                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 KALPANA AHUJA,

    Plaintiff,

      v.                                                    Civil Action No. 09–2246 (CKK)
 DETICA INC.,

    Defendant.


                                  MEMORANDUM OPINION
                                    (September 30, 2010)

       Plaintiff, Kalpana Ahuja, brings this action against her former employer, Detica,

Incorporated (“Defendant”). Plaintiff alleges that Defendant discriminated against her on the

basis of her gender, race, and national origin in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq., on the basis of her race in violation of 42 U.S.C. §

1981 (“§ 1981”), and the basis of her age in violation of the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq. Presently before the Court are Defendant’s [4] Partial

Motion to Dismiss Complaint and Motion to Strike Certain Allegations (“Def.’s Mot.”);

Plaintiff’s [9] Opposition to Defendant’s Partial Motion to Dismiss and Motion to Strike Certain

Allegations (“Pl.’s Opp’n”), in which Plaintiff also requested leave to amend the Complaint; and

Defendant’s [10] Reply in Support of its Partial Motion to Dismiss Complaint and Motion to

Strike Certain Allegations (“Def.’s Reply”). The Court has thoroughly reviewed the parties’

submissions, applicable case law, the relevant statutory and regulatory authority, as well as the

record of the case as a whole. For the reasons set forth below, the Court shall GRANT-IN-

PART, DENY-IN-PART, and HOLD-IN-ABEYANCE-IN-PART Defendant’s [4] Partial Motion
to Dismiss and DENY Plaintiff’s construed motion for leave to amend the Complaint.

Specifically, the Court shall: (1) convert Defendant’s motions to dismiss Plaintiff’s ADEA, Title

VII retaliation, and Title VII hostile work environment claims to motions for summary judgment

because the parties’ filings relied on documents outside the pleadings when discussing these

motions; (2) grant Defendant’s converted motion to dismiss Plaintiff’s Title VII hostile work

environment claim (Count I) for failure to state a claim; (3) grant Defendant’s converted motion

to dismiss Plaintiff’s ADEA claims (Counts III & IV) for failure to exhaust administrative

remedies; (4) hold in abeyance Defendant’s converted motion to dismiss Plaintiff’s Title VII

retaliation claim (Count IV) for failure to exhaust administrative remedies; (5) deny Defendant’s

motion to dismiss Plaintiff’s purported pattern and practice claims for failure to state a claim; (6)

deny Defendant’s motion to strike the Complaint’s allegations of Defendant’s pattern and

practices; (7) deny Defendant’s motion to dismiss Plaintiff’s purported Title VII claims for

discrimination in hiring, compensation and benefits, performance evaluations, and demotions; (8)

grant Defendant’s motion to dismiss as time barred Plaintiff’s remaining Title VII claims based

on events occurring prior to March 8, 2007; (9) grant Defendant’s motion to dismiss as time

barred Plaintiff’s § 1981 claims based on discrete acts of discrimination occurring prior to

November 25, 2004; and (10) deny Plaintiff’s construed motion for leave to amend the

Complaint.

                                        I. BACKGROUND

       Plaintiff, a female of Asian-Indian ancestry, began working for Defendant’s Information

Technology (“IT”) Division on January 2, 2002. Complaint ¶¶ 14, 17, Docket No. [1]. Plaintiff

signed an employment agreement with Defendant on June 21, 2004, which was renewed annually


                                                  2
until Plaintiff’s termination on December 31, 2007. Id. ¶ 18; see also Pl.’s Opp’n Ex. 2

(Plaintiff’s Arlington Human Rights Comm’n Emp’t Discrimination Intake Questionnaire)

(hereinafter “Intake Questionnaire”), at 2. Initially, Plaintiff helped develop Defendant’s IT

Division and, eventually, Plaintiff became one of Defendant’s five IT project managers. Compl.

¶¶ 17-20. While working for Defendant, Plaintiff was supervised by Phil Vincenzes, a Caucasian

male, and Matthew Travis, Defendant’s president and a Caucasian male. Compl. ¶ 21. Plaintiff

alleges that despite six years of exceptional work, she was never awarded a promotion and, in

fact, that Mr. Vincenzes suppressed her promotion through the company. Id. ¶¶ 38, 45.

       In September 2004, Plaintiff informed Mr. Vincenzes that Stuart Zimmerman, one of

Plaintiff’s subordinates who is a Caucasian male, was not performing his duties properly. Id. ¶

46; see also Intake Questionnaire at 7. Mr. Zimmerman then filed allegations of harassment

against Plaintiff. Compl. ¶ 46. Although Defendant’s human resources department concluded

that Plaintiff did not harass Mr. Zimmerman and the whole incident was a due to a

misunderstanding, Plaintiff alleges that thereafter Mr. Vincenzes favored Mr. Zimmerman,

ostracized Plaintiff, and forced Plaintiff to write Mr. Zimmerman an apology. Id. ¶¶ 47-48.

       Around December 2006, Plaintiff complained to John Capitelli, a member of Defendant’s

human resources department, that she was being discriminated against by her coworkers based on

her race, national origin, and gender. See id. ¶ 52, 58. As a result of this complaint, Plaintiff

alleges that Mr. Vincenzes and Mr. Travis retaliated against her in various forms, including not

inviting her to meetings, ostracizing her, and removing her from projects. Id. Approximately

two months later, on February 26, 2007, Plaintiff filed a complaint with HR due to the alleged

harassment of Kathleen McDonald, a Caucasian female coworker. Id. ¶ 53. Plaintiff alleges


                                                 3
that after this complaint, Defendant’s management removed her from projects and disciplined

her. Id. ¶ 57. On March 16, 2007, Plaintiff complained again to HR that she was being

discriminated against based on her race, gender, and national origin. Id. ¶ 58. These complaints,

Plaintiff alleges, were never investigated by HR and no formal documentation of her complaints

was created. Id. ¶ 59.

