Montgomery v. Omnisec Int'l Sec. Servs., Inc.

• Decision Date: 20 August 2013
• Docket Number: Civil Action No. 13–0402 (ESH).
• Citation: 961 F.Supp.2d 178
• Parties: Phyllis MONTGOMERY, Plaintiff, v. OMNISEC INTERNATIONAL SECURITY SERVICES, INC., Defendant.
• Court: U.S. District Court — District of Columbia

961 F.Supp.2d 178

Phyllis MONTGOMERY, Plaintiff,

v.OMNISEC INTERNATIONAL SECURITY SERVICES, INC., Defendant.

Civil Action No. 13–0402 (ESH).

United States District Court,

District of Columbia.

Aug. 20, 2013.

Phyllis Montgomery, Capitol Heights, MD, pro se.

Edward L. Isler, Steven William Ray, Isler Dare Ray Radcliffe & Connolly, P.C., Vienna, VA, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiff Phyllis Montgomery, proceeding pro se, has filed suit against her former employer, Omnisec International Security Services, Inc. (“Omnisec”), alleging discrimination based on age, race, and gender, as well as retaliation based on her involvement in union activities. Currently before the Court is defendant's motion to dismiss plaintiff's complaint. (Defendant's Motion to Dismiss, Apr. 4, 2013 [ECF No. 8] (“Mot.”).) For the reasons stated below, defendant's motion will be granted in part and denied in part.

BACKGROUND

Plaintiff is an African–American female over the age of fifty. (Plaintiff's Response to Defendant's Motion to Dismiss, July 10, 2013 [ECF No. 11] (“Opp'n”) at 1.) She was formerly employed by Omnisec as a Special Police Officer, and she served as a union Shop Steward. ( Id. at 1–2.) She was terminated on October 19, 2010. ( Id. at 2.) At the time of her termination, she was involved in managing her first grievance procedure. ( Id.) On April 22, 2011, plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Mot. Ex. 1, EEOC Charge.) In it, she checked the box to indicate that she had been discriminated based on her age. ( Id.) She did not check the boxes for discrimination based on race, color, or sex. ( Id.) In her description of the “particulars,” she described the circumstances of her termination and then stated that she believed she had been discriminated against “due to my age, 51, in violation of the Age Discrimination in Employment Act of 1967.” ( Id.)

On February 27, 2013, plaintiff filed a pro se complaint against Omnisec in the Superior Court for the District of Columbia. ( See Complaint, Feb. 27, 2013 [ECF No. 1–1] (“Compl.”).) In it, she alleged discrimination based on age, race, and gender. ( Id.) She also appeared to allege retaliation based on her role as a union Shop Steward. ( Id.) Defendant removed the case to this Court on March 28, 2013. (Defendant's Notice of Removal of Civil Action [ECF No. 1].)

ANALYSIS

I. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES

“Title VII requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge” before filing suit in federal court. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995). A subsequent Title VII lawsuit “is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations.” Id. (internal quotation marks omitted). “EEOC complaints are to be liberally construed, because they are often drafted ‘by persons unschooled in technical pleading.’ ” Caldwell v. ServiceMaster Corp., 966 F.Supp. 33, 49 (D.D.C.1997) (quoting Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 727 (D.C.Cir.1978)). Indeed, “it is well settled that a vaguely worded charge is not fatal to a Title VII plaintiff's case.” Id. However, “it is also true that the requirement of some specificity in a charge is not a mere technicality.” Park, 71 F.3d at 907 (internal quotation marks omitted). “A liberal interpretation of an administrative charge cannot be used to ‘permit a litigant to bypass the Title VII administrative process.’ ” Caldwell, 966 F.Supp. at 49 (quoting Park, 71 F.3d at 907). The same exhaustion requirement applies to claims brought under the Age Discrimination in Employment Act (“ADEA”). See Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.Cir.1998). “It is the defendant's burden to prove by a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies.” Na'im v. Rice, 577 F.Supp.2d 361, 370 (D.D.C.2008).

