                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

LELIA PROCTOR,

                          Plaintiff,
                                                                    Civil Action No. 13-00985
                          v.
                                                                    Judge Beryl A. Howell
DISTRICT OF COLUMBIA, et al.

                          Defendants.


                                       MEMORANDUM OPINION

        The plaintiff, Leila Proctor, proceeding pro se, brings numerous federal and state law

claims arising out of her termination from the District of Columbia Public Schools (“DCPS”).

Pending before the Court is the District of Columbia’s (the “District”) Motion to Dismiss or, in

the Alternative, for Summary Judgment, ECF No. 8 (“D.C.’s Mot. Dismiss”) and Attorney

General Eric Holder and U.S. Attorney Ronald Machen’s (“Federal Defendants”) Motion to

Dismiss Federal Defendants, ECF No. 20. 1 For the reasons stated below, the District’s motion

for summary judgment and the Federal Defendants’ motion to dismiss are granted.

I.      BACKGROUND

        Since 1977, the plaintiff served as a science teacher for DCPS. Am. Compl. at 3, ECF

No. 3. Her service came to an abrupt end when she received a Reduction in Force (“RIF”)



1
  On September 29, 2014, the Court issued an Order granting the District’s Motion to Dismiss or, in the Alternative,
for Summary Judgment. See Order (Sep. 29, 2014), ECF No. 25. The Order notes that this Memorandum Opinion
would follow in order to permit the Court to address both the District’s arguments and the Federal Defendants’
arguments in a single opinion. Following issuance of the Order dismissing the plaintiff’s claims with respect to the
District, the plaintiff filed a motion requesting discovery, see Memorandum Requesting Discovery, ECF No. 28, and
a motion seeking to amend the complaint, see Memorandum Requesting Time to Amend My Complaint, ECF No.
29. In light of the Court’s Order on September 29, 2014, the Court denies these motions as moot with respect to the
District. Moreover, because no amendment or discovery could save the plaintiff’s claims with respect to the Federal
Defendants, such motions are also denied.

                                                         1
notice, effective November 2, 2009. See Am. Comp. ¶ 32. The plaintiff alleges that she received

the RIF notice as a result of “blatant deliberate direct discrimination.” Am. Compl. ¶ 29.

         Between June and August 2009, DCPS hired approximately 934 new teachers, primarily

from organizations such as Teach for America and the New Teacher Project. Am. Compl. ¶ 32.

In August 2009, the plaintiff received a letter from DCPS instructing her to report to Woodson

Senior High 9th Grade Academy for the 2009 to 2010 school year. Am. Compl. ¶ 30. Upon

arrival, the plaintiff noticed that Woodson Senior High had retained three new science teachers

during the summer, two of whom were white women in their twenties and members of Teach for

America. Am. Compl. ¶31. On October 2, 2009, the plaintiff received an official notice that,

due to a DCPS budget shortfall, her position was being eliminated pursuant to a RIF. Pl. Mem.

Opp’n at 10, ECF No. 16. The plaintiff was one of approximately 266 teachers subject to the

RIF. Am. Compl. ¶ 32.

         On October 7, 2009, the plaintiff’s union, the Washington Teachers’ Union (“the

Union”), challenged the RIF in District of Columbia Superior Court. See Washington Teachers’

Union Local #6 v. Rhee et al., No. 2009 CA 007482B (October 9, 2009) ( “WTU Litigation”);

see also Defs.’ Mem. Supp. Mot. Dismiss and Summ. J. (“D.C.’s Mem.”), Ex. 2, Am. Compl.,

WTU Litigation (“WTU Amended Complaint”), ECF No. 8-2. As part of their challenge, the

Union alleged that the supposed “budget shortfall” was “clearly a pretext[]” so that DCPS could

discharge “the older, more senior teachers” without the need to follow the bargained-for

discharge procedures. See WTU Amended Complaint at 2–3. 2 On November 5, 2009, the court

heard testimony from five witnesses on behalf of the Union and two witnesses on behalf of the

defendant, the District of Columbia. D.C.’s Mem. Ex. 7, Order Den. Pl.’s Mot. Prelim. Inj. and


2
  In parallel, the plaintiff filed a petition for appeal with the Office of Employee Appeals concerning her pending
termination. She was represented in the petition by the Union. See D.C.’s Mem., Ex. 1.

                                                          2
Mot. TRO, WTU Litigation at 5 (“WTU Preliminary Injunction Ruling”), ECF No. 8-7. On

November 24, 2009, the court denied the Union’s request for a preliminary injunction

concluding that “some questionable RIF decisions do not establish that the RIF was a pretext for

a mass discharge, given the undisputed evidence that the DCPS budget was sufficient to support

the existing staff and the new teachers being hired for the current school year, until the Council

reduced the budget . . . .” Id. at 17. Three years later, on September 7, 2012, the Superior Court

adopted the findings and analysis from the preliminary injunction and dismissed the case. See

D.C.’s Mem., Ex. 3, Order Granting Mot. Dismiss, WTU Litigation (“WTU Motion to Dismiss

Ruling”), ECF No. 8-3. The court again determined that “the RIF . . . was indeed a RIF,” id. at

4, and concluded that “the facts in no way support” the Union’s theory “that DCPS had created

the shortfall by hiring too many new teachers in the spring and early summer of 2009 . . . as a

pretext for terminating more senior teachers . . . .” Id. at 4 n.3.

        Shortly after the Superior Court had denied the Union’s request for a preliminary

injunction, the plaintiff challenged, on December 5, 2009, her dismissal by filing a complaint

with the EEOC. See D.C.’s Mem., Ex. 5 (“December 5, 2009 EEOC Charge”), ECF No. 8-5.

Plaintiff checked two boxes marked “Age” and “Retaliation,” claiming that she “was

discriminated against based upon [her] age 69 and retaliated against in violation of the Age

Discrimination in Employment Act of 1967.” Id. Almost two years later, on October 21, 2011,

the plaintiff filed an addendum to the December 5, 2009 EEOC Charge, requesting that “the

charge of violation of my Civil Rights [be] added to [the] initial charge of discrimination (age

and race).” See Pl.’s Mem. Opp’n Mot. Dismiss, Ex. 2 at 2 (“October 21, 2011 EEOC

Addendum”), ECF No. 16-1. Despite the wording of the addendum, the original EEOC Charge

contained no mention of race discrimination. See December 5, 2009 EEOC Charge. Nearly



                                                   3
three years after the original charge, and one year after the addendum, on November 15, 2012,

the plaintiff filed an additional EEOC charge, this time checking three boxes for age, retaliation,

and race. See D.C.’s Mem., Ex. 6 (“November 15, 2012 EEOC Charge”), ECF No. 8-6. In this

charge, the plaintiff alleged that she “[had] been discriminated against based on [her] race

(Black).” Id.

         During the WTU Litigation and its aftermath, the media published numerous stories

regarding the RIF. In one story, appearing in the February 2010 issue of Fast Company, then-

DCPS Chancellor Michelle Rhee explained her justification for the RIF: “I got rid of teachers

who had hit children, who had had sex with children, who had missed 78 days of school. Why

wouldn’t we take those things into consideration?” See Pl.’s Mem. Reply Supp. Opp’n Def.’s

Mot. Dismiss at 12 (“Pl.’s Reply”), ECF No. 19. Several other news sources picked-up and

reported the quotes, both around the time of initial publication and in the years since. See id. at

13–15.

         On June 28, 2013, the plaintiff filed the instant action against two D.C. and two federal

government officials, DCPS, and the District asserting violations of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 (“ADEA”); race and age discrimination in violation of Title

VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. (“Title VI”); race

discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e et seq., (“Title VII”); a claim under 42 U.S.C. § 1983 for violations of Due Process; race

and age discrimination in violation of the D.C. Human Rights Act, D.C. Code § 2-14-1 et seq.

(“DCHRA”); wrongful discharge; defamation; and fraudulent misrepresentation. 3 See Am.

Compl. at 1–2, 24.


