                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



  LORI ROBINSON,

          Plaintiff,

                 v.                                       Civil Action No. 14-379 (JDB)
  ERGO SOLUTIONS, LLC,

          Defendant.


                                 MEMORANDUM OPINION

        Lori Robinson alleges that her erstwhile employer, Ergo Solutions, retaliated against her

for filing a complaint with the Equal Employment Opportunity Commission and constructively

discharged her. Ergo responds by attacking her claims on all fronts: timing of service, failure to

state a cause of action, and violating the statute of limitations. But these arguments mostly miss

their mark. The Court will grant the motion to dismiss only as to Robinson’s claim of constructive

discharge, deny the remainder of Ergo’s motion, and permit discovery as to Robinson’s claim of

retaliation.

                                       BACKGROUND

        Throughout Robinson’s career at Ergo—since 1996—she had been allowed to work from

home. Am. Compl. [ECF No. 2] ¶ 7. After fifteen years, however, things changed. In January

2011, she filed a charge of discrimination with the Equal Employment Opportunity Commission,

alleging that one of Ergo’s owners had made sexual advances toward her. Id. ¶ 8. That June,

Robinson was told that she could no longer work from home. Id. ¶ 9. In the absence of any

explanation for this change, Robinson surmised that retaliation was the cause. Id. ¶ 9–10.


                                                1
        Robinson was also surprised by a negative performance evaluation. Id. ¶ 11, 13. Her June

2010 appraisal had “indicated that her performance was good to outstanding.” Id. ¶ 11. But her

subsequent evaluation “criticized her use of leave slips [and] her use of leave and cited her for

‘inadequate professional behavior’ without any basis.” Id. ¶ 12.

        Concerned that this evaluation, too, was the result of retaliation, Robinson filed suit on

March 10, 2014, claiming retaliation and constructive discharge under both Title VII and the D.C.

Human Rights Act. On July 8, she filed a (substantially similar) amended complaint. And on July

9, a summons was issued to Ergo. It was served three days later. See Return of Service/Aff. [ECF

No. 15].

        Ergo has moved to dismiss the lawsuit or, alternatively, for summary judgment. It has also

requested sanctions against Robinson.

                                       LEGAL STANDARD

        A Rule 12(b)(6) motion “tests the legal sufficiency of a complaint.” Lewis v. Dist. of

Columbia, 535 F. Supp. 2d 1, 8 (D.D.C. 2008). To pass the test, “the plaintiff must allege a

plausible entitlement to relief, by setting forth any set of facts consistent with the allegations.” Id.

at 9 (internal quotation marks and citation omitted). Although “detailed factual allegations” are

not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of

“entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007).

        At this stage, the Court “must treat the complaint’s factual allegations—including mixed

questions of law and fact—as true and draw all reasonable interferences therefrom in the plaintiff’s

favor.” Lewis, 535 F. Supp. 2d at 9. But the Court “need not accept as true inferences unsupported



                                                   2
by facts set out in the complaint or legal conclusions cast as factual allegations.” Id. And “[a]

defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion

when the facts giving rise to the defense are apparent on the face of the complaint.” Nat’l R.R.

Passenger Corp. v. Lexington Ins. Co., 357 F. Supp. 2d 287, 292 (D.D.C. 2005).

                                           ANALYSIS

       Ergo moves to dismiss Robinson’s claims on several theories: that the complaint was

served too late under Title VII; that Robinson has failed to make out a claim for either retaliation

or constructive discharge; and that the DCHRA statute of limitations bars the suit. The Court

agrees with Ergo only as to Robinson’s constructive discharge claim.

I.     SERVICE OF COMPLAINT

       Ergo advances, foremost, a highly technical argument—but it boils down to an assertion

that it received Robinson’s summons only days late. Under Federal Rule of Civil Procedure 4(m),

“[i]f a defendant is not served within 120 days after the complaint is filed, the court . . . must

dismiss the action without prejudice against that defendant or order that service be made within a

specified time.”   Robinson narrowly missed that 120-day deadline.          She filed her original

complaint on March 10, 2014, but neglected to request a summons. The 120-day period to issue

a summons, then, expired on July 8, 2014. But instead of serving Ergo by that date, Robinson

filed an amended complaint—for which the summons was issued on July 9, see July 9, 2014

Minute Entry [ECF No. 5], and served on July 12, see Return of Service/Aff. [ECF No. 15]. In

short, Ergo received the summons and amended complaint immediately after the amended

complaint was filed, and only four days after the service deadline for the original complaint.




