, Cornish alleges that she has performed job

functions “that require or entail substantially the same skill, effort, and responsibility” as at least

        6
                To the extent the District argues that Cornish’s claim fails because she does not
allege that other women in the Budget and Finance Division were paid less than male co-
workers, it cites no statutory or judicial support for such a proposition. See Def.’s Mem. Supp.
Mot. Dismiss, ECF No. 11, at 12-13.


                                                  23
three specifically-referenced men in the Budget and Finance Division, see 2d Amend. Compl.,

ECF No. 8, at ¶ 117, but she “is compensated at a JS-11 pay grade, while the [] male employees

are or were compensated at higher pay grades.” Id. ¶ 118; see also id. ¶ 49 (alleging that “[m]ale

employees in the Budget and Finance Division who perform the same duties Ms. Cornish does,

or duties less complex, are compensated at one or two pay grades higher than she”); id. ¶ 51

(alleging that “male workers who perform federal reconciliations alongside [Cornish] are paid at

the higher JS-12 or JS-13 level”). Accepting Cornish’s allegations as true and granting all

reasonable inferences in her favor, the Court finds that she has provided sufficient facts showing

that she performed substantially equal work that required the same skill, effort, and responsibility

as the work done by male members of the division. See, e.g., id. ¶¶ 49-52, 54, 117.

       Second, the District argues that “it is without dispute that [Cornish’s] assignment was

intended to be temporary,” and the temporary nature of the position justifies her lower pay grade.

See Def.’s Reply Supp. Mot. Dismiss, ECF No. 22, at 10. Cornish alleges that although she

began on a temporary detail in the Budget and Finance Division which was slated to last three

months, see 2d Amend. Compl., ECF No. 8, at ¶ 57, she remained in the same position for “more

than two years,” including through the time of filing the complaint, see id. ¶ 59. Further, she

alleges that though the D.C. Courts’ personnel policy “authorize[s] the Executive Officer to

increase the duration of employee details beyond the six months those policies presumptively

establish as a maximum, no personnel policy can be construed to authorize, and none can sustain,

any personnel practice that would otherwise violate the Equal Pay Act.” Id. ¶ 119. Thus, in

effect, Cornish argues that she should not be considered a “temporary” employee in the Budget

and Finance Division because the allowable time for such a short-term assignment has long

passed. Accordingly, there is, in Cornish’s view, no permissible reason for paying her less than




                                                24
male co-workers because she is similarly-situated and performs similar tasks, which plausibly

suggests that she is paid less only because of her sex.

       Although clearly the assignment originally was intended to be temporary, see id. ¶ 48, the

District’s argument overlooks the critical question of whether — and if so, when — the duration

of Cornish’s detail in the Budget and Finance Division exceeded the bounds of a temporary

assignment under the personnel policy such that she must be considered a permanent employee

for purposes of the Equal Pay Act. Indeed, this is exactly the theory Cornish alleges, and

accepting her allegations as true, Cornish has satisfied the requirements for maintaining an Equal

Pay Act claim. See id. ¶ 59 (“As of the filing of this complaint, more than two years later, and

more than a year after Ms. Cornish’s EEO complaint was decided with a ruling in her favor as

described elsewhere in this Complaint, she is still ‘on detail’ in the Budget and Finance

Division.… [T]he notion that the transfer is temporary, even if it was plausible at the outset, can

no longer be sustained as a justification for declining to offer Ms. Cornish a salary commensurate

with the work she is performing to the Court’s ample satisfaction.”); see also Pl.’s Mem. Opp’n

Mot. Dismiss, ECF No. 19, at 33 (citing the EEOC’s Equal Pay Act regulation, 29 C.F.R. §

1620.26(b), regarding temporary assignments which discusses the potential need to adjust pay

when an assignment lasts more than one month because at that point the position may no longer

be deemed temporary). Accordingly, the Court denies the District’s motion to dismiss Count VI.

                C. Count IX: Failure to State a Claim for Breach of Contract

       In Count IX, Cornish alleges that the District, by failing to discipline or dismiss Coppet

and Henderson in a timely and effective manner, breached its contractual obligations under

Section 600 of the D.C. Courts’ personnel policy, which makes it the policy of the courts to

provide equal and meritorious employment opportunities to all persons and to prohibit




                                                 25
discrimination in employment decisions. See 2d Amend. Compl., ECF No. 8, at ¶¶ 134-36; see

also Personnel Policy Section 600, ECF No. 11-2, Ex. 1 at 1. The District moves to dismiss this

claim on the basis that Cornish, as a public employee, had no contractual relationship with her

employer on which to bring a breach of contract claim. See Def.’s Mem. Supp. Mot. Dismiss,

ECF No. 11, at 14. In response, Cornish argues that the D.C. Courts’ personnel policy creates

enforceable contractual rights, the breach of which gives rise to a cause of action for damages

against the District. See Pl.’s Mem. Opp’n Mot. Dismiss, ECF No. 19, at 36-37.