3
 The plaintiff’s complaint charges the following defendants: (1) Kaya Henderson, Chancellor, DCPS, (2) Michelle
Rhee, former Chancellor, DCPS, (3) DCPS, (4) the District of Columbia, (5) Ronald Machen, “the U.S. Attorney

                                                       4
II.      LEGAL STANDARD

         A.        Motion to Dismiss for Lack of Subject Matter Jurisdiction under Federal
                   Rule of Civil Procedure 12(b)(1)

         “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, 133 S. Ct. 1059 (2013) (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, federal courts

are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC, 548 F.3d 116,

120 (D.C. Cir. 2008), and, therefore, have “an affirmative obligation ‘to consider whether the

constitutional and statutory authority exist for us to hear each dispute.’” James Madison Ltd. by

Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of

Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter jurisdiction over a case,

the court must dismiss it. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); FED. R. CIV. P.

12(h)(3).

         When considering a motion to dismiss under Rule 12(b)(1), the court must accept as true

all uncontroverted material factual allegations contained in the complaint and “‘construe the

complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the

facts alleged’ and upon such facts determine jurisdictional questions.” Am. Nat'l Ins. Co. v.

FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972

(D.C. Cir. 2005) (quoting Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004))). The court

General for the District of Columbia,” and (6) Eric Holder, the U.S. Attorney General. In this circumstance, “a suit
against a state official in his or her official capacity is not a suit against the official but rather is a suit against the
official's office.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Atchinson v. District of Columbia, 73
F.3d 418, 424 (D.C. Cir. 1996) (“When sued in their official capacities, government officials are not personally
liable for damages.”) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)); Jefferies v. District of Columbia, 917
F.Supp.2d 10, 29 (D.D.C. 2013) (“A suit against a District of Columbia official in her official capacity is equivalent
to a suit against the municipality itself.”) (citations and internal quotation marks omitted); Kranz v. Gray, 842
F.Supp.2d 13, 16 n.1 (D.D.C. 2012). The Court, therefore, will substitute the District of Columbia as the defendant
in place of defendants 1–3, listed above. See Kranz, 842 F.Supp.2d at 16 n.1; Waker v. Brown, 754 F.Supp.2d 62,
65 (D.D.C. 2010) (substituting the District of Columbia for the mayor, police chief, and Department of Corrections);
Henneghan v. D.C. Pub. Schs., 597 F.Supp.2d 34, 37 (D.D.C. 2009) (substituting the District of Columbia for
DCPS).

                                                             5
need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported

by facts alleged in the complaint or amount merely to legal conclusions. See Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Moreover, in evaluating subject matter

jurisdiction, the court, when necessary, may “‘undertake an independent investigation to assure

itself of its own subject matter jurisdiction,’” Settles v. United States Parole Comm'n, 429 F.3d

1098, 1107–08 (D.C. Cir. 2005) (quoting Haase v. Sessions, 835 F.2d 902, 908 (D.C. Cir.

1987)), and consider facts developed in the record beyond the complaint, id. See also Herbert v.

National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (in disposing of motion to

dismiss for lack of subject matter jurisdiction, “where necessary, the court may consider the

complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court's resolution of disputed facts.”); Alliance for

Democracy v. FEC, 362 F. Supp. 2d 138, 142 (D.D.C. 2005). The burden of establishing any

jurisdictional facts to support the exercise of the subject matter jurisdiction rests on the plaintiff.

See Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Thomson v. Gaskill, 315 U.S. 442, 446

(1942); Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).

        B.      Motion to Dismiss for Failure to State a Claim under Federal Rule of Civil
                Procedure 12(b)(6)

        Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled to relief,” to encourage brevity

and, at the same time, “give the defendant fair notice of what the … claim is and the grounds

upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipses in

original; internal quotations and citations omitted); Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 319 (2007). The Supreme Court has cautioned that although “Rule 8 marks a

notable and generous departure from the hyper-technical, code-pleading regime of a prior era, []


                                                   6
it does not unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To survive a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), the “complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. Moss,

134 S. Ct. 2056, 2067 (2014) (quoting Iqbal, 556 U.S. at 678). A claim is facially plausible

when the plaintiff pleads factual content that is more than “‘merely consistent with' a defendant's

liability,” but allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” id. at 678 (citing Twombly, 550 U.S. at 556); see also Rudder v. Williams,

666 F.3d 790, 794 (D.C. Cir. 2012). Although “detailed factual allegations” are not required to

withstand a Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” or

“formulaic recitation of the elements of a cause of action” to provide “grounds” of “entitle[ment]

to relief,” Twombly, 550 U.S. at 555 (alteration in original), and “nudge[ ] [the] claims across the

line from conceivable to plausible,” id. at 570. Thus, “a complaint [does not] suffice if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557).

       In considering a motion to dismiss for failure to plead a claim on which relief can be

granted, the court must consider the complaint in its entirety, accepting all factual allegations in

the complaint as true, even if doubtful in fact. Twombly at 555; Sissel v. United States HHS,

2014 U.S. App. LEXIS 14397 (D.C. Cir. 2014) (in considering Rule 12(b)(6) motion, the “court

assumes the truth of all well-pleaded factual allegations in the complaint and construes

reasonable inferences from those allegations in the plaintiff's favor, but is not required to accept

the plaintiff's legal conclusions as correct”) (internal quotations and citations omitted). In

addition, courts may “ordinarily examine” other sources “when ruling on Rule 12(b)(6) motions



                                                  7
to dismiss, in particular, documents incorporated the complaint by reference, and matters of

which a court may take judicial notice.” Tellabs, Inc., 551 U.S. 322 (citing Leatherman v.

Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)); see

also English v. District of Columbia, 717 F.3d 968, 971 (D.C. Cir. 2013).

         C.       Conversion to Motion for Summary Judgment

         The District has moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), for

dismissal, or, alternatively, for summary judgment, pursuant to Federal Rule of Civil Procedure

56 on all of the plaintiff’s claims. See D.C.’s Mot. Dismiss. Federal Rules of Civil Procedure

12(d) provides that if “matters outside the pleadings are presented to and not excluded by the

court, the motion must be treated as one for summary judgment,” and if a motion is so converted,

“[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to

the motion.” 4 Fed. R. Civ. P. 12(d).

         The Circuit reviews a district court's decision to convert a motion to dismiss into a

summary judgment motion for an abuse of discretion. Colbert v. Potter, 471 F.3d 158, 164–65

(D.C. Cir. 2006); Flynn v. Tiede–Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (“The

decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to

the sound discretion of the trial court.”). In using this discretion, “the reviewing court must


4
  In the instant action, because the plaintiff is proceeding pro se, she was provided with an order on December 11,
2013, outlining the requirements for responding both to a motion under Federal Rule of Civil Procedure 12(b)(6)
and under Federal Rule of Civil Procedure 56. See Dec. 11, 2013 Order, ECF No. 9; see also Fox v. Strickland, 837
F.2d 507, 509 (D.C. Cir. 1988) (holding that a pro se party must be advised of consequences of failing to respond to
a dispositive motion, including “an explanation that the failure to respond . . . may result in the district court
granting the motion and dismissing the case”); Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (holding that a pro
se party must be advised, when motion to dismiss may be converted to motion for summary judgment, that “‘any
factual assertion in the movant’s affidavits will be accepted by the district judge as being true unless [the opposing
party] submits his own affidavits or other documentary evidence contradicting the assertion’” (quoting Lewis v.
Faulkner, 689 F.2d 100, 102 (7th Cir. 1982))). This order, commonly referred to as a Fox/Neal Order, both alerted
the plaintiff of the need to respond to the District’s motion and of the need to provide supporting factual
information. After four requests for an extension of time, the plaintiff filed her opposition to the District’s motion to
dismiss on June 12, 2014, or approximately seven months after receiving notice of the need to respond and of the
need to provide supporting factual information.

                                                           8
assure itself that summary judgment treatment would be fair to both parties.” Tele-Commc'ns of

Key W., Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). Therefore, “[i]n converting

the motion, district courts must provide the parties with notice and an opportunity to present

evidence in support of their respective positions.” Kim v. United States, 632 F.3d 713, 719 (D.C.

