Coclough v. Akal Security, Inc. et al

MOTION to Dismiss Or, In the Alternative, MOTION for Summary Judgment

D.D.C.February 2, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JANICE G. COCLOUGH, Plaintiff, v. AKAL SECURITY, INC., et al. Defendant. Case No. 1:16-cv-02376-BAH DEFENDANTS AKAL SECURITY, INC. AND JOSIAH EAVES’S MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT Defendants Akal Security, Inc. and Josiah Eaves (“Defendants”), by and through counsel, hereby moves the Court, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Complaint filed by Plaintiff Janice G. Coclough (“Plaintiff” or “Ms. Coclough”). Although Plaintiff does not name a specific statute under which she is bringing her claims, Plaintiff references filing an EEOC Complaint, where she brought her claims solely under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. (“Title VII”). As Plaintiff failed to file her Complaint within 90 days of receiving her “Notice of Right to Sue” from the Equal Employment Opportunity Commission (“EEOC”), her claims are time-barred. Additionally, Plaintiff’s Title VII claims against Mr. Eaves must be dismissed with prejudice because supervisors cannot be held liable in their individual capacities pursuant to Title VII. Accordingly, and for the reasons stated more fully in the accompanying Memorandum of Points and Authorities in Support of this Motion, Defendants respectfully request that the Court dismiss this matter with prejudice. Case 1:16-cv-02376-BAH Document 11 Filed 02/02/17 Page 1 of 3 2 Dated: February 2, 2017 /s/ S. Libby Henninger S. Libby Henninger (Bar No. 976352) Eunju Park (Bar No. 1024539) LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW Suite 400 Washington, DC 20006 202.842.3400 202.842.0011 (Fax) lhenninger@littler.com epark@littler.com Counsel for Defendants Akal Security, Inc. and Josiah Eaves Case 1:16-cv-02376-BAH Document 11 Filed 02/02/17 Page 2 of 3 3 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February, 2017, I electronically filed a copy of the foregoing MOTION TO DISMISS, MEMORANDUM IN SUPPORT, AND PROPOSED ORDER using the CM/ECF system and also sent notice of such filing upon Plaintiff, pro se, by placing a copy in the U.S. Mail, postage prepaid, and certified mail, return receipt requested, addressed to: JANICE G. COCLOUGH 3906 20th Street NE Washington, DC 20018 Pro Se Plaintiff /s/ Eunju Park Eunju Park Firmwide:145350128.1 051010.1291 Case 1:16-cv-02376-BAH Document 11 Filed 02/02/17 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JANICE G. COCLOUGH, Plaintiff, v. AKAL SECURITY, INC., et al. Defendant. Case No. 1:16-cv-02376-BAH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS AKAL SECURITY, INC. AND JOSIAH EAVES’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT I. INTRODUCTION Defendants Akal Security, Inc. (“Akal”) and Josiah Eaves1 (collectively “Defendants”), hereby moves, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the Amended Complaint (“Complaint”) filed by Plaintiff Janice G. Coclough (“Plaintiff” or “Ms. Coclough”). Construed liberally, Plaintiff’s Complaint alleges that Defendants discriminated and retaliated against her based on her complaints regarding “treatment of females, employees and sexual harassment,” in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. (“Title VII”). However, Plaintiff’s claims are time-barred as she failed to file this suit within 90 days of receiving her July 13, 2016 Right-to-Sue letter from the Equal Employment Opportunity Commission (“EEOC”). Moreover, Plaintiff’s claims against Defendant Josiah Eaves fail because such claims cannot be sustained against an individual. Consequently, her Complaint 1 In her Amended Complaint, Plaintiff names “Lois Epps/Josiah Eaves – District Supervisor” as a named-defendant. To date, only Josiah Eaves have been served with a copy of the Amended Complaint. However, to the extent Plaintiff seeks to bring claims against Lois Epps, those claims must fail for the same reasons as apply to Mr. Eaves and as discussed below. Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 1 of 7 2 must be dismissed in its entirety. I. FACTS2 Plaintiff was employed by Akal as a Lead Court Security Officer and was placed with the District of Columbia Superior Courts since October 4, 2010. (Am. Compl., ECF No. 3). On or around June 10, 2016, Plaintiff was allegedly suspended for texting during a class setting. (Id.) Subsequently, Plaintiff was terminated. (Id.) On or about June 21, 2016, the EEOC issued a Notice of Charge of Discrimination (“Charge”) to Akal in which Plaintiff alleged that Akal discriminated against her in violation of Title VII. See Exhibit 1, Notice of Charge of Discrimination.3 The EEOC subsequently determined that “[b]ased upon its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes” and mailed this finding as the Notice- of-Right-to-Sue letter (“Notice”) to Plaintiff on July 13, 2016. See Exhibit 2, EEOC’s Dismissal and Notice of Rights. The Notice explained to Plaintiff of the conditions under which she could obtain further relief: Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this charge will be 2 In accordance with Fed. R. Civ. P. 12(b)(6), Defendants assume in their analysis that the allegations in Plaintiff’s Amended Complaint are true, only for purposes of this Motion to Dismiss. However, nothing herein is or should be construed as an admission by Defendants. 3 Because the Charge of Discrimination and Notice of Right-to-Sue issued by the EEOC are central to Plaintiff’s Complaint and because Plaintiff references the Charge of Discrimination in her Complaint, consideration of these documents does not convert Defendants’ Motion to Dismiss to a Motion for Summary Judgment. See Brown v. United States, 271 F. Supp. 2d 225, 228 (D.D.C. 2003) (“documents attached as exhibits or incorporated by reference” may be used in determination of a 12(b)(6) motion to dismiss); Krooth & Altman v. N. Am. Life Assurance Co., 134 F. Supp. 2d 96, 99 (D.D.C. 2001) (holding materials can be considered outside the pleadings without converting the motion to dismiss to a motion for summary judgment where the materials are “referred to in the complaint, and are central to the plaintiffs’ claims.”); see also Philips v. Pitt County Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (the court may consider a plaintiff’s EEOC Charge without converting the motion to dismiss into a motion for summary judgment where the complaint expressly references the Charge, and the Charge is integral to Plaintiff’s claims). Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 2 of 7 3 lost. (The time limit for filing suit based on a claim under state law may be different). Id. (emphasis in original). However, having been unequivocally advised of her right to bring suit within 90 days of the receipt of the Notice, Plaintiff failed to do so. Instead, Plaintiff waited over 150 days after the Notice was mailed to her by the EEOC to file her Complaint and Amended Complaint.4 (ECF Nos. 1, 3). II. ARGUMENT A. Standard of Review Federal Rule of Civil Procedure 12(b)(6) directs the federal district courts to dismiss a cause of action when it fails to state a claim upon which relief can be granted. See Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001). While this Court must accept the well-pleaded facts as alleged in the Complaint as true, dismissal is proper pursuant to Rule 12(b)(6) when it appears that there is no set of facts the Plaintiff can prove that would entitle her to the relief sought in the Complaint. See Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); Campbell-El v. District of Columbia, 874 F. Supp. 403, 406 (D.D.C. 1994); Mills v. Home Equity Grp., 871 F. Supp. 1482, 1484 (D.D.C. 1994). Motions to dismiss on statute of limitation grounds are appropriately brought and analyzed under Rule 12(b)(6). See Gordon v. Nat’l Youth Work Alliance, 675 F.2d 356, 360 (D.C. Cir. 1982). In determining whether a complaint fails to state a claim, the Court generally will “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 Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996)). If the Court considers “matters 4 Plaintiff filed both her Complaint and Amended Complaint on December 15, 2016. (ECF Nos. 1, 3). Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 3 of 7 4 outside of the pleadings, a motion to dismiss must be treated as one for summary judgment and disposed of pursuant to Rule 56.” Jones v. Nat'l Council on Disability, 66 F. Supp. 3d 94, 99 (D.D.C. 2014), aff'd, No. 14-5244, 2015 WL 653308 (D.C. Cir. Feb. 5, 2015). However, it is well known that “where a document is referred to in the complaint and is central to the plaintiff’s claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.” See, e.g., id. at 100 (quoting Nat'l Shopmen Pension Fund v. Disa, 583 F.Supp.2d 95, 99 (D.D.C. 2008)). If the Court decides to convert this Motion into a summary judgment motion, summary judgment should be granted if the evidence shows there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).5 B. Plaintiff Failed to File This Lawsuit Within 90 Days of Receiving Her Right- to-Sue Letter Although Plaintiff alleges retaliation and discrimination without naming statutes in her Amended Complaint, reading the Amended Complaint against Plaintiff’s prior EEOC Charge (as referenced in her Amended Complaint), the allegations raised by Plaintiff arise solely under Title VII. Under Title VII, a plaintiff must file suit within 90 days of receiving a Notice of Right-to- Sue. See 42 U.S.C. §§ 2000e-5(e)(1) and 5(f)(1). Plaintiff, however, waited over 150 days to file her Complaint, therefore her claims are time-barred. The Notice of Right-to-Sue issued to Plaintiff by the EEOC by mail on July 13, 2016 specifically advised her of the procedural requirements she needed to meet: “Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice, or your right to sue based on this 5 Defendants request that this Motion be considered a motion for summary judgment under Fed. R. Civ. P. 56(c) only to the extent that the underlying Charge of Discrimination and Notice of Right-to-Sue constitute matters outside of the pleadings. Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 4 of 7 5 charge will be lost.” See Ex. 2 (emphasis in original). Plaintiff has not indicated in her Amended Complaint when she received the Notice of Right-to-Sue letter, nor has she attached to the Amended Complaint any proof of the date she received the letter. Therefore, it is presumed that Plaintiff received the letter three days after it was mailed. See Coleman v. Potomac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D.D.C. 2004) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984)) (it is presumed that receipt of the Notice of Right-to-Sue from the EEOC is three days after issuance). Accordingly, Plaintiff was required to file her Complaint by October 14, 2016 (i.e., 90 days after July 16, 2016). Plaintiff filed her Complaint and Amended Complaint on December 15, 2016 – over two months past the statute of limitations. Under these circumstances, the Complaint must be dismissed as untimely because Plaintiff failed to file this lawsuit within 90 days of receiving the Notice of Right-to-Sue. See Anderson v. Local 201 Reinforcing Rodmen, 886 F. Supp. 94, 97 (D.D.C. 1995) (holding that “a court cannot extend the limitations period by even one day” and dismissing a claim filed 97 days after receipt of the right-to-sue notice as untimely); Smith-Haynie v. District of Columbia, 155 F.3d 575, 577-78, 581 (D.C. Cir. 1998) (dismissing suit filed 92 days after plaintiff received final agency decision where Plaintiff never claims in her complaint that defendants did or said anything to mislead her as to the effect of the 90-day limitation period on her right to seek judicial relief); Smith v. Dalton, 971 F. Supp. 1, 2-3 (D.D.C. 1997) (dismissing suit for claims brought under the ADEA and Title VII filed after 91 days of receiving the right-to-sue letter). Moreover, as this Court recognized in Anderson, the fact that a plaintiff is pro se “does not render [her] immune from the ninety-day requirement” as the time requirements should not be “disregarded by courts out of a vague sympathy for particular litigants.” See Anderson, 886 F. Supp. at 97 (quoting Baldwin Cnty. Welcome Ctr., Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 5 of 7 6 466 U.S. at 152); see also Dalton, 971 F. Supp. 1 at 3 (pro se status insufficient grounds for tolling of 90-day requirement). Therefore, Plaintiff’s Amended Complaint should be