The opinion of the court was delivered by: Reggie B. Walton, District Judge.
MEMORANDUM OPINION AND ORDER
This employment discrimination case presents a host of issues for the
Court to resolve. After wading through the arguments amassed by both
parties, the Court concludes that plaintiff has failed to establish
actionable claims under either Title VII of the Civil Rights Act of 1964
or 42 U.S.C. § 1983 (2000). Therefore the defendants Board of
Trustees*fn1 are entitled to dismissal of certain claims pled by
plaintiff in her complaint and summary judgment as to plaintiff's
remaining claims. However, defendant Rachel Petty is not entitled to
dismissal of the complaint as to those claims asserted against her.
Plaintiff Victoria Guerrero is a 57 year old female of Filipino
descent. Plaintiff's Amended Complaint ("Compl.") ¶ 5.*fn2 Ms.
Guerrero was hired by the Washington
Institute of Technology ("WIT"), a
predecessor institution to the University of the District of Columbia
("UDC"), on February 4, 1974, as an adjunct professor.*fn3 Plaintiff's
Opposition to the Defendants' Motion to Dismiss Amended Complaint or in
the Alternative for Summary Judgment ("Pl.'s Opp."), Exhibit ("Ex.") 1
(Personnel Action form). She was later hired as a full-time professor in
September 1975. Compl. ¶ 5; Pl.'s Opp. Ex. 2. The present
controversy all began in 1997 when UDC was required to conduct a
Reduction in Force ("RIF") due to a financial crisis. Compl. ¶ 14.
Plaintiff retained her position at that time because it was determined
that she was "critical" to the Department of Biological and Environmental
Sciences program, even though her retention violated a provision of the
University's collective bargaining agreement. Id. The UDC Faculty
Association challenged the procedures utilized in the RIF and in
University of the District of Columbia Faculty
Assoc. v. District of
Columbia Financial Responsibility and Mgmt. Assistance Auth., 163 F.3d 616
(D.C. Cir. 1998), the Circuit Court ruled that the Control Board, which
was created pursuant to the District of Columbia Financial Responsibility
and Management Assistance Act of 1995, acted beyond the authority granted
by Congress when it authorized UDC to reduce its faculty
"`notwithstanding the provisions of any collective bargaining
agreement.'" Id. at 618. While that case was on remand, the parties
"negotiated a resolution of all remedial issues which resulted in a
phased `correction' of the 1997 RIF to make it consistent with the
requirements of the collective bargaining agreement ("CBA")." University
Defendants' Motion to Dismiss the Amended Complaint, or in the
Alternative, for Summary Judgment ("Defs.' Mot.") at 6.
As result of the foregoing events, in 1999 UDC conducted a corrective
RIF. Because Dr. Guerrero had been illegally retained in light of her
seniority status in 1997 when four faculty members who were more senior
than her were released, one whom was subsequently offered and accepted
reinstatement, Dr. Guerrero had to be released. Defs.' Mot., Affidavit of
James Preer, UDC faculty member and former Associate Provost, dated May
28, 2002, ("Preer Aff.") ¶ 8. Thus, in a letter dated July 15,
1999, plaintiff was informed by defendant Beverly J. Anderson, Acting
Provost and Vice President for Academic Affairs, that plaintiff had been
"one of the persons retained out of seniority order in contravention of
the reduction in force provisions of the collective bargaining agreement
. . ." and therefore would be terminated "effective August 15, 1999."
Defs.' Mot. Ex. 4, Letter to Dr. Victoria Guerrero from Beverly J.
