                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
MELISSA COOPER,               )
                              )
                Plaintiff,    )
                              )
          v.                  ) Civil Action No. 14-1526(EGS)
                              )
KAYA HENDERSON,               )
Chancellor of the District    )
of Columbia Public Schools,   )
                              )
                Defendant.    )
______________________________)

                       MEMORANDUM OPINION

     Plaintiff Melissa Cooper (“Ms. Cooper”) brings this action

against Kaya Henderson, in her official capacity as the

Chancellor of the District of Columbia Public Schools (“DCPS”)

alleging (1) disability discrimination, failure to accommodate,

and retaliation for protected activity, in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq.; (2) discrimination on the basis of race and gender and

retaliation for protected activity, in violation of the Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e et seq.; (3) discrimination on the basis of age and

retaliation for protected activity, in violation of the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et

seq.; and (4) retaliation for protected activity in violation of

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et
seq. Am. Compl., Docket No. 25. Chancellor Henderson moves to

dismiss the amended complaint. See generally Def.’s Mot., Docket

No. 27. Upon consideration of the motion, the response and reply

thereto, the applicable law, the entire record, and for the

reasons stated below, Chancellor Henderson’s motion to dismiss

is GRANTED in part, and DENIED in part.

  I.     BACKGROUND

       Ms. Cooper is an African-American female over the age of

forty. Am. Compl., ¶ 8. Ms. Cooper was hired by DCPS in 1980 to

serve as a special education teacher at Roosevelt Senior High

School. Id. ¶¶ 8, 10. At some point during Ms. Cooper’s tenure

at DCPS, she suffered an injury to her foot and requested leave

to receive surgery. Id. ¶ 13. Following surgery, Ms. Cooper

required crutches and an orthopedic boot to ambulate. Id. ¶ 14.

       Ms. Cooper’s classroom was located on the upper floor of

Roosevelt Senior High School. Id. When she returned from her

surgery, she requested access to an elevator to accommodate her

injury. Id. The only functioning elevator in the building was a

freight elevator in a remote wing of the building, approximately

one city block from the building’s entrance. Id. ¶ 15. Use of

the freight elevator involved use of a freight key and lifting a

wrought iron door. Id. ¶ 14. In order to use the freight

elevator, Ms. Cooper had to find someone with a key. Id. ¶ 15.

The one individual with a key was often unavailable or difficult

                                  2
to locate, causing Ms. Cooper to be late for class. Id. Ms.

Cooper also requested a parking spot close to the building’s

entrance, but her request went unanswered. Id. ¶ 17.

      Ms. Cooper alleges that the principal and assistant

principal of Roosevelt Senior High frequently harassed her about

her age, and that the harassment intensified after she returned

from medical leave. Id. ¶ 16. Ms. Cooper alleges that she was

reprimanded for arriving late to class and meetings. Id. ¶ 17.

When she attempted to explain herself to management, her

teaching rating was lowered by ten points. Id. ¶ 18.

      Ms. Cooper alleges that she duly reported every action she

believed to be discriminatory to the administration, the school

principal, and her union, but received little response. Id. ¶

20. She alleges that she received non-work-related telephone

calls from the principal at all hours of the day and night,

which she believes were intended to harass and intimidate her.

Id. ¶ 23. She alleges that she was reprimanded in front of her

students on a regular basis, which she believes was intended to

humiliate her. Id. ¶ 24. Ms. Cooper believes the harassing

conduct was intended to force her to retire. Id. ¶ 26. She

alleges that various members of the administration reminded her

of her seniority and inquired as to her retirement plans. Id. ¶

26.




                                 3
     Ms. Cooper was discharged from her employment with DCPS on

August 10, 2012. Def.’s Ex. 1, Docket No. 27-1 at 3. Ms. Cooper

alleges that her discharge was discriminatory, and in

retaliation for exercising rights under the FMLA. Compl. ¶¶ 29,

79. She further alleges that after her termination, her

retirement paperwork was not processed for nearly two years,

during which time she was without income or benefits. Id. ¶ 28.

Ms. Cooper believes the delay in processing her retirement

paperwork was in retaliation for her previous complaints to

school management regarding discrimination. Id.

     Ms. Cooper filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) on December 20, 2013.

Def’s. Ex. 1 at 3. The allegations in the charge read as

follows:

     I was hired in 1980 as a Special Education Teacher. On
     August 10, 2012, I was discharged. Prior to my discharge,
     I requested a reasonable accommodation in which I was
     denied. I was subjected to harassment.