                                                 3
         Ergo attaches greater importance to this problem than one might typically expect. Ergo

points out that the original complaint was never served at all. 1 Thus, the contention goes, the

amended complaint cannot relate back to it. And the amended complaint, standing alone, was not

filed within ninety days of the right-to-sue letter, as required. See 42 U.S.C. § 2000e-5(f)(1). The

syllogism, as Ergo sees it, is that failure to ensure service of the summons a few days sooner sinks

the case.

         Technically, Ergo has a point: the original complaint was not served before the amended

complaint superseded it. But had the amended complaint (and its related summons) been filed

even days earlier—or if the Court considers the July 10 service of the original complaint—there

would be no problem. In its haste to rid itself of this suit, Ergo ignores the broader directive of

Rule 4(m) that the Court is not required to dismiss the action entirely. Instead, it has discretion to

“order that service be made within a specified time.” Fed. R. Civ. P. 4(m). Were service not

already effected here, the Court would be inclined to “order that service be made within a specified

time”—a time that would, with certainty, have exceeded the short period at issue here. 2 Under



         1
            Not quite—though it seems to be the result of a mix-up on someone’s part. After the summons was issued
on July 9, it was served on July 10. But, for whatever reason, the process server served the original complaint, rather
than the amended complaint. See Return of Service/Aff. [ECF No. 14]. Another issue: when he served the original
complaint, he served an agent of Morris Fischer, Ergo’s attorney. See id. On July 9, Fischer had informed Robinson
that he was authorized to accept service of process. See Ex. 6 to Def.’s Mot. to Dismiss [ECF No. 11-7] at 2. In
briefing this case, Ergo says that Fischer rescinded that authorization only hours later, and so the service doesn’t count.
See Def.’s Reply [ECF No. 18] at 2. But that may be an overreading of the e-mail Fischer sent a few hours after he
agreed to accept service. He does say, in response to that earlier message, that he “stand[s] corrected.” See Ex. 6 at
2. But he goes on to explain that, in his opinion, the deadline for service had passed, and that he would be moving to
dismiss the case. See id. Thus, it is not obviously clear that he was refusing to be the person Robinson served. Rather,
the e-mail could be read to reject the idea of service as unnecessary altogether. In any event, the differences here—
two days to four days—are still negligible. It is clear that during this period immediately following the amended
complaint, Robinson was trying to effectuate service, and that Ergo knew it was the subject of a lawsuit.
          2
            In general, Federal Rule of Civil Procedure 6(b) mandates that “in the absence of any motion for an
extension, the trial court has no basis on which to exercise its discretion to grant an extension after a filing deadline
has passed.” Mann v. Castiel, 681 F.3d 368, 375 (D.C. Cir. 2012) (internal quotation marks, citation, and alterations
omitted). But this Circuit has not yet determined whether “this principle applies here, where a rule mandated that the
district court exercise its discretion.” Id. In any event, the Court “think[s] the motion requirement could have been
deemed satisfied by [Robinson’s] [m]emorandum in [o]pposition.” Yesudian ex rel. United States v. Howard Univ.,
270 F.3d 969, 971 (D.C. Cir. 2001).

                                                            4
these circumstances, the Court does not find a rigid application of Rule 4(m) to constitute an

appropriate means for deciding this case. See Mann, 681 F.3d at 375 (“The Advisory Committee

note for Rule 4(m) instructs that the district court has discretion to extend the time for effecting

and filing proof of service even if the plaintiff fails to show ‘good cause.’”). 3

         Ergo’s argument concerning service of the original complaint is not without support. Other

courts in this circuit have, for instance, expressed concern that permitting service of an amended

complaint to toll a running clock “would require that the statute of limitations be tolled indefinitely

when a complaint is filed, even if service is not made. Thus, plaintiffs could file an initial

complaint, never even attempt to serve it or provide the prospective defendants any notice, and at

any later time file an amended complaint that is served within 120 days.” Rudder v. Williams, ---

F. Supp. 3d ---, 2014 WL 2586335, at *4 (D.D.C. June 10, 2014). But this Court finds that—

although this danger may be real in some cases—a four-day extension in this case is hardly the

grand marshal to a parade of horribles. The Court therefore exercises its discretion to grant an

extension of time to effect service, and consequently denies Ergo’s motion to dismiss on that

ground under the particular circumstances present here.




