Motley-Ivey v. District of Columbia, Civil Action No. 09–cv–571 (RLW).

• Decision Date: 14 February 2013
• Docket Number: Civil Action No. 09–cv–571 (RLW).
• Citation: 923 F.Supp.2d 222
• Parties: Kimberli MOTLEY–IVEY, Plaintiff, v. DISTRICT OF COLUMBIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

923 F.Supp.2d 222

Kimberli MOTLEY–IVEY, Plaintiff,

v.DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 09–cv–571 (RLW).

United States District Court, District of Columbia.

Feb. 14, 2013.

Jeanett P. Henry, Law Office of Jeanett P. Henry, LLC, Silver Spring, MD, for Plaintiff.

David A. Jackson, District of Columbia Office of the Attorney General, Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERT L. WILKINS, District Judge.

Plaintiff Kimberli Motley–Ivey (“Motley”) is an officer with the District of Columbia Metropolitan Police Department. Through this action, she asserts a number of employment-based claims largely stemming from the time she was assigned to the Police Department's Harbor Patrol Division. Motley brings suit against the District of Columbia (the “District”) and three of her superior officers in their individual capacities, Assistant Chief Alfred Durham (“Asst. Chief Durham”), Lieutenant Paul Niepling (“Lt. Niepling”), and Sergeant Dale Poskus (“Sgt. Poskus”) (collectively, the “Officer Defendants”). In her Fourth Amended Complaint, Motley asserts the following causes of action: Hostile Work Environment under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the D.C. Human Rights Act (“DCHRA”) (Counts I and III); Retaliation under Title VII and the DCHRA (Counts II and IV); Gender Discrimination under Title VII and the DCHRA (Counts VI and VII); Intentional Infliction of Emotional Distress (Count V); and claims under 42 U.S.C. § 1983 (Count VIII).¹ This matter is presently before the Court on Defendants' Motion for Summary Judgment (Dkt. No. 42).

Upon carefully consideration of the parties' briefing, the entire record in this action, and the arguments of counsel during hearings on February 4 and 7, 2013, the Court concludes, for the reasons set forth herein, that Defendants' Motion will be GRANTED IN PART and DENIED IN PART. For purposes of this ruling, the Court will assume that the reader is familiar with the factual assertions and arguments made by the parties and will not recite those again here.

ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). To establish a genuine issue of material fact, the nonmoving party must demonstrate—through affidavits or other competent evidence, Fed.R.Civ.P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C.Cir.2008) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). While the Court views all facts in the light most favorable to the nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C.Cir.2004), the nonmoving party must nevertheless provide more than “a scintilla of evidence” in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505. But “[i]f material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available.” Kuo–Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

B. Motley's Claims Under the DCHRA and Title VII for Hostile Work Environment, Retaliation, and Gender Discrimination (Counts I, II, III, IV, VI and VII).

Before turning to the merits of Motley's claims under the DCHRA and Title VII, the Court first deals with a number of timeliness challenges mounted by Defendants as to both categories of claims. First, Defendants attack Motley's DCHRA claims as untimely on several grounds, arguing that: (1) to the extent Motley's claims against the District are based on acts occurring prior to September 14, 2010, those claims are barred by D.C.Code § 12–309; (2) to the extent Motley's DCHRA claims against any defendant are based on acts occurring prior to March 26, 2008, those claims are time-barred by the DCHRA's one-year statute of limitations; and (3) the DCHRA's “election of remedies” doctrine precludes Motley from relying on any acts occurring prior to August 7, 2006. In addition, with respect to some aspects of Motley's claims against the District under Title VII, Defendants argue that she failed to properly exhaust her administrative remedies with the Equal Employment Opportunity Commission (“EEOC”). The Court addresses these arguments in turn.

1. Exhaustion Under D.C.Code § 12–309

It is well settled that a plaintiff cannot maintain an action against the District of Columbia for unliquidated damages “unless, within six months after the injury or damage was sustained, the claimant ... has given notice to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damages.” D.C.Code § 12–309. “[W]ritten notice under § 12–309 is a condition precedent to filing suit against the District,” Tucci v. District of Columbia, 956 A.2d 684, 695 (D.C.2008), and the D.C. Court of Appeals has expressly held that § 12–309's notice requirements apply to claims for unliquidated damages under the DCHRA brought against the District, Owens v. District of Columbia, 993 A.2d 1085, 1089 (D.C.2010).