       Cornish, however, offers no legislative or judicial support for her assertion that the

personnel policy, and Section 600 in particular, was intended to create a contractual relationship

between a Superior Court employee and the District or the D.C. Courts on which a claim for

breach of contract and monetary damages can rest. Cf. 2d Amend. Compl., ECF No. 8, at ¶ 137

(“As a result of Defendant’s breach of its contractual obligations to Ms. Cornish under [Section]

600, Ms. Cornish experienced and continues to experience significant emotional pain and

suffering, for which she is entitled to appropriate financial compensation and other relief.”). Her

suggestion that Martin v. District of Columbia Courts, 753 A.2d 987 (D.C. 2000), provides to the

contrary is misguided. In Martin, the petitioner, a former employee of the D.C. Courts, alleged

that his termination violated the D.C. Courts’ personnel policy procedures for adverse actions

against court employees. See Martin, 753 A.2d at 989. After moving through the steps set forth

in the personnel policy, the petitioner sought judicial review in the Superior Court, but the

Superior Court held that it lacked jurisdiction to review adverse employment decisions by the

D.C. Courts. See id. at 990. On appeal, the D.C. Court of Appeals reversed the Superior Court’s

decision and found that Congress did not intend “to foreclose judicial review of a claim that the

D.C. Courts violated the procedures for removal which the Joint Committee promulgated at




                                                 26
Congress’s direction.” Id. at 994. The D.C. Court of Appeals therefore concluded that “[t]he

Superior Court’s jurisdiction … extends to claims, such as the one Martin presents, for equitable

relief from allegedly unlawful actions by public officials.” Id. at 991 (emphasis added).

       Martin plainly is a case dealing only with the scope of judicial review of internal

administrative action by the D.C. Courts, not a case creating a civil cause of action for breach of

contract in federal district court. This Court recognized as much when, in Chisholm v. District of

Columbia, it explained in a footnote citing Martin, “While it might be possible that there existed

a claim for judicial review by the Superior Court of the District of Columbia of the Courts

adherence to their own adopted personnel policies, that was not a claim raised by the plaintiff in

this case.” 666 F. Supp. 2d 96, 117 n.20 (D.D.C. 2009) (citing Martin, 753 A.2d at 994). The

Court therefore concludes that Martin cannot be read as creating a civil cause of action in federal

district court by an employee for breach of the D.C. Courts’ personnel policy. 7 Further, Cornish

provides no other legal basis for treating the personnel policy as creating a contractual

relationship upon which an employee can sue the District or the D.C. Courts for breach and

monetary damages. As such, the Court grants the District’s motion to dismiss Count IX. 8


       7
                This claim likely also is precluded on a broader basis: the D.C. Comprehensive
Merit Personnel Act (“CMPA”) governs the workplace relationship for D.C. employees. See
D.C. Code § 1-601 et seq. The CMPA, however, specifically excludes from its coverage non-
judicial personnel of the D.C. Courts. See id. § 1-602.01(a). In the analogous context of the
federal Civil Service Reform Act (“CSRA”) and related federal employment statutes, the D.C.
Circuit has said that “‘what you get under the CSRA is what you get,’” and federal employees
therefore are precluded from bringing claims on any other grounds. Filebark v. U.S. Dep’t of
Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009) (quoting Fornaro v. James, 416 F.3d 63, 67 (D.C.
Cir. 2005)). Cornish, then, likely is limited to those statutorily created employment causes of
action for D.C. Courts’ personnel, and she likely cannot circumvent that limit through a “breach
of contract” theory.
       8
                The Court notes that Cornish’s suggestion about converting the claim from breach
of contract to breach of the policy itself fares no better because there still would be no legal basis
for asserting a cause of action for damages based on such a breach, and Martin held only that the
Superior Court, not this Court, had jurisdiction to review claims seeking equitable relief based on


                                                 27
    D. Count XI: Failure to State a Claim for Negligent Infliction of Emotional Distress

        Under District of Columbia law, the elements of a claim for negligent infliction of

emotional distress are: (1) the plaintiff was in a zone of physical danger, which was (2) created

by the defendant’s negligence, (3) the plaintiff feared for her own safety, and (4) the emotional

distress so caused was serious and verifiable. See Rice v. Dist. of Columbia, 774 F. Supp. 2d 25,

33 (D.D.C. 2011); Estate of Manook v. Research Triangle Inst., 693 F. Supp. 2d 4, 21 (D.D.C.

2010). The District moves to dismiss Cornish’s claim in Count XI on the basis that the

complaint does not allege negligent acts by Coppet or Henderson, but rather only intentional

conduct. See Def.’s Mem. Supp. Mot. Dismiss, ECF No. 11, at 14-15.

        In response, Cornish appears to conflate “negligence” with a lack of specific intent to

cause emotional distress. See Pl.’s Mem. Opp’n Mot. Dismiss, ECF No. 19, at 38-39 (“Ms.

Cornish does not contend that Ms. Coppet’s and Ms. Henderson’s actions were not intended to

cause emotional distress for her. However, if a factfinder were to conclude that the two women’s

actions did not rise to the level of intentional infliction, it could still decide that those acts

constituted negligent infliction.”). But “negligence,” as used in the tort, refers only to the nature

of the underlying conduct that caused a plaintiff to be placed in the zone of danger. See Rice,

774 F. Supp. 2d at 33. “Negligence” does not refer to the unintended consequence of causing

emotional stress that resulted from what originally was intentional conduct. As such, despite

Cornish’s suggestion to the contrary, negligent infliction of emotional distress cannot be treated

as a “lesser tort” to intentional infliction of emotional distress, see Pl.’s Mem. Opp’n Mot.

Dismiss, ECF No. 19, at 37, because each tort requires the pleading of factual circumstances and

elements not required in the other, including negligent versus intentional conduct. Cf. Cotton v.

internal proceedings under the D.C. Courts personnel policy. See Pl.’s Mem. Opp’n Mot.
Dismiss, ECF No. 19, at 37; see also infra Part IV.E.2 (discussing Section 600 and the DCHRA).