dismissed as untimely. C. Plaintiff’s Title VII Claim Against the Individual Defendant Fails As a Matter of Law Because He Cannot Be Held Individually Liable Under Title VII Plaintiff’s Title VII claims against Mr. Eaves must be dismissed with prejudice because supervisors cannot be held liable in their individual capacities pursuant to Title VII. The District of Columbia Circuit Court of Appeals has held that Title VII does not provide for liability against individuals in their official or personal capacities. See Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995); see also Coulibaly v. Kerry, No. CV 14-0189 (RC), 2016 WL 5674821, at *25 (D.D.C. Sept. 30, 2016) (dismissing individuals from the case as Title VII does not impose liability on individuals in their personal capacities); Cruz-Packer v. District of Columbia, 539 F.Supp.2d 181, 185 (D.C.C. 2008) (granting defendants’ motion to dismiss for failure to state a claim against individual defendants on the grounds that “Title VII does not impose liability on individuals in their personal capacity,” and rather it is the employer alone who may be liable under Title VII). Since Mr. Eaves cannot be held liable for the Title VII claims, Plaintiff’s Amended Complaint should be dismissed with prejudice.6 II. CONCLUSION For all of the foregoing reasons, Plaintiff’s Amended Complaint fails to state a claim, and 6 Even if Title VII allowed for individual liability, Plaintiff’s claim must be dismissed for failure to exhaust her administrative remedies. Plaintiff failed to file a charge with the EEOC against Mr. Eaves. See Ex. A. As a result, the Court lacks subject matter jurisdiction, and Plaintiff’s claim against Mr. Eaves must be dismissed. See Elhusseini v. Compass Grp., USA, Inc., 578 F. Supp. 2d 6, 16 (D.D.C. 2008) (noting that the lodging a timely administrative charge is a prerequisite to filing a Title VII claim in federal court); Ajuluchuku v. Oswald, No. CIV.A. 05-0732 (EGS), 2006 WL 325741, at *1-2 (D.D.C. Feb. 10, 2006) (D.D.C. 2006) (granting defendant’s motion to dismiss pursuant to Rules 12(b)(1) and (b)(6) for failure to exhaust administrative remedy); Johnson v. Ashcroft, No. CIV.A. 00-2743, 2001 WL 34366564, at *3–4 (D.D.C. June 21, 2001), aff'd, No. 03-5221, 2003 WL 22890057 (D.C. Cir. Nov. 25, 2003) (dismissing plaintiff’s Title VII claim with respect to one defendant because it, unlike the other defendant, was never subject to an administrative charge). Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 6 of 7 7 Defendants respectfully request that the Court dismiss Plaintiff’s Amended Complaint in its entirety with prejudice. Dated: February 2, 2017 /s/ S. Libby Henninger S. Libby Henninger (Bar No. 976352) Eunju Park (Bar No. 1024539) LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW Suite 400 Washington, DC 20006 202.842.3400 202.842.0011 (Fax) lhenninger@littler.com epark@littler.com Counsel for Defendants Akal Security, Inc. and Josiah Eaves Firmwide:145352090.2 051010.1291 Case 1:16-cv-02376-BAH Document 11-1 Filed 02/02/17 Page 7 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JANICE G. COCLOUGH, Plaintiff, v. AKAL SECURITY, INC., et al. Defendant. Case No. 1:16-cv-02376-BAH PROPOSED ORDER Upon consideration of Akal Security, Inc. (“Akal”) and Josiah Eaves’s (collectively “Defendants”) Motion To Dismiss, or in the Alternative, for Summary Judgment (“Motion to Dismiss”), and any oppositions and replies thereto, it is hereby: ORDERED that the Motion to Dismiss is GRANTED; and ORDERED that this matter is dismissed with prejudice; it is further, ORDERED that copies of this Order shall be transmitted electronically to all counsel of record and mailed to pro se Plaintiff. Dated: Chief Judge Beryl A. Howell United States District Judge Case 1:16-cv-02376-BAH Document 11-2 Filed 02/02/17 Page 1 of 2 COPIES TO: S. Libby Henninger (Bar No. 976352) Eunju Park (Bar No. 1024539) LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW Suite 400 Washington, DC 20006 Counsel for Defendants Akal Security, Inc. and Josiah Eaves and JANICE G. COCLOUGH 3906 20th Street NE Washington, DC 20018 PRO SE PLAINTIFF Case 1:16-cv-02376-BAH Document 11-2 Filed 02/02/17 Page 2 of 2