         3
          “Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute
excusable neglect, it is clear that excusable neglect is a somewhat elastic concept and is not limited strictly to omissions
caused by circumstances beyond the control of the movant.” In re Vitamins Antitrust Class Actions, 327 F.3d 1207,
1209–10 (D.C. Cir. 2003) (internal quotation marks, citation, and alteration omitted). The Court finds just such
excusable neglect here.
        Despite its conviction that this case should not be dismissed on such a thin technicality, however, the Court
is unimpressed with Robinson’s argument that good cause existed to explain her delay in issuing the summons.
Robinson represents that she was confused about who to serve, given Fischer’s e-mails on the subject. But such
confusion, to the extent it exists, did not arise until July 9, which is already one day past the deadline.


                                                             5
II.      FAILURE TO STATE A CLAIM

         Ergo also raises substantive concerns about Robinson’s complaint: even if the Court

accepts the case, Ergo contends, Robinson has failed to make out claims for either retaliation or

constructive discharge. This is correct—but only in part.

      A. RETALIATION

             Title VII prohibits employers from retaliating against their employees for “oppos[ing] any

practice made an unlawful employment practice” by that statute, or for “participat[ing] in any

manner in an investigation, proceeding, or hearing under” the Act. 42 U.S.C. § 2000e-3(a). “To

prove unlawful retaliation, a plaintiff must show: (1) that he opposed a practice made unlawful by

Title VII; (2) that the employer took a materially adverse action against him; and (3) that the

employer took the action ‘because’ the employee opposed the practice.” McGrath v. Clinton, 666

F.3d 1377, 1380 (D.C. Cir. 2012). 4 Ergo mainly contests the second of these requirements, arguing

that Robinson’s allegations do not “[c]onstitute a [t]angible or [a]dverse [e]mployment [a]ction.”

Def.’s Mot. to Dismiss [ECF No. 11] at 5.

         The antiretaliation provision “covers those (and only those) employer actions that would

have been materially adverse to a reasonable employee or job applicant.” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). “[T]hat means that the employer’s actions must be

harmful to the point that they could well dissuade a reasonable worker from making or supporting

a charge of discrimination.” Id. This is an objective test, and “cannot immunize th[e] employee

from those petty slights or minor annoyances that often take place at work and that all employees

experience.” Id. at 68. Still, though: “[c]ontext matters.” Id. at 69. “A schedule change in an




         4
         “The elements of a prima facie case for a DCHRA retaliation claim are the same as those under Title
VII.” Martin v. Dist. of Columbia, 2015 WL 294723, at *26 (D.D.C. Jan. 23, 2015).

                                                        6
employee’s work schedule,” for instance, “may make little difference to many workers, but may

matter enormously to a young mother with school-age children.” Id.

        This case presents just such a possibility. In general, it is reasonable to expect that an

employee will report to her office for duty. But taking away the benefit of telecommuting after it

has been enjoyed for fifteen years is another matter—and one that might well dissuade a reasonable

worker from engaging in protected activity. It may well be that Robinson is a young mother with

school-age children, whose child-care situation requires her presence at home, or she may have

another dependent-care concern, or another situation entirely. At this stage, however, the record

is silent on this point. Thus, discovery is appropriate to determine whether—in this context, for

this plaintiff—losing the privilege to work from home constitutes an adverse action. 5

        Ergo also contests the third requirement of the retaliation claim: causation. At this stage,

however, the “initial burden is not great. [The p]laintiff merely needs to establish facts adequate

to permit an inference of retaliatory motive.” Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir.

1985) (internal quotation marks and citation omitted). “The causal connection component of the

prima facie case may be established by showing that the employer had knowledge of the

employee’s protected activity, and that the adverse personnel action took place shortly after that

activity.” Id. Ergo challenges this temporal-proximity basis for causation.