       Plaintiff became pregnant in July 2007. Id. ¶ 25. On approximately November 12, 2007,

Plaintiff informed Mr. Vincenzes and Mr. Travis that she was four months into a high risk

pregnancy and requested maternity leave commencing in the end of March 2008, to the

beginning of June 2008. Id. Plaintiff alleges that at the time of this request she had amassed 233

hours of leave and 60 additional hours of sick leave. Id. ¶ 26. Plaintiff further alleges that

Defendant offers four weeks of maternity leave to its employees and that prior to Plaintiff’s

termination Defendant had granted maternity leave to four Caucasian, non-Asian, employees,

including one employee who requested maternity leave at approximately the same time as

Plaintiff. Id. ¶¶ 26-27.

       On November 30, 2007, Mr. Travis and Mr. Vincenzes informed Plaintiff that due to a

decrease in projects and funding, Plaintiff would be terminated on December 31, 2007. Id. ¶¶ 21,

62. Plaintiff was the only IT project manager terminated at that time and none of the other IT

project managers were of Asian-Indian ancestry. Id. ¶¶ 28-29. Plaintiff alleges that when

terminated she was the longest tenured IT project manager, had more seniority than three of other

the IT project managers, and was equal in seniority to the fourth IT project manager. Id. ¶¶ 23,

28. Plaintiff also claims that she was replaced by two Caucasian American males who were both

younger than forty years old. Id. ¶ 33. A month after her termination, on January 30, 2008,


                                                 4
Defendant contacted Plaintiff and offered to rehire her at one hundred dollars per hour, without

benefits. Id. ¶¶ 36, 37.

       Shortly after her termination, January 2, 2008, Plaintiff filed an Intake Questionnaire with

Dennis Sumlin, a Human Rights Investigator/Intake Officer with the Arlington Human Rights

Commission, in which she alleged that Defendant had discriminated against her. See Intake

Questionnaire; Pl.’s Opp’n Ex. 2, at 1. The Intake Questionnaire informs complainants, such as

Plaintiff, that “The information requested on this form will help us to understand your

allegations. Please complete the information to the best of your ability. An Intake officer will

review the information and talk to you about filing a complaint after you have completed this

form.” Intake Questionnaire at 1; see also id. at 12 (informing complainants that they have “the

responsibility to cooperate with this office in order to continue the process of filing a complaint”

and that their “failure to do so will result in the termination of this process”) (changed from all

capital letters). In the Intake Questionnaire, Plaintiff checked boxes indicating that she believed

Defendant retaliated against her and discriminated against her on the basis of her race, sex, and

national origin. Id. at 4. The Intake Questionnaire totals twelve pages, eight of which include

Plaintiff’s factual allegations regarding her claims of discrimination. See id. at 4-11.

       On May 12, 2008, Plaintiff filed her “Complaint of Discrimination” (hereinafter “EEOC

Complaint”) with the Equal Employment Opportunity Commission (“EEOC”) alleging, inter

alia, that Defendant discriminated against her “because of [her] sex, female, relating to

pregnancy; race (Asian); and national origin (India) . . . .” Def.’s Mot. Ex. 1, at 1. On May 21,

2008, the EEOC served Mr. Travis a “Notice of Charge of Discrimination” (hereinafter “Notice

of Charge”) indicating that Plaintiff had filed a charge of discrimination against Defendant that


                                                  5
alleged discrimination based on race, sex, and national origin in violation of Title VII. The

EEOC issued Plaintiff a right to sue letter on September 2, 2009. Compl. Ex. A. On November

25, 2009, Plaintiff filed the Complaint in this case asserting claims of discrimination based on

race, gender, pregnancy, national origin, creation of hostile work environment, and disparate

treatment under Title VII, Compl. ¶ 78-79 (Count I); discrimination based on race, creation of a

hostile work environment and disparate treatment in violation of § 1981, id. ¶ 80-81 (Count II);

and age discrimination under the ADEA, id. ¶ 82-83 (Count III); and retaliation claims under

Title VII, as well as under the ADEA, id. ¶ 84-85 (Count IV).

       Defendant filed its pending motions to dismiss on January 7, 2010, and attached

Plaintiff’s EEOC Complaint and Notice of Charge as exhibits. See Def.’s Mot. Ex. 1. Defendant

has moved to: (1) dismiss Plaintiff’s ADEA claims for failure to exhaust administrative

remedies, failure to state a claim, or because they are time barred; (2) dismiss some of Plaintiff’s

Title VII claims for failure to exhaust administrative remedies, failure to state a claim, or as time

barred; (3) dismiss some of Plaintiff’s § 1981 claims as time barred; (4) dismiss Plaintiff’s claims

based on Defendant’s pattern and practices for failure to state a claim; and (5) strike the

Complaint’s allegations on which Plaintiff relies in support of her pattern and practice claims.

Plaintiff filed her Opposition to Defendant’s motion to dismiss on February 5, 2010, and also

requested leave to amend the Complaint if the Court dismisses her retaliation or age claims. Pl.’s

Opp’n at 10. Plaintiff also attached four exhibits to her Opposition, including Plaintiff’s Intake

Questionnaire, see id. Exs. 1-4. Defendant then filed its Reply on February 12, 2010.




                                                  6
                                      II. LEGAL STANDARD

        Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. (8)(a), “in

order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.’” Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)). Although “detailed factual allegations” are not necessary to withstand a

Rule 12(b)(6) motion to dismiss, a plaintiff must furnish “more than labels and conclusions” or

“a formulaic recitation of the elements of a cause of action.” Id. “Nor does a complaint suffice if

it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949 (2009) (quoting Twombley, 550 U.S. at 557). Rather, a complaint must contain

sufficient factual allegations that if accepted as true, “state a claim to relief that is plausible on its

face.” Twombley, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 129 S.Ct. 1949 (citing Twombly, 550 U.S. at 556).

