Phuong v. National Academy of Sciences, Civ. A. No. 93-2269 PLF.
| Decision Date | 12 October 1995 |
| Docket Number | Civ. A. No. 93-2269 PLF. |
| Citation | 901 F. Supp. 12 |
| Parties | Tran Anh PHUONG, Plaintiff, v. NATIONAL ACADEMY OF SCIENCES, Defendant. |
| Court | U.S. District Court — District of Columbia |
Barbara B. Hutchinson, New Carrollton, MD, for plaintiff.
William F. Causey, Washington, D.C., for defendant.
This case is before the Court on defendant's motion for partial summary judgment on statute of limitations grounds and to strike portions of plaintiff's amended complaint. Plaintiff opposes the motion. Having considered the papers filed by the parties, the Court grants judgment for defendant on plaintiff's Fair Labor Standards Act claim, but denies summary judgment on plaintiff's Age Discrimination in Employment Act claim. In addition, the Court strikes plaintiff's claims for compensatory and punitive damages and her demand for a jury trial on her Title VII claims of discrimination on the basis of race and national origin.
Plaintiff, a fifty-nine year old Vietnamese female, was employed by the National Academy of Sciences ("NAS") for over 18 years. She began her employment at NAS in May 1973. In April 1991, her supervisor in the Commission on Engineering and Technical Systems ("CETS") at NAS was Executive Director Archie L. Wood, a white male. Ms. Phuong was Mr. Wood's Executive Assistant.
On April 9, 1991, Mr. Wood informed plaintiff that he was delaying her annual performance review for three months in order to better assess her performance. Pl.'s Ex. 1; Deposition of Archie L. Wood ("Wood Dep.") at 62. He then assigned plaintiff new duties, requiring her to learn and apply several computer software applications with which he was aware that she previously had no familiarity. Mr. Wood set a three month deadline by which plaintiff was required to have learned how to use the software and have completed setting up various databases. Pl.'s Ex. 1; Wood Dep. at 38-39.
In July 1991, plaintiff informed Mr. Wood that she could not complete the work without working overtime and informed him that indeed she had been working overtime in an effort to complete the work. Plaintiff maintains that Mr. Wood never gave her approval to work overtime and that Ms. Marlene Beaudine and Ms. Mary Frances Lee, two members of the CETS executive office staff, both told her that she was not approved to work overtime. Deposition of Tran Ahn Phuong ("Phuong Dep.") at 1-4. Plaintiff claims that while she worked overtime, she did not report the overtime on her pay sheets. Phuong Dep. at 3-4. Mr. Wood asserts that he did not object to plaintiff working overtime and would not have objected to her claiming overtime pay. Wood Dep. at 42-47.
In mid-July 1991, Mr. Wood concluded that plaintiff could not handle her "new" job. Around that time Mr. Wood discussed with Ms. Beaudine and Ms. Lee the fact that plaintiff was approaching retirement age. Wood Dep. at 50. In July Mr. Wood also informed Mr. Charles Starliper, the white male Personnel Director of NAS, that plaintiff was not performing satisfactorily. On July 22, 1991, Mr. Wood informed Mr. Starliper that he wanted plaintiff removed from her position or that she be made a part-time employee. On August 16, 1991, Mr. Starliper informed plaintiff that her options were either to take a demotion or to reduce her hours to part-time. Throughout the entire period that Mr. Wood was her direct supervisor, he never documented in writing the deficiencies that he saw in plaintiff's work performance and never provided her with a written performance appraisal.
Plaintiff last performed unreported overtime work on August 28, 1991, a date that fell within the pay period ending on September 9, 1991. Phuong Dep. at 164. On August 30, 1991, plaintiff received a written notice of demotion. Plaintiff was absent from the workplace from August 30, 1991, through September 8, 1991, because of a back injury. She returned for one day on September 9, 1991, but did not return thereafter. She received worker's compensation benefits for the period September 10, 1991, through October 22, 1991. At some unspecified time, plaintiff was replaced by Teree Dittmar, a white female who was younger than plaintiff. Pl.'s Ex. 3. Ms. Dittmar subsequently was removed from the position because of an attendance problem that pre-dated her appointment to plaintiff's former position. Pl.'s Ex. 3.