     My employer provided no          specifics   concerning   my
     termination of employment.

     I believe I have been discriminated against in violation
     of the Americans With Disabilities Act of 1990 because
     of my disability and in retaliation (hostile work
     environment and whistle blower). I believe I have been
     discriminated   against   in   violation  of   the   Age
     Discrimination In Employment Act of 1967 because of my
     age (58). Race + Hostile Work Environment. 1

1 While the body of the charge is typed, the phrase “Race +
Hostile Work Environment” is handwritten in pen and initialed by
Ms. Cooper. See Def.’s Ex. 1.

                                  4
     My request for a reasonable accommodation did not cause
     undue hardship for my employer. Being denied the
     request, resulted in me being late to classes and
     meetings.

Id. On the charge, Ms. Cooper checked the boxes for “Race,”

“Retaliation,” “Age,” “Disability,” and “Other,” next to which

she wrote “Hostile Work Environment.” Id. In the box entitled

“Date(s) Discrimination Took Place,” the “Earliest” date of

discrimination is type-written as August 10, 2012, the date of

Ms. Cooper’s termination. Id. For the “Latest” date of

discrimination, it appears Ms. Cooper crossed out the type-

written entry of August 10, 2012, and wrote in November 30,

2013. Id. Ms. Cooper signed the charge on November 25, 2013,

five days prior to her alleged “Latest” date of discrimination.

Id. Ms. Cooper also checked the box entitled “Continuing

Action.” Id.

     The EEOC issued Ms. Cooper a Dismissal and Notice of Rights

informing her that any lawsuit must be filed within 90 days of

her receipt of the notice. Id. at 1-2. The handwritten date on

the Notice indicates it was mailed May 30, 2014. Id. at 1. Ms.

Cooper filed her lawsuit on September 8, 2014. 2




2 While Ms. Cooper’s initial complaint was uploaded to the
Court’s electronic docket on September 9, 2014, the “Civil Cover
Sheet” accompanying the complaint is dated September 8, 2014.
For purposes of ruling on the instant motion to dismiss, given
that the Court must draw all reasonable inferences in the

                                5
     Chancellor Henderson now moves to dismiss Ms. Cooper’s

amended complaint pursuant to Federal Rule of Civil Procedure

12(b)(6). See generally Def.’s Mot. Chancellor Henderson raises

four arguments in support of her motion: (1) the District of

Columbia (“the District”) is the proper defendant in this action

and Ms. Cooper’s failure to name the District is grounds for

dismissal of her amended complaint; (2) Ms. Cooper’s gender

discrimination claim is barred because Ms. Cooper failed to

exhaust her administrative remedies by asserting this claim in

her charge before the EEOC; (3) Ms. Cooper’s Title VII, ADA, and

ADEA claims are barred for failure to timely file these claims

with the EEOC, and for failure to timely bring these claims

before this Court following the EEOC’s issuance of a right-to-

sue notice; and (4) Ms. Cooper’s FMLA claims are barred for

failure to bring suit within the two-year limitations period

applicable to FMLA claims. Id. at 1-2.

  II.   STANDARD OF REVIEW

     A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) “tests the legal sufficiency of a complaint.” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must

contain a “short and plain statement of the claim showing that

the pleader is entitled to relief, in order to give the



plaintiff’s favor, the Court will presume the complaint was
filed on September 8, 2016.

                                6
defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal quotation marks omitted). While detailed

factual allegations are not necessary, the plaintiff must plead

enough to “raise a right to relief above the speculative level.”

Id.

      When ruling on a Rule 12(b)(6) motion, the Court may

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and

matters about which the Court may take judicial notice.”

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

The Court must construe the complaint liberally in the

plaintiff’s favor and grant the plaintiff the benefit of all

reasonable inferences deriving from the complaint. Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court

must not accept inferences that are “unsupported by the facts

set out in the complaint.” Id. “Nor must the court accept legal

conclusions cast in the form of factual allegations.” Id.

“[O]nly a complaint that states a plausible claim for relief

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,

679 (2009).




                                 7
    III. DISCUSSION

         A. The District of Columbia will be substituted for
            Chancellor Henderson as defendant in this action.

      Chancellor Henderson first argues that because Ms. Cooper’s

lawsuit is an employment discrimination action for money

damages, the proper defendant in this action is Ms. Cooper’s

employer, the District of Columbia, and not Chancellor

Henderson. Def.’s Mot. at 1, 3-4. Ms. Cooper responds that the

lawsuit was not intended to sue Chancellor Henderson in her

individual capacity, and that she named Chancellor Henderson

“solely in her official capacity in order to reach the state

agency.” Pl.’s Opp., Docket No. 29 at 1-2. 3

      There is little dispute that the proper defendant in an

action by a District employee for employment discrimination is

the District of Columbia itself. See Smith v. Janey, 664 F.