                                                   28
Dist. of Columbia, 541 F. Supp. 2d 195, 209 (D.D.C. 2008) (granting motion to dismiss when

“[t]he allegations contained in the plaintiff’s negligent infliction of emotional distress claims are

identical to those supporting her claim of intentional infliction of emotional distress”).

       Here, although the term “intentional” is not always used explicitly, the alleged acts of

Coppet and Henderson in harassing Cornish through, for example, derogatory comments or

abusive behavior are clearly intentional conduct, not negligence. 9 Without any plausible

allegations of negligent conduct, Cornish fails to satisfy the basic requirement of a negligent

infliction of emotional distress claim, and the Court therefore must grant the District’s motion to

dismiss Count XI. 10 See Rice, 774 F. Supp. 2d at 33 (dismissing negligent infliction of

emotional distress claim when plaintiff only alleged “deliberate disregard” and “extreme and

outrageous” conduct by the offending party because those allegations described intentional, not

negligent, acts); Brown v. Argenbright Sec., Inc., 782 A.2d 752, 759 n.9 (D.C. 2001) (stating that

“since the conduct alleged, even when viewed in the light most favorable to appellant, is not

negligence but an intentional tort, appellant cannot recover damages for negligent infliction of

emotional distress based on that conduct”).


       9
                 See, e.g., 2d Amend. Compl., ECF No. 8, at ¶ 18 (“Ms. Coppet and Ms.
Henderson made a fetish of insulting, humiliating, and intimidating Ms. Cornish in front of other
workers…. Ms. Coppet repeatedly yelled at Ms. Cornish when other employees were present.
Ms. Henderson often hung up on her during telephone conversations, and continually interrupted
her when she tried to speak.”); id. ¶ 22 (“Ms. Coppet and Ms. Henderson regularly imposed on
Ms. Cornish, late in the business day, assignments they insisted be completed that evening or by
the start of the following day.”); id. ¶ 31 (“Ms. Henderson said to other Branch workers, in a
derogatory manner and within earshot of Ms. Cornish, ‘Look at the way she’s limping.’ On the
same day, Ms. Henderson demanded of Ms. Cornish with a sneer, in the presence of other
workers, ‘Why [do] you walk like that?’”); id. ¶ 33 (“Ms. Coppet deliberately commanded Ms.
Cornish to perform errands on foot, particularly to check on small details in the P&S Branch’s
future office space on a different floor of the courthouse[.]”).
       10
                In addition to dismissing Count XI for failure to state a claim under Rule 12(b)(6),
the Court, in the alternative, grants summary judgment for the District on this count because
Cornish failed to comply with D.C. Code § 12-309. See infra Part IV.F.


                                                 29
   E. Counts VII and VIII: Failure to State a Claim Under the D.C. Human Rights Act

       In Counts VII and VIII, Cornish asserts causes of action for hostile work environment

and disparate treatment based on personal appearance in violation of the DCHRA, D.C. Code §

2-1401 et seq. The DCHRA provides that “[a]ny person claiming to be aggrieved by an

unlawful discriminatory practice shall have a cause of action in any court of competent

jurisdiction for damages and such other remedies as may be appropriate[.]” Id. § 2-1403.16(a).

The District moves to dismiss the DCHRA claims on the basis that the statute does not apply to

Superior Court employees. See Def.’s Mem. Supp. Mot. Dismiss, ECF No. 11, at 19.

       In response, Cornish does not explicitly argue for why the DCHRA applies to Superior

Court employees, but instead she suggests that the D.C. Courts “expressly adopt[ed]” the

DCHRA by enacting Section 600 of the personnel policy. See Pl.’s Mem. Opp’n Mot. Dismiss,

ECF No. 19, 35-36. Thus, rather than directly addressing the District’s argument, Cornish

suggests that “[i]n the event that the Court grants the District’s request as to [the] DCHRA

counts, the interests of justice require leave to amend to allege the same violations under

[Section] 600 itself.” Id. at 36. For the reasons explained below, the Court concludes that the

DCHRA does not apply to D.C. Courts employees, and the Court rejects Cornish’s unsupported

argument that Section 600 was intended to replicate the protections of the DCHRA by creating

an identical private cause of action for monetary damages against the District or the D.C. Courts.

                                 1. Mapp v. District of Columbia

       As the District points out in its Notice of Supplemental Authority, see ECF No. 23, this

Court, in an opinion by Judge Lamberth, recently addressed the exact question of whether the

DCHRA applies to D.C. Courts employees. See generally Mapp v. Dist. of Columbia, No. CIV

13-329, 2014 WL 1664022 (D.D.C. Apr. 28, 2014). In Mapp, the plaintiff, a former probation




                                                30
officer at the Superior Court, sued the District for discrimination under the DCHRA, and the

District moved to dismiss the claim on the basis that the DCHRA does not apply to D.C. Courts

employees. See id. at *1. The Court began its analysis with the D.C. Court Reorganization Act

(“Reorganization Act”), Pub. L. No.91-358, Title I, 84 Stat. 475, which Congress enacted in

1970. The Reorganization Act

       reorganized the court system in the District of Columbia and established one set
       of courts in the District with Art. III characteristics and devoted to matters of
       national concern [and] created a wholly separate court system designed primarily
       to concern itself with local law and to serve as a local court system for a large
       metropolitan area. 11

Palmore v. United States, 411 U.S. 389, 408 (1973). The Mapp Court then explained that in

addition to establishing the Superior Court and the D.C. Court of Appeals, the Reorganization

Act provided that a Joint Committee on Judicial Administration “shall have responsibility within

the District of Columbia court system for … [g]eneral personnel policies, including those for

recruitment, removal, compensation, and training.” D.C. Code § 11-1701(b)(1). The

Reorganization Act also stated that “[a]ppointments and removals of court personnel shall not be

subject to the laws, rules, and limitations applicable to District of Columbia employees.” Id. §

11-1725(b)(2).

