Washington v. White

• Decision Date: 22 October 2002
• Docket Number: No. CIV.A. 01-0420RBW.,CIV.A. 01-0420RBW.
• Citation: 231 F.Supp.2d 71
• Parties: James WASHINGTON, Plaintiff, v. Thomas E. WHITE, Defendant.
• Court: U.S. District Court — District of Columbia

231 F.Supp.2d 71

James WASHINGTON, Plaintiff, v. Thomas E. WHITE, Defendant.

No. CIV.A. 01-0420RBW.

United States District Court, District of Columbia.

October 22, 2002.

COPYRIGHT MATERIAL OMITTED

James Washington, Washington, DC, pro se.

Thomas M. Ray, Department of the Army, Joel E. Wilson, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

WALTON, District Judge.

Plaintiff has sued the defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that he was subjected to a hostile work environment resulting from sexual harassment and retaliation. Defendant¹ has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or alternatively for summary judgment pursuant to Fed.R.Civ.P. 56. This motion must be denied.

I. The Complaint

Plaintiff's complaint is in the form of a memorandum presented to the Equal Employment Opportunity Commission ("EEOC") as his appeal from the agency's adoption of a decision against him rendered by an administrative law judge. The following facts are alleged in the complaint and are based on exhibits submitted to the administrative law judge, including testimony taken at depositions.

Plaintiff is a custodial worker at the Walter Reed Army Medical Center. He used the second floor men's locker room to remove his uniforms and put on his street clothes at the end of every shift. Plaintiff asserts that in May 1997, Francine Aparicio, who holds a supervisory position at the medical center, "for no apparent reason" "barged into the room five to ten times without knocking or announcing herself." Compl. at 2-3. Plaintiff alleges that the locker room was so small that Aparicio would be standing a few feet away from the lockers, changing areas, and sinks, and would be able to see the place where the men undressed. Once, he asserts, she came in as he took his shirt off. Id. at 3. Although Plaintiff complained to his supervisor and to Lawrence Winston, the Chief of the Environmental Services Branch ("ESB"), Aparicio continued her visits. Id. Another time, after plaintiff had filed a written complaint, Aparicio entered the locker room, went over to plaintiff, and (without asking) reached in and took a pen out of his shirt pocket. Id. Plaintiff complained again to his supervisor. Aparicio then received a written warning but when she complained to Winston and then to the Deputy Head of Administration, the latter called Winston with his concern that Aparicio, "a union officer, might have been undeservedly reprimanded." Id. Aparicio then "returned to the locker room and stood over [plaintiff] saying `I'm back. What are you going to do about it?'" Id. Washington then complained to Winston's direct superior, who, based on Winston's "general past practices," probably discussed the matter with Winston, but apparently nothing was done to address the situation. Id. at 3-4.

Plaintiff alleges that because of Aparicio's "repeated, unabated intrusions" he was "embarrassed and uncomfortable and chose to change in bathrooms and vacant areas on other floors." Compl. at 4. He alleges that Aparicio's intrusion into the men's locker room violated a policy signed in April 1995, which "required a chaperon for persons entering locker rooms of the opposite sex." Id. The policy was adopted after "a female custodial worker accused Winston of sexually harass[ing] her by entering the women's locker room without knocking." Id. That policy was neither posted nor placed in training materials, although Winston had been counseled about it. Id.

Plaintiff further alleges that Ms. Aparicio received two promotions after he lodged his sexual harassment complaint against her. Id. at 4-5. Plaintiff, on the other hand, received two leave restrictions and an unsatisfactory rating. Id. at 4. Plaintiff suggests the first leave restriction, in February 1998, was imposed in retaliation for the sexual harassment complaint he had filed. Id. at 5-6, 8-9.² After plaintiff filed a reprisal complaint relating to the leave restriction, Winston declined to exercise his discretion to excuse plaintiff's absence from certain training courses, which had been held at a time when plaintiff was sick.³ Winston then approved an unsatisfactory rating because plaintiff had missed the training. Id. at 7. Four months later, in July 1998, after an EEO investigator "pointed out a number of procedural errors," Winston removed the leave restriction. Id. at 7-8. Less than a month later, however, Ms. Aparicio, who had been promoted to an assistant supervisor position, signed a new warning letter that alleged leave abuse by plaintiff, and a second leave restriction followed less than 60 days later. Id. at 8.