Cir. 2011). When the defendant expressly moves for summary judgment in the alternative to a

motion to dismiss before discovery has been conducted, and relies upon extra-pleading material,

to which the plaintiff has an opportunity to respond, the Court need not issue separate prior

notice of the conversion. See Colbert, 471 F.3d at 168; see also Mount v. Johnson, No. 12-cv-

1276, 2014 U.S. Dist. LEXIS 49613, at *20 (D.D.C. Apr. 10, 2014); Pintro v. Wheeler, No. 13-

cv-0231, 2014 U.S. Dist. LEXIS 45092, at *13 n.5 (D.D.C. Apr. 2, 2014) (finding prior notice of

conversion unnecessary “where the plaintiff is represented by counsel and has responded to the

submission of exhibits with evidence of her own.”); Hamilton v. Geithner, 743 F. Supp. 2d 1, 8

(D.D.C. 2010) (Walton, J.), aff'd, 666 F.3d 1344 (D.C. Cir. 2012).

       If extra-pleading evidence “is comprehensive and will enable a rational determination of

a summary judgment motion,” a district court will be more likely to convert to summary

judgment, but “when it is scanty, incomplete, or inconclusive,” the district court is more likely to

decline to convert to summary judgment and permit further discovery. See 5C Charles Alan

Wright, et al., Federal Practice & Procedure § 1366 (3d ed. 2012). Thus, there is no bright-line

threshold for conversion under Rule 12(d); the touchstone is fairness and whether consideration

of summary judgment is appropriate, in light of the nature of the extra-pleading material

submitted, the parties’ access to sources of proof, the parties’ concomitant opportunity to present

evidence in support or opposition to summary judgment and the non-moving party’s need, as

reflected in a sufficiently particularized request, under Federal Rule of Civil Procedure 56(d), for



                                                 9
discovery in order to respond adequately. In light of the extra-pleading evidence that has been

submitted, and the ample time afforded the parties to access sources of proof, the Court will

consider matters beyond the pleadings and treat the District’s motion as one for summary

judgment. 5

         D.       Summary Judgment Standard

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is properly

granted against a party who, “after adequate time for discovery and upon motion, . . . fails to

make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (same). The burden is on

the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in

dispute. Celotex, 477 U.S. at 323; Hendricks v. Geithner, 568 F.3d 1008, 1012 (D.C. Cir. 2009).

“Material facts are those that might affect the outcome of the suit under governing law; genuine

issues are those in which the evidence before the court is such that a reasonable trier of fact could

find for the moving party.” Hendricks, 568 F.3d at 1012; see also Holcomb v. Powell, 433 F.3d

880, 895 (D.C. Cir. 2006) (“A fact is ‘material’ if a dispute over it might affect the outcome of a

suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the

5
  In any event, even if the Court did not treat the motion as a motion for summary judgment, the extra-pleading
materials submitted by the parties would still be considered since these materials consist primarily of documents
over which the Court may take judicial notice because they are publically filed as part of court proceedings or are
published reports in the media. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)
(“In determining whether a complaint fails to state a claim, we may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the complaint and matters of which we may take judicial
notice.”). As discussed below, the defendants bear the burden of proof in regards to several of the defenses asserted
in this matter (e.g., failure to exhaust administrative remedies) and have therefore submitted materials outside of the
pleadings in support of their defense, including materials filed by the plaintiff with the EEOC. The defenses at issue
consist of pure conclusions of law and require no judicial fact-finding.

                                                          10
summary judgment determination.” (citing Anderson v. Liberty Lobby, Inc. (Liberty Lobby), 477

U.S. 242, 248 (1986))).

       In ruling on a motion for summary judgment, the Court must draw all justifiable

inferences in favor of the nonmoving party and shall accept the nonmoving party’s evidence as

true. Liberty Lobby, 477 U.S. at 255; see also Grosdidier v. Broad. Bd. of Governors, 709 F.3d

19, 23–24 (D.C. Cir. 2013). The Court is only required to consider the materials explicitly cited

by the parties, but may on its own accord consider “other materials in the record.” FED. R. CIV.

P. 56(c)(3). The nonmoving party must establish more than “[t]he mere existence of a scintilla

of evidence in support of [its] position,” Liberty Lobby, 477 U.S. at 252, and cannot rely on mere

allegations or conclusory statements, see Ass’n of Flight Attendants v. Dep’t of Transp., 564 F.3d

462, 465 (D.C. Cir. 2009); Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir. 2006); Veitch v.

England, 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring); Greene v. Dalton, 164

F.3d 671, 675 (D.C. Cir. 1999); accord FED. R. CIV. P. 56(e). Rather, the nonmoving party must

present specific facts that would enable a reasonable jury to find in its favor. See, e.g., FED. R.

CIV. P. 56(c)(1); Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011)

(noting that at summary judgment stage, plaintiff “can no longer rest on such ‘mere allegations,’

but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ . . . which for purposes of the

summary judgment motion will be taken to be true.’” (quoting Sierra Club v. EPA, 292 F.3d 895,

898–99 (D.C. Cir. 2002) (ellipsis and second alteration in original))). “If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby,

477 U.S. at 249–50 (citations omitted).




                                                  11
III.     DISCUSSION

         Pending before the Court is the District’s motion for summary judgment and the Federal

Defendants’ motion to dismiss. The Court will first address the District’s motion before turning

to the Federal Defendants’ motion.

         A.       District of Columbia’s Motion for Summary Judgment

          The District argues that the plaintiff’s claims fail as a result of: (1) the doctrine of issue

preclusion; 6 (2) the plaintiff’s failure to exhaust her administrative remedies; and (3) the

applicable statute of limitations. 7 Each of these arguments is addressed seriatim below.

                  1.       Issue Preclusion

         “The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892

(2008). Claim preclusion “forecloses ‘successive litigation of the very same claim, whether or

not relitigation of the claim raises the same issues as the earlier suit.’” Id. (quoting New

Hampshire v. Maine, 532 U.S. 742, 748 (2001)). In contrast, issue preclusion, which was “once

known as ‘collateral estoppel’ and ‘direct estoppel,’” bars “successive litigation of an issue of

fact or law actually litigated and resolved in a valid court determination essential to the prior

6
  Additionally, the District notes, in a footnote, that the WTU Litigation is currently on appeal before the D.C. Court
of Appeals, and suggests that the suit could be dismissed “pursuant to the theory of parallel litigation.” D.C.’s Mem.
at 12 n.2 (citing Holland v. ACL Transp. Serv., LLC, 815 F. Supp.2d 46, 55 (D.D.C. 2011) (“District courts have the
discretion to . . . dismiss a pending suit when parallel litigation that is factually related is ongoing in another
forum.”). Nevertheless, “the federal rule and the rule in this circuit is that collateral estoppel may be applied to a
trial court finding even while the judgment is pending on appeal.” S. Pac. Commc'ns Co. v. Am. Tel. & Tel. Co., 740
F.2d 1011, 1018 (D.C. Cir. 1984). Accordingly, the Court declines the District’s invitation to dismiss the suit on
those grounds.
7
  In a footnote, the District asserts that, to the extent the plaintiff has alleged a claim of age discrimination in
violation of Title VII, the claim should be dismissed. The District argues that the ADEA is the “exclusive federal
remedy for age discrimination.” See D.C.’s Mem. at 6 n.1. The Court agrees. In this Circuit, “the ADEA provides
the exclusive remedy for a federal employee who claims age discrimination.” See Chennareddy v. Bowsher, 935
F.2d 315, 318 (D.C. Cir. 1991); see also Ward v. Kennard, 133 F. Supp. 2d 54, 58 (D.D.C. 2000) (dismissing claims
“because the plaintiff fails to assert these age-discrimination claims under the ADEA”). To the extent the plaintiff
has alleged an age discrimination claim as a violation of Title VII, this claim is dismissed.