       Next, the Mapp Court addressed Congress’s enactment of the Home Rule Act, D.C. Code

§ 1-207.18. See Mapp, 2014 WL 1664022, at *1. As the Court explained, “Congress furthered

its goal of an independent local government for the District by enacting the Home Rule Act,

which ceded some federal control of the city to an elected mayor and city council.” Id. But


       11
                 As the Mapp Court explained, “[f]rom its inception in 1836 until 1970, the United
States District Court for the District of Columbia served the dual roles of a local and federal
court, ‘hear[ing] and decid[ing] the full range of local common law and equitable questions, in
addition to its regular calendar of federal questions and diversity actions.’” Mapp, 2014 WL
1664022, at *1 (quoting Shutack v. Shutack, 516 F. Supp. 219, 221 (D.D.C. 1981)).


                                                31
Congress made clear through the Home Rule Act that the Superior Court and Court of Appeals

“shall continue as provided under the District of Columbia Court Reorganization Act of 1970.”

D.C. Code § 1-207.18. Congress also explicitly forbade the new council from enacting “any act,

resolution, or rule with respect to any provision of [the Reorganization Act] (relating to

organization and jurisdiction of the District of Columbia courts).” Id. § 1-206.02; Mapp, 2014

WL 1664022, at *1.

       Having established the background of the Reorganization Act and the Home Rule Act,

the Mapp Court turned its attention to the DCHRA by explaining that the D.C. City Council

enacted the law in 1977 to “secure an end in the District of Columbia to discrimination for any

reason other than that of individual merit.” D.C. Code § 2-1401.01. To this end, the DCHRA

established the Office on Human Rights to receive, review, investigate, and mediate employment

discrimination claims in the District. See id. § 2-1411.03(3). The DCHRA further provided that

if the Office on Human Rights finds probable cause and is unable to mediate a violation, the

complaint is forwarded to the Commission on Human Rights, which is an “impartial forum for

the hearing and deciding of cases of unlawful discrimination in employment.” Id. § 2-1404.02.

       Finally, turning to the crucial issue of statutory interpretation, Mapp began with the well-

established standard that “[s]tatutory construction must begin with the language employed by

Congress and the assumption that the ordinary meaning of that language accurately expresses the

legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985).

Based on the clear language of the Reorganization Act, the Home Rule Act, and the DCHRA, the

Mapp Court concluded, and this Court agrees, that the “statutory language is plain and

unambiguous: The D.C. City Council may not regulate matters covered by the Reorganization

Act, which expressly reserves management of personnel policies to the Joint Committee and




                                                32
explicitly exempts appointments and removals of court personnel from regulations generally

applicable to District employees.” Mapp, 2014 WL 1664022, at *2. After rejecting the

plaintiff’s arguments for adopting a contrary interpretation despite the unambiguous language of

the statutes, none of which Cornish raises here, the Mapp Court granted the District’s motion to

dismiss the DCHRA claims because it found that the statute does not apply to employees of the

D.C. Courts. Id. at *3.

       In the instant case, it is undisputed that Cornish is an employee of the Superior Court,

thus making her similarly-situated to the plaintiff in Mapp. See 2d Amend. Compl., ECF No. 8,

at ¶ 4. Cornish also provides no argument for why the Mapp holding is incorrect or otherwise

distinguishable from the circumstances here. Accordingly, the Court agrees with the holding in

Mapp and grants the District’s motion to dismiss the DCHRA claims in Counts VII and VIII

because the statute is inapplicable to court employees like Cornish.

                                 2. D.C. Courts’ personnel policy

       The Court also must address Cornish’s argument that the D.C. Courts’ personnel policy,

namely Section 600, was intended to mimic the DCHRA by creating an analogous civil cause of

action for D.C. Courts employees. Although Section 600 includes similar language to the

DCHRA about prohibiting discrimination, Cornish does not point to, and this Court does not

find, any provision granting a cause of action to D.C. Courts employees for monetary damages

against the District. Nor does Cornish make any argument for why such a cause of action should

be inferred from the language of the policy. Further, Cornish cites no case in which a civil cause

of action for damages was permitted against the District for violation of a section in the

personnel policy.




                                                33
        The personnel policy sets forth internal procedures for the D.C. Courts to follow, and a

party may, under certain conditions, seek review in the Superior Court about whether such

procedures were met. Cf. Martin v. Dist. of Columbia Courts, 753 A.2d 987 (D.C. 2000). And

just as the Court found that Cornish cannot bring a breach of contract claim premised on Section

600, it also concludes that nothing in Section 600, or in the related Section 601, grants an

employee the right to sue the District or the D.C. Courts for monetary damages based on alleged

employment discrimination. As such, Cornish’s suggestion of amending the complaint to

replace the DCHRA counts with claims for violations of Sections 600 or 601 misses the mark

because such an amendment would be futile. 12 See Pl.’s Mem. Opp’n Mot. Dismiss, ECF No.

19, at 36.