        When considering a Rule 12(b)(6) motion to dismiss, the court must construe the

complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual

inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am.

Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United

States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be liberally construed in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from the

facts alleged”) (internal quotation omitted). However, as the Supreme Court recently made clear,

a plaintiff must provide more than just “a sheer possibility that a defendant has acted


                                                    7
unlawfully.” Iqbal, 129 S.Ct. at 1950. When a complaint’s well-pleaded facts do not enable a

court, “draw[ing] on its judicial experience and common sense,” “to infer more than the mere

possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief. Id.

       When evaluating a Rule 12(b)(6) motion, a court “may consider only the facts alleged in

the complaint, any documents either attached to or incorporated in the complaint and matters of

which [a court] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d

621, 624 (D.C. Cir. 1997). If, however, “matters outside the pleadings are presented to and not

excluded by the court, the motion [to dismiss] shall be treated as one for summary judgment and

disposed of as provided in Rule 56.” Fed. R. Civ. P. 12(d).

       “The decision to convert a motion to dismiss into a motion for summary judgement . . . is

committed to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F. Supp.

2d 46, 50 (D.D.C. 2006) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1366 at 159 (3d ed. 2004)). In exercising this discretion, a “reviewing court

should not automatically treat a dismissal where external materials were not excluded as a

summary judgment, although such treatment may be the most common result . . . . Rather, the

reviewing court must assure itself that summary judgment treatment would be fair to both parties

in that the procedural requirements of the applicable rules were observed.” Tele-Commc’ns of

Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). Nevertheless, “no useful

purpose can be served by [Rule 12(d)’s notice-and opportunity requirement’s] application where

it is clear that the dispositive facts will remain undisputed and unchanged.” See Hollis v. U.S.

Dep’t of Army, 856 F.2d 1541, 1544 (D.C. Cir. 1988); see also Highland Renovation Corp. v.

Hanover Ins. Grp., 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (holding that whether plaintiff’s claim


                                                 8
was time barred was a “discrete legal issue” that the court may decide in a converted motion to

dismiss “without providing notice or the opportunity for discovery to the parties”) (internal

citations omitted).

       A party is entitled to summary judgment “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56©. “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 summary judgment determination.”

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986)). “An issue is ‘genuine’ if ‘the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.’” Id. (quoting Anderson, 477 U.S. at 247).

       Under the summary judgment standard, the moving party bears the “initial responsibility

of informing the district court of the basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. 56©). In response, the

non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts

showing that there is a genuine issue for trial.’” Id. at 324 (quoting Fed. R. Civ. 56(e)). All

underlying facts and inferences are analyzed in the light most favorable to the non-moving party.

Anderson, 477 U.S. at 247.




                                                  9
                                        III. DISCUSSION

       As a threshold matter, the Court notes that the parties have attached five exhibits to their

motion to dismiss filings. The Court, however, may only consider Plaintiff’s EEOC Complaint

and Notice of Charge, Def.’s Mot. Ex. 1, without converting the motions to dismiss, see Wiley v.

NEBF Invs., No. 09-CV-223(ESH), 2010 WL 114953, at *1 n.1 (D.D.C. Jan. 12, 2010)

(considering an EEOC charge in a motion to dismiss without converting the motion because the

charge was a public document of which a court may take judicial notice). In their filings, the

parties have relied on the remaining exhibits when discussing the pending motions to dismiss

Plaintiff’s ADEA, Title VII retaliation, and Title VII hostile work environment claims. See Pl.’s

Opp’n at 3-9; Def.’s Reply at 7-8, 9-10. Accordingly, in an abundance of caution and consistent

with this Court’s prior practice, the Court shall convert the abovementioned motions to dismiss

to motions for summary judgment. See Langley v. Napolitano, 677 F. Supp. 2d 261, 263 (D.D.C.

2010) (“[I]t is ‘probably the better practice for a district court always to convert to summary

judgment so as to avoid . . . question[s]’ as to whether the attached exhibits were properly

consider[ed] in ruling upon a motion to dismiss under Rule 12(b)(6)”) (second alteration in the

original) (quoting Marshall Co. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n.6 (D.C.

Cir. 1993)). Nevertheless, as these converted motions involve “discrete legal issue[s],” the Court

shall also rule on the converted motions “without providing notice or the opportunity for

discovery to the parties.” Highland Renovation, 620 F. Supp. 2d at 82; see also Hollis, 856 F.2d

at 1544 (“[N]o useful purpose can be served by [Rule 12(d)’s notice-and opportunity

requirement’s] application where it is clear that the dispositive facts will remain undisputed and

unchanged.”).


                                                 10
       A.      The Converted Motion to Dismiss Plaintiff’s Hostile Work Environment Claim for
               Failure to State a Claim

       Defendant has moved to dismiss Plaintiff’s Title VII hostile work environment claim for

failure to state a claim. See Def.’s Mot. at 13-17. While Plaintiff is not required to plead a prima

facie case of hostile work environment in the Complaint, the alleged facts must be able to

support such a claim. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir.

2000). To allege a prima facie case of hostile work environment, Plaintiff “must demonstrate

that: (1) she is a member of a protected class; (2) she was subject to unwelcome harassment; (3)

the harassment occurred because of her [sex,] race or disability; (4) the harassment affects a term,

condition or privilege of employment; and (5) the employer knew or should have known of the

harassment, but failed to take any action to prevent it.” Childs-Pierce v. Utility Workers Union

of Am., 383 F. Supp. 2d 60, 77 (D.D.C. 2005), aff’d, 187 F. App’x 1 (D.C. Cir. 2006).

