Uzoukwu v. Metro. Wash. Council of Govs.

• Decision Date: 21 January 2014
• Docket Number: Civil Action No. 11–cv–391 RLW
• Court: U.S. District Court — District of Columbia
• Parties: Chinyere Uzoukwu, Plaintiff, v. Metropolitan Washington Council of Governments, et al. Defendants.

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Chinyere Uzoukwu, Plaintiff
v.
Metropolitan Washington Council of Governments, et al. Defendants.

Civil Action No. 11–cv–391 RLW

United States District Court, District of Columbia.

January 21, 2014

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Chinyere Uzoukwu, Adelphi, MD, pro se.

Joleen Okun, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERT L. WILKINS, United States District Judge

This is the undersigned's third Memorandum Opinion in this action, which was brought by pro se Plaintiff Chinyere Uzoukwu. See Uzoukwu v. Metro. Wash. Council of Govts., 845 F.Supp.2d 168 (D.D.C.2012) ; Uzoukwu v. Metro. Wash. Council of Govts., Civil Action No. 11–cv–391 (RLW), 983 F.Supp.2d 67, 2013 WL 5425128 (D.D.C. Sept. 30, 2013). The prior opinions spell out the procedural history of this action, including dismissal of Plaintiff's lawsuit and the subsequent reinstatement of several claims after reconsideration of two post judgment motions. Presently, this action involves Plaintiff's former employer, Metropolitan Washington Council of Governments (“COG”), and her former co-workers: supervisor Calvin L. Smith (African–American), supervisor Paul DesJardin (Caucasian), and Director of Human Resources, Imelda Roberts (race unspecified). The following claims survived after this Court granted Plaintiff post judgment relief and allowed her to amend her complaint:

Count I Section 1981—Hostile Work Environment (Smith)

Count II Section 1981—Retaliation (Smith)

Count III Tortious Interference With Economic Advantage (Smith)

Count VI Section 1981—Retaliation (DesJardin & Roberts)

Count VII Tortious Interference (DesJardin & Roberts)

Count IX Section 1981—Hostile Work Environment/Disparate Treatment (COG)

Count X Section 1981—Retaliation (COG)

Count XVI Negligent Retention/Supervision

(See Doc. 52.) Defendants now seek dismissal of these claims, (Doc. 53), and Plaintiff requests leave to further amend her complaint. (See Doc. 56, Pl's Resp. at 2, 3, 4 n.1, 11, 12–13, 16, 21.) On December 12, 2013, a hearing was held on these matters. For the reasons set forth below, the Court will deny Plaintiff's request and grant Defendants' motion in part.

I. ANALYSIS

A. Section 1981 Statute of Limitations

Relying on Carney v. American University, 151 F.3d 1090, 1096 (D.C.Cir.1998), the Defendants argue that a three-year statute of limitations applies to Plaintiff's Section 1981 claims. In Carney, our Circuit explained:

For statute of limitations purposes, the Supreme Court treats section 1981 claims like claims under 42 U.S.C. § 1983. See Goodman, 482 U.S. at 660–62, 107 S.Ct. 2617 (applying the rule that courts should look to state personal injury statutes to determine the appropriate

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statute of limitations for section 1983 claims, ... to section 1981 claims).... The Supreme Court has held that in states with multiple statutes of limitations, claims under section 1983 are governed by the residual or general personal injury statute of limitations ... rather than the statute of limitations for enumerated intentional torts.... Accordingly, [in the District of Columbia] section 12–301(8)'s three-year statute of limitations applies to all section 1981 claims.

151 F.3d at 1096 (some citations omitted).

By relying on Carney, Defendants ignore the four-year federal default statute of limitations,¹ the 1991 amendments to Section 1981² and the Supreme Court's post-Carney decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). In Donnelley the Supreme Court held that Section 1981 claims relating to contract formation are still governed by the appropriate state limitations period, but Section 1981 claims based on post-contract formation conduct are governed by the federal four-year limitations period. Id. at 378–79, 382–83, 124 S.Ct. 1836 (emphasis added).