II. The Defendant's Motion to Dismiss

Defendant's motion to dismiss is based on two grounds: first, that the complaint fails to meet the requirements of Rule 8 of the Federal Rules of Civil Procedure, and second, that the claim is barred by the statute of limitations.

A. Compliance with Rule 8

Defendant first argues that the complaint should be dismissed because it is simply a copy of a motion for reconsideration filed with the EEOC and does not comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint should contain

(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks.

This complaint was filed by plaintiff without the assistance of counsel. Such complaints are held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Moreover, Rule 8(f) provides that "[a]ll pleadings shall be so construed as to do substantial justice." The complaint certainly is sufficient to inform defendant of the claims alleged. Indeed, defendant has been able to prepare a motion for summary judgment addressing the merits of the claims. As plaintiff notes in his sur-reply,⁴ dismissal of the complaint for alleged violations of Rule 8 would simply delay resolution of the matter, because the dismissal would have to be without prejudice and plaintiff therefore would be allowed to file an amended complaint. Accordingly, the complaint will not be dismissed for non-compliance with Rule 8.

B. The Statute of Limitations

Defendant next argues that the complaint must be dismissed because it was filed more than ninety days after plaintiff's receipt of the right to sue letter from the Equal Employment Opportunity Commission ("EEOC"), in violation of 42 U.S.C. § 2000e-5(f)(1). The facts, as shown by the Court files, are these. The EEOC right to sue letter was mailed to plaintiff on October 31, 2000. Defendant's Motion to Dismiss ("Def.'s Mot."), Exhibit ("Ex.") F. Plaintiff submitted his complaint to this Court on January 30, 2001, with a petition for leave to proceed in forma pauperis. The Court's copies of these documents bear a stamp showing that they were received by the Clerk on January 30, 2001. (Dkt. ## 1, 2). The Clerk of the Court will not accept for filing a complaint that is not accompanied by a filing fee until after the Court has granted a petition for leave to proceed in forma pauperis. The application to proceed in forma pauperis was granted on February 26, 2001, and the complaint was then accepted by the Clerk as filed the next day (February 27, 2001).

As indicated, plaintiff had ninety days from the date he received the final decision of the EEOC to file suit in this Court. The certificate of mailing attached to the EEOC's denial of request for reconsideration states that "the Commission will presume that [its] decision was received within five (5) calendar days after it was mailed." (Dkt.# 4.) The presumption, therefore, is that plaintiff received the decision by November 5, 2000. The ninetieth day from this presumptive date was February 3, 2001. The complaint was therefore technically filed 114 days after plaintiff is presumed to have received the decision, or 24 days beyond the statutory filing deadline.

The ninety day period is not a jurisdictional statute but rather is a statute of limitations and thus subject to equitable tolling. See Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C.Cir.1998); Truitt v. County of Wayne, 148 F.3d 644 (6th Cir.1998). There is a substantial body of case law holding that the ninety day period is tolled between the time a complaint and an application to proceed in forma pauperis are received by the Court, and the time the Court rules on the application. See, e.g., Warren v. Department of the Army, 867 F.2d 1156, 1160 (8th Cir. 1989) (statute of limitations is equitably tolled between submission of application to proceed in forma pauperis and formal filing of complaint); Paulk v. Department of the Air Force, 830 F.2d 79, 82-83 (7th Cir.1987) (to bar an action that was submitted for filing in forma pauperis within the statute of limitations but decided beyond the deadline would "violate equal protection because similar claims would be treated drastically differently only on the basis of the speed with which the court chose to process them"); Hogue v. Roach, 967 F.Supp. 7, 9 (D.D.C.1997); Guillen v. National Grange, 955 F.Supp. 144, 145 (D.D.C.1997); Harley v. Dalton, 896 F.Supp. 29 (D.D.C.1995); Yelverton v. Blue Bell, Inc., 530 F.Supp. 701 (E.D.N.C. 1982); Abram v. Wackenhut Corp., 493 F.Supp. 1090 (E.D.Mich.1980).

The cases defendant cites in support of his position that this case should be dismissed on statute of limitation grounds did not involve a delay caused by the Court's administrative procedures. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (describing as a "garden variety claim of excusable neglect" the fact that the lawyer was absent from his...