       Not all forms of offensive or discriminatory conduct, however, give rise to a hostile work

environment claim. A workplace becomes “hostile” only “[w]hen the workplace is permeated

with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In determining whether a hostile work

environment exists, the Supreme Court has directed courts to examine the totality of the

circumstances, including “‘the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.’” Faragher v. Boca Raton, 524 U.S. 775, 787-

88 (1998) (quoting Harris, 510 U.S. at 23). “These standards for judging hostility are

sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’” Id. at

                                                 11
788 (citations omitted). “Even a few isolated incidents of offensive conduct do not amount to

actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citing Hopkins

v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996)); see also Nurriddin v. Bolden,

674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismissing a hostile work environment claim in part

because “the alleged events are temporally diffuse, spread out over a four-year period suggesting

a lack of pervasiveness”); Childs-Pierce, 383 F. Supp. 2d at 79 (dismissing a hostile work

environment claim that plaintiff “attempt[ed] to cobble together . . . from discrete acts of alleged

discrimination against her that are neither severe nor widespread”).

       In her Opposition, Plaintiff argues that her Complaint sufficiently stated a hostile work

environment. Pl’s Opp’n at 8. Plaintiff’s entire justification for this assertion is that “she was

ostracized, removed from projects, reassigned and lies told about her.” Id. (citing Compl. ¶¶ 52,

70, 76; Intake Questionnaire at 6-7). The Court concludes, however, that these allegations are

insufficient to state a claim for hostile work environment.1

       First, paragraphs seventy and seventy-six of the Complaint cannot support Plaintiff’s

hostile work environment claim because they characterize Defendant’s behavior and do not

allege specific facts sufficient to support a hostile work environment claim. See Celotex Corp.,

477 U.S. at 324 (requiring the non-moving party in a motion for summary judgment to

“designate specific facts showing that there is a genuine issue for trial’”) (quoting Fed. R. Civ. P.

56(e); Ashcroft v. Iqbal, 129 S.Ct. at 1949 (“Nor does a complaint suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement’”) (quoting Twombley, 550 U.S. at 557); see

also Compl. ¶¶ 70, 76. The remaining paragraph that Plaintiff cites in support of her hostile
1
 Accordingly, the Court does not address Defendant’s arguments that Plaintiff failed to exhaust
her administrative remedies and that Plaintiff may not rely upon the Intake Questionnaire to
support her hostile work environment claim. See Def’s Mot. at 8-10; Def.’s Reply at 2-7.
                                                12
work environment claim alleges that Plaintiff experienced retaliation from Mr. Vincenzes and

Mr. Travis after complaining to Defendant’s human resources department in December 2006. Id.

¶ 52. An allegation of retaliation, however, is insufficient to allege a distinct hostile work

environment claim. See Keeley v. Small, 391 F. Supp. 2d 30, 51 (D.D.C. 2005) (“The remainder

of plaintiff’s alleged ‘hostile’ events are the very employment actions he claims are retaliatory;

he cannot so easily bootstrap alleged retaliatory incidents into a broader hostile work

environment claim.”).

        Second, even when the Court examines the entire Complaint, it is clear that Plaintiff has

not alleged that her workplace was “permeated with discriminatory intimidation, ridicule and

insult that is sufficiently . . . pervasive . . . .” Harris, 510 U.S. at 22 (1993). At most, Plaintiff

has alleged five discrete events of discrimination spread out over more than four years. See

Compl. ¶¶ 25-29, 33, 46-48, 52-53, 57-59. The fact that these alleged events span more than four

years indicates that the alleged discrimination was not pervasive. Compare Nurriddin v, 674 F.

Supp. 2d at 94 (“[T]he alleged events are temporally diffuse, spread out over a four-year period

suggesting a lack of pervasiveness”), with Hutchinson v. Holder, 668 F. Supp. 2d 201, 219

(D.D.C. 2009) (refusing to dismiss plaintiff’s hostile work environment claim when the

complaint contained “dozens of incidents that [plaintiff] alleges constituted a hostile work

environment”) (emphasis added).

        Furthermore, two of these discrete events are not properly considered as a basis for a

hostile work environment claim. Specifically, Plaintiff has failed to allege that the September

2004 incident with Mr. Zimmerman and the February 2007 incident with Ms. McDonald

“occurred because of her race or disability.” Childs-Pierce, 383 F. Supp. 2d at 77; see


                                                   13
also Intake Questionnaire at 6 (alleging that Ms. McDonald harassed Plaintiff regarding

Plaintiff’s work performance). Absent a connection between these alleged discriminatory acts

and Plaintiff’s sex, race, or ethnicity, these allegations cannot be grounds for a Title VII hostile

work environment claim. Childs-Pierce, 383 F. Supp. 2d at 77-78 (“Everyone can be

characterized by sex, race, [or] ethnicity . . . . It is therefore important in hostile work

environment cases to exclude from consideration personnel decisions that lack a linkage of

correlation to the claimed ground of discrimination. Otherwise the federal courts will become a

court of personnel appeals”) (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).

        In conclusion, for the reasons set forth above, no reasonable trier of fact could find in

favor of Plaintiff in regards to her Title VII hostile work environment claim. Therefore, the

Court shall grant Defendant’s converted motion to dismiss Plaintiff’s Title VII hostile work

environment claim.

        B.      The Converted Motions to Dismiss for Failure to Exhaust Administrative
                Remedies

        In addition, Defendant moves to dismiss Plaintiff’s ADEA discrimination claim (Count

III), ADEA retaliation claim (Count IV), and Title VII retaliation claims (Count IV) for failure to

exhaust administrative remedies.

        “Before suing under either the ADEA or Title VII, an aggrieved party must exhaust his

administrative remedies by filing a charge of discrimination with the EEOC within 180 days of

the alleged discriminatory incident.” Washington v. Washington Metro. Area Transit Auth., 160

F.3d 750, 752 (D.C. Cir. 1998). A lawsuit following a charge is limited “to claims that are like

or reasonably related to the allegations of the charge and growing out of such allegations.” Park

v. Howard University 71 F.3d 904, 907 (D.C. Cir. 1995). In particular, these claims “must arise

                                                   14
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 Hodge v. United Airlines, 666 F. Supp. 2d 14, 22 (D.D.C. 2009) (dismissing a hostile

work environment claim because the information in the charge was “not specific or elaborate

enough to allow the EEOC to infer the existence of a hostile work environment claim.”).

