                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_____________________________
                               )
YEETA L. WARD,                )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 10-321 (RWR)
                               )
D.C. DEPARTMENT OF YOUTH      )
REHABILITATION SERVICES,      )
                               )
          Defendant.           )
_____________________________ )

                    MEMORANDUM OPINION AND ORDER

     Plaintiff Yeeta Ward, a correctional officer employed by the

defendant District of Columbia Department of Youth Rehabilitation

Services (“DYRS”) filed a two-count complaint against the DYRS

alleging claims of retaliation and discriminatory hostile work

environment under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and the District of Columbia Human Rights

Act (“DCHRA”), D.C. Code Ann. § 2-1401.01 et seq..1   The DYRS

moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss

Ward’s complaint.   Because Ward elected to file a charge of

discrimination with the District of Columbia Office of Human

Rights (“DCOHR”) regarding the same course of conduct and the

charge reached resolution, her claims under the DCHRA will be




     1
       Ward also alleged that DYRS violated 42 U.S.C. § 1981, but
she has voluntarily dismissed her § 1981 claims. (Pl.’s Opp’n at
9-10.)
                                  -2-

dismissed.    Because DYRS lacks the capacity to be sued, the

District of Columbia will be substituted as the defendant.

                              BACKGROUND

        The DYRS hired Ward in August 2004.    (Compl. ¶ 7.)   She

alleges that she thereafter was subjected to gender-based

harassment, insults, and repeated reassignments.      (Id. ¶¶ 10, 15-

20, 36, 39.)    In March 2008, Ward filed a charge of

discrimination against DYRS with the EEOC and the DCOHR.       (Id.

¶ 5.)    She complains that as a result, she experienced

retaliation, continued harassment, and a hostile work

environment.    (Id. ¶¶ 25-29.)

        Ward filed this action in February 2010 under Title VII and

the DCHRA, alleging one count of retaliation and one count of

hostile work environment.    The DYRS has moved to dismiss Ward’s

complaint under Rule 12(b)(6), arguing that Ward’s claims under

the DCHRA should be dismissed because Ward elected to file a

charge of discrimination with DCOHR that was resolved, and that

the DYRS lacks the capacity to be sued.       Ward opposes dismissal,

arguing that she should be allowed to amend her complaint to

substitute the District of Columbia for the DYRS as the proper

defendant.

                              DISCUSSION

        A complaint can be dismissed under Rule 12(b)(6) when a

plaintiff fails to state a claim upon which relief can be
                                -3-

granted.   Peavey v. Holder, 657 F. Supp. 2d 180, 185 (D.D.C.

2009) (citing Fed. R. Civ. P. 12(b)(6)).    “A Rule 12(b)(6) motion

to dismiss tests the legal sufficiency of a complaint.”

Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 2d 123, 129

(D.D.C. 2009).   The complaint must be construed in the light most

favorable to the plaintiff and “the court must assume the truth

of all well-pleaded allegations.”     Warren v. District of

Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).     In deciding a motion

brought under Rule 12(b)(6), a court does not consider matters

outside the pleadings, but a court may consider on a motion to

dismiss “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint,”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002),

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,”

Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C.

2009) (quoting Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir.

1998)).2


     2
       Ward’s opposition requests that the motion to dismiss be
converted to one for summary judgment because the motion attaches
two documents purportedly outside of the complaint - - the DCOHR
charge of discrimination and the letter of determination from the
DCOHR. However, the charge of discrimination is referred to in
the complaint (Compl. ¶ 5), a reference that also necessarily
incorporates in the complaint the letter of determination
resulting from the charge. In any event, the complaint
necessarily relies upon the fact of the charge and the letter in
                                  -4-

I.   DCHRA

     Under the DCHRA, plaintiffs are “required ‘to choose between

an administrative or a judicial forum in which to pursue their

claims.’”    Adams v. Dist. of Columbia, Civil Action No. 09-2459

(RMU), 2010 WL 3831686, at *11 (D.D.C. September 28, 2010)

(quoting Carter v. Dist. of Columbia, 980 A.2d 1217, 1223 (D.C.

