The opinion of the court was delivered by: Robertson, District Judge.
Plaintiff Fasil Tesfaye, a person of color from Ethiopia,
brings allegations of race and national origin discrimination
under Title VII, 42 U.S.C. § 2000e et seq., against defendant
Carr Park, Inc., his former employer. Defendant moves to dismiss
for plaintiff's failure to wait 180 days to initiate this lawsuit
after filing his claim with the EEOC. The motion will be denied.
Because the correct application of Martini v. Federal Nat'l
Mortgage Ass'n, 178 F.3d 1336 (D.C.Cir. 1999), involves a
"controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of
litigation," 28 U.S.C. § 1292(b), I will certify this decision
for an immediate interlocutory appeal.
Mr. Tesfaye's claim is that he was "constantly harassed and
mistreated" during his employment with Carr Park because of his
race and national origin. The following facts are taken as true
for purposes of this motion: Mr. Tesfaye was hired as a
facilities manager for a number of Carr Park's Washington, D.C.
area parking garages on July 1, 1996. When Mike Harris (white
American) became regional manager and Mr. Tesfaye's immediate
supervisor in November 1997, discrimination against and
harassment of Mr. Tesfaye became "very intense." While Mr.
Tesfaye was facilities manager at the Chevy Chase Pavilion
parking garage, he was paid below the pay rate allocated for the
position. On November 12, 1998, after he complained about the
harassment, the disparate salary, and what he claimed were
unreasonable write-ups regarding his job performance, he was
Carr Park's defense on the merits is that it terminated Mr.
Tesfaye for misappropriating company funds and failing to deposit
money in the bank. Mr. Tesfaye's response is that Carr Park's
proffered reason is pretextual, that he and his immediate
supervisor opened the safe and signed a log together whenever
money was deposited, and that, after he was terminated, Carr Park
"maliciously challenged" his right to receive unemployment
benefits by producing forged and altered copies of his employment
Carr Park's motion does not deal with the merits. Instead, it
addresses the procedural history of the case: Mr. Tesfaye filed
his complaint with the EEOC on April 20, 1999. He received a
letter and a "Dismissal and Notice of Rights" from the EEOC's
Washington Field Office sixty-nine days later, on June 28, 1999.
These documents indicated that the Director of the Washington
Field Office had dismissed Mr. Tesfaye's claim and informed him
that he had 90 days to file his case in court. It is unclear from
either document what investigation, if any, the EEOC performed.
The letter concluded that "[d]iscrimination based on race or
national origin does not appear to be in evidence." But it also
stated that "the Commission will not be able to prove that you
were discharged because of your race and national origin," and
that "[i]t is highly unlikely that further investigation would
reveal a violation of [Title VII]." On September 27, 1999, just
before the 90 day deadline, Mr. Tesfaye filed this lawsuit.
In Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336
(1999), the D.C. Circuit dismissed an employee's Title VII suit
because it was filed sooner than 180 days after plaintiff
complained to the EEOC. Id. at 1338-39. The focus of the
court's opinion was on the intent of Congress. After analyzing
sections 2000e-5(b) and (f), and examining legislative history,
the court concluded that "Congress clearly intend[ed] to prohibit
private suits within 180 days after a charge is filed as long as
the EEOC has not dismissed the charge." Id. at 1342 (emphasis
added). The language of the opinion that states the court's
holding, however, is not limited to cases in which the EEOC has
not dismissed a charge. It states that "Title VII complainants
must wait 180 days after filing charges with the EEOC before they
may sue in federal court." Id. at 1347.
The Title VII complainant in this case did not wait 180 days
after filing his charge with the EEOC before he sued in federal
court. Had he done so, he was at considerable risk of dismissal
for filing too late. See 42 U.S.C. § 2000e-5(f)(1) (requiring
that private suit to enforce a claim under Title VII must be
filed within 90 days of receipt of the right to sue letter). The
timing of the complaint and of the EEOC's right to sue letter do
not offend the rationale of the Martini decision, which
acknowledges that "[t]he statute . . . authorizes a complainant
to sue within 180 days if the EEOC dismisses the charge," id.
at 1344 (emphasis added).*fn1 Nor is the plaintiff's pre-180 day
filing at odds with Martini's public policy rationale:
Martini was concerned that early authorization of private suits
"undermines [the EEOC's] statutory duty to investigate every
charge filed," see id. at 1347, but here the EEOC apparently
investigated the plaintiff's claim and simply concluded before
180 days had passed that it lacked merit.
I find that the plain language of section 2000e-5(b) permitted
the issuance of a valid right to sue letter before the expiration
of 180 days after the complaint was filed because the EEOC
dismissed Mr. Tesfaye's complaint in its June 28, 1999 letter.
The defendant's motion to dismiss will accordingly be denied.
An appropriate order accompanies this memorandum.
ORDER AND CERTIFICATION OF INTERLOCUTORY APPEAL
For the reasons set forth in the accompanying memorandum, it is
this 31st ...