“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)); see also Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 95-96 (1990).

          To assert a claim of retaliation, Plaintiff must “show[] (1) that [s]he engaged in statutorily

protected activity; (2) that [s]he suffered a materially adverse action by his employer; and (3) that

a causal link connects the two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). “An

activity is ‘protected’ for the purposes of a retaliation claim ‘if it involves opposing alleged

discriminatory treatment by the employer or participating in legal efforts against the alleged

treatment.’” Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 91 (D.D.C. 2006)

(quoting Coleman v. Potomac Elec. Power Co., 422 F. Supp. 2d 209, 212-13 (D.D.C. 2006)).

An action is “adverse” if the employer's actions are likely to have “‘dissuaded a reasonable

worker from making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. v.

White, 548 U.S. 53, 126 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.

2006)).

          In this case, Plaintiff admits that her EEOC Complaint and Notice of Charge do not

reference her ADEA discrimination, ADEA retaliation, or Title VII retaliation claims. See Pl.’s

                                                   15
Opp’n at 4, 8. Nevertheless, Plaintiff argues that she exhausted her administrative remedies in

regards to these claims by including allegations supporting these claims in her Intake

Questionnaire. See id. at 3-6, 8. In response, Defendant contends that Plaintiff cannot rely on the

Intake Questionnaire to exhaust administrative remedies. See Def.’s Reply at 2-4. For the

reasons set forth below, the Court shall grant Defendant’s motion to dismiss Plaintiff’s ADEA

discrimination and ADEA retaliation claims for failure to exhaust administrative remedies2 and

shall hold in abeyance Defendant’s motion to dismiss Plaintiff’s Title VII retaliation claim for

failure to exhaust administrative remedies.

                1.      Plaintiff’s ADEA Discrimination and Retaliation Claims

        As mentioned above, Plaintiff concedes that her EEOC Complaint and Notice of Charge

do not mention age discrimination. See Pl.’s Opp’n at 8. The Court agrees. Significantly,

neither document contains a single allegation that Plaintiff was discriminated against because of

her age, much less a reference to Plaintiff’s age. See Def.’s Mot. Ex. 1. In fact, in her EEOC

Complaint Plaintiff only alleges that she was “discriminated against because of [her] sex, female,

relating to pregnancy; race (Asian); and national origin (India) . . . .” Id. at 1. Similarly, in the

Notice of Charge prepared by the EEOC and sent to Defendant based on Plaintiff’s EEOC

Complaint, the EEOC only filled in the boxes on the standardized form corresponding to claims

under Title VII for race, sex, and national origin discrimination, while the boxes corresponding to

age discrimination and claims under the ADEA were empty. See id. at 3.




2
 Accordingly, the Court does not reach Defendant’s other motions to dismiss Plaintiff’s ADEA
discrimination and retaliation claims.

                                                  16
       Despite the EEOC Complaint filed with the EEOC and the Notice of Charge served on

Defendant omitting any reference to age discrimination or the ADEA, Plaintiff argues that the

Intake Questionnaire she submitted to the Arlington Human Rights Commission is sufficient to

exhaust the administrative remedies for her ADEA discrimination and ADEA retaliation claims.

See Pl.’s Opp’n at 8. In response, Defendant argues that Plaintiff may not rely on the Intake

Questionnaire to exhaust administrative remedies because the Intake Questionnaire is not a

charge of discrimination. See Def.’s Reply at 2-6. The Court, however, does not need to reach

the issue of whether Plaintiff may rely on the Intake Questionnaire because assuming arguendo

that Plaintiff could rely on the Intake Questionnaire, the Court finds that Plaintiff nonetheless

failed to exhaust administrative remedies for her ADEA claims.

       Similar to Plaintiff’s EEOC Complaint, the Intake Questionnaire does not indicate that

Plaintiff alleged she was discriminated against based on her age. Significantly, the Intake

Questionnaire asks complainants “on what basis do you believe that you were discriminated” and

asks them to “check all that apply.” Intake Questionnaire at 4. Similar to the allegations in her

EEOC Complaint, Plaintiff checked the Intake Questionnaire’s boxes for race, sex, pregnancy,

and national origin. See id. However, Plaintiff did not check the box indicating that she believed

she was discriminated against based on age. See id. The fact that Plaintiff checked the boxes for

the other forms of discrimination indicates that she understood the significance of checking the

age discrimination box and that her failure to do so was because she did not believe she was

discriminated against because of her age. Furthermore, Plaintiff omitted a single explicit

allegation of being discriminated against based on her age in the over eight pages, single space

description she includes in the Intake Questionnaire regarding why she believed was

                                                 17
discriminated against. See id. at 4-11. This omission, along with Plaintiff’s failure to check the

Intake Questionnaire’s box for age discrimination, is glaring and belies Plaintiff’s claim that an

investigation regarding age discrimination “can reasonably be expected to follow” the Intake

Questionnaire. See Park, 71 F.3d at 907.

        Plaintiff disputes this conclusion and argues that by stating in the Intake Questionnaire

that “she was the most senior person in the IT divisions . . . and that a majority of people over 50

were laid off in 2007,” she sufficiently raised the issue of age discrimination. Pl.’s Opp’n at 8

(citing Intake Questionnaire at 8-9, 11). This purported reference to age discrimination,

however, is not “specific or elaborate enough to allow the EEOC to infer the existence” of

Plaintiff’s age discrimination claims. Hodge, 666 F. Supp. 2d at 22. Moreover, it does not allege

that Plaintiff engaged in any protected activity opposing age discrimination from which an

ADEA retaliation claim could arise. See Lemmons, 431 F. Supp. 2d at 91 (D.D.C. 2006) (“An

activity is ‘protected’ for the purposes of a retaliation claim ‘if it involves opposing alleged

discriminatory treatment by the employer or participating in legal efforts against the alleged

treatment’”) (quoting Coleman, 422 F. Supp. 2d at 212-13)). Finally, and perhaps most

significantly, the statements cited by Plaintiff do not actually refer to any age discrimination

against Plaintiff herself.