2009)); see D.C. Code § 2-1403.16(a).      “A plaintiff, however, may

commence an action in court, notwithstanding his or her prior

filing of a complaint with the DCOHR, if either: (1) the

plaintiff withdraws the DCOHR complaint before the DCOHR renders

a judgment on it; or (2) the DCOHR dismisses the complaint for

‘administrative convenience.’”    Adams, 2010 WL 3831686, at *11

(citing D.C. Code § 2-1403.16(a)).      “In order to successfully

withdraw a complaint before the DCOHR, and thus, preserve the

right to bring the same claim in court, a complainant must

request withdrawal ‘prior to the completion of the [DCOHR’s]

investigation and findings.’”    Adams, 2010 WL 3831686, at *12

(citing D.C. Code § 2-1403.04).

     Ward’s opposition to the defendant’s motion to dismiss does

not address the argument that the claims in Ward’s complaint that

arise under the DCHRA should be dismissed because she filed a

charge of discrimination regarding the same course of conduct


pleading that administrative proceedings were pursued before this
action was begun. (See id. at 2.) Thus, the motion need not be
converted to one for summary judgment.
                                 -5-

with the DCOHR.     Therefore, this argument may be deemed

conceded.    See Cooper v. Farmers New Century Ins. Co., 607 F.

Supp. 2d 175, 180 (D.D.C. 2009) (granting motion to dismiss as

conceded based on the plaintiff’s failure to respond to arguments

raised in the motion); Bonaccorsy v. Dist. of Columbia, 685 F.

Supp. 2d 18, 24 (D.D.C. 2010) (citing CSX Transp., Inc. v.

Commercial Union Ins. Co., 82 F.3d 478, 482-83 (D.C. Cir. 1986)

and Felter v. Salazar, 679 F. Supp. 2d 1, 4 n.2 (D.D.C. 2010)).

Moreover, Ward has presented no evidence that she withdrew her

charge of discrimination before the DCOHR, or that her charge of

discrimination was dismissed for administrative convenience.

Thus, Ward’s DCHRA claims will be dismissed.

II.   DYRS

      The DYRS moves to dismiss Ward’s complaint in its entirety

because the DYRS, as an agency of the District of Columbia, lacks

the capacity to be sued.   (Def.’s Mem. in Supp. of Mot. to

Dismiss, at 4-5.)   When a plaintiff mistakenly names as a

defendant a District of Columbia agency instead of the District

of Columbia itself, it is appropriate to substitute the District

for its agency.   See Hunter v. D.C. Child & Family Servs. Agency,

710 F. Supp. 2d 152, 157 (D.D.C. 2010) (citing Ennis v. Lott, 589

F. Supp. 2d 33, 37 (D.D.C. 2008)).     Here, the defendant’s motion

to dismiss the complaint against the DYRS will be construed as a

motion to substitute the District of Columbia for the DYRS as the
                                -6-

defendant.   See Bennett v. Henderson, Civil Action No. 10-1680

(RWR), 2011 WL 285871, at * 1 (D.D.C. January 28, 2011)

(construing motion to dismiss as one for substitution, and

substituting the District of Columbia for the District of

Columbia Public Schools as defendant).   Accordingly, the District

of Columbia will be substituted for the DYRS as the defendant in

this action, and the complaint will be construed as one alleging

claims against the District of Columbia.

                       CONCLUSION AND ORDER

     Ward filed with the DCOHR a charge of discrimination that

reached resolution regarding the same course of conduct as is

alleged in this action, precluding her from bringing the DCHRA

claims in her complaint here.   Therefore, her DCHRA claims will

be dismissed.   Since the DYRS is non sui juris, the District of

Columbia will be substituted for the DYRS as the defendant.

Therefore, it is hereby

     ORDERED that the defendant’s motion [4] to dismiss be, and

hereby is, GRANTED IN PART.   Ward’s claims under the DCHRA are

DISMISSED.   It is further

     ORDERED that the District of Columbia be, and hereby is,

SUBSTITUTED for defendant District of Columbia Youth

Rehabilitation Services.
                          -7-

SIGNED this 7th day of March, 2011.


                                   /s/
                          RICHARD W. ROBERTS
                          United States District Judge