Supp. 2d 1, 8 (D.D.C. 2009) (“there is no individual liability

under Title VII, the ADEA or the ADA.”); see also Blue v.

District of Columbia, 850 F. Supp. 2d 16, 22 (D.D.C. 2012)

(“Courts in this District have held on numerous recent occasions

that DCPS is non sui juris – that is, non-suable as an entity

separate from the District of Columbia.”). Therefore, the

relevant dispute for purposes of resolving Chancellor


3 Ms. Cooper’s surreply further clarifies that her intention was
to sue the District “as a government agency.” Pl.’s Surrep.,
Docket No. 33, ¶ 16.

                                 8
Henderson’s motion is the effect of Ms. Cooper’s failure to name

the District as a defendant in her amended complaint. Chancellor

Henderson argues that Ms. Cooper’s failure to name the District

is grounds for dismissal of the lawsuit. Def.’s Mot. at 1. Ms.

Cooper argues that the Court should construe Chancellor

Henderson’s motion to dismiss as a motion to substitute the

District for Chancellor Henderson as the defendant, and should

order substitution of the District rather than dismiss the

action. Pl.’s Opp. at 3.

     Chancellor Henderson’s motion to dismiss argues that

substituting the proper party or allowing Ms. Cooper leave to

amend her complaint would be futile as Ms. Cooper’s claims would

not survive a motion to dismiss. Def.’s Mot. at 4. Based on the

Court’s contemporaneous determination that Ms. Cooper’s amended

complaint does survive a motion to dismiss in part, see infra

Section III.B-III.E, the Court rejects this argument as a basis

for dismissing Ms. Cooper’s amended complaint.

     Chancellor Henderson’s reply brief raises several

additional arguments in support of dismissing Ms. Cooper’s

amended complaint for failure to name the proper party, each of

which will be addressed in turn. First, Chancellor Henderson

argues that Ms. Cooper “does not refute or even address

[Chancellor] Henderson’s argument that she is not a proper

defendant” and accordingly, “the Court should deem those

                                9
arguments unopposed and grant Chancellor Henderson’s motion to

dismiss.” Def.’s Rep., Docket No. 31 at 3. Chancellor Henderson

misunderstands Ms. Cooper’s argument: Ms. Cooper does not

dispute that Chancellor Henderson is not a proper party, but

argues that substitution, rather than dismissal, is appropriate

under the circumstances. Pl’s. Mot. at 1-3; Pl.’s Surrep.,

Docket No. 33 at 5. Hence, Ms. Cooper has not waived her

opposition to Chancellor Henderson’s motion to dismiss for

failure to name the proper defendant.

     Second, Chancellor Henderson argues that the Court should

not construe Ms. Cooper’s motion to dismiss as a motion to

substitute the proper party because “Chancellor Henderson has

not moved to substitute the District for her, nor has [Ms.

Cooper] moved to amend her complaint to name the District as a

defendant.” Def.’s Rep., at 2 (emphasis in original). Ms. Cooper

responds that even though she has not formally requested

substitution, the Court may sua sponte order substitution of the

proper defendant. Pl.’s Surrep., Docket No. 33 at 4. 4


4 Ms. Cooper asserts that the basis for this substitution is
found in Federal Rule of Civil Procedure 25(d) which provides
for automatic substitution of public officers named in their
official capacity when that officer “dies, resigns, or otherwise
ceases to hold office while the action is pending.” Fed. R. Civ.
P. 25(d). Ms. Cooper’s reliance on Rule 25(d) is misplaced.
First, Chancellor Henderson remains Chancellor of DCPS, and
second, there is no individual liability under Title VII, the
ADA, or the ADEA. See Smith, 664 F. Supp. 2d at 8. Hence,
contrary to Ms. Cooper’s assertion, Rule 25(d) is an improper

                                10
     Where a plaintiff, through unknowing mistake, names an

improper defendant in her complaint, many courts in this

district have sua sponte ordered substitution of the proper

defendant. Sampson v. D.C. Dep’t of Corr., 20 F. Supp. 3d 282,

285 (2014) (sua sponte ordering substitution of the District of

Columbia where plaintiff had named the D.C. Department of

Corrections); Paul v. Didizian, 292 F.R.D. 151, 151 n. 1 (D.D.C.