        Thus, for the reasons stated above, the Court concludes that Plaintiff failed to exhaust the

administrative remedies for her ADEA discrimination and ADEA retaliation claims.

Consequently, the Court shall grant Defendant’s converted motions to dismiss the ADEA

discrimination claim (Counts III) and the ADEA retaliation claim (Count IV).



                                                  18
                2.      Plaintiff’s Title VII Retaliation Claim

        As a threshold matter, the Court reiterates that Plaintiff concedes, as she must, that she

did not reference a Title VII retaliation claim in her EEOC Complaint. See Pl.’s Opp’n at 3-4. In

short, Plaintiff’s EEOC Complaint does not indicate that she engaged in any protected activity

that could serve as a predicate for a retaliation claim. See Def.’s Mot. Ex. 1, at 1-2. The EEOC

apparently agreed with this interpretation of Plaintiff’s EEOC Complaint, as the EEOC filled in

the boxes for discrimination based on race, sex, and national origin, but not for retaliation, in the

Notice of Charge it prepared and sent to Defendant. See id. at 3.

        Thus, similar to above, Plaintiff instead relies on the Intake Questionnaire to argue that

she exhausted her administrative remedies for her Title VII retaliation claim. See Pl.’s Opp’n at

4, 6. In support of her reliance on the Intake Questionnaire, Plaintiff cites to Federal Express Co.

v. Holowecki, 552 U.S. 389 (2008), and its progeny. See Pl.’s Opp’n at 4. In reply, Defendant

argues that (1) the D.C. Circuit has already held in Park v. Howard University, 71 F.3d 904 (D.C.

Cir. 1995), that intake questionnaires cannot replace an EEOC charge, Def.’s Reply at 3; and (2)

in any event, the cases Plaintiff relies on are factually distinguishable from the instant case, id. at

4. For the reasons set forth below, however, the Court shall hold in abeyance Defendant’s

converted motion to dismiss Plaintiff’s Title VII retaliation claim.

        Unlike Plaintiff’s ADEA claims, the Intake Questionnaire may contain some allegations

that could be construed as allegations that Plaintiff was retaliated against for undertaking

protected activity. See, e.g., Intake Questionnaire at 6 (noting that in March 2007 Plaintiff

“submitted a complaint in the Human Resources department at [Defendant] that [she] was being



                                          19
subjected to repeated harassment . . . .”).3 Thus, whether the Court may consider the Intake

Questionnaire appears to be determinative as to whether Plaintiff exhausted the administrative

remedies for her Title VII retaliation claim. Furthermore, the Court agrees with the parties that

for this Court to consider the Intake Questionnaire as Plaintiff urges the Court to do, the Court

must first find that the Intake Questionnaire constitutes a charge of discrimination. See Pl.’s

Opp’n at 4; Def.’s Reply at 3. For two principal reasons, however, the Court shall hold this

issue, and consequently Defendant’s converted motion, in abeyance until the parties submit to the

Court supplemental briefing on the two issues set forth below.

       First, Defendant argues in its Reply that the Intake Questionnaire is not a charge of

discrimination in part because it is not verified, as required under 42 U.S.C. § 2000e-5(b). Def.’s

Reply at 3.4 Although courts generally refuse to address arguments that are raised in a reply brief

for the first time, see, e.g., Am Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008)

(“We need not consider this argument because plaintiffs . . . raised it for the first time in their

reply brief”), the Court realizes that because Plaintiff first mentioned her reliance on Intake

Questionnaire in her Opposition, the Reply was Defendant’s first opportunity to address the

Intake Questionnaire. Accordingly, the Court shall not dismiss Defendant’s verification

3
 The Court notes, however, that whether the Intake Questionnaire in fact contains allegations
regarding a Title VII retaliation claim is far from clear as Plaintiff has not actually specified the
basis of her Title VII retaliation claim. In the supplemental briefing that this Court orders below,
Plaintiff is strongly urged to clarify the contours of her Title VII retaliation claim and the specific
allegations in the Intake Questionnaire that allegedly exhaust her Title VII retaliation claim.
4
  The Court notes that at first glance, Defendant’s argument appears to have some merit as the
version of the Intake Questionnaire presented to this Court is not signed and does not otherwise
indicate that Plaintiff verified its contents under oath. See generally Intake Questionnaire; see
also 42 U.S.C. § 2000e-5(b) (requiring “[c]harges” to “be in writing under oath or affirmation”).


                                                  20
argument out of hand. Rather, the Court shall permit Plaintiff an opportunity to respond to

Defendant’s verification argument by requiring the parties to submit supplemental briefing as to

whether the Intake Questionnaire is verified in accordance with 42 U.S.C. § 2000e-5(b).

       Second, both parties have applied Holowecki in this case without first explicitly

questioning whether Holowecki in fact applies. At issue in Holowecki was whether an intake

questionnaire constituted a timely filed charge of discrimination. See id. at 394. In this case, in

contrast, the issue is not whether Plaintiff timely filed a charge, but rather whether Plaintiff may

rely upon allegations in her Intake Questionnaire to prove that she exhausted the administrative

remedies for her Title VII retaliation claim. Under circumstances similar to those presented here,

the Seventh Circuit Court of Appeals recently concluded that Holowecki is “inapposite” because

“the issue is not whether a charge was timely filed (it was) but rather it included an allegation of

retaliation.” See Swearnigen-El v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 852, 865 (7th Cir. 2010).