F. Counts VII-VIII and X-XII: Summary Judgment on Unliquidated Damages Claims due

                           to Failure To Comply with D.C. Code § 12-309

        The District moves for summary judgment on the claims for unliquidated damages in

Counts VII-VIII (DCHRA), Count X (intentional infliction of emotional distress), Count XI

(negligent infliction of emotional distress), and Count XII (negligent supervision) on the basis

that Cornish failed to comply with the notice requirements in D.C. Code § 12-309 before filing

suit. See Def.’s Mem. Supp. Mot. Dismiss, ECF No. 11, at 23-27. Because the Court already

has found that the DCHRA does not apply, it focuses only on arguments regarding Cornish’s

claims for intentional infliction of emotional distress, negligent infliction of emotional distress,

and negligent supervision.




        12
               D.C. Courts employees are not left without a remedy for employment
discrimination because, as the Court pointed out in Mapp, they are protected by Title VII. See
Mapp, 2014 WL 1664022, at *3.


                                                 34
       To support its request for summary judgment, the District argues that the complaint

alleges a variety of misconduct that ended on or around April 27, 2011, which is when Cornish

was transferred to the Budget and Finance Division, but Cornish sent only one § 12-309 “notice

letter” on July 25, 2013. See Notice Letter, ECF No. 19-14, Ex. 13. The District continues that

the timeframe for submitting notice about the common law claims was never tolled regardless if

the Title VII claims required exhaustion. As such, the District concludes that Cornish failed to

provide timely notice under § 12-309 because the six-month period expired in late 2011, and as

such, her common law unliquidated damages claims are barred.

       Cornish, on the other hand, sets forth a multilayered argument to justify why the July 25,

2013, notice letter was timely despite her last actual injury occurring in April 2011. See Pl.’s

Mem. Opp’n Mot. Dismiss, ECF No. 19, at 43-49. First, relying on Pinkney v. District of

Columbia, 439 F. Supp. 519 (D.D.C 1977), Cornish asserts that § 12-309’s six-month deadline is

tolled until all required administrative remedies are exhausted. Second, she argues that although

the common law claims did not require exhaustion, the Title VII claims did, and as such, the tort

claims must be treated as tolled while she exhausted the Title VII administrative remedies

because both sets of claims arose from a common nucleus of facts. Third, Cornish argues that

the Title VII administrative process was not “final” when she received the EEO letter on July 30,

2012, because that letter, which found in her favor, did not constitute “final” agency action under

Section 601 of the D.C. Courts’ personnel policy. See Personnel Policy Section 601, ECF No.

11-2, Ex. 1 at 3 (Step V(B)). Instead, because the EEO Office refused to take any “final” action

after the favorable ruling, Cornish was left in limbo and decided to file an EEOC claim fifty-five

days after receiving the EEO letter. Cf. 29 C.F.R. § 1614.401(a) (“A complainant may appeal an

agency’s final decision or dismissal of a complaint.”). Finally, Cornish explains that under the




                                                35
EEOC procedures, she was required to wait for a right-to-sue letter, which she received on April

30, 2013, when more than 180 days had passed since filing the charge. See Right-To-Sue Letter,

ECF No. 19-13, Ex. 12 at 1. Cornish therefore concludes that she had six months from receiving

the right-to-sue letter to comply with § 12-309 for both the Title VII and common law claims,

which she satisfied by sending the notice letter on July 25, 2013.

                      1. Section 12-309, Policy Goals, and Strict Compliance

         To resolve the parties’ dispute about the timeliness of Cornish’s notice, the Court starts,

as it must, with the language of D.C. Code § 12-309, which provides that

         [a]n action may not be maintained against the District of Columbia for
         unliquidated damages to person or property unless, within six months after the
         injury or damage was sustained, the claimant, his agent, or attorney has given
         notice in writing to the Mayor of the District of Columbia of the approximate
         time, place, cause and circumstances of the injury or damage.

When applying the statute, the D.C. Court of Appeals has long held that “‘strict compliance with

§ 12-309’s requirement that timely notice be given to the District is mandatory[.]’” Enders v.

Dist. of Columbia, 4 A.3d 457, 468 (D.C. 2010) (quoting Wharton v. Dist. of Columbia, 666

A.2d 1227, 1230 (D.C. 1995)). Strict adherence to the timeliness requirement is demanded

because § 12-309 operates as a derogation of the common law principle of sovereign immunity.

See Dist. of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C. 1995). As such, unlike a statute

of limitations, which, for example, can be tolled through the “discovery rule,” the six-month

clock for purposes of calculating timeliness under § 12-309 begins from the moment the plaintiff

“sustains the injury.” Id.; see also Brown v. Dist. of Columbia, 853 A.2d 733, 736-37 (D.C.

2004).

         Further, as the D.C. Court of Appeals has explained, the policy rationale underlying § 12-

309 is to protect the District against unreasonable claims and to give reasonable notice to the

District so that the facts underlying the claims may be ascertained and, if possible, deserving


                                                  36
claims may be settled without litigation. See Dist. of Columbia v. Dunmore, 662 A.2d 1356,

1359 (D.C. 1995); Pitts v. Dist. of Columbia, 391 A.2d 803, 807 (D.C. 1978) (“The legislative

history of Section 309 also indicates the provision was intended to encourage the prompt

settlement of meritorious claims and to permit the District to conduct an early investigation of

the facts and circumstances surrounding such claims.”). Indeed, the statutory predecessor of §

12-309 was enacted in 1933 to address cases in which suits were filed against the District just

before the statute of limitations expired but long after the occurrence of the underlying event, a

circumstance that made it “impossible for the District of Columbia to obtain evidence for use in

litigation which may result.” See H.R. Rep. No. 2010, 72d Cong., 2d Sess. 1 (1933) (quoted and

discussed in Breen v. Dist. of Columbia, 400 A.2d 1058, 1060 (D.C. 1979)). “It is therefore not

surprising that the language Congress chose to remedy this problem is clear and unequivocal.”