Anderson dated July 15, 1999. At the time she received notice of the
corrective RIF plaintiff was "a tenured full time professor in the
Department of Biological and Environmental Sciences . . ." Compl. ¶
5. Plaintiff received a second letter from defendant Anderson dated July
21, 1999, stating that plaintiff could appeal the corrective RIF action
by filing an appeal with defendant Julius F. Nimmons, Jr., the President
of UDC, by no later than August 6, 1999. Id. Plaintiff timely filed an
appeal and received a response from defendant Nimmons on July 11, 2000,
wherein she was informed that her appeal was denied and that defendant
Nimmons' final decision could be appealed to the Superior Court of the
District of Columbia pursuant to the Agency Review Rules. Defs.' Mot.,
Ex. 5, Letter to Dr. Victoria C. Guerrero from Julius F. Nimmons dated
July 11, 2000. At the same time she filed her appeal with defendant
Nimmons, plaintiff filed a grievance with the University challenging the
corrective RIF, the University's failure to pay her for her professional
units ("PUs")*fn4 and its alleged unfair labor practices. Id. ¶
15. Plaintiff also alleged that defendants Anderson and James Preer,
Assistant to the Provost, continued to assign her tasks, despite the fact
that they knew she was being RIF'ed. Id.
Plaintiff filed a charge of employment discrimination with the Equal
Employment Opportunity Commission ("EEOC") on October 2, 2000. Id.
¶ 26. In count one of her amended complaint that was filed with this
Court, plaintiff alleges that defendants have violated Title VII of the
Civil Rights Act of 1964 by discriminating against her because of her
national origin and race by not hiring her for positions for which she
was qualified, but instead hiring black and other non-Filipinos who were
less qualified than her, id. ¶ 34; by "failing to recall her after
the 1999 RIF while [b]lacks and non-Filipinos that were RIFed in her
College [(the College of Arts and Sciences)] have been recalled[,]" id.
¶ 35; by transferring blacks to positions for which plaintiff is
better qualified, id. ¶ 36; and by failing to pay plaintiff for her
PUs and withholding the check for her transportation expenses while
blacks and non-Filipinos "are compensated for similar or equal work and
do not have their expenses check[s] withheld." Id. ¶ 37. Count two
of plaintiff's amended complaint alleges that she was unlawfully
retaliated against by defendants for filing a charge of employment
discrimination and that the retaliation occurred when defendants failed
to recall her from the 1999 RIF although all other faculty members in her
college have been recalled, failed to give plaintiff a position for which
she was qualified, and failed to pay plaintiff for all of her PUs. Id.
¶¶ 38-41. Finally, in count three of her amended complaint plaintiff
alleges that she was denied due process when she was denied re-employment
and thus defendants have violated 42 U.S.C. § 1981, 1983 and 1985.
Id. ¶¶ 2, 42-46.*fn5
The "University defendants" have filed a motion to dismiss the
complaint or, in the alternative, for a grant of summary judgment.
Defendants first argue that this Court lacks subject matter jurisdiction
over plaintiff's claims as the rights she seeks to enforce stem from the
Fourth Master Agreement between UDC and the UDC Faculty Association.
Defs.' Mot. at 3. Thus, the University defendants contend that
plaintiff's exclusive remedy is to file an appeal pursuant to the
procedures set forth in the CBA as prescribed by the District of Columbia
Comprehensive Merit Personnel Act ("CMPA"), or as provided by the UDC
Board of Trustees official rules and she has failed to exhaust those
administrative remedies. Id. Next, defendants argue that they are
entitled to dismissal of plaintiff's section 1983 claims because of her
failure to allege a policy or custom that resulted in her injuries. Id.
at 9-10. Defendants also argue they are entitled to summary judgment on
plaintiff's Title VII claims because she cannot prove that she has
suffered an adverse action or that similarly situated employees were
treated more favorably than she was.*fn6 Id. at 14. Finally, defendants
note that service on defendant Rachel Petty was inadequate, and therefore
the Court should dismiss the complaint against her. The
Court will first
address defendants' contention that plaintiff has failed to exhaust her
administrative remedies and will thereafter address the merits of
plaintiff's claims that survive the defendants' exhaustion challenge.
A. Exhaustion of Administrative Remedies
Defendants make three primary arguments pertaining to plaintiff's
exhaustion of her administrative remedies. Defendants first argue that
plaintiff has not properly appealed defendant Nimmon's denial of her
appeal regarding the decision to terminate her. Defs.' Mot. at 16.