                                                          12
judgment, even if the issue recurs in the context of a different claim.” Id. at 892 & n.5 (internal

citations and quotation marks omitted); see also U.S. Postal Serv. v. Am. Postal Workers Union,

553 F.3d 686, 696 (D.C. Cir. 2009) (“Under collateral estoppel, once a court has decided an issue

of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a

suit on a different cause of action involving a party to the first case.”) (internal citation and

quotation marks omitted). “The objective of the doctrine of issue preclusion . . . is judicial

finality; it fulfills ‘the purpose for which civil courts had been established, the conclusive

resolution of disputes within their jurisdiction.’” Yamaha Corp. of Am. v. United States, 961

F.2d 245, 254 (D.C. Cir. 1992) (quoting Kremer v. Chemical Constr. Corp. 456 U.S. 461, 467

n.6 (1982)).

        Three elements must be satisfied for a final judgment to preclude litigation of an issue in

a subsequent case: “[1], the same issue now being raised must have been contested by the parties

and submitted for judicial determination in the prior case[; 2] the issue must have been actually

and necessarily determined by a court of competent jurisdiction in that prior case[; and] [3]

preclusion in the second case must not work a basic unfairness to the party bound by the first

determination.” Martin v. Dep't of Justice, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha,

961 F.2d at 254 (D.C. Cir. 1992)) (alterations in original). Each of these requirements is met in

the instant case and is addressed below.

                        a)      Contesting the Same Issue

        For purposes of issue preclusion, “once an issue is raised and determined, it is the entire

issue that is precluded, not just the particular arguments raised in support of it in the first place.”

Yamaha, 961 F.2d at 254 (emphasis in original). Moreover, “[p]reclusion cannot be avoided

simply by offering evidence in the second proceeding that could have been admitted, but was

not, in the first.” Id. at 254–55. The District argues that both the WTU Litigation and the instant
                                                  13
litigation directly confront the issue of whether “the RIF was . . . a pretext to get rid of older

teachers and replace them with younger teachers.” D.C.’s Mem. at 8. The plaintiff disagrees,

and argues that “there was absolutely no litigation on age discrimination” in the WTU litigation

and that the “WTU’s case was about the [Collective Bargaining Agreement].” See Pl.’s Mem.

Opp’n at 21. An analysis of the complaint filed in the WTU litigation, the amended complaint

filed in the current action, and the opinions of the D.C. Superior Court reveal the plaintiff’s

argument to be without merit.

        In the WTU Litigation, the Union alleged that in light of the 934 teachers hired in the

spring and summer of 2009, the “DCPS’ attempt to disguise this mass discharge [of 266

teachers] as a ‘RIF’ caused by a ‘budget shortfall’ [was] clearly a pretext[.]” WTU Am. Compl.

at 2. Here, the plaintiff has alleged that she was fired “under the pretext of a RIF,” Am. Compl.

¶ 32, after Chancellor Rhee “decided to have a pretend shortage of money,” Am. Compl. ¶ 34,

which was evidenced by the hiring of 934 new teachers, see Compl. ¶ 32. The D.C. Superior

Court rejected the argument that the RIF was a pretext in both its ruling on the preliminary

injunction and its ruling on the motion to dismiss. See WTU Preliminary Injunction Ruling at 17

(concluding that the plaintiffs did “not establish that the RIF was a pretext for a mass discharge,

given the undisputed evidence that the DCPS budget was sufficient to support the existing staff

and the new teachers being hired for the current school year, until the Council reduced the

budget . . . .”); WTU Motion to Dismiss Ruling at 4 & n.3 (concluding that “the RIF was indeed

a RIF” and that “the facts in no way support” the Union’s theory “that DCPS had created the

shortfall by hiring too many new teachers in the spring and early summer of 2009 . . . as a pretext

for terminating more senior teachers . . . .”).




                                                  14
         Despite the Superior Court’s ruling, the plaintiff argues that the court did not consider the

fact that she was allegedly paid by the U.S. Department of the Treasury rather than by the

District and that, therefore, her employment could not have contributed to any DCPS budgetary

shortage. See Am. Compl. ¶ 55; Pl.’s Mem. Opp’n. at 2, 10. 8 Regardless of the accuracy of this

allegation, the plaintiff’s claim fails. The plaintiff’s allegation simply attempts to pour new wine

into old wine skins. Issue preclusion forbids precisely this type of argumentation. See Yamaha,

961 F.2d at 254–55 (“Preclusion cannot be avoided simply by offering evidence in the second

proceeding that could have been admitted, but was not, in the first.”). In the WTU Litigation, the

court afforded the parties ample opportunity to present evidence of pretext and, indeed, the

Union solicited testimony from five separate witnesses, including testimony by a former special

education teacher and a guidance counselor. See WTU Preliminary Injunction Ruling at 5.

Thus, the Union had the opportunity to present the evidence the plaintiff now alleges, but, for

whatever strategic or other reason, the Union decided to put forth alternative evidence on the

issue of pretext, and the court ruled against them. This Court will not upset this judicial

determination. See Otherson v. Dep’t of Justice, 711 F.2d 267, 273 (D.C. Cir. 1983) (“[I]ssue

preclusion aims to avert needless relitigation and disturbance of repose . . . .”).

         Accordingly, the Court finds that the same issue presented in the WTU litigation is now

before the Court in the instant litigation—whether the RIF was a pretext to discharge senior

teachers.




8
  The plaintiff has cited no credible evidence in support of this allegation. Nevertheless, the Court notes that both
the District and the Federal Government (through the Department of Treasury) share responsibility for the DCPS
retirement system, see District of Columbia Retirement Protection Act of 1997, Public Law 105–33, § 11011, 111
Stat. 251; 31 C.F.R. § 29.301, and that the plaintiff may be referencing that a portion of her retirement income is
paid for by the Federal Government.

                                                          15
                        b)      Parties Requirement

        Issue preclusion may not be asserted against one who was not a party in the first case.

See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971) (“Some

litigants—those who never appeared in a prior action—may not be collaterally estopped without

litigating the issue.”). “The rules that identify the parties affected by issue preclusion . . . are

often described as rules of ‘privity’ and ‘mutuality.’” 18 Charles Alan Wright, et al., FEDERAL

PRACTICE & PROCEDURE: JURISDICTION § 4416 (2d ed.). “The term privity signifies that the

relationship between two or more persons is such that a judgment involving one of them may

justly be conclusive upon the others, although those others were not party to the lawsuit.” Gill

and Dufus Servs., Inc., v. A. M. Nural Islam, 675 F.2d 404, 405 (D.C. Cir. 1982). Union

members are considered to be in privity with their union for purposes of res judicata. See Adams

v. Pension Ben. Guar. Corp., 332 F. Supp. 2d 231, 239 n.8 (D.D.C. 2004) (“Courts have

recognized that unions are in privity with their membership for the purposes of res judicata.”);

Heade v. Washington Metro. Area Transit Auth., No. 09-02460, 2010 WL 938462, at *2 n.2

(D.D.C. Mar. 12, 2010) (“Plaintiff's contention that the arbitration's findings do not bar her claim

because she was not a party to that proceeding is also without merit. . . . [since] she was in

privity with her union.”); see also Hitchens v. County of Montgomery, 98 F. App'x 106, 114 (3d

Cir. 2004) (“[C]ourts have held union members to be in privity with the union and have held that

a decision against a union can bind union members in a subsequent action.” (citing Handley v.

Phillips, 715 F. Supp. 657, 666–67 (M.D. Pa. 1989); Stokes v. Bd. of Tr. of Temple Univ., 683 F.

Supp. 498, 502 (E.D. Pa. 1988)); Monahan v. Dep’t. of Corr., 214 F.3d 275, 285–86 (2d Cir.

2000) (recognizing that union members’ “interests [are] adequately represented” by the union);

Meza v. Gen. Battery Corp., 908 F.2d 1262, 1268 (5th Cir. 1990) (“Federal courts have long



                                                   16
recognized that individual members of labor unions . . . can be bound by judgments in suits

brought by the union . . . .”).