Dunmore, 662 A.2d at 1359. And it is for this reason that the “point in time when a cause of

action accrues is immaterial for purposes of triggering the statutory notice requirement,” but

rather the clock begins the moment the plaintiff sustains the injury. Id.; see also DeKine v. Dist.

of Columbia, 422 A.2d 981, 985 (D.C. 1980).

       Recognizing the strictness of § 12-309’s timeliness requirement but cognizant of not

putting an “undue burden” on litigants by requiring early notice of their causes of action before

the realities of such may be fully clear, District of Columbia courts have “held that the actual

content of the notice need not follow any rigid formula.” Dunmore, 662 A.2d at 1360. Thus, to

satisfy § 12-309, an individual’s written notice only must “‘disclose both the factual cause of the

injury and a reasonable basis for anticipating legal action as a consequence.’” Kennedy v. Dist.

of Columbia, 519 F. Supp. 2d 50, 58 (D.D.C. 2007) (quoting Powell v. Dist. of Columbia, 645 F.

Supp. 66, 69 (D.D.C. 1986)); see also Washington v. Dist. of Columbia, 429 A.2d 1362, 1366




                                                 37
(D.C. 1981). “[P]recise exactness is not absolutely essential” in terms of both the factual basis

for the claims and the legal theories upon which the plaintiff may eventually seek relief. Shaw v.

Dist. of Columbia, No. 05-1284, 2006 WL 1274765, at *7 (D.D.C. May 8, 2006) (citations

omitted); Washington, 429 A.2d at 1365. Accordingly, “where the District is given facts that

would allow it to comprehend through a reasonable investigation the circumstances underlying

the claim, the notice is sufficient.” Enders, 4 A.3d at 468 (citations omitted).

       This relatively relaxed standard for the substance of the notice letter alleviates some of

the risk a potential plaintiff might face by having to provide the letter within six months of the

injury, including when administrative processes, such as those Cornish endured, may take much

longer. Cornish fails to appreciate this factor by suggesting that § 12-309 forces a party “to shift

to a litigation footing” while separately going through the administrative process. See Pl.’s

Mem. Opp’n Mot. Dismiss, ECF No. 19, at 46. But in fact, the lax standard for the content of

the notice distinguishes § 12-309 from a litigation setting in which greater specificity certainly

would be expected.

                 2. Statutory Interpretation and Pinkney v. District of Columbia

       Although both parties acknowledge that D.C. Code § 12-309 is strictly construed in favor

of the District, Cornish argues that an exception exists which tolls the six-month clock whenever

a potential claim against the District requires exhaustion of administrative remedies. For this

proposition, Cornish relies exclusively on Pinkney v. District of Columbia, 439 F. Supp. 519

(D.D.C. 1977). In Pinkney, the plaintiff, a former employee of Federal City College, which at

the time was a public institution operated by the District, challenged his dismissal based on

breach of contract and other theories. See id. at 522. The District argued that under § 12-309,

the plaintiff’s claims were barred because he waited fifteen months from the time of his




                                                 38
dismissal to furnish notice. See id. at 524. The plaintiff, however, argued that “the notice

requirement did not arise until after the ensuing administrative proceedings [challenging his

dismissal] had fully run their course,” thus giving him six months from the end of the

administrative process to provide notice, which he satisfied. Id.

       Ultimately, the district court sided with the plaintiff on the basis that

       [w]here exhaustion is a necessary condition to bringing suit, plaintiff is under a
       duty to provide appropriate government administrators with the first opportunity
       to review and pass on his claim. Not until administrative processing is finally
       conducted is the matter ripe for judicial intervention. And thus not until then has
       the matter accrued for the purpose of triggering the duty to furnish timely notice
       of prospective litigation.

Id. at 525. The Pinkney Court also found that tolling the notice requirement did not offend the

legislative purpose of § 12-309 because the plaintiff, through the administrative process,

“necessarily will alert the government to the existence of a potentially litigable dispute” and

“typically will provide government officials with a detailed explanation of his grievance.” Id.

But upon closer inspection, the Court is not convinced that Pinkney should be followed.

       First, and most importantly, nothing in the statutory language of D.C. Code § 12-309

provides that the six-month notice period should be tolled for any reason, let alone for purposes

of exhausting administrative remedies. “Statutory construction must begin with the language

employed by Congress and the assumption that the ordinary meaning of that language accurately

expresses the legislative purpose.” Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189,

194 (1985) (citing Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982)). The holding in

Pinkney therefore becomes problematic because it reads an exception into the statute that clearly

does not exist based on the plain language. Indeed, as was noted above, § 12-309 involves the

District’s waiver of its common law sovereign immunity, and statutes related to such a waiver

“must be construed strictly.” Brown v. Sec’y of Army, 78 F.3d 645, 649 (D.C. Cir. 1996)



                                                 39
(citation omitted). Though Pinkney does not directly expand the scope of the District’s waiver in

terms of the type of claims a party can bring, it does greatly alter the conditions under which the

District has agreed to be sued, namely that the District demands notice “within six months after

the injury or damage was sustained” before a lawsuit can proceed. See D.C. Code § 12-309.