2013) (sua sponte ordering substitution of the District of

Columbia where pro se plaintiff had named D.C. Office of Risk

Management); Henneghan v. Dist. of Columbia Pub. Sch., 597 F.

Supp. 2d 34, 37 (D.D.C. 2008) (sua sponte ordering substitution

of the District of Columbia where pro se plaintiff had named

DCPS); Di Lella v. Uni. of Dist. of Columbia, 570 F. Supp. 2d 1,

1 n.1 (D.D.C. 2008) (sua sponte ordering substitution of the

Board of Trustees of the University of the District of Columbia

where pro se plaintiff had named the University of the District

of Columbia). While in most of these cases the plaintiff was

proceeding pro se, some courts in this district have sua sponte

ordered substitution where the plaintiff was represented by

counsel. Sampson, 20 F. Supp. 3d at 285; Bennet v. Henderson,

10-CIV-1680, 2011 WL 285871, at *1 (D.D.C. Jan. 28, 2011); (sua

sponte ordering substitution of the District of Columbia for



vehicle for substituting the District of Columbia for Chancellor
Henderson as defendant in this action.

                               11
Chancellor Henderson). In view of this persuasive authority, the

Court is not convinced that Ms. Cooper’s failure to name the

District in her amended complaint warrants dismissal of her

case.

     Finally, Chancellor Henderson argues that substituting the

District of Columbia is inappropriate because Ms. Cooper has yet

to serve either the Mayor or the Attorney General of the

District of Columbia with a summons and complaint. Def.’s Rep.

at 4-6 (citing Arrington v. Dist. of Columbia, 673 A.2d 674, 681

(D.C. 1996)). In Arrington, the plaintiff’s lawsuit named “D.C.

General Hospital” as defendant and attempted to serve process on

the hospital by mailing the summons and complaint to the

hospital’s address in southeast Washington, D.C. Arrington, 673

A.2d at 676. Later, when the plaintiff moved to amend her

complaint to name the District of Columbia, the District opposed

the motion arguing the action was time-barred because the suit

against the District had not been filed, and the District had

not been served, within the applicable statute of limitations.

Id. at 677. The D.C. Court of Appeals, agreeing with the

District, held that the plaintiff’s complaint against the

District was time-barred:

     The District had received no notice of the suit prior to
     the expiration of the limitations period. Mailing of the
     summons and complaint to a hospital at an intersection
     in southeast Washington, D.C. provided the District with
     no more notice than would have been effected by serving

                               12
      a clerk at the Department of Sanitation or a police
      officer at the Fourth District. That is not sufficient.

      Like any large metropolis, the District of Columbia is
      required to defend thousands of cases every year. The
      Corporation Counsel, as the attorney for the District,
      must keep track of each of these cases and must settle
      or litigate all of them. This formidable task cannot be
      carried out successfully if someone who wishes to sue
      the District can satisfy her responsibilities, as Ms.
      Arrington attempted to do, by filing her complaint
      against a different entity and by mailing the complaint
      and summons to an address which has no connection
      whatever with the defense of lawsuits against the
      District. Indeed, an important reason for requiring
      plaintiffs to sue the District (rather than a District-
      operated instrumentality) and for requiring service on
      the Mayor and the Corporation Counsel (rather than on
      that instrumentality is to enable the District’s lawyers
      to become and remain apprised of their docket and to
      conduct their legal business in an organized and
      efficient manner.

Id.

      Arrington, however, is clearly distinguishable from the

present facts. Here, the Office of Attorney General for the

District of Columbia, the same Office charged with representing

the District of Columbia, has been representing Chancellor

Henderson, in her official capacity, throughout this action. 5

Unlike Arrington, this is not a case where the complaint and

summons were sent to an address with “no connection whatever

with the defense of lawsuits against the District.” Indeed, in


5 Chancellor Henderson waived formal service on February 26,
2015, and the Office of the Attorney General for the District of
Columbia entered its appearance on February 27, 2015. See Waiver
of Service, Docket No. 10; Notice of Appearance, Docket No. 8.


                                13
this case, it appears the District’s lawyers were able to

“become and remain apprised of their docket and to conduct their

business in an organized and efficient manner.” The rationale

underlying Arrington is inapplicable under the circumstances.

     Under Federal Rule of Civil Procedure 15(c)(1)(C), an

amendment to a complaint changing the name of the defendant

relates back to the date of the original complaint when the new

party “received such notice of the action that it will not be

prejudiced in defending on the merits” and “knew or should have

known that the action would have been brought against it, but

for a mistake concerning the party’s identity.” Fed. R. Civ. P.