        The plaintiff does not dispute that she was a member of the Union, and the record bears

this out. Indeed, the plaintiff was represented by Union counsel before the District of Columbia

Office of Employee Appeals. See D.C.’s Mem., Ex. 1. Accordingly, the Court finds that the

plaintiff was a party to the prior lawsuit.

                        c)        Actually and Necessarily Determined by a Court of Competent
                                  Jurisdiction Requirement

        For issue preclusion to apply, the issue must also have been “actually and necessarily

determined” by a “court of competent jurisdiction.” Martin v. Dep't of Justice, 488 F.3d 446,

454 (D.C. Cir. 2007). “A determination ranks as necessary or essential only when the final

outcome hinges on it.” Bobby v. Bies, 556 U.S. 825, 835 (2009). In the WTU Litigation, the

plaintiffs argued that “the RIF was a subterfuge for an improper mass discharge, which would be

arbitrable under the [Collective Bargaining Agreement].” WTU Preliminary Injunction Ruling at

19. Accordingly, it was necessary for the court to determine whether the RIF was a pretext— in

which case the removal of the teachers was improper because it was not conducted pursuant to

the Collective Bargaining Agreement—or whether the RIF resulted from budgetary concerns.

The court’s determination was explicit: “[T]he Court finds that the plaintiff has shown virtually

no likelihood of success on the merits of its claim that the RIF was not really a RIF and instead

should be considered a mass discharge.” Id. This finding was confirmed subsequently when the

court dismissed the case. See WTU Motion to Dismiss Ruling at 4 (“The Court therefore finds

that based on the undisputed material facts in the record, the RIF was undertaken in the fall of

2009 in response to a budget shortfall, and it was indeed a RIF.”). The issue of whether the RIF

was a pretext for a mass discharge of teachers was necessarily determined in the prior litigation,


                                                  17
and resolved in favor of DCPS. Moreover, the D.C. Superior Court was competent to make this

determination. See Crabbe v. Nat’l Self Serv. Storage, 955 F. Supp. 2d 1, 4 (D.D.C. 2013);

Johnson v. Sullivan, 748 F. Supp. 2d 1, 12 (D.D.C. 2010) (“Without question, the Superior Court

is a court of competent jurisdiction . . . .”). Accordingly, and consistent with the above, the

Court finds that the issue presented—whether the RIF was a pretext to discharge senior

teachers—was actually and necessarily determined by a court of competent jurisdiction in a prior

proceeding.

                        d)      No Basic Unfairness Requirement

        In examining “unfairness” for the purposes of issue preclusion, the D.C. Circuit has been

primarily concerned with whether “the losing party clearly lacked any incentive to litigate the

point in the first trial, but the stakes of the second trial are of a vastly greater magnitude.”

Yamaha, 961 F.2d at 254; see also Venetian Casino Resort, L.L.C. v. N.L.R.B., 484 F.3d 601,

610 (D.C. Cir. 2007) (“We can discern no difference between the incentives that the Venetian

may have had in its Ninth Circuit litigation and its incentives here.”); Beverly Health & Rehab.

Servs., Inc. v. N.L.R.B., 317 F.3d 316, 323 (D.C. Cir. 2003) (“Beverly had every incentive to—

and did—litigate the issue before the Sixth Circuit so that there is no unfairness in holding

Beverly to the result reached there.”). If the other requirements of issue preclusion are met,

“courts should refuse to give the first judgment preclusive effect on grounds that the party lacked

adequate incentive to litigate in the first proceeding only upon a ‘compelling showing of

unfairness.’” Otherson, 711 F.2d at 277.

        The Union had significant incentives to litigate the original action as the Union faced the

prospect of losing 266 teachers. Moreover, the Union was able to bring significant resources to

bear in pursuit of their litigation. See Monahan, 214 F.3d at 287-88 (finding that it would not be

unfair to collaterally estop union members because, in part, “an association suing to vindicate the
                                                   18
interests of its members can draw upon a pre-existing reservoir of expertise and capital. . . [and]

often have specialized expertise and research resources relating to the subject matter of the

lawsuit that individual plaintiffs lack.” (quoting Int’l Union, United Auto., Aerospace, and Agric.

Implement Workers of Am. v. Brock, 477 U.S. 274, 289 (1986))). Accordingly, because of the

significant stakes of the prior litigation, and the resources available to the Union, the Court

determines that it would not be unfair to impose issue preclusion in this case.

                        e)      Application of Issue Preclusion to the Instant Case

        As discussed above, all the requirements for issue preclusion are met in the instant action.

The Court now turns to the impact of that determination on the instant case. The District argues

that “the doctrine of issue preclusion bars the Plaintiff from bringing any claim regarding age

discrimination.” D.C.’s Mem. at 6. This argument muddles the related but distinct doctrines of

issue preclusion and claim preclusion. While claim preclusion “foreclos[es] successive litigation

of the very same claim,” issue preclusion by contrast “refers to the effect of a prior judgment in

foreclosing successive litigation of an issue . . . .” New Hampshire v. Maine, 532 U.S. 742, 748–

49 (2001) (emphasis added). Therefore, issue preclusion cannot bar a subsequent claim.

Nevertheless, issue preclusion may conclusively establish facts such that the plaintiff’s claim

must fail as a matter of law. Such is the case here.

        The plaintiff’s ADEA and DCHRA claims both require proof that DCPS’s stated

justification for her removal was pretextual. See Barnett v. PA Consulting Grp., Inc., 715 F.3d

354, 358 (D.C. Cir. 2013) (holding that to determine whether “the employer intentionally

discriminated against the employee” the court examines “if there is evidence from which a

reasonable jury could find that the employer’s stated reason for the firing is pretext . . . .”); Vatel

v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011) (“We analyze discrimination

claims under the D.C. Human Rights Act in the same way that we analyze discrimination claims
                                                  19
under the federal anti-discrimination laws. . . . Once an employer has offered a legitimate reason

for an employee's dismissal, the question at the summary judgment stage is whether the

employee has ‘produced sufficient evidence for a reasonable jury to find that the employer's

asserted non-discriminatory reason was not the actual reason . . . .’” (internal citations omitted)).

The prior WTU Litigation already determined this precise issue: “The Court therefore finds that

. . . the RIF was undertaken in the fall of 2009 in response to a budget shortfall, and it was indeed

a RIF.” WTU Motion to Dismiss Ruling at 4. As a result, the plaintiff’s claim of age

discrimination under the ADEA and the DCHRA must fail as a matter of law. The District’s

motion is granted and summary judgment shall be entered in favor of the District as it relates to

the plaintiff’s age discrimination claims.

               2.      Administrative Exhaustion

       The District next argues that the plaintiff failed to exhaust her administrative remedies

with respect to her Title VII race discrimination claim and that, therefore, her claim must fail.

See D.C.’s Mem. at 12. The Court agrees.

       Under Title VII, a plaintiff must exhaust all administrative remedies. See United Air

Lines, Inc. v. Evans, 431 U.S. 553, 555 n.4 (1977); McDonnell Douglas Corp. v. Green, 411 U.S.

792, 798, (1973); Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir.

1998) (“Before suing under . . . Title VII, an aggrieved party must exhaust his administrative

remedies . . . .”); see also 42 U.S.C. § 2000e–5(f)(1). Title VII requires “aggrieved persons” to

file a charge with the EEOC within 180 days after the alleged unlawful employment practice

occurred, but this period is extended to 300 days when the person has initially instituted a

procedure with a state or local agency. 42 U.S.C. § 2000e–5(e)(1). In the District of Columbia,




                                                 20
a plaintiff has 300 days to file a charge with the EEOC. See Carter v. George Washington Univ.,

387 F.3d 872, 879 (D.C. Cir. 2004).

       “A Title VII lawsuit following the EEOC charge is limited in scope to claims that are

‘like or reasonably related to the allegations of the charge and growing out of such allegations.’”

Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (quoting Cheek v. Western and S. Life

Ins. Co., 31 F.3d 497, 500 (7th Cir.1994)). This provides “the charged party notice of the claim

and ‘narrow[s] the issues for prompt adjudication and decision.’” Park, 71 F.3d at 907 (quoting

Laffey v. Nw. Airlines, Inc., 567 F.2d 429, 472 n.325). A plaintiff may amend an EEOC charge

“to cure technical defects or omissions” or to allege “additional acts which constitute unlawful

employment discrimination.” 29 C.F.R. §1601.12(b). Such amendments on the same subject

matter as the original charge will be deemed to “relate back to the date the charge was first

received,” thereby permitting the amended allegations to potentially fall within the 300 day

requirement. Id. Courts in this district have not permitted suits to proceed, however, where a

plaintiff files a suit alleging a new substantive theory of discrimination that was not addressed in

the original EEOC charge or that was only addressed in an amendment that occurred outside the

300-day window. See, e.g., Scott v. Dist. Hosp. Partners, L.P., No. 13-0600, 2014 WL 3702855,

at *4 (D.D.C. July 28, 2014) (“Because disability discrimination is a new substantive theory,

separate from her 2011 EEOC charge of age and race discrimination, it does not grow out of the

subject matter of the original charge.”); Marshall v. Honeywell Tech. Solutions, Inc., 536 F.

Supp. 2d 59, 67 (D.D.C. 2008) (“[W]here administrative complaints for discrimination based on

sex, race and retaliation do not mention critical facts relevant to an age discrimination claim, the

later filed age claims do not relate back.”); Thrash v. Library of Cong., No. 04-0634, 2006 WL

463251, at *6 (D.D.C. Feb. 24, 2006) (“[T]he court determines that the defendant did not have



                                                 21
notice of the plaintiff’s charges of age discrimination for a refusal to transfer the plaintiff based

on her administrative charges of race and gender discrimination.”); Wilson v. Commc'ns Workers

of Am., 767 F.Supp. 304, 306 (D.D.C. 1991) (holding that because the “amendment added a new

substantive theory which is fundamentally distinct from the original race discrimination

charge[,]” it “did not relate to, or grow out of [the plaintiff's] original EEOC charge”).

       For Title VII claims, the failure to properly exhaust administrative remedies is an

affirmative defense and the defendant bears the burden of proof. Bowden v. United States, 106

F.3d 433, 437 (D.C. Cir. 1997); Colbert v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Ellison v.

Napolitano, 901 F. Supp. 2d 118, 124 (D.D.C. 2012); Dahlman v. Am. Ass'n of Retired Persons,

791 F. Supp. 2d 68, 76 (D.D.C. 2011) (collecting cases). If the defendant meets this burden, then

the burden shifts, and the plaintiff must “plead[] and prov[e] facts supporting equitable

avoidance of the defense.” Bowden, 106 F.3d at 437; see also Terveer v. Billington, No. 12-

1290, 2014 WL 1280301, at *8 (D.D.C. Mar. 31, 2014). “[A]pplication of the doctrine of

equitable tolling is solely within the Court's discretion.” Fortune v. Holder, 767 F. Supp. 2d 116,

121 (citing Smith–Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998)). The

Court will only exercise its equitable tolling power in a limited number of “extraordinary and

carefully circumscribed instances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir.

1988); see also Smith v. Dalton, 971 F. Supp. 1, 3 (D.D.C. 1997) (“The tolling power is to be

exercised only in extraordinary circumstances . . . .”); Strong–Fischer v. Peters, 554 F. Supp. 2d

19, 24–25 (D.D.C. 2008). These instances include where “(1) ‘a claimant has received

inadequate notice,’ (2) ‘where affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction,’ (3) ‘where the court has led the plaintiff to believe that she had done

everything required of her,’ or (4) ‘where a motion for appointment of counsel is pending and



                                                  22
equity would justify tolling the statutory period until the motion is acted upon.’” Bass v. Bair,

514 F. Supp. 2d 96, 99 (D.D.C. 2007) (quoting Mondy, 845 F.2d at 1057).

       As discussed above, on December 5, 2009, the plaintiff filed a charge with the EEOC

alleging age discrimination and retaliation—but not race discrimination. See December 5, 2009

EEOC Charge. On October 21, 2011, 718 days after the plaintiff’s termination, the plaintiff filed

an “addendum” to her EEOC charge in which she requested that “law [42 U.S.C. § 1983] and the

charge of violation of my Civil Rights [be] added to my initial charge of discrimination (age and

race).” See October 21, 2011 EEOC Addendum. Despite the reference to “race” in the

addendum, the plaintiff’s initial EEOC charge did not contain an allegation of racial

discrimination. See December 5, 2009 EEOC Charge. On November 15, 2012, 1109 days after

the plaintiff’s termination, the plaintiff filed an entirely new charge with the EEOC, in which she

alleged race discrimination in addition to the original charges of age discrimination and

retaliation. See November 15, 2012 EEOC Charge.

       The District argues that the plaintiff is barred from litigating her Title VII race

discrimination claim because she failed to file a charge of race discrimination with the EEOC

within 300 days, as required. See D.C.’s Mem. at 12–15. The District is correct. The plaintiff’s

addendum was filed 718 days after the alleged discrimination, and plaintiff’s full EEOC charge

was filed 1109 days after the alleged discrimination. These are plainly outside the applicable

time limits. Moreover, the plaintiff’s subsequent filings cannot be said to “relate back” to the

original EEOC charge, as they add an entirely new substantive theory. See, e.g., Marshall, 536

F. Supp. 2d at 67 (“[W]here administrative complaints for discrimination based on sex, race and

retaliation do not mention critical facts relevant to an age discrimination claim, the later filed age

claims do not relate back.”); Wilson, 767 F. Supp. at 306 (holding that because the “amendment



                                                 23
added a new substantive theory which is fundamentally distinct from the original race

discrimination charge[,]” it “did not relate to, or grow out of the [plaintiff's] original EEOC

charge”). The District has met its burden to prove a failure to exhaust, and so the plaintiff must

prove facts that support the equitable tolling of the defense. Bowden, 106 F.3d at 437. The

plaintiff has alleged no facts in the complaint, or briefing, to support a claim for equitable tolling

nor can the Court point to any facts in the record to justify the tolling of the exhaustion

requirement.

        Accordingly, because the plaintiff failed to exhaust her administrative remedies, the

District’s motion for summary judgment is granted as it relates to the plaintiff’s claim for racial

discrimination in violation of Title VII.

                 3.       Statute of Limitations

        The plaintiff’s remaining claims asserted against the District consist of federal claims

under Section 1983 and for race discrimination, in violation of Title VI, as well as a host of state

law claims including Wrongful Discharge, Defamation, Fraudulent Misrepresentation, and race

discrimination in violation of the DCHRA. 9 These claims are all barred by the applicable statute

of limitations. The Court will first examine the plaintiff’s federal law claims before addressing

the plaintiff’s state law claims.

                          a)      Federal Claims

        “When a federal action contains no statute of limitations, courts will ordinarily look to

analogous provisions in state law as a source of a federal limitations period.” Doe v. Dep't of

Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). Since Section 1983 does not have a built-in

statute of limitations, the general three-year statute of limitations imposed by District of


9
 The plaintiff’s claim that DCPS’s action constituted unlawful age discrimination in violation of the DCHRA was
addressed in Section III.A.1.

                                                       24
Columbia law on claims for personal injury, see D.C. Code § 12-301(8), applies. See 42 U.S.C.

§ 1983; Savage v. District of Columbia, No. 02-7135, 2003 WL 843326, at *1 (D.C. Cir. Feb. 25,

2003) (“The district court properly applied a three-year statute of limitations in this case brought

pursuant to 42 U.S.C. § 1983.”); Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir. 1998)

(“[I]n states with multiple statutes of limitations, claims under section 1983 are governed by the

residual or general personal injury statute of limitations . . . .”); see also Philogene v. District of

Columbia, 864 F. Supp. 2d 127, 132 (D.D.C. 2012); Lewis v. Bayh, 577 F. Supp. 2d 47, 51–52

(D.D.C. 2008). Likewise, courts apply a three-year statute of limitations for claims of

discrimination under Title VI. See, e.g., Hajjar-Nejad v. George Washington Univ., 873 F. Supp.