In this case, Motley sent a § 12–309 letter to Mayor Vincent Gray on March 14, 2011, advising of her intention to assert claims against the District of Columbia. (Dkt. No. 42–17). Defendants do not dispute this fact, but they argue that, given the timing of Motley's letter, § 12–309 bars her from pursuing DCHRA claims against the District that are premised on acts occurring prior to September 14, 2010— i.e., more than six months prior to her letter. Motley contends otherwise, citing to the U.S. Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and arguing that the “continuing violation” doctrine permits her to rely upon allegations reaching as far back as 1994, when she was first assigned to Harbor Division. However, the Court finds Motley's reliance on Morgan misplaced, at least with respect to the issue of her compliance with § 12–309.

In this respect, neither side provided the Court with any authority squarely addressing whether the continuing violation doctrine applies to exhaustion under D.C.Code § 12–309, and based on the Court's own research, it appears that neither the D.C. Court of Appeals nor our Circuit has spoken to the issue. But in this Court's view, the continuing violations doctrine—a principle impacting statute of limitations issues, see, e.g., Keohane v. United States, 669 F.3d 325, 329 (D.C.Cir.2012) (“Under the continuing violation doctrine, the statute of limitations begins to run only after the date of the last injury.”)—finds no application in the context of exhaustion under § 12–309. The D.C. Court of Appeals has repeatedly explained that § 12–309 “is not, and does not function as, a statute of limitations.” E.g., Brown v. District of Columbia, 853 A.2d 733, 736–37 (D.C.2004). Rather, “Section 12–309 was purely a notice provision specifically designed to avoid, as applied to the District, the pitfalls of the statute of limitations.” Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C.1981). It instead operates as a “departure from the common law concept of sovereign immunity” and a “condition precedent” to filing suit against the District that must “be strictly construed.” Id.; see also Barnhardt v. District of Columbia, 8 A.3d 1206, 1214 (D.C.2010) (characterizing § 12–309 as a “condition of a waiver of sovereign immunity by the District of Columbia”). Moreover, under § 12–309, “the six-month clock begins to run from the moment the plaintiff sustains the injury, not from the moment a cause of action accrues.” Owens, 993 A.2d at 1090 (quoting District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (D.C.1995)).

Therefore, under D.C.Code § 12–309, Motley can only pursue her DCHRA claims against the District to the extent they are premised on acts occurring within the six-month period preceding her letter to the Mayor— i.e., from September 14, 2010 through March 14, 2011.

2. The DCHRA's One–Year Statute of Limitations

Defendants next argue that some of Motley's DCHRA claims against both the District and the Officer Defendants are partially time-barred by the one-year statute of limitations set forth in D.C.Code § 2–1403.16(a). More specifically, they argue that her discrimination and retaliation claims under the DCHRA are untimely to the extent they are premised on discrete acts occurring prior to March 26, 2008—more than one year before Motley filed suit on March 26, 2009. In her opposition, Motley does not dispute that her DCHRA claims are subject to the one-year limitations period under D.C.Code § 2–1403.16(a). Instead, she again cites to the Supreme Court's decision in Morgan, and argues that her claims are covered by the continuing violations theory. But in Morgan, the Supreme Court actually held that the continuing violation doctrine does not apply to claims of discrete discriminatory or retaliatory acts under Title VII. Morgan, 536 U.S. at 113, 122 S.Ct. 2061. The D.C. Court of Appeals has expressly extended this analysis to claims of discrete discriminatory or retaliatory acts under the DCHRA. Cesarano v. Reed Smith, LLP, 990 A.2d 455, 463–65 (D.C.2010) (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”); see also Barrett v. Covington & Burling LLP, 979 A.2d 1239, 1248–49 (D.C.2009). Thus, Motley's reliance on the continuing violation doctrine, at least in connection with her gender discrimination and retaliation claims, is unavailing. Under Morgan and its progeny, she can only proceed with her gender discrimination and retaliation claims under...