        In Ergo’s view, the five-month span between Robinson’s EEOC charge and the end of her

telecommuting is simply too attenuated to support an inference of retaliation. The contours of that

time limit test, however, are not entirely clear. Compare Clark Cnty. Sch. Dist. v. Breeden, 532

U.S. 268, 273–74 (2001) (citing cases holding three- and four-month periods “between an


        5
           Marginal performance reviews, however, such as Robinson received, are hardly uncommon. Indeed, they
“typically constitute adverse actions only when attached to financial harms,” which are not alleged here. Baloch v.
Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008).


                                                        7
employer’s knowledge of protected activity and an adverse employment action” insufficient

“evidence of causality”), and McIntyre v. Peters, 460 F. Supp. 2d 125, 133 (D.D.C. 2006) (“This

Court has often followed a three-month rule to establish causation on the basis of temporal

proximity alone.”), with Brodetski v. Duffey, 199 F.R.D. 14, 20 (D.D.C. 2001) (“Although courts

have not established the maximum time lapse between protected Title VII activity and alleged

retaliatory actions for establishing a causal connection, courts generally have accepted time periods

of a few days up to a few months and seldom have accepted time lapses outside of a year in

length.”), and Castle v. Bentsen, 867 F. Supp. 1, 3 (D.D.C. 1994) (holding that a gap of three to

five months “establishes a causal connection and prima facie case sufficient to go to [a] jury”).

Thus, the five-month period in this case occupies a gray area. But applying a rigid cut-off would

only encourage malfeasant employers to wait until the time limit has just passed before taking

retaliatory action. Hence, the Court will not conclude categorically at this stage that causation

cannot be established.

       And there is—slightly—more to consider than just temporal proximity in this case.

Robinson has alleged that “[n]othing had changed in the structure of Ergo Solutions or in its

operations to validate th[e] change” in her work location. Am. Compl. ¶ 9. And she further claims

that “she was not provided with any explanation indicating the basis for the directive from any of

the owners.” Id. Taking the allegations in the amended complaint as true, then—and in the

absence of any explanation from Ergo—Robinson raises an inference that only retaliatory animus

could explain the change. Thus, the Court finds that, for this reason as well, Robinson has made

out a prima facie case of retaliation, and that dismissal at this stage—prior to discovery—is not

warranted.




                                                 8
    B. CONSTRUCTIVE DISCHARGE

         As Ergo points out, “a constructive discharge occurs where the employer creates or

tolerates discriminatory working conditions that would drive a reasonable person to resign.” 6

Taylor v. FDIC, 132 F.3d 753, 766 (D.C. Cir. 1997) (alteration and citation omitted). Retaliation

can be the basis for a constructive discharge claim. See Carter v. George Washington Univ., 387

F.3d 872, 883 (D.C. Cir. 2004) (noting that constructive discharge claims “must be predicated on

a showing of either intentional discrimination or retaliation” (internal citation omitted)).

Constructive discharge does not, however, “occur when an employee leaves an unpleasant but

objectively tolerable job because alternatives have become more attractive, even if the employer’s

misbehavior creates the unpleasantness.” Taylor, 132 F.3d at 766.

         “The inquiry is objective: Did working conditions become so intolerable that a reasonable

person in the employee’s position would have felt compelled to resign?” Penn. State Police v.

Suders, 542 U.S. 129, 141 (2004). This showing requires “something more” than, say, a hostile

work environment claim alone. Id. at 147; see also Bishopp v. Dist. of Columbia, 788 F.2d 781,

790 (D.C Cir. 1986) (“A finding of constructive discharge requires a finding of intentional

discrimination plus a finding of aggravating factors that suggest that the complainant was driven

to quit.” (internal quotation marks and citation omitted)). That is, “unless conditions are beyond

‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking



         6
             “Because the allegation of constructive discharge is based on a collection of events that precipitated
plaintiff’s resignation—specifically, the same two events that plaintiff separately alleges were unlawful under Title
VII, . . . the Court does not interpret plaintiff’s references to constructive discharge as pleading an independent basis
for Title VII liability (i.e., a separate actionable adverse action). Rather, the Court considers the compound allegation
to be an assertion ultimately relating to the scope of plaintiff’s potential recovery in the event that she prevails on the
claim[] of . . . retaliation.” Kalinoski v. Gutierrez, 435 F. Supp. 2d 55, 73–74 (D.D.C. 2006).
            Title VII law guides in interpretation of the DCHRA. See Benefits Commc’n Corp. v. Klieforth, 642 A.2d
1299, 1301 (D.C. 1994) (“In interpreting [the DCHRA] we have generally looked to cases from the federal courts
involving claims brought under the Civil Rights Act of 1964 for guidance and have adopted those precedents where
appropriate.”).

