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 summary judgment.
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, depositions, 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, stating that
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. Motion for Summary Judgment ("Def.'s Mot."), Exhibit ("Ex.") 14 (Order dismissing C.A. No. 99-1629).
Although 134 days elapsed between the date when the Order of dismissal was issued and when the plaintiffs re-filed their complaint with this Court on May 29, 2001, defendant argues that "plaintiffs have still failed to secure right to sue letters from the EEOC and/or the Department of Justice [after the expiration of the 180 day period]." Id. at 10. The defendant correctly notes that the rationale behind the 180 day waiting requirement is to give the EEOC enough time to "informally resolve as many charges as possible." Id. (citing Martini, 178 F.3d at 1338). And, the defendant asserts that no "meaningful" investigation occurred with regards to the plaintiffs' discrimination charges because it appears from the original right to sue letters that the EEOC did not conduct an investigation, *fn2 but dismissed it after 51 days for administrative convenience. "Such treatment[, the defendant opines,] fails to comply with this Court's [Judge Royce Lamberth's] reading in Martini of 42 U.S.C. § 2000(e)-5(b) that the EEOC investigate every charge filed with this office." Id. at 11. The defendant further alleges that the plaintiffs failed to correspond with either the EEOC or the DOJ in an attempt to resolve this matter. Id.
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 ...