15(c)(1)(C). For example, in Kangethe v. Dist. of Columbia, the

plaintiff initially filed his lawsuit against the D.C. Office of

Employment Services (“DOES”), a non-suable entity within the

District of Columbia. 75 F. Supp. 3d 433, 438 (D.D.C. 2014).

When the plaintiff amended his complaint to name the District,

the court held that the plaintiff’s complaint against the

District related back to the filing of the original complaint

because the plaintiff “mailed even his first complaint to the

Attorney General’s office” and because “the office has

represented the defendant in this case continuously since it was

filed naming DOES.” 75 F. Supp. 3d at 438-39. Similarly, in this

case, because the D.C. Attorney General’s Office has been

defending this lawsuit since Chancellor Henderson waived formal

                               14
service, the Court finds that the District will not be

prejudiced in defending this action on the merits. Further, the

District either knew or should have known that but for Ms.

Cooper’s mistake in naming Chancellor Henderson rather than the

District, this action would have been brought against the

District. See Kangethe, 75 F. Supp. 3d at 437-39; see also

Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1996)

(“The commentary to Rule 15(c) clearly indicates that the rule

is intended to be a means for correcting the mistakes of

plaintiffs suing official bodies in determining which party is

the proper defendant.”)(internal citations omitted).

     Moreover, “it is well settled that the Federal Rules of

Civil Procedure are to be liberally construed to effectuate the

general purpose of seeing that cases are tried on the merits and

to dispense with the technical procedural problems and thus that

amendments pursuant to Rule 15(c) should be freely allowed.”

Bayatfshar v. Aeronautical Radio, Inc., 934 F. Supp. 2d 138, 145

(D.D.C. 2013) (quoting Staren v. American Nat’l Bank & Trust Co.

of Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976) (alterations

omitted)). Therefore, the Court does not find that Ms. Cooper’s

mistake in naming Chancellor Henderson rather than the District

is grounds for dismissal of the amended complaint.

     Accordingly, the Court DENIES Chancellor Henderson’s motion

to dismiss for failure to name the proper party, and sua sponte

                               15
substitutes the District of Columbia for Chancellor Henderson as

the defendant in this action.

       B. Ms. Cooper will be permitted to proceed to discovery
          on her ADA, Title VII, and ADEA claims only with
          respect to her claim that the District delayed in
          processing her retirement paperwork in retaliation for
          her protected activity.

     Chancellor Henderson argues that Ms. Cooper’s ADA, Title

VII, and ADEA claims must be dismissed because Ms. Cooper failed

to timely exhaust these claims before the EEOC. Def.’s Mot. at

6-8. Ms. Cooper responds with a general assertion that these

claims were timely exhausted. Pl.’s Opp. at 9-10. Before filing

a lawsuit under the ADA, Title VII, or ADEA, a plaintiff must

exhaust her administrative remedies by filing a charge of

discrimination with the EEOC within 180 days of the alleged

unlawful employment practice. 29 U.S.C. § 626(d)(1); 42 U.S.C. §

2000e-5(e)(1). 6 If the complainant has first instituted

proceedings with a state or local agency, the limitations period

is extended to 300 days. See Ashraf-Hassan v. Embassy of France




6 The ADA does not include its own statute of limitations, but
adopts the procedures set forth in Title VII. 42 U.S.C. §
12117(a) (“The powers, remedies, and procedures set forth in
sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this
title shall be the powers, remedies, and procedures this
subchapter provides . . . to any person alleging discrimination
on the basis of disability in violation of any provision of this
chapter.”).


                                16
in U.S., 878 F. Supp. 2d 164, 170 (D.D.C. 2012); Gordon v. Dist.

of Columbia, 605 F. Supp. 2d 239, 244 (D.D.C. 2009).

     The amended complaint alleges a number of allegedly

discriminatory and retaliatory incidents that occurred prior to

Ms. Cooper’s termination on August 10, 2012, 7 alleges that Ms.

Cooper’s termination was itself discriminatory and retaliatory

in nature, and alleges that following her termination her

retirement paperwork was neglected and not processed for two

years in retaliation for her protected activity. Am. Compl., ¶¶

16-18, 23-29.