       Second, District of Columbia courts consistently have refused to read similar exceptions

into § 12-309 because of the statute’s unambiguous language and the need for strict construction.

For example, in Doe by Fein v. District of Columbia, the D.C. Court of Appeals held that § 12-

309 does not permit equitable tolling, like might be allowed for a statute of limitations. See 697

A.2d 23, 29-30 (D.C. 1997). Upon reaching its conclusion, the court explained that “[s]uch a

strict interpretation of [§ 12-309] may yield an unfortunate result, but we are bound by our prior

decisions, which make inexorably clear that it is the role of the legislature, not this court, to

create exceptions to the statute.” Id. at 30-31. Similarly, the same court concluded in Gwinn v.

District of Columbia that “[i]n light of statutory language, express congressional intent and the

strict interpretation attendant to statutes in derogation of the common law, … the statutory

period of notice was not tolled during appellant’s minority.” 434 A.2d 1376, 1378-79 (D.C.

1981). And again, in Hill v. District of Columbia, the D.C. Court of Appeals refused to toll § 12-

309 when the claimant was hospitalized for five months after being severely injured in a fire

while strapped to a hospital bed undergoing treatment for alcoholism, which led him to miss the

six-month deadline. 345 A.2d 867, 868-70 (D.C. 1975).

       Third, though Pinkney relied on § 12-309’s policy rationales to reach its conclusion, the

Court is not persuaded that the case’s holding actually satisfies those rationales as adequately as

it suggests. A primary purpose of § 12-309 is “to permit the District to conduct an early

investigation of the facts and circumstances surrounding such claims.” Pitts v. Dist. of




                                                  40
Columbia, 391 A.2d 803, 807 (D.C. 1978). By allowing a claimant to delay notification until

after the administrative procedure concludes, the District is denied the opportunity to investigate

claims and preserve evidence for an indeterminate amount of time. See H.R. Rep. No. 2010, 72d

Cong., 2d Sess. 1 (1933) (explaining that the statutory predecessor of § 12-309 was enacted

under circumstances in which it was “impossible for the District of Columbia to obtain evidence

for use in litigation” due to filings near the end of the statute of limitations); see also Gwinn, 434

A.2d at 1378 (refusing to toll § 12-309 while party was a minor because the statute “was purely a

notice provision specifically designed to avoid, as applied to the District, the pitfalls of the

statute of limitations. Prior to its passage, suits could be brought within the statute of limitations

period but so long after the event giving rise to the claim that it was impossible for the District to

obtain evidence for use in dealing with such claims”).

       Fourth, as the District points out, § 12-309 requires notice to the Mayor, not to any other

District agency or administrative body. See Def.’s Reply Supp. Mot. Dismiss, ECF No. 22, at

17. Pinkney defended the exception to § 12-309 in part on the basis that “[w]here a claimant is

required to pursue his administrative remedies under the exhaustion doctrine, he necessarily will

alert the government to the existence of a potentially litigable dispute.” Pinkney, 439 F. Supp. at

525. In Pinkney, the plaintiff was exhausting his case through the D.C. Board of Higher

Education, and there was no suggestion that notice of his grievances ever found its way to the

Mayor at any time before the notice letter was sent. The concern about lack of actual notice to

the Mayor holds true here, where Cornish was exhausting the Title VII remedies through the

D.C. Courts’ administrative process and then the EEOC.

       Cornish also suggests that requiring notice under § 12-309 when she already was engaged

in these administrative processes would not improve actual notice to the District, but that misses




                                                  41
the point, as the statute — which, again, must be strictly construed in favor of the District —

clearly demands notice to the Mayor, not the District at large. Thus, the Court finds that the

legislative rationale behind § 12-309 is met only by strictly applying when the notice must be

sent and to whom it must be delivered. Accordingly, both the clear language of the statute and

the policy behind the statute require the Court to conclude that § 12-309 is not stayed while a

party exhausts administrative remedies, even if those remedies are required by law. Here,

Cornish suffered her last relevant injury on or around April 27, 2011, but she did not provide

notice until July 25, 2013, which is well beyond the six-month timeframe. The Court therefore

grants the District’s request for summary judgment on the remaining unliquidated damages

claims.

              3. Alternatively, Title VII Exhaustion Does Not Stay All Related Claims

          Alternatively, even if the Court accepted that § 12-309 was tolled while a claimant

exhausted required administrative remedies, that does not necessarily mean that all related

claims, specifically those not requiring exhaustion, are stayed simultaneously. Here, Cornish

was exhausting her Title VII remedies, but she also seeks a rule tolling § 12-309 for the common

law claims that arose from the same set of facts. In support, she relies principally on Brown v.

Bronx Cross Cnty. Med. Grp., 834 F. Supp. 105 (S.D.N.Y 1993), where the Southern District of

New York held that the statute of limitations for the plaintiff’s state law claims was tolled while

she exhausted the Title VII administrative remedies. Id. at 111. The Court finds that Brown

does not save Cornish’s claims for several reasons.

          First, Brown dealt with a statute of limitations question, not a notice provision like D.C.

Code § 12-309. Given that the D.C. Court of Appeals previously has rejected applying statute of

limitations doctrines to § 12-309, see Doe by Fein v. Dist. of Columbia, 697 A.2d 23, 29 (D.C.