Plaintiff's complaint alleges discrimination based on age, race, and gender. However, in her EEOC Charge, plaintiff only checked the box for discrimination based on “age.” (Mot. Ex. 1, EEOC Charge.) Moreover, nothing in the written description of her claim in any way indicated that she was also alleging race and gender discrimination; to the contrary, it clearly and unambiguously stated that she believed she had been discriminated against “due to [her] age, 51.” ( Id.) It is well established that in the absence of any indication in her EEOC Charge that plaintiff alleged discrimination based on race and gender, she may not proceed with those claims in court. See, e.g., Williams v. Spencer, 883 F.Supp.2d 165, 174 (D.D.C.2012) (plaintiff failed to exhaust administrative remedies for her race discrimination claim because she “did not check ‘race’ or ‘color’ as the basis of her discrimination charge, nor does the written explanation in her EEOC complaint describe a suspicion or allegation of discrimination based on race or color”); Bailey v. Verizon Commc'ns, Inc., 544 F.Supp.2d 33, 37–38 (D.D.C.2008) (plaintiff could not bring claims for gender and race discrimination where she only checked the box for age discrimination and noting that “[i]f a plaintiff's EEOC charge makes a class of allegation altogether different from that which she later alleges when seeking relief in federal district court, she will have failed to exhaust administrative remedies”); Hunt v. Dist. of Columbia Dep't of Corr., 41 F.Supp.2d 31, 36 (D.D.C.1999) (holding that plaintiff failed to exhaust administrative remedies for her gender discrimination claim because she only checked the boxes for age discrimination and retaliation).

Plaintiff's only response to this argument is that her cover letter to her EEOC Intake Questionnaire stated that she was the “oldest female African American Special Police Officer at Thurgood Marshall Federal Judiciary building.” (Opp'n at 5.) However, merely stating her race and gender is not sufficient to put her employer on notice that she believed she had been discriminated against on those bases. Indeed, in Riggsbee v. Diversity Servs., Inc., 637 F.Supp.2d 39 (D.D.C.2009), the plaintiff checked only “race” as a basis of discrimination, but later sought to bring Title VII claims for both race and gender discrimination. See id. at 42–43. The plaintiffclaimed that she had adequately exhausted her administrative remedies for her gender discrimination claim because the narrative accompanying her EEOC complaint stated that she was a “black female” and that she was replaced by a “white male.” See id. at 43. However, the very next sentence stated that she believed the reason given to her for her termination “was pretext to mask unlawful racial discrimination against me on the basis of my race and color.” Id. The Court held that her EEOC complaint had not adequately alleged gender discrimination because,

[B]eyond the[ ] two references to “male” and “female,” the EEO complaint contains nothing that implies an allegation of sex discrimination. Indeed, her one paragraph narrative in the EEO complaint underscores her charge that the discrimination alleged is limited to “race”—the box she checked.

Id. (internal citations omitted).

The same conclusion is appropriate here. On her EEOC Charge, the only box plaintiff checked was for age discrimination, and her narrative clearly stated: “I believe I have been discriminated against due to my age, 51.” (Mot. Ex. 1, EEOC Charge.) The mere fact that she identified her gender and race in the cover letter to her Intake Questionnaire was insufficient to overcome her own characterization of her claim. As in Hunt, plaintiff's employer “could not even arguably have been on notice that she was also complaining of discrimination on the basis of gender” or race. 41 F.Supp.2d at 36. The Court will therefore grant defendant's motion to dismiss with respect to plaintiff's claims for discrimination based on race and gender.

II. FAILURE TO STATE A CLAIM

Defendant next argues that plaintiff has failed to plead adequate facts to allege a plausible claim for relief based on age, race, or gender discrimination. (Mot. at 5–7.) As explained above, plaintiff has failed to exhaust her administrative remedies with respect to her claims for race and gender discrimination. ( See supra Section I.) Thus, the only question is whether she has adequately stated a claim of age discrimination.

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible when the pleaded factual content “allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The complaint must do more than set forth “ ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action....’ ” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In ruling on a motion to dismiss, a court may ordinarily consider only the facts alleged in the complaint, documents attached to or incorporated by reference in the complaint, matters about which the Court may take judicial notice, and any documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F.Supp.2d 20, 24 (D.D.C.2010). Moreover, a pro se plaintiff's complaint will be held to “less stringent standards than formal pleadings drafted by lawyers.” Atherton...