     Ms. Cooper’s charge of discrimination is dated November 25,

2013, and bears a stamp indicating it was received by the EEOC

on December 20, 2013. Def.’s Ex. 1. 8 Ms. Cooper does not allege

that she first filed a charge with the D.C. Office of Human




7 While the amended complaint does not indicate the date of Ms.
Cooper’s termination, the EEOC charge of discrimination, which
Ms. Cooper references in the amended complaint, states that she
was terminated on August 10, 2012.
8 “While a court may not consider ‘matters outside the pleadings’
in evaluating a motion to dismiss under Rule 12(b)(6) without
converting the motion to one for summary judgment under Rule 56,
see Fed. R. Civ. P. 12(d), documents that are referenced in, or
are an integral part of the complaint are deemed not ‘outside
the pleadings.’” Peters v. Dist. of Columbia, 873 F. Supp. 2d
158, 179 n. 20 (D.D.C. 2012). Ms. Cooper references her EEOC
charge in her complaint. Am. Compl. at ¶ 30. Hence, the Court
may consider the charge of discrimination without converting
Chancellor Henderson’s motion to dismiss into a motion for
summary judgment.


                                17
Rights, hence the 180-day deadline, rather than the 300-day

extended deadline, applies. Therefore, in order to timely

exhaust her administrative remedies with respect to her

termination, Ms. Cooper needed to file a charge of

discrimination with the EEOC by no later than February 6, 2013.

Her charge, dated November 25, 2013 and marked received by the

EEOC on December 20, 2013 comes too late. 9 Accordingly, Ms.

Cooper’s ADA, Title VII, and ADEA claims concerning her

termination, or any conduct occurring before her termination

must be dismissed for failure to timely file a charge of

discrimination before the EEOC.

     Ms. Cooper’s claims under the ADA, Title VII, and ADEA must

be limited to events occurring on or after the date 180 days

prior to the date her charge was filed with the EEOC. In her

amended complaint, Ms. Cooper alleges that her employer

neglected and delayed processing her retirement paperwork in

retaliation for her protected activity. Am. Compl., ¶ 28. She

does not specify the date upon which her retirement paperwork

was processed, except to say that it was two years after her

discharge. Id. This indicates the delay in processing her

paperwork took place through about August 20, 2014. Therefore,



9 The Court notes that even if the 300-day limitations period
applied, Ms. Cooper’s claims relating to her termination or
conduct before that date would still be time-barred.

                                  18
the delayed processing of Ms. Cooper’s retirement paperwork

would have been ongoing at the time she filed her charge.

     On her EEOC charge, Ms. Cooper checked the boxes for both

“retaliation” and “continuing action.” Def.’s Ex. 1 at 3. Though

the written allegations in the EEOC charge fail to mention the

delay in processing her retirement paperwork, the Court

considers it plausible that the “continuing action” designation

was intended to refer to the ongoing alleged retaliation

concerning the processing of her retirement paperwork. Further,

because this retaliation was ongoing at the time Ms. Cooper

filed her charge with the EEOC, the charge is deemed timely.

       Accordingly, Chancellor Henderson’s motion to dismiss Ms.

Cooper’s claims pursuant to the ADA, Title VII, and ADEA is

GRANTED in part, and DENIED in part. Ms. Cooper will be

permitted to proceed to discovery on her claims concerning the

allegedly retaliatory delayed processing of her retirement

paperwork. The remainder of her ADA, Title VII, and ADEA claims

are dismissed as time-barred.

       C. Ms. Cooper’s gender discrimination claim must be
          dismissed due to her failure to raise this claim
          before the EEOC.

     Chancellor Henderson also argues that Ms. Cooper’s gender

discrimination claims under Title VII must be dismissed because

these claims were not raised in Ms. Cooper’s charge before the

EEOC. Def.’s Mot. at 8-9. Ms. Cooper responds that her amended

                                19
complaint alleges that she filed a charge of sex discrimination

with the EEOC prior to filing suit in this Court. Pl.’s Opp. at

9.

     As stated above, before commencing an action based on Title

VII in federal court, a plaintiff must first exhaust her

administrative remedies by filing a timely charge of

discrimination with the EEOC. Lewis v. City of Chicago, Ill.,

560 U.S. 205, 210 (2010). The lawsuit following the EEOC charge

is “limited in scope to claims that are like or reasonably

related to the allegations of the charge and growing out of such

allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.

1995), cert. denied, 519 U.S. 811 (1996). Specifically, a

plaintiff’s claims “must arise from the administrative

investigation that can reasonably be expected to follow the

charge of discrimination.” Id. (citing Chisholm v. U.S. Postal

Serv., 665 F.2d 482, 491 (4th Cir. 1981)). “While the boxes [on

the EEOC charge form] aid a claimant in identifying the nature

of her charge, a claimant is not necessarily limited to the

boxes she selected if she provides the basis for her claim in

her written explanation.” Robinson-Reeder v. Am. Council on

Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008).