On September 25, 1991, plaintiff wrote a memorandum to Mr. Starliper outlining the discriminatory and unfair practices to which she believed she had been subjected. Pl.'s Ex. 4. On September 27, 1991, plaintiff submitted a letter of resignation stating that her resignation was due to her physical injuries and would be effective as of October 15, 1991. Phuong Dep. at 198-99; Def's Ex. 3. On October 22, 1991, she contacted Mr. Starliper to postpone the effective date of her resignation until November 1, 1991. On November 4, 1991, plaintiff filed a complaint with the District of Columbia Department of Human Rights. On November 1, 1993, she filed this civil action.
The Court previously denied defendant's motion to dismiss for failure to exhaust administrative remedies and stayed the action for 30 days in order to permit plaintiff an opportunity to obtain a right to sue letter from the EEOC. Upon a theory of equitable tolling, the Court denied defendant's motion to dismiss plaintiff's age discrimination claim. The Court also found that plaintiff's Fair Labor Standards Act claim was adequately pled to avoid summary dismissal on statute of limitations grounds.
Under Rule 56, Fed.R.Civ.P., summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989). In discrimination cases the Court "must be extra-careful to view all the evidence in the light most favorable" to plaintiff. Ross v. Runyon, 859 F.Supp. 15, 21-22 (D.D.C.1994). But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed. R.Civ.P.; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986); Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. at 2511.
Until November 21, 1991, both the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., drew their statutes of limitations from the Portal-to-Portal Pay Act of 1947, 29 U.S.C. §§ 255, 259. Under the Portal-to-Portal Pay Act, an action must be commenced within two years from the date the cause of action accrues, unless the violation was willful, in which case the statute of limitations is three years. 29 U.S.C. § 255. Addressing the statute of limitations under the FLSA, the Supreme Court has held that willfulness exists if the "employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 1681, 100 L.Ed.2d 115 (1988). See Hazen Paper Co. v. Biggins, ___ U.S. ___, ___, 113 S.Ct. 1701, 1709, 123 L.Ed.2d 338 (1993); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985).
The Civil Rights Act of 1991 deleted the references in the ADEA to the statute of limitations set forth in the Portal-to-Portal Pay Act and adopted the provision of Title VII of the Civil Rights Act, requiring that plaintiff bring suit within 90 days of receiving a right to sue letter from the EEOC. 29 U.S.C. § 626. The only courts of appeals that have considered the effect of the 1991 Act on the ADEA's statute of limitations have concluded that the amended statute of limitations period applies to all civil actions filed after the enactment of the 1991 Civil Rights Act, even if the claims accrued before the passage of the 1991 Act. See Garfield v. J.C. Nichols Real Estate, 57 F.3d 662, 665 (8th Cir.1995), petition for cert. filed, 64 U.S.L.W. 3167 (September 11, 1995); Vernon v. Cassadaga Valley Central School District, 49 F.3d 886, 889-90 (2d Cir.1995); St. Louis v. Texas Worker's Compensation Comm'n, 65 F.3d 43 (5th Cir.1995). The District of Columbia Circuit has not yet had occasion to consider whether the Civil Rights Act of 1991 alters the statute of limitations for actions accruing prior to its enactment.
Plaintiff concedes that the last day she performed any overtime work was on August 28, 1991, during the pay period ending September 9, 1991. The latest possible date on which plaintiff's FLSA claim could have accrued therefore was September 9, 1991. This civil action was filed on November 1, 1993. Because the Portal-to-Portal Pay Act limitations period continues to apply to FLSA claims, plaintiff's November 1, 1993, complaint was untimely unless plaintiff can benefit from the three year statute of limitations for a "willful" violation of the FLSA.
While plaintiff's amended complaint alleges that the failure of NAS to compensate her for overtime hours that she had to work in order...
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