                                                   42
1997) (refusing to apply equitable tolling to § 12-309); Dist. of Columbia v. Dunmore, 662 A.2d

1356, 1359 (D.C. 1995) (holding that the “discovery rule,” which applies to the statute of

limitations in D.C. Code § 12-301, does not apply to § 12-309), there appears to be little basis for

doing so in this situation. Second, even accepting that statute of limitations cases are applicable,

Brown is a Southern District of New York case, and though instructive, it holds no precedential

value over this Court. Third, it appears that Brown no longer represents good law within the

Second Circuit, as other district courts within that circuit, as well as the circuit court itself, have

disagreed with the decision by holding that related state law claims are not tolled during the

EEOC process. See, e.g., Ashjari v. Nynex Corp., No. 98-9411, 1999 WL 464977, at *1 (2d Cir.

June 22, 1999) (holding that an EEOC complaint does not toll the statute of limitations for

assault, battery, and false imprisonment claims); Walker v. Weight Watchers Int’l, 961 F. Supp.

32, 37 (E.D.N.Y. 1997) (refusing to follow Brown and holding that “[a]lthough plaintiff’s State

law claims arise from the same set of facts as her Title VII claims,” the EEOC process did not

toll the statute of limitations on those claims); Lamb v. CitiBank, N.A., No. 93 Civ. 2358, 1994

WL 497275, at *8 (S.D.N.Y. Sept. 12, 1994) (finding intentional infliction of emotional distress

claim distinct from Title VII and § 1983 claims, and refusing to toll the statute of limitations).

Fourth, Brown relied in large part on the federal district court’s lack of supplemental jurisdiction

over the state law claims until the Title VII claim was ripe, but such a circumstance is not in play

here because Cornish asserts other federal causes of action on which supplemental jurisdiction

could rest.

        Finally, cases in this Circuit have consistently held that exhaustion of Title VII remedies

does not toll the statute of limitations for factually related claims that do not independently




                                                   43
require exhaustion. 13 For example, in Carter v. District of Columbia, this Court held that the

plaintiff’s § 1981 and § 1983 claims were not tolled while exhausting the Title VII

administrative remedies. 14 F. Supp. 2d 97, 102 (D.D.C. 1998) (citing Johnson v. Ry. Express

Agency, Inc., 421 U.S. 454, 465-66 (1975) (explaining that plaintiffs with pending EEOC

charges should file their § 1981 claims and request a stay until the EEOC charges are resolved)).

The Court reached the same conclusion regarding a § 1981 claim in Peart v. Latham & Watkins

LLP, 985 F. Supp. 2d 72, 85 (D.D.C. 2013), and similarly, in Adams v. District of Columbia the

Court held that the plaintiff’s pursuit of Title VII administrative remedies did not toll the statute

of limitations for his Rehabilitation Act claims. 740 F. Supp. 2d 173, 183 (D.D.C. 2010). Here,

Cornish offers no reason for why a different conclusion should apply to her state law claims than

that which applies to claims under other federal statutes. 14 Thus, even if the Court found that §

12-309 was tolled while exhausting the required Title VII administrative remedies, it would be
       13
              An exception to this principle exists for related DCHRA claims, where Title VII
exhaustion automatically tolls the DCHRA statute of limitations. See, e.g., Ellis v. Georgetown
Univ. Hosp., 631 F. Supp. 2d 71, 78 (D.D.C. 2009) (explaining that the timely filing of a charge
with the EEOC, of which the D.C. Office of Human Rights receives a copy under a work-share
agreement between the federal and local agencies, suffices to toll the limitations for the DCHRA
claim); Ware v. Nicklin Assocs., Inc., 580 F. Supp. 2d 158, 164 (D.D.C. 2008) (same); Zelaya v.
UNICCO Serv. Co., 587 F. Supp. 2d 277, 283 (D.D.C. 2008) (same). But, as was explained
above, Cornish is not covered by the DCHRA, so those claims were dismissed.
       14
                 In addition to the Second Circuit cases cited above, courts in several other circuits
have reached a different holding than Brown. See, e.g., Juarez v. Ameritech Mobile Comm’ns,
Inc., 957 F.2d 317, 322-23 (7th Cir. 1992) (rejecting argument that tolling statute of limitations
on state law claims was consistent with the purpose and intent of Title VII); Arnold v. United
States, 816 F.2d 1306, 1312-13 (9th Cir. 1987) (finding that during Title VII exhaustion process,
the statute of limitations was not tolled for claims of assault, false imprisonment, and intentional
infliction of emotional distress); Kelley v. Wal-Mart Stores E., LP, No. CIV.A. 12-554, 2013 WL
608030, at *5-6 (S.D. Ala. Feb. 19, 2013) (holding that the statute of limitations for state law
claims of negligent and wanton hiring, training, and supervision was not tolled during the EEOC
proceedings because the state law claims required proof of different theories and facts than Title
VII claim); Lamb-Bowman v. Del. State Univ., No. CIV.A. 98-658, 1999 WL 1250889, at *10
(D. Del. Dec. 10, 1999) (holding that the “statute of limitations on Plaintiff’s state wrongful
discharge claim was not subject to tolling during the pendency of her EEOC administrative
claim”).


                                                  44
compelled to conclude that Cornish’s common law claims, which are the only remaining

unliquidated claims at issue, were not tolled at the same time. Accordingly, it remains the case

under this alternative theory that Cornish failed to provide timely notice under D.C. Code § 12-

309.


                                      V. CONCLUSION

       For the foregoing reasons, the District’s motion is GRANTED IN PART AND

DENIED IN PART. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: September 16, 2014                                         RUDOLPH CONTRERAS
                                                                  United States District Judge




                                               45