Second, defendants argue that plaintiff did not timely appeal the
grievance that she filed. Id. at 17. Finally, defendants argue that
plaintiff's EEOC complaint was not timely filed. Id. at 17-18. The Court
will address each of these contentions in turn.
1. Appeal of the RIF decision
Defendants concede that plaintiff timely filed her internal RIF appeal
with President Nimmons. Defs.' Mot. at 16. However, after that appeal was
denied on July 11, 2000, defendants argue that plaintiff's next move, as
advised in defendant Nimmons' letter, which referenced the RIF rules and
Superior Court Agency Review Rule 1, should have been an appeal to the
Superior Court for the District of Columbia. Id. Plaintiff does not
address her failure to appeal to the Superior Court, but argues that
defendant Nimmons at some point informed her, contrary to the procedure
outlined in the letter notifying her of the decision to terminate her,
that the termination decision would not be final until a written decision
was issued. Pl.'s Opp. at 6. In his July 11, 2000, letter, defendant
Nimmons stated, in part:
I am sorry that your exemplary career with the
University has ended so unhappily. Your request for
review presents no violation of the provisions of RIF
Procedures or any other basis for finding that the
reduction in force action is unlawful or improper.
Therefore your appeal is denied. This final agency
decision may be appealed to the Superior Court of the
District of Columbia under the Agency Review Rules. A
copy of these rules is enclosed.
Pl.'s Opp. Ex. 4 (emphasis added).
Reading plaintiff's complaint in the light most favorable to her and
accepting as true all factual allegations contained in the complaint, as
the Court is required to do, Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), the Court
finds that plaintiff's complaint should not be dismissed for her failure
to appeal defendant Nimmons' decision to the Superior Court. This is so
because plaintiff's claims here are, as she argues, not based upon the
decision to terminate her, which both parties acknowledge was the result
of the legitimate corrective action needed to remedy the improper RIF in
1997, but the defendants' failure to re-hire her and in allegedly
appointing other persons to positions for which plaintiff claims she was
better qualified. Thus, as her complaint filed with defendant Nimmons did
not address the failure to re-hire her, the Court concludes that
plaintiff's failure to appeal defendant Nimmons' decision does not
preclude her from seeking relief in this Court. Nor was plaintiff required
to raise the re-hire issue with defendant Nimmons. This is because UDC
Resolution Number 99-16, which addresses the correction of the 1997 RIF,
Defs.' Mot. Ex. 2 ¶ 9 (emphasis added). The Resolution does not
require that any claims of discriminatory treatment pertaining to UDC's
action in re-hiring employees be submitted to the president. Plaintiff is
not, and could not, challenge the RIF procedures in this Court; the
Resolution required that redress be sought in the Superior Court.
However, as her claim is based upon the defendants' discriminatory
practices in not re-hiring her, these claims are properly before the Court
as further discussed below.*fn7
2. Appeal of Plaintiff's Grievance
On the same date that she filed her appeal with defendant Nimmons,
plaintiff filed a grievance with UDC asserting challenges to the RIF
decision, the university's failure to pay her for her PUs and for the
university's unfair labor practices. Compl. ¶ 14. Defendants
maintain that plaintiff did not timely appeal her grievance to the next
level pursuant to the Fourth Master Agreement. Defs.' Mot. at 17.
Plaintiff concedes that "[g]enerally, a District of Columbia employee
subject to a collective bargaining agreement, may not maintain [a]
common-law action in court to remedy a grievance against the employer
under such agreement, unless the employee has exhausted administrative
remedies provided in that agreement." Pl.'s Opp. at 12 (citing Board of
Trustees, University of the District of Columbia v. Myers, 652 A.2d 642
(D.C. 1995)). However, plaintiff asserts that a plaintiff may avoid the
requirement of exhausting her administrative remedies by showing that the
grievance procedures are unreasonable, that the hostility of union
officials makes a fair hearing impossible, or that pursuit of those
remedies would be futile. Id. Plaintiff ...