     In her charge before the EEOC, Ms. Cooper did not check the

box for discrimination on the basis of “sex,” nor did she

provide any allegations of sex or gender discrimination in her

                               20
written complaint. As Ms. Cooper failed to raise any allegation

of sex or gender discrimination in her charge before the EEOC,

Ms. Cooper may not proceed with her gender discrimination claim

in this Court. Moreover, the amended complaint contains no facts

from which gender discrimination can be inferred. Hence, even if

Ms. Cooper had exhausted her administrative remedies with

respect to her gender discrimination claim, her gender

discrimination claim could be dismissed for failure to state a

plausible claim. Accordingly, the Court finds an additional

basis for dismissing Ms. Cooper’s gender discrimination claims.

Chancellor Henderson’s motion to dismiss Ms. Cooper’s gender

discrimination claims is therefore GRANTED.

       D. With respect to Ms. Cooper’s surviving claim for
          retaliation under the ADA, Title VII, and the ADEA,
          Ms. Cooper is entitled to discovery on the issue of
          whether she filed suit in this Court within 90 days of
          receiving her right-to-sue notice.

     Chancellor Henderson argues that Ms. Cooper’s Title VII and

ADA claims must be dismissed because she failed to file suit

within 90 days of receiving her right-to-sue notice. Def.’s Mot.

at 7-8. Chancellor Henderson argues that because the notice is

dated May 30, 2014, and Ms. Cooper’s lawsuit was filed on

September 8, 2014 – that is, 101 days later, Ms. Cooper’s

lawsuit was not timely filed. Id. at 7. Ms. Cooper responds by

referring to her amended complaint wherein she alleges that

“this lawsuit has been commenced within 90 days of receipt of

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the Notice of Right to Sue.” Pl.’s Opp. at 10 (citing Am.

Compl., ¶ 4) (emphasis added).

     “A person aggrieved under Title VII who seeks to file a

civil action must do so within ninety days from receipt of the

EEOC right-to-sue notice.” Griffin v. Acacia Life Ins. Co., 151

F. Supp. 2d 78, 80 (D.D.C. 2001); see also 42 U.S.C. § 2000e-

5(f)(1) (“If a charge filed with the Commission . . . is

dismissed by the Commission . . . the Commission . . . shall so

notify the person aggrieved and within ninety days after the

giving of such notice a civil action may be brought against the

respondent named in the charge.”); Blackwell v. SecTek, Inc., 61

F. Supp. 3d 149, 154 n. 3 (D.D.C. 2014) (noting that because the

ADA incorporates Title VII procedures, a plaintiff must bring a

lawsuit pursuant to the ADA within 90 days of receipt of the

right-to-sue notice). 10

     “When the date that a right-to-sue notice was received is

unknown or disputed, courts routinely presume that the notice

was received either three days or five days after it was

received.” Mack v. WP Co., LLC, 923 F. Supp. 2d 294, 299 (D.D.C.


10Although Chancellor Henderson does not argue that Ms. Cooper’s
ADEA claim must be dismissed for failure to file suit within 90
days of receipt of the right-to-sue notice, the ADEA contains
the same requirement. 29 U.S.C. § 626(e); Greer v. Bd. Trustees
Univ. Dist. of Columbia, 113 F. Supp. 3d 297, 306 (D.D.C. 2015).
Accordingly, Ms. Cooper’s claims for retaliation under the ADEA
may also be dismissed if she failed to file suit within 90 days
of her receipt of the right-to-sue notice.

                                 22
2013) (citing Nkengfack v. Am. Ass’n of Retired Persons, 818 F.

Supp. 2d 178, 181 (D.D.C. 2011); Ruiz v. Vilsack, 763 F. Supp.

2d 168, 171 (D.D.C. 2011)). That presumption, however, may be

rebutted by contrary evidence. Greer, 113 F. Supp. 3d at 306.

     Ms. Cooper is entitled to discovery on the issue of when

she received her right-to-sue notice from the EEOC. Applying the

more generous 5-day presumption from the May 30, 2014 mailing

date, Ms. Cooper would have received the notice June 5, 2014,

and hence, her lawsuit filed on September 8, 2014, or 95 days

later, appears untimely. But Ms. Cooper must be afforded an

opportunity to rebut the three-day or five-day presumption, and

she will be permitted to conduct discovery for that purpose.

