rather "[d]efendant's failure to reinstate her is discriminatory." Id. at 14.
Whether or not plaintiff filed her claim timely is governed by Title VII. Defendant inexplicably argues that plaintiff had 300 days from the date of the alleged discriminatory event to file her administrative complaint with the EEOC and plaintiff does not take exception with this position. However, pursuant to Title VII, 42 U.S.C. § 2000e-5(e)(1) (2000), "[a] charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . ."; see also Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998) (before initiating a Title VII lawsuit, "an aggrieved party must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident.") (citations omitted).*fn8 Accordingly, the 180 day limitation period controls whether the two Title VII claims were timely filed.
Plaintiff maintains that her complaint is based upon the decision not to reinstate her and the actions of the defendants in appointing persons less qualified than she was to positions she applied for or was qualified to perform. If, as plaintiff claims, her complaint is based upon the defendants' failure to reinstate her, her reliance on defendant Nimmons' letter (which she concededly failed to timely appeal to the Superior Court for the District of Columbia) is not the appropriate point from which to calculate the time for filing her EEOC complaint. Rather, the proper time for filing her complaint would have been within 180 days after the time she first applied for and was denied a position with the University for which she was allegedly qualified.
According to plaintiff's amended complaint, she applied for the position of Chairperson of the Department of Biological and Environmental Sciences on August 11, 1999. Compl. ¶ 21. Plaintiff states that "[a]t a later date [she] found out" that the position had been given to Dr. Freddie Dixon, a black female who was less experienced than plaintiff. Id. Plaintiff does not state when she learned of this action and therefore, even though she did not file her EEOC complaint until October 2, 2000, the Court cannot conclude this claim would be time-barred in the absence of information proving when plaintiff actually learned that the position was given to another person.
Plaintiff also alleges in her complaint that a position for Senior Project Specialist was announced on July 31, 2001, and that the position was given to Linda Carmichael, another black female who plaintiff asserts is less qualified and junior to plaintiff in seniority, although it is not clear that plaintiff actually applied for this position.*fn9 Id. ¶ 30. Therefore, it appears plaintiff did not timely file a complaint pertaining to the 1999 position vacancy, and she appears to not have complained regarding the 2001 position vacancy because her EEOC complaint was filed prior to the time when this position was announced.*fn10
However, "[i]n construing and applying [Title VII's] procedural specifications and limits, courts should be mindful of the judiciary's crucial role in the [Title VII] statutory enforcement design." Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985) (citing Brown v. General Services Admin., 425 U.S. 820, 825-26 (D.C. Cir. 1976)). Therefore, the Court must avoid applying Title VII's procedural requirements in an "overly technical [manner that] would improperly impede the goal of making federal employment free from proscribed discrimination." Id. (citation omitted). The Court concludes that dismissal is not warranted because defendants have failed to prove that plaintiff's claim regarding the 1999 position vacancy is time barred in the absence of evidence showing the date on which plaintiff learned that she was denied the position. In addition, the Court finds that the defendants were on notice of plaintiff's discrimination claims at the time they did not offer her the 2001 position since she had filed her EEOC complaint in 2000. Thus it appears that plaintiff's complaint, although technically premature, was adequate to give the "agency notice of a claim and [the] opportunity to handle it internally[,]" which is the purpose of the exhaustion doctrine. Brown v. Marsh, 777 F.2d 8, 15 (D.C. Cir. 1985). Therefore, the Court finds that these claims should not be dismissed on exhaustion grounds.
B. The Substantive Challenge to Plaintiff's Section 1983 Claims
Defendant seeks dismissal of plaintiff's section 1983 claims because "[p]laintiff fails to allege a custom or policy of the District of Columbia or UDC which directly caused [p]laintiff's asserted injuries." Defs.' Mot. at 9. Although plaintiff, in her opposition, points to portions of her complaint that meet this standard regarding her Title VII discrimination claims, she does not point to any allegation that would suffice to sustain her section 1983 claim.
To survive a motion to dismiss, a complaint need only provide "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (citing Fed.R.Civ.P. 8(a)). And, when reviewing a motion to dismiss, the court must accept as true all the factual allegations contained in the complaint. Leatherman, 507 U.S. at 164. A motion to dismiss under Rule 12(b)(6) tests not whether a plaintiff will ultimately prevail on the merits, but only whether the plaintiff has properly stated a claim for which she is entitled to relief. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). Thus, a complaint should not be dismissed for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley, 355 U.S. at 45-46.