Whether Holowecki applies in this case appears to be a matter of first impression in this Circuit,

an issue not directly addressed by the parties. Therefore, the Court shall also require the parties

to submit supplemental briefing as to (1) whether Holowecki applies in this case; (2) whether the

D.C. Circuit’s holding in Park applies; (3) if Holowecki and its progeny do apply, what specific

facts and rationales from these cases supports their respective arguments,5 and (4) whether the

Intake Questionnaire being filed with the Arlington Human Rights Commission, as opposed to

the EEOC, affects whether the Intake Questionnaire’s allegations may be considered.

5
 In the parties’ filings currently under consideration, to the extent the parties even explained
Holowecki and its progeny, the parties did so almost exclusively in regards to the cases’ holdings
and the titles of documents under review. In their supplemental briefing, the parties are urged to
explain to the Court why a cited case’s facts and reasoning support the parties’ arguments.


                                                 21
            In conclusion, the Court shall hold in abeyance Defendant’s converted motion to

dismiss Plaintiff’s Title VII retaliation claim until the parties have submitted supplemental

briefing to the Court addressing the following narrow issues: (1) whether the Intake

Questionnaire meets 42 U.S.C. § 2000e-5(b)’s requirement that employment discrimination

charges must be verified; and (2) whether Holowecki applies to the issue of whether Plaintiff may

rely on the Intake Questionnaire’s allegations to exhaust the administrative remedies for her Title

VII retaliation claim. The Court shall set forth a schedule for the parties’ supplemental briefing

in the Conclusion to this Memorandum Opinion.

       C.       Defendant’s Remaining Motions

                1.      Plaintiff’s Purported Pattern and Practice Claims

       Defendant also moves to dismiss Plaintiff’s purported pattern and practice claims for

failure to state a claim. Def.’s Mot. at 18-19. In response, Plaintiff argues that she may use

evidence of Defendant’s pattern and practices to support her claims of discrimination. Pl.’s

Opp’n at 9. The Court shall deny Defendant’s motion to dismiss Plaintiff’s pattern and practice

claims because there is no indication that Plaintiff is in fact asserting pattern and practice claims.

       Defendant is correct that Plaintiff may not assert pattern and practice claims as this is not

a class-action. See Wagner v. Taylor, 836 F.2d 578, 592 n.94 (D.C. Cir. 1987). However, the

Complaint contains no separate count designating a pattern and practices claim and Plaintiff’s

Opposition indicates that the allegations regarding Defendant’s pattern and practices are meant to

support Plaintiff’s claims that Defendant discriminated against her. See Pl.’s Opp’n at 9. There

is no doubt that Plaintiff may use Defendant’s pattern and practices in this manner. See Williams

v. Boorstin, 663 F.2d 109, 115 n.38 (D.C. Cir. 1980) (noting that “evidence of systematic or

                                                  22
general instances of discrimination can only be collateral to evidence of specific discrimination

against the actual plaintiff”) ; see also Turner v. District of Columbia, 383 F. Supp. 2d 157, 169

(D.D.C. 2005) (“[E]vidence of a pattern or practice is relevant to an individual’s claim for

discrimination”). Thus, the Court shall deny Defendant’s motion to dismiss Plaintiff’s purported

pattern and practices claims because Plaintiff is not in fact asserting such claims.

       Consequently, the Court shall also deny Defendant’s related motion to strike the

Complaint’s allegations of Defendant’s pattern and practice as immaterial and impertinent. See

Def.’s Mot. at 19-20. As Plaintiff is allowed to use pattern and practice evidence to support her

discrimination claims, such allegations are not immaterial or impertinent. See Fed. R. Civ. P.

12(f) (allowing a court to strike “any redundant, immaterial, impertinent, or scandalous matter”).

               2.      Plaintiff’s Title VII Claims

                       a.      Failure to exhaust administrative remedies

       Defendant moves to dismiss Plaintiff’s Title VII claims based on discrimination in hiring,

compensation and benefits, performance evaluations, and demotions for failure to exhaust

administrative remedies. See Def.’s Mot. at 8-10 (citing Compl. ¶ 71). Plaintiff’s Complaint and

Opposition indicate, however, that Plaintiff has not asserted the abovementioned Title VII

claims. See Compl. ¶¶ 78-79; see Pl.’s Opp’n (containing no reference to such claims). The

allegations Defendant cites to in support of this argument are better understood as part of

Plaintiff’s abovementioned allegations regarding Defendant’s pattern and practices. See Compl.

¶ 71 (“[Defendant], through its agents and officers, has engaged in a pattern and practice of

discriminating against minority employees in terms of their hiring, compensation and benefits,


                                                 23
performance evaluations, promotions and demotions, and terminations.”). Accordingly, the

Court shall deny Defendant’s motions to dismiss Plaintiff’s Title VII claims based on

discrimination in hiring, compensation and benefits, performance evaluations, and demotions for

failure to exhaust administrative remedies.

                       b.      Barred by the statute of limitations

       In addition, Defendant moves to dismiss Plaintiff’s Title VII claims based on events

arising prior to July 17, 2007, as barred by Title VII’s 300-day statute of limitations. Def.’s Mot.

at 11; see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (providing

that in states with an agency with authority to grant or seek relief for alleged unlawful

employment practices, the deadline under Title VII to submit a charge is 300 days from the

alleged discriminatory incident). In response, Plaintiff argues that because her discrimination

was ongoing, the continuing violation doctrine prevents her claims from being barred by the

statute of limitations. See Pl.’s Opp’n at 9.6 For the reasons explained below, the Court shall

grant Defendant’s motion to dismiss Plaintiff’s Title VII claims based on discrete discriminatory

acts occurring before July 17, 2007.