Consistent with Donnelley, the four-year limitations period applies to the claims in the present case, which are based on alleged conduct that occurred during Plaintiff's employment. Accordingly, Plaintiff's Section 1981 claims are timely. On March 11, 2008 COG notified Plaintiff that she would be terminated and on March 31, 2008 her employment was terminated. (Amend.Compl.¶ 88.) Less than four years later, Plaintiff filed her initial complaint, on February 16, 2011, and her first proposed amended complaint on June 17, 2011. (See Docs. 1; 21–3.) The proposed amended complaint included a Section 1981 claim. (See Doc. 21–3.) Even if one adopts the position of the Defendants that the appropriate marker is March 9, 2012, the date of Plaintiff's last proposed amended complaint, her claims are still timely. Thus, Defendants' timeliness arguments are without merit.

B. Section 1981 claims: ethnicity vs. national origin

Next, Defendants argue that Plaintiff's Section 1981 claims are not actionable because she alleges discrimination based on national origin, rather than ethnicity. Defendants note that Plaintiff mentions “nation of origin” in her complaint, but Defendants contend she does not make any allegations based on “racial or ethnic characteristics associated with the national origin in question.” See Wesley v. Howard Univ., 3 F.Supp.2d 1, 3 (D.D.C.1998) (citing St. Francis College v. Al – Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) ). Defendants also contend that Plaintiff has not made any allegation that Defendants were aware of her ethnicity.

While the Supreme Court has made it clear that claims based “solely” on “national origin” may not proceed under Section 1981, claims based on color, race and/or ethnicity are actionable under

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Section 1981.³ See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (explaining that Section 1981 was enacted to protect persons of “every race and color.”); St. Francis College, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (discussing ancestry and ethnicity claims). With respect to claims based on “ancestry or ethnic characteristics,” the Court in St. Francis College v. Al–Khazraji explained that

§ 1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens. ” It is clear ..., however, that a distinctive physiognomy is not essential to qualify for § 1981 protection.

Id. at 613, 107 S.Ct. 2022 (emphasis in original) (citations omitted).

Given the Supreme Court precedent, at this juncture, dismissal of this action is not justified. In her complaint, Plaintiff identifies herself as “a black female ... whose nation of origin is Nigeria.... Plaintiff was born in the west-African country of Nigeria, is a naturalized citizen of the United States and identifies herself as Black, and (African/Nigerian) Nigerian–American.” (Amend.Comp.¶¶ 7–8)(emphasis added). She goes on to discuss various incidents involving herself and “white” female employees (she does not describe them as “American” employees) and how Smith allegedly treated these other employees more favorably than she. (See id. ¶¶ 30, 32–36, 44–47, 53.) Plaintiff also alleges that she was the victim of “intentional ethnic/origin discrimination” and that she was denied work opportunities and privileges “enjoyed by others, non African (or African–American).” (Id. ¶136.)

While there may be some overlap between claims based on national origin and claims based on protected status under Section 1981, any potential overlap does not disqualify a Plaintiff from going forward under Section 1981. See St. Francis College, 481 U.S. at 614, 107 S.Ct. 2022 (Brennan, J., concurring) (“It is true that one's ancestry—the ethnic group from which an individual and his or her ancestors are descended—is not necessarily the same as one's national origin—the country ‘where a person was born, or, more broadly, the country from which his or her ancestors came. ’ Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group.”) (citations omitted); Hyman v. First Union Corp., 980 F.Supp. 46, 52–53 (D.D.C.1997) (dismissing plaintiff's Section 1981 claims were she alleged discrimination based on “national origin” and she compared her treatment with that “received ‘by persons with origins in the United States,’ ” but noting that some courts have allowed claims to proceed where an “allegation of race discrimination is [also] reasonably inferable from the pleadings.”) (citation omitted); Ekandem v. D.C., Civ. A. No. 91–1060(LFO), 1992 WL 138991, at *2 (D.D.C. Apr. 13, 1992) (denying, without prejudice, a motion to dismiss where the pro se plaintiff's complaint...