The opinion of the court was delivered by: Reggie B. Walton, United States District Judge
This matter comes before the Court upon defendant's motion for summary
judgment. Specifically, the defendant asserts that due to the plaintiffs'
failure to exhaust their administrative remedies as required by Title VII
of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-16
(2000), this Court should grant summary judgment in favor of the
defendant. Upon consideration of the parties' submissions and for the
reasons set forth below, the Court will deny the defendant's motion for
The plaintiffs aptly note that this case has come before the Court
"through a circuitous route." Plaintiffs' Opposition to Defendant's
Motion for Summary Judgment ("Pls.' Opp'n") at 9. The plaintiffs are
both African-American females employed by the defendant as computer shift
supervisors in the defendant's Management Information Services.
Complaint ("Compl.") at 2. The basis of the plaintiffs' complaint is
that the supervisor of the defendant's Operations and Production Control
branch allegedly treated those workers assigned to the Operations
section, which is where the plaintiffs worked and at the time of
their employment was comprised of all black employees, differently than the
employees assigned to the Production Control, which consisted primarily
of white employees.*fn1 Id. at 3. In addition, the plaintiffs
reference numerous other alleged acts of discrimination, including an
improper reprimand, harassment for taking sick leave, poor evaluations,
reassignment to "assignments that were much more time consuming than
their normal tasks," improper investigations, retaliation, improper
suspensions, failure to receive pay increases, and improper termination.
Id. at 4-8. Each plaintiff filed a Notice of Charge of Discrimination
with the United States Equal Employment Opportunity Commission ("EEOC")
on either July 16, 1997 or July 24, 1997. Defendant's Statement of
Material Facts as to Which There is No Genuine Issue of Dispute ("St. of
Mat. Facts") ¶¶ 3-4. Both plaintiffs subsequently sent a Request for
Right to Sue to the EEOC on July 28, 1997. Id. ¶ 5. On August 11,
1997, the EEOC sent the plaintiffs' files to the Department of Justice
("DOJ") and requested that the DOJ issue right to sue letters to the
plaintiffs. Id. ¶ 6. The plaintiffs were issued notices of right to
sue letters on September 8, 1997 and September 26, 1997. Id. ¶ 7.
During this time period, the plaintiffs were also attempting to gain
class certification along with other allegedly aggrieved individuals in
another suit that had been filed in this Court, but on March 29, 1999,
another member of this Court denied class certification and ordered that
the plaintiffs would have to file individual cases. Id. ¶¶ 9-10.
Subsequently, the plaintiffs in this case filed a complaint with this
Court on June 18, 1999, alleging racial discrimination and retaliation.
Id. ¶ 11. However, the plaintiffs later moved to dismiss that case
without prejudice following the District of Columbia Circuit's opinion in
Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336 (D.C. Cir. 1999),
realizing that this Circuit's opinion in Martini adversely affected the
maintainability of their claims because they had not been pending before
the EEOC for the required 180 days. Pls.' Opp'n at 10-11. Plaintiffs'
complaint was dismissed without prejudice by another member of this Court
on July 28, 2000, with the understanding that "Plaintiff[s] may file a
new complaint after the Commission has attempted to resolve Plaintiff[s']
charge[s] for an additional 134 days." St. of Mat. Facts ¶ 13. As
discussed below, the defendant takes exception with the plaintiffs'
position that they informed the EEOC of the status of their case
(voluntary dismissal without prejudice) and requested that the EEOC
process their charges for an additional 134 days. Pl.'s Opp'n at 11.
After waiting for the additional 134 days, the plaintiffs subsequently
re-filed their complaint in this case on May 29, 2001.
II. Standard of Review: Summary Judgment
Summary Judgment is generally appropriate when "the pleadings,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c). In assessing a Summary Judgment
motion, the Supreme Court has explained that a trial court must look to
the substantive law of the claims at issue to determine whether a fact is
"material", Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986),
and must treat a "genuine issue" as "one whose resolution could establish
an element of a claim or defense and, therefore, affect the outcome of
the action", Sanders v. Veneman, 211 F. Supp.2d 10, 14 (D.D.C. 2002)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477
U.S. at 248). While it is generally understood that when considering a
motion for summary judgment a court must "draw all justifiable inferences
in the nonmoving party's favor and accept the nonmoving party's evidence
as true," Greene v. Amritsar Auto Servs. Co., 206 F. Supp.2d 4, 7
(D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the non-moving party
must establish more than "[t]he mere existence of a scintilla of evidence
in support of the plaintiff's position", Anderson, 477 U.S. at 252. To
prevail on a summary judgment motion, the moving party must demonstrate
that the non-moving party "fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Celotex,
477 U.S. at 322. The District of Columbia Circuit has stated that the
non-moving party may not rely solely on mere conclusory allegations.
Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray,
9 F.3d 150, 154 (D.C. Cir. 1993). Thus, "[i]f the evidence is merely
colorable, (citation omitted), or is not significantly probative,
(citation omitted), summary judgment may be granted." Anderson, 477
U.S. at 249-50.
The defendant seeks summary judgment on the grounds that the plaintiffs
have not exhausted their administrative remedies under Title VII.
However, for the reasons set forth below, the Court finds that summary
judgment is not proper because not only is there a genuine issue as to a
material fact regarding whether the plaintiffs exhausted their
administrative remedies, but also because the defendant has not satisfied
its affirmative burden of proving such a failure to exhaust.
(A) The Appropriateness of Summary Judgment
It is undisputed that plaintiffs filed their original complaint
prematurely in light of the District of Columbia Circuit's opinion in
Martini. Upon realizing this error, plaintiffs' moved the Court to
dismiss their complaint without prejudice. Another member of this Court
dismissed the original complaint on July 28, 2000, without prejudice,
Plaintiffs' Charges of Discrimination were filed with
the Equal Employment Opportunity Commission on July
24, 1997. The initial Notice of Right to Sue was
issued on September 8, 1997, 46 days later. Thus 134
days of the 180 day period required by
42 U.S.C. § 2000e-5(f)(1) remain to be exhausted.
Plaintiff may file a new complaint after the
Commission has attempted to resolve Plaintiff's charge
for an additional 134 days.
In response, the plaintiffs have submitted an August 15, 2000 letter
that their attorney sent to the EEOC requesting that the EEOC process
their charges "for at least another 134 days." Pls.' Opp'n, Ex. 4.
Thus, plaintiffs assert that while the defendant "contends that [they]
did not give EEOC proper time to carry out its investigation . . . the
letter from Plaintiffs' counsel to [the EEOC] points to a different
conclusion, that is, EEOC did receive the proper notice required." Pls.
Opp'n at 14-15. In its Reply, the defendant states that "[t]he mere fact
that 180 days has expired is not sufficient." Defendant Washington
Metropolitan Area Transit Authority's Reply to Plaintiff's Opposition to
WMATA's Motion for Summary Judgment ("Def.'s Reply") at 2. The defendant
alleges that the letter submitted by the plaintiffs, "[a]ssuming arguendo
. . . [that it] was in fact forwarded to and received by the EEOC . . .[,]
does nothing to show that this case was reopened by the EEOC or that
an attempt to further investigate for the additional 134 days was made by
the EEOC." Id. at 3. Furthermore, the defendant states that it
discovered that the plaintiffs' files were transferred to the EEOC
warehouse on May 21, 2001, and subsequently destroyed, and "[t]he fact
that both files have been destroyed by the EEOC is clearly indicative of
inactivity by the EEOC with regard to these charges." Id. Moreover, the
defendant claims that because an EEOC attorney stated that she could not
comment on the plaintiffs' August 15, 2000 letter, since the EEOC
employee who it was addressed to no longer works for the EEOC, "is
indicative that there is no record of receipt of such letter with the
office." Id. This, the defendant contends, demonstrates that "[t]here
is nothing to indicate that the correspondence from [the plaintiffs] to
. . . the EEOC was in fact received and resulted in an investigation for
an additional 134 days as required by Judge Lamberth's Order and
Martini." Id. In addition, defendant claims that there is no subsequent
right to sue letter issued by the EEOC that would "indicate the files
were in fact reopened and that there was an attempt at
an additional 134 days." Id. at 3-4. And, therefore, the defendant
[t]he mere fact that [the plaintiffs] allege [they]
forwarded this correspondence to . . . the EEOC is not
sufficient [and i]n order to survive [the defendant's]
Motion for Summary Judgment the Plaintiffs' must
show that the EEOC reopened the files and that there
was an attempt to investi[gate] and/or conciliate
these charges for an ...