42 U.S.C. § 1983 provides, in part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Plaintiff argues that as a tenured professor, she had a "vested property right or interest [in her continued employment] which is protected by the due process clause of the United States Constitution." Compl. ¶ 43. Plaintiff states that the decision notifying her on July 15, 1999, that she was being RIF'ed as of August 16, 1999, deprived her of due process. Id. Plaintiff alleges defendants acted under "color of State law to deprive [p]laintiff of said right . . ." and that "Blacks and non-Filipinos were transferred, retained and/or hired for positions for which [p]laintiff qualified and had more seniority, but for her national origin-Filipino or her race, [and] [p]laintiff was left without employment." Id. ¶¶ 44-45.
Without deciding whether these allegations sufficiently allege a custom or policy, the Court finds another defect in plaintiff's complaint. As plaintiff's continued employment with UDC was terminated because of a RIF, and not for cause, "it is by no means obvious that a property interest in continued employment is even implicated here." American Federation of Gov't Employees v. Office of Personnel Mgmt., 821 F.2d 761, 768 (D.C. Cir. 1987); Davis v. University of the District of Columbia, 603 A.2d 849, 853 (D.C. 1992) (same). Assuming, however, that plaintiff's RIF did implicate a property right, there was no denial of due process in this case because plaintiff was provided with a thirty day notice of her termination and was afforded an administrative process through which she could raise any challenges to the decision before her termination became effective, coupled with a judicial appeal to the local trial court. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985) ("The essential requirements of due process . . . are notice and an opportunity to respond."); Davis, 603 A.2d at 853 (holding that plaintiff, a UDC professor who was terminated in a RIF, was not denied due process "because, prior to the RIF, he was given notice and opportunity to be heard.") (citation omitted).
Indeed, plaintiff pursued her procedural right to appeal the decision to President Nimmons, but declined to pursue her challenge further by appealing to the Superior Court for the District of Columbia as she was advised she could do in defendant Nimmons' letter.*fn11 See Cleveland Bd. of Educ., 470 U.S. at 547-48 ("[w]e conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures. . ."). Therefore, the Court concludes that plaintiff's section 1983 claims must be dismissed.*fn12
C. The Substantive Challenge to Plaintiff's Title VII Claims
Next, defendants argue that they are entitled to summary judgment on plaintiff's Title VII claims because plaintiff cannot demonstrate that the RIF was an adverse action and because she cannot show that similarly situated employees were not subjected to the same action by the employer. Defs.' Mot. at 13-14.
Summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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 reviewing a motion for summary judgment, the Court must review the facts in the light most favorable to plaintiff as the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The existence of "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is material if it "might affect the outcome of the suit under the governing law." Id. at 248. Summary judgment is mandated if a plaintiff fails to establish an element essential to that party's case and on which that party will have the burden of proof at trial. Celotex Corp., 477 U.S. at 322.
(1) Plaintiff's Disparate Treatment Claim
Defendants argue that plaintiff cannot sustain her Title VII disparate treatment claim because she can not establish a prima facie case of discrimination. In the absence of proof of direct discrimination, which has not been presented in this case, plaintiff must prevail under the burden-shifting test enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima facie case of disparate impact treatment discrimination as to the Title VII claims that remain alive, plaintiff must establish that "(1) [she] is a member of a protected class; (2) [she] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999).
