                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 KIMBERLY KING,

         Plaintiff,
                 v.                                         Civil Action No. 18-3002 (JEB)
 KATE SPADE & COMPANY, et al.,

         Defendants.


                                  MEMORANDUM OPINION

        Plaintiff Kimberly King’s pro se suit alleges that, while working as a salesperson for

Kate Spade & Company here in Washington, she was discriminated against on the basis of her

pregnancy. In now moving to dismiss, the company points out that King did not wait the

requisite 180 days after filing her administrative charge before coming to court. As Defendant is

correct that Plaintiff has initiated her suit prematurely, the Court will grant the Motion without

prejudice so that King can exhaust her administrative remedies.

I.      Background

        Assuming the facts in the Complaint are true, as it must at this stage, the Court need offer

the briefest of synopses. King, hired as a “sales muse” by Kate Spade, alleges that in December

2017 she informed her supervisor of her nascent pregnancy. See Compl., ¶¶ 3-4. (The company

points out that the proper Defendant is Tapestry, Inc., which owns Kate Spade Holdings LLC,

see Motion at 1 n.1, but this has no effect on the Court’s Opinion.) Within two weeks, the

company ceased scheduling her for regular shifts and deprived her of other work privileges and

incentives. Id., ¶¶ 5, 7.



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       She ultimately filed a Charge of Discrimination with the D.C. Office of Human Rights on

October 24, 2018, see Compl., Exh. 1, and, less than a month later, requested that the Equal

Employment Opportunity Commission issue her a Notice of Right to Sue. See Opp., Exh. 1.

The Notice, issued November 27, informed her that, although fewer than 180 days had elapsed

since the filing of the charge, the EEOC had “determined that it is unlikely that the EEOC will be

able to complete its administrative processing within 180 days from the filing of this charge.”

Compl., Exh. 2 at 1.

       Having received that Notice, she filed the current action on December 19, 2018, which

asserts one count for sex discrimination, presumably under Title VII. See Compl. at 2.

Defendant now moves to dismiss.

II.    Legal Standard

       Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” Although “detailed factual

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007), “a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotations marks and citation omitted). In weighing a motion to dismiss, 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 [the court] may take judicial notice.” EEOC v. St.

Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). The Court “must treat the

complaint’s factual allegations as true and must grant [the] plaintiff ‘the benefit of all inferences

that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979))



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(internal citations omitted). It need not accept as true, however, “a legal conclusion couched as a

factual allegation” or an inference unsupported by the facts set forth in the Complaint. Trudeau

v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)).

       Even at the Rule 12(b)(6) stage, a Court can review “documents attached as exhibits or

incorporated by reference in the complaint,” or “documents upon which the plaintiff’s complaint

necessarily relies even if the document is produced not by the plaintiff in the complaint but by

the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp.

2d 117, 119 (D.D.C. 2011) (citations omitted); see also Banneker Ventures, LLC v. Graham, 798

F.3d 1119, 1133 (D.C. Cir. 2015) (“A district court may consider a document that a complaint

specifically references without converting the motion into one for summary judgment.”). In this

case, King has included her Charge of Discrimination, her Notice of Right to Sue, and her email

exchange seeking the Notice. The Court may, therefore, properly consider these items without

converting Defendant’s Motion into one for summary judgment.

III.   Analysis

       Defendant spends no time in its Motion discussing either fashion or discrimination;

instead, it makes one simple point: Plaintiff has jumped the gun. More specifically, she must

wait 180 days under 42 U.S.C. § 2000e-16(c) for the full EEOC process to play out before

running to court. This is correct. The D.C. Circuit addressed this very question in Martini v.

Fed. Nat’l Mortg. Ass’n, 178 F.3d 1336 (D.C. Cir. 1999). Faced with a plaintiff who had, like

King, requested a right-to-sue letter within 180 days of the filing of her administrative complaint

and then had also filed her federal suit before the full period had run, the Circuit concluded: “We

thus hold that Title VII complainants must wait 180 days after filing charges with the EEOC



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before they may sue in federal court.” Id. at 1347. The basis was that short-circuiting the EEOC

process “undermines [the Commission’s] express statutory duty to investigate every charge

filed.” Id.; see also Murthy v. Vilsack, 609 F.3d 460, 464 (D.C. Cir. 2010) (explaining that

Martini “interpreted the 180-day period . . . to be a mandatory waiting period”).

        Martini did acknowledge that the waiting period is not jurisdictional, but is instead “a

requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable

tolling.” 178 F.3d at 1348 (internal quotation marks and citation omitted). As Defendant has

certainly not waived the defense, having asserted it at the first possible instance, and as King

does not posit that some equitable basis should prevent its application, the Court must find her

suit premature.

        Faced with this unambiguous command from the Court of Appeals, Plaintiff’s Opposition

largely emphasizes the policy implications behind pregnancy-discrimination laws. The Court

casts no shade on the merits of such points, but notes only that they are irrelevant to the

exhaustion question at issue here. In a Sur-reply, King cites numerous out-of-circuit cases to

show that other courts have handled the matter differently from the D.C. Circuit. See ECF No.

16 at 3-4. This Court, of course, cannot pick which precedent it most esteems; instead, it has an

obligation to follow the law of this Circuit, which, while acknowledging that others have

disagreed, has articulated a clear interpretation of the statute at issue. See Martini, 178 F.3d at

1341.

        The Court should also note that it is not terribly helpful for the Commission to deliver a

right-to-sue letter to plaintiffs before the 180 days have run, even if plaintiffs so request. It is

possible that some EEOC confusion is caused by the different circuit law, but the Washington

Field Office should be cautioning plaintiffs in clearer language than appears in the ambiguous



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email here that they must wait for the full 180 days to elapse before filing suit in this jurisdiction.

The Court trusts the Government will so inform the agency.

       Finally, the Court will follow Martini’s instruction to dismiss the case without prejudice

so that King can return to the EEOC for 180 days minus the days her charge was previously

under consideration there, after which she is free to refile her suit here.

IV.    Conclusion

       For the foregoing reasons, the Court will grant the Motion and dismiss the case without

prejudice. A separate Order consistent with this Opinion will issue this day.

                                                       /s/ James E. Boasberg
                                                       JAMES E. BOASBERG
                                                       United States District Judge
Date: March 13, 2019




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