2d 1, 15 (D.D.C. 2012) (“In this Circuit, the statute of limitations for Title VI claims is three

years.”); Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 71 (D.D.C. 2010) (“[A]ll of the

federal discrimination claims asserted in the amended complaint are subject to dismissal if not

brought within three years of the accrual of the alleged injury.”); Richards v. Duke Univ., 480 F.

Supp. 2d 222, 237–38 (D.D.C. 2007) (noting that Title VI lacks its “own statute of limitations”

and that “courts have borrowed the statute of limitations from . . . § 1983, which in turn, rel[ies]

on the respective personal injury statute of limitations in a jurisdiction”). Accordingly, the Court

will apply a three year statute of limitations to both remaining federal claims.

        The plaintiff's discrimination complaint arises from her termination, and termination is

“[a] discrete . . . discriminatory act [which] occurred on the day that it happened . . . .” Nat'l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 110–11 (2002) (internal quotation marks omitted);

see Coppinger–Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (concluding that the statute of

limitations began to run when the complainant learned of her actual injury, i.e., the decision to

terminate her employment). As such, at the absolute latest, “the plaintiff’s claim accrued on the



                                                   25
date of [her] termination.” 10 Fortune, 767 F. Supp.2d at 121; see also Gordon v. Office of the

Architect of the Capitol, 750 F. Supp. 2d 82, 92–93 (D.D.C. 2010) (concluding that the

limitations period began to run on the date the complainant was informed that she had not been

selected for a position).

         The plaintiff was terminated on November 2, 2009, which started the three-year clock for

purposes of the statute of limitations. See Am. Compl. ¶ 32. She filed the instant action on June

28, 2013, or nearly three years and eight months after her claim accrued, and nearly eight months

after the statute of limitations expired. Moreover, as discussed above, the plaintiff’s plight

presents none of the extraordinary and carefully circumscribed instances justifying the doctrine

of equitable tolling. Her claims, therefore, are barred by the applicable three-year statute of

limitations and summary judgment is therefore granted in favor of the defendant as to the

plaintiff’s claims under Section 1983 and Title VI. 11

                           b)       State Law Claims

         The relevant statutes of limitation for the plaintiff’s remaining state law claims—which

include wrongful discharge, fraudulent misrepresentation, defamation, and violations of the

DCHRA—also bar recovery. The plaintiff’s claims for wrongful discharge and fraudulent

misrepresentation both lack specified statute of limitations and are therefore subject to the

10
   The plaintiff received notice of her pending termination on October 2, 2009. See Pl. Mem. Opp’n at 10. Since the
plaintiff’s claims are time-barred using either October 2, 2009 (the date of notice) or November 2, 2009 (the date of
termination), and because the District argues for the later date, see D.C.’s Mem. at 17, the Court will use the
November 2, 2009 date for purposes of the statute of limitations analysis.
11
   Additionally, the plaintiff’s claims were not tolled during the pendency of the plaintiff’s EEOC inquiry. The
Supreme Court has held that the statute of limitations continues to run on a claim that requires no administrative
exhaustion even while the plaintiff pursues administrative remedies on a separate claim that requires exhaustion.
See Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 465–66 (1975) (holding that civil rights complainants with
pending EEOC charges should file their Section 1981 claims in court and request a stay until the charges are
resolved); Carter v. District of Columbia, 14 F. Supp. 2d 97, 102 (D.D.C. 1998) (“[B]ecause a Section 1981 claim is
‘separate from and independent of’ Title VII, the statute of limitations on a Section 1981 . . . claim is not tolled by
the pendency of administrative action on a Title VII claim.” (quoting Johnson, 421 U.S. at 466)); Peart v. Latham &
Watkins LLP, 985 F. Supp. 2d 72, 85 (D.D.C. 2013) (same); see also Adams v. District of Columbia, 740 F. Supp.
2d 173, 182 (D.D.C.2010) (“A limitations period does not toll when a plaintiff is not required but chooses to exhaust
his administrative remedies before pursuing a claim in court.”).

                                                          26
general three-year limitations period proscribed in D.C. Code §12-301(8). See Kamen v. Int’l

Brotherhood of Elec. Works, 505 F. Supp. 2d 66, 78 (D.D.C. 2007) (“In the District of Columbia,

the statute of limitations applicable to a claim of wrongful discharge in violation of public policy

is the three-year ‘catch-all’ statute of limitations set forth in D.C. Code § 12–301(8).”);

Hallidorson v. Sandi Grp., 934 F. Supp. 2d 147, 154–55 (D.D.C. 2013) (“Under District of

Columbia law, claims for fraud . . . are governed by a three-year statute of limitations.”). For the

reasons discussed above with respect to the plaintiff’s federal claims, the statutes of limitation

bar the plaintiff’s claims for wrongful discharge and fraudulent misrepresentation.

         The plaintiff’s claim of race discrimination in violation of the DCHR also falls outside

the applicable statute of limitations. A plaintiff has two-years from accrual to bring a claim

under the DCHRA. See D.C. Code § 2-1403.16(a). “The timely filing of a complaint with the

[D.C. Human Rights] Office . . . toll[s] the running of the statute of limitations while the

complaint is pending.” Id. So, too, does the timely filing of an EEOC Charge. 12 In the instant

case, the plaintiff filed a charge with the EEOC on December 5, 2009 for age discrimination. See

December 5, 2009 EEOC Charge. The plaintiff did not file a charge with the EEOC alleging

race discrimination—which would have tolled the statute of limitations with respect to her




12
   Although the plaintiff filed a charge with the EEOC and not the D.C. Office of Human Rights, such filing still
tolled the plaintiff’s DCHRA claim. Estenos v. PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008)
(“[A]ppellant's timely filing with the EEOC, of which [D.C. Office of Human Rights] promptly received a copy
under the existing agreement between the federal and local agencies, sufficed to toll the limitations period for filing
in court.”); see also Schuler v. PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1372 (D.C. Cir. 2008) (interpreting
work-sharing agreement and finding that agreement designates the EEOC as the “agent for the purpose of receiving
and drafting charges” for the D.C. Office of Human Rights, and vice versa, such that “for all intents and purpose, the
[D.C. Office of Human Rights] receives charges filed with the EEOC”); Brewer v. District of Columbia, 891 F.
Supp. 2d 126, 132 n. 5 (D.D.C. 2012) (finding state filing requirement satisfied because under the EEOC's
“worksharing agreement” with the DCOHR, the EEOC sends complaints that it receives to the DCOHR); Slate v.
Pub. Defender Serv. for the Dist. of Columbia, No. 13-00798, 2014 WL 1315238, at *16 (D.D.C. Apr. 2, 2014).

                                                          27
DCHR race discrimination claim—until November 15, 2012, or three years after her

termination. 13 The plaintiff’s claim, therefore, is barred by the statute of limitations.

        Finally, the plaintiff’s defamation claim is subject to a one-year statute of limitations.

See D.C. Code § 12-301(4); Amobi v. District of Columbia, 882 F. Supp.2d 78, 83 (D.D.C. 2012)

(“[I]n the District of Columbia, there is a one-year statute of limitations for defamation claims . .

. .”). “Defamation occurs on publication, and the statute of limitations runs from the date of

publication.” Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873, 882 (D.C.

1998); see also Jin v. Ministry of State Security, 254 F. Supp. 2d 61, 68 (D.D.C. 2003) (same).

“Moreover, the District of Columbia follows the ‘single publication’ rule, whereby publication of

defamatory matter ‘gives rise to but one cause of action for libel, which accrues at the time of the

original publication.’” Jin, 254 F. Supp. 2d at 68 (quoting Ogden v. Ass'n of the United States

Army, 177 F. Supp. 498, 502 (D.D.C.1959)). The plaintiff alleges that former-Chancellor Rhee

defamed her in comments made in the February 2010 edition of Fast Company. See Pl.’s Reply

at 8. The plaintiff did not bring the instant action, however, until June 28, 2013, or over three

years after the alleged defamatory statement. Accordingly, the one-year statute of limitations

bars her claim.