Regarding her disparate treatment claim, the Court agrees with defendants' position that plaintiff has failed to establish that a similarly situated employee, that is, a professor who taught in her discipline of biological and environmental sciences and who was outside of her protected class, was reinstated despite the fact that plaintiff was more senior than such a person. Accordingly, her claims of discrimination must fail. A review of plaintiff's following allegations reveal this deficiency: Linda Carmichael, a black female who plaintiff asserts is less qualified and junior to plaintiff, was given the position of Senior Project Specialist in the Agricultural Experiment Station Community Outreach and Extension Services. Compl. ¶ 30. Defendant Nimmons, who was formerly the president of UDC, has been hired as a professor*fn13 and defendant Vernon Clark has been hired as a professor in the College of Education. Id. ¶ 18. Professor Prema Ganganna, a Southern Indian female who was hired November 1, 1988, was retained because she was critical to the Nutrition program and had already been employed in the discipline of Nutrition and Food Science. Id. ¶ 29; Defs.' Mot. at 14. Associate Professor Doris Johnson, a black female with a degree in psychology, who was hired by UDC on September 3, 1977, was assigned to the Institute of Urban Policy. Id. Dr. Sekhon, a black male, "was in Nutrition prior to being RIFed but in order not to bump Dr. Ganganna, was given a position in Biology." Pl.'s Opp. at 13. And finally, Dr. Wyche-Moore, a black female who was RIF'ed in 1997 "and immediately recalled as Director of the Agricultural Experiment Station." Id. As is readily apparent from these allegations, none of these professors taught in the same discipline as plaintiff and thus plaintiff has failed to prove that "`all of the relevant aspects of' [her] employment situation were `nearly identical' to those of the [employees] to whom [she] compared [her]self." Mungin v. Katten Munchin & Zavis, 116 F.3d 1549, 1554 (D.C. Cir. 1997) (citations omitted); King v. Georgetown Univ. Hosp., 9 F. Supp.2d 4, 7 (D.D.C. 1998) (holding that plaintiff failed to establish a prima facie case under Title VII where she failed to demonstrate that a similarly situated non-minority employee was given her position. Although plaintiff pointed to a white male nurse as similarly situated, the court found that "the white male nurse's salary and rank were significantly lower than [p]laintiff's" and thus concluded that he was not similarly situated to plaintiff).*fn14
The only allegation made by plaintiff in her complaint and alluded to in her opposition about a similarly situated person that might support a disparate treatment claim is her allegation that the position for Chairperson of the Department of Biological and Environmental Sciences became open in August 1999, and that this position was subsequently given to Dr. Freddie Dixon, a black female with less experience than plaintiff. Compl. ¶ 21. Rachel Petty, former Dean of the College of Arts and Sciences, states in her affidavit that Freddie Dixon was chosen to succeed Dr. Carolyn Cousin as chair of the Department of Biological and Environmental Sciences "after consultation with the faculty of that department, pursuant to [D.C. regulations]." Affidavit of Rachel Petty, UDC Professor, dated May 30, 2002, ("Petty Aff.") ¶ 5. Dr. Guerrero was not considered "because she would no longer be on the faculty; she had been RIFed." Id.
In her complaint, plaintiff asserted that "[u]pon information and belief, Dr. Dixon was selected in violation of established procedures whereby the Chairperson is elected by the other faculty members." Compl. ¶ 21. However, in her opposition plaintiff fails to provide any evidence to support this factual allegation nor does she allege that she had seniority rights over Dr. Dixon. Indeed, plaintiff does not even address the standard for reviewing a summary judgment motion. As stated previously, to overcome defendant's arguments, if the moving party makes a sufficient showing pursuant to Rule 56(c), then plaintiff, as the nonmoving party, must come forward with affidavits and/or other evidence as provided by Rule 56(e), setting forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). As the party opposing summary judgment, plaintiff may not rest upon mere allegations or denials of the adverse party's pleading. Matsushita Elec. Indus. Co., 475 U.S. at 586-587.*fn15 That is all plaintiff has done. Plaintiff's conclusory allegations contained in her affidavit and her opposition do not suffice to refute defendants' evidence. Therefore, she has failed to establish that she was similarly situated to Dr. Dixon and, despite this fact, Dr. Dixon was treated more favorably than she was.