       The Court has already dismissed Plaintiff’s Title VII hostile work environment claim for

failure to state a claim. As a result, Plaintiff’s remaining Title VII claims are only those for

discrete acts of discrimination. This is significant because Plaintiff cannot rely upon the

continuing violation doctrine to prevent her discrete acts of discrimination from being barred by

the statute of limitations. Compare. Morgan, 536 U.S. 101, 118 (2002) (“It does not matter, for

6
  The Court notes that Plaintiff does not argue that the Intake Questionnaire somehow alters the
applicable statute of limitations. See Pl.’s Opp’n at 9. Accordingly, the Court shall not address
this issue.
                                                 24
purposes of the statute, that some of the component acts of the hostile work environment fall

outside the statutory time period”), with id. at 113 (“discrete discriminatory acts are not

actionable if time barred . . . . Each discrete discriminatory act starts a new clock for filing

charges alleging that act.”). Therefore, the Court shall grant Defendant’s motion to dismiss

Plaintiff’s Title VII claims based on events occurring prior to July 17, 2007.

               3.      Plaintiff’s § 1981 Claims

       Defendant also moves to dismiss Plaintiff’s § 1981 claims arising out of discrete acts of

discrimination that occurred prior to November 25, 2005, as being barred by the statute of

limitations. See Def.’s Mot. at 13. In response, Plaintiff does not specifically address § 1981’s

statute of limitations, but argues that the continuing violation doctrine prevents her claims from

being dismissed. Pl.’s Opp’n at 9. As explained above, however, the continuing violation

doctrine does not apply to discrete acts of discrimination. See Morgan, 536 U.S. at 113. As

Defendant moves to dismiss only § 1981 claims based on discrete acts of discrimination, the

Court finds that Plaintiff’s argument based on continuing violation doctrine lacks support. See

Def.’s Mot. at 13 (seeking dismissal of “claims based on Plaintiff being allegedly ‘ostracized’

and ‘forced to issue a written apology’ after an incident involving a harassment complaint against

her in August 2004.”). Accordingly, the Court shall grant Defendant’s motion to dismiss

Plaintiff’s § 1981 claims based on events arising prior to November 25, 2005—four years before

Plaintiff filed the Complaint. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004)

(applying 28 U.S.C. § 1658’s four year statute of limitations to § 1981 claims).




                                                  25
       D.      Plaintiff’s Motion to Amend Her Complaint

       In her Opposition, Plaintiff requested leave to amend the Complaint pursuant to Federal

Rule of Civil Procedure 15(a) if the Court dismisses any of her age or retaliation claims. See

Pl.’s Opp’n at 10. Although not styled as a motion for leave to amend, the Court shall construe it

as such. Nevertheless, the Court shall deny this construed motion because it violates Local Civil

Rule 7(i) by failing to include “an original of the proposed pleading as amended.” Thus, the

Court shall dismiss Plaintiff’s construed motion for leave to amend without discussing its merits.

See Banks v. Kramer, 603 F. Supp. 2d 3, 6-7 (D.D.C. 2009).

       Additionally, even if the Court were to reach the merits of Plaintiff’s construed motion

for leave to amend, the Court would nonetheless deny it as futile. After a party has lost the right

to amend its pleading once as a matter of course, “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave. The court should freely give leave when

justice requires.” Fed. R. Civ. P. Rule 15(a)(2). Courts should grant leave to amend so long as

there is no indication of “undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficience by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Foman v.

Davis, 371 U.S. 178, 182 (1962) (internal quotation marks omitted). In this case, the Court has

dismissed Plaintiff’s ADEA discrimination and ADEA retaliation claims (Counts III & IV)

because Plaintiff failed to exhaust her administrative remedies. Plaintiff cannot cure her failure

to exhaust administrative remedies by amending her Complaint. Accordingly, the Court

concludes that Plaintiff’s motion for leave to amend the Complaint in regards to her ADEA

claims is futile and shall be denied.

                                                26
                               IV. CONCLUSION

       In conclusion, the Court shall GRANT-IN-PART, DENY-IN-PART, and HOLD-IN-

ABEYANCE-IN-PART Defendant’s [4] Partial Motion to Dismiss and DENY Plaintiff’s

construed motion for leave to amend the Complaint. Specifically, the Court shall: (1) grant

Defendant’s converted motion to dismiss Plaintiff’s Title VII hostile work environment claim

(Count I) for failure to state a claim; (2) grant Defendant’s converted motion to dismiss

Plaintiff’s ADEA claims (Counts III & IV) for failure to exhaust administrative remedies; (3)

hold in abeyance Defendant’s converted motion to dismiss Plaintiff’s Title VII retaliation claim

(Count IV) for failure to exhaust administrative remedies; (4) deny Defendant’s motion to

dismiss Plaintiff’s purported pattern and practice claims for failure to state a claim; (5) deny

Defendant’s motion to strike the Complaint’s allegations of Defendant’s pattern and practices;

(6) deny Defendant’s motion to dismiss, for failure to exhaust administrative remedies, Plaintiff’s

purported Title VII claims for discrimination in hiring, compensation and benefits, performance

evaluations, and demotions; (7) grant Defendant’s motion to dismiss as time barred Plaintiff’s

remaining Title VII claims based on events occurring prior to July 17, 2007; (8) grant

Defendant’s motion to dismiss as time barred Plaintiff’s § 1981 claims (Count II) based on

discrete acts of discrimination occurring prior to November 25, 2004; and (9) deny Plaintiff’s

construed motion for leave to amend the Complaint.

       The supplemental briefing on the issues requested above––and on those issues

only––shall be filed by the parties on or before October 29, 2010. The parties shall be permitted

to file oppositions to the other party’s supplemental briefing, with such oppositions due on or




                                                 27
before November 12, 2010. Replies, if any, shall be due on or before November 26, 2010. An

appropriate Order accompanies this Memorandum Opinion.

Date September 30, 2010

                                                           /s/
                                                 COLLEEN KOLLAR-KOTELLY
                                                 United States District Judge




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