        B.        Federal Defendants’ Motion to Dismiss

        The plaintiff alleges identical claims against the Federal Defendants and these claims fail

for the same reasons identified above. The plaintiff’s claims against the Federal Defendants also

fail for several independent reasons discussed briefly below.




13
  As discussed earlier, see Section III.A.2, the plaintiff’s October 21, 2011 EEOC Addendum did not “relate back”
to the plaintiff’s first EEOC Charge and thus will not serve to save her DCHRA claim.

                                                       28
                   1.      ADEA, Title VII, and Wrongful Discharge Claims

           The plaintiff attempts to bring claims against the Federal Defendants for violations of the

ADEA and Title VII. Yet, the ADEA and Title VII afford protection only for “employees in a

direct employment relationship with the employer and applicants for employment.” Koch v.

Holder, 930 F. Supp. 2d 14, 17 (D.D.C. 2013) (internal quotations omitted); see also Spirides v.

Reinhardt, 613 F.2d 826, 829 (D.C. Cir. 1979) (dismissing Title VII claim brought by non–

employee); Delbert v. Duncan, 923 F. Supp. 2d 256, 259 (D.D.C. 2013). A plaintiff may bring a

discrimination claim against a non-employer defendant in limited situations where the defendant

“control[s] access to such employment and . . . den[ies] such access by reference to invidious

criteria.” Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir. 1973); see also

Redd v. Summers, 232 F.3d 933, 940–41 (D.C. Cir. 2000). In the present case, the plaintiff was

employed by DCPS (not the Department of Justice and not the U.S. Attorney’s Office) and her

employment does not meet any of the limited situations that permit liability against a non-

employer. Her ADEA and Title VII claims therefore fail as a matter of law.

           The plaintiff’s claims against the Federal Defendants also fail because the defendant

failed to exhaust her administrative remedies as to the Federal Defendants. Indeed, the Federal

Defendants were never identified in any of the plaintiff’s EEOC Charges, which named only the

D.C. Public Schools as the plaintiff’s employer. 14 See December 5, 2009 EEOC Charge;

October 21, 2011 EEOC Addendum; November 15, 2012 EEOC Charge. Accordingly, the

plaintiff failed to exhaust her administrative remedies with respect to the Federal Defendants and

her Title VII and ADEA claims fail on this independent basis. See Johnson v. Ashcroft, No. 00-

cv-2743, 2001 WL 34366564, at *3 (D.D.C. June 21, 2001) (dismissing for failure to exhaust



14
     The October 21, 2011 EEOC Addendum also lists Mayor Vincent Gray.

                                                      29
administrative remedies where the plaintiff did “not name either of the federal defendants” in the

plaintiff’s EEOC complaint).

         The plaintiff’s Complaint also asserts a claim of wrongful discharge related to her

termination. Yet, Title VII and the ADEA provide the exclusive remedy for federal employees

alleging race and age discrimination. See Brown v. General Services Administration, 425 U.S.

820 (1976) (holding that Title VII “provides the exclusive judicial remedy for claims of

discrimination in federal employment.”); Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C. Cir.

1991) (“It is undisputed that the ADEA provides the exclusive remedy for a federal employee

who claims age discrimination.”). Accordingly, the plaintiff cannot bring her wrongful

discharge claim against the Federal Defendants.

                  2.        Section 1983

         The plaintiff also seeks to bring a Section 1983 claim against the Federal Defendants.

Under 42 U.S.C. § 1983, it is unlawful for a person acting under color of state law to deprive any

other person of any federal constitutional or statutory right. “‘The traditional definition of acting

under color of state law requires that the defendant in a § 1983 action have exercised power

possessed by virtue of state law and made possible only because the wrongdoer is clothed with

the authority of state law.’” Williams v. United States, 396 F.3d 412, 414 (D.C. Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 49 (1988)). Although it is possible, in certain limited

circumstances, for federal officials to operate under state law, see Williams, 396 F.3d at 414–15,

the defendant has alleged no such facts in the present case. Indeed, the plaintiff has failed to

allege that the Federal Defendants took any action whatsoever. The plaintiff’s Section 1983

claim against the Federal Defendants fails for this additional reason. 15


15
  Even were the Court to construe the plaintiff’s claim as a Bivens action, the claim would still fail as the plaintiff
has failed to identify in her complaint any actions taken by the Federal Defendants. See Harris v. Holder, 885 F.

                                                           30
                  3.       Defamation, Misrepresentation, and Violations of the DCHRA

         Sovereign immunity bars the plaintiff’s claims against the Federal Defendants for

defamation, fraudulent misrepresentation, and violations of the DCHRA and those claims are

dismissed for lack of jurisdiction under Rule 12(b)(1). “It is axiomatic that the United States

may not be sued without its consent and that the existence of consent is a prerequisite for

jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983); Banks v. Office of Senate

Sergeant-At-Arms and Doorkeeper of U.S. Senate, 471 F.3d 1341, 1348 (D.C. Cir. 2006). “A

waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text.” Fed.

Aviation Admin. v. Cooper, 132 S. Ct. 1441, 1448 (2012). For example, the Federal Tort Claims

Act (“FTCA”) expressly waives the United States’ immunity from suit as to certain common law

torts, but not as to all common law torts. See 28 U.S.C. §§ 1346(b)(1), 2679(b).

         The FTCA bars suits against the United States with regards to claims of “libel, slander,

misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Therefore,

courts in this Circuit regularly dismiss defamation and misrepresentation claims brought against

the United States. See, e.g., Marcus v. Geithner, 813 F. Supp. 2d 11, 16 (D.D.C. 2011); Wilson

v. Dep't of Transp., 759 F. Supp. 2d 55, 64 (D.D.C. 2011); Upshaw v. United States, 669 F.

Supp. 2d 32, 44 (D.D.C. 2009); see also Gardner v. United States, 213 F.3d 735, 737 n.1 (D.C.

Cir. 2000) (“Mr. Gardner's defamation claim against the United States is barred, because suits

for libel or slander are prohibited under the Federal Tort Claims Act.”). Therefore, the plaintiff’s

defamation and misrepresentation claims are dismissed for this independent basis.



Supp. 2d 390, 397–98 (D.D.C. 2012) (“Critical to a Bivens claim is an allegation ‘that the defendant federal official
was personally involved in the illegal conduct.’” (quoting Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C.
Cir. 1997))). Moreover, a Bivens claim based upon the plaintiff’s termination cannot stand because Title VII
“provides the exclusive judicial remedy for claims of discrimination [on the basis of race, sex, or religion] in federal
employment.” Brown v. General Services Administration, 425 U.S. 820, 835 (1976); see also Koch v. White, 967 F.
Supp. 2d 326, 335 (D.D.C. 2013).

                                                          31
       Moreover, with respect to the plaintiff’s DCHRA claims, “[t]he D.C. Council, not

Congress, enacted the DCHRA, and there is no federal statute that evinces Congress's intent to

waive the United States’ immunity from suit under the DCHRA.” Marcus, 813 F. Supp. 2d at

17. Accordingly, the plaintiff’s DCHRA claim is dismissed for lack of jurisdiction. See id.; see

also Jordan v. Evans, 404 F. Supp. 2d 28, 31 (D.D.C. 2005) (holding that sovereign immunity

bars DCHRA claim against the Department of Commerce).

IV.    CONCLUSION

       For the reasons stated above, the District’s Motion to Dismiss or in the Alternative for

Summary Judgment is granted. The Federal Defendants’ Motion to Dismiss Federal Defendants

is also granted. An appropriate Order accompanies this Memorandum Opinion.


                                                                        Digitally signed by Hon. Beryl A. Howell
                                                                        DN: cn=Hon. Beryl A. Howell, o=U.S.
       Date: November 25, 2014                                          District Court for the District of Columbia,
                                                                        ou=United States District Court Judge,
                                                                        email=Howell_Chambers@dcd.uscourts.g
                                                                        ov, c=US
                                                                        Date: 2014.11.25 18:17:31 -05'00'
                                                    __________________________
                                                    BERYL A. HOWELL
                                                    United States District Judge




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