(2) Plaintiff's Retaliation Claim
Regarding her claim of retaliation, plaintiff alleges that the defendants retaliated against her "for filing a charge of employment discrimination by failing to recall her from the 1999 RIF when all other faculty members in her college have been recalled." Compl. ¶ 39. To establish a prima facie case of retaliation, plaintiff must establish that she (1) engaged in a protected activity; (2) that her employer took an adverse employment action against her; and (3) that the adverse action is causally related to her participation in the protected activity. Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000). Once the plaintiff has established a prima facie case of discrimination, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [adverse action]." McDonnell Douglas, 411 U.S. at 802; see also Cones, 199 F.3d at 520-21 (D.C. Cir. 2000) (holding that the Supreme Court's burden shifting framework also applies to retaliation claims brought under Title VII) (citing Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423 (D.C. Cir. 1988)). Once the employer has proffered a non-discriminatory rationale for its employment decisions, the plaintiff must show that the asserted justification is a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; Cones, 199 F.3d at 521. To satisfy her burden, plaintiff "must prove both that the defendant's reason is false, and that discrimination was the real reason" for the action taken against her. Hastie v. Henderson, 121 F. Supp.2d 72, 78 (D.D.C. 2000), aff'd, No. 00-5423, 2001 WL 793715 (D.C. Cir. June 28, 2001) (citations omitted). However, a plaintiff may not rest on mere speculation alone but "must produce some objective evidence showing that defendant's proffered reasons are mere pretext." Kidane v. Northwest Airlines, 41 F. Supp.2d 12, 18 (D.D.C. 1999) (citation omitted) (emphasis added).
Assuming plaintiff has established a prima facie case of retaliation,*fn16 she has failed to refute defendants' articulated, legitimate reason for not recalling her — the fact that she was fourth on the seniority list in her teaching discipline and did not properly assert a bumping claims right which would have potentially resulted in her being re-hired in another teaching discipline. Although plaintiff disputes that Mr. Preer told her that there were four people in her teaching discipline senior to her, she does not offer any proof that disputes defendants' evidence which shows that four other former faculty members more senior to her in her teaching discipline were eligible for reinstatement. See Defs.' Mot. Ex. 3, Letter to Dr. Julius F. Nimmons from Beverly J. Anderson dated May 25, 1999 (includes a list of Faculty Accepting Reinstatement from 1997 RIF); Affidavit of Christine Poole ("Poole Aff."), Director of the Office of Human Resources, ¶ 3; Poole Aff. Ex. A. Moreover, plaintiff has presented no evidence to demonstrate that there were people less senior to her who taught in her discipline and who have been reinstated.*fn17 Nor does plaintiff refute Mr. Preer's statement in his affidavit that she did not assert a bumping rights claim, which would have entitled plaintiff to be placed in another teaching discipline if she was senior to another faculty member in that discipline. Preer Aff. ¶ 11; Plaintiff's Statement of Material Facts Genuinely Subject to Dispute ("Pl.'s Stmt.") ¶ 16. Although plaintiff in her Statement of Material Facts Genuinely Subject to Dispute indicates that "[t]here are no time limitations in the CBA for Plaintiff to exercise her bumping rights . . ." id. ¶ 16,*fn18 this does not refute the fact that plaintiff had not previously asserted a bumping rights claim and therefore was not entitled to be placed in a position outside her teaching discipline of environmental science. In addition, even if she had asserted a bumping rights claim, plaintiff has not established that she would have necessarily been qualified to teach in the other disciplines. For example, although she asserts that she would be better qualified for a teaching position in Biology than the person chosen because she has been a certified wildlife biologist since 1980, Pl.'s Aff. ¶ 7, she does not establish that she has been "assigned and taught in that discipline in an academic department at the University[,]" a requirement for asserting a bumping rights claim. Defs.' Mot. Ex. 8 at 54. Therefore, defendants are entitled to summary judgment on plaintiff's retaliation claim.
D. Service of Process on Defendant Petty
Since the filing of the defendants' motion, plaintiff has provided this Court with an affidavit of service indicating that Dr. Rachel Petty was served on September 14, 2002. The amended complaint that is currently operative in this matter was filed on July 30, 2002. The Court did not order plaintiff to serve the amended complaint within a specified time period. Federal Rule of Civil Procedure 4(m) provides that service of the summons and the complaint must be made within 120 days after the filing of the complaint.*fn19 Using that same time period for the service of an amended complaint, the Court calculates that plaintiff had until November 30, 2002, to effectuate proper service on defendant Petty. Therefore, the complaint as to defendant Petty will not be dismissed.
For the reasons stated above, defendant Board of Trustees is entitled to the dismissal of plaintiff's Section 1983 claims and is granted summary judgment on plaintiff's Title VII claims. Defendant Petty, however, is not entitled to the dismissal of the complaint against her based upon her claim of improper service or process. An Order consistent with the Court's ruling accompanies this Memorandum Opinion.
For the reasons set forth in the Memorandum Opinion that accompanies