     Accordingly, with respect to Ms. Cooper’s claims for

retaliation with respect to the processing of her retirement

paperwork, Ms. Cooper is entitled to discovery on the issue of

whether she filed this lawsuit within 90 days of her receipt of

the right-to-sue notice. Chancellor Henderson’s motion to

dismiss Ms. Cooper’s ADA and Title VII claims for failure to

timely file suit in this Court is therefore DENIED.

       E. Ms. Cooper has alleged a willful FMLA violation, and
          is therefore entitled to a three-year statute of
          limitations.

     Chancellor Henderson argues that Ms. Cooper’s FMLA claims

are barred by a two-year statute of limitations. Def.’s Mot. at

8-9. Ms. Cooper argues that she has alleged a willful violation

                               23
of the FMLA, thereby entitling her to a three-year statute of

limitations. Pl.’s Opp. at 4-9. The FMLA prohibits employers

from interfering with or denying an employee’s right to take

leave under the Act, and further prohibits an employer from

discharging or discriminating against an employee who returns

from leave. 29 U.S.C. § 2615(a); Dahlman v. Am. Ass’n of Retired

Persons, 791 F. Supp. 2d 68, 79 (D.D.C. 2011). An action under

the FMLA must be brought within two years of the alleged

violation, or within three years if the violation is alleged to

have been willful. 29 U.S.C. § 2617(c). “The three-year statute

of limitations for willful violations does not apply unless the

complaint contains some express or implied allegation of willful

conduct.” Hodge v. United Airlines, 666 F. Supp. 2d 14, 23

(D.D.C. 2009)(citing Sampson v. Citibank, F.S.B., 53 F. Supp. 2d

13, 19 (D.D.C. 1999)). “In the context of FMLA, willful conduct

is generally viewed as an employer that knows its conduct to be

wrong or has shown reckless disregard for the matter in light of

the statute.” Id; see also McLaughlin v. Richland Shoe Co., 486

U.S. 128, 133 (1998)(“The word ‘willful’ is widely used in the

law, and, although it has not by any means been given a

perfectly consistent interpretation, it is generally understood

to refer to conduct that is not merely negligent.”).

     Ms. Cooper has alleged a willful violation of FMLA and is

therefore entitled to the three-year statute of limitations. Ms.

                               24
Cooper alleges that when she returned from FMLA leave, she was

harassed by her superiors, given a ten-point deduction in her

performance evaluation, and eventually terminated. Am. Compl.,

¶¶ 16, 23, 26. Ms. Cooper alleges that these actions were taken

in retaliation for her protected activity with the intent to

humiliate and harass her. Id. ¶¶ 24, 26. While Ms. Cooper does

not use the word “willful” in her complaint, the allegations

clearly set forth an intentional pattern of harassment and

retaliation, and “not merely negligent” behavior. For purposes

of surviving a motion to dismiss, these allegations are

sufficient. See Hodge, 666 F. Supp. 2d at 23 (citing Ricco v.

Potter, 377 F. 3d 599, 603 (6th Cir. 2004)).

     Ms. Cooper filed her complaint on September 8, 2014,

approximately two years and one month after her termination.

Compl., Docket No. 1; Def.’s Ex. 1. Therefore, Ms. Cooper filed

suit well-within the three-year statute of limitations for

willful FMLA violations.

     Finally, Chancellor Henderson argues that even if the

three-year statute of limitations applied, Ms. Cooper failed to

file suit against her employer, the District of Columbia, within

the three-year limitations period, which expired on August 20,

2015. As discussed above, Ms. Cooper’s claims against the

District of Columbia will relate back to the date she filed her

original complaint in this Court. See supra Section III.A; see

                               25
also Hartley v. Wilfert, 931 F. Supp. 2d 230, 233 (D.D.C. 2013)

(noting that under the relation-back doctrine, the expiration of

the applicable statute of limitations does not preclude the

plaintiff from substituting the proper defendant so long as the

requirements of Rule 15(c) are met). Accordingly, Chancellor

Henderson’s motion to dismiss Ms. Cooper’s FMLA claim is DENIED.

  IV.     CONCLUSION

     For the reasons stated above, Chancellor Henderson’s motion

is GRANTED in part, and DENIED in part, and the District of

Columbia is substituted for defendant Kaya Henderson. An

appropriate order accompanies this Memorandum Opinion.

Signed:     Emmet G. Sullivan
            United States District Judge
            March 31, 2016




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