                                                            9
redress.” Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997); see also Clark v.

Marsh, 665 F.2d 1168, 1173 (D.C. Cir. 1981) (“A Title VII plaintiff must, therefore, mitigate

damages by remaining on the job unless that job presents such an aggravated situation that a

reasonable employee would be forced to resign.” (internal quotation marks and citation omitted)).

         What does this mean, in application? “The kinds of situations where courts have upheld

constructive-discharge findings tend to involve extreme mistreatment or thinly veiled (or even

overt) threats of termination.” Kalinoski, 435 F. Supp. 2d at 78. The allegations here do not

approach that mark. As explained above, bad reviews aren’t actionable on their own—so they

certainly don’t constitute “something more” than just a retaliation claim. And although the

requirement that Robinson stop working from home may eventually prove to be actionable

retaliation, the expectation that an employee will work at the physical workplace can hardly

constitute “extreme mistreatment.” See id. (“[A] single instance of workplace ‘rejection’—e.g.,

the denial of a promotion or a lateral transfer—if not ‘career-ending,’ will not constitute a

constructive discharge.”). Robinson’s claim, then, is really no more than a traditional retaliation

claim, devoid of any aggravating factors necessary to support a constructive discharge claim. The

Court will therefore grant Ergo’s motion to dismiss as to constructive discharge.

III.        DCHRA STATUTE OF LIMITATIONS

         Finally, Ergo argues that the DCHRA claims are barred by the statute of limitations. The

DCHRA does contain a one-year statute of limitations. See D.C. Code § 2-1403.16(a). And, at

first blush, Robinson has not met it: the last event alleged in the amended complaint occurred in

June 2011, and she did not file her first complaint in court until March 2014, nearly three years

later.




                                                10
         But the statute of limitations also provides for tolling: “The timely filing of a complaint

with the Office [of Human Rights], or under the administrative procedures established by the

Mayor . . . shall toll the running of the statute of limitations while the complaint is pending.” Id.

The D.C. Court of Appeals has explained that a plaintiff’s “timely filing with the EEOC, of which

DC [Office of Human Rights] promptly received a copy under the existing agreement between the

federal and local agencies, suffice[s] to toll the limitations period for filing in court.” Estenos v.

PAHO/WHO Fed. Credit Union, 952 A.2d 878, 886 (D.C. 2008); see also Zelaya v. UNICCO

Serv. Co., 587 F. Supp. 2d 277, 283 (D.D.C. 2008) (recognizing the Estenos holding).

         Robinson filed an EEOC charge on August 5, 2011—on the basis of which she received a

notice of right to file suit on December 9, 2013. See Pl.’s Opp’n [ECF No. 17] at 13. Thus,

accounting for tolling, she filed well within the one-year DCHRA deadline when this action was

initiated on March 10, 2014. 7

                                                 CONCLUSION

         For the reasons set forth above, Ergo’s motion to dismiss is granted in part and denied in

part. Its motion for sanctions is denied. A separate Order will issue on this date.



                                                                                                 /s/
                                                                                       JOHN D. BATES
                                                                                  United States District Judge

Dated: March 30, 2015




          7
            Ergo has also moved for sanctions under Federal Rule of Civil Procedure 11, arguing that Robinson’s
position on the DCHRA statute-of-limitations issue is legally frivolous. See Def.’s Mot. for Sanctions [ECF No. 19]
at 1. Given that the Court largely agrees with Robinson’s position, it will not award sanctions. Moreover, the Court
notes that sanctions are particularly inappropriate in this case, where Ergo has ignored legal authority on the statute
of limitations question that runs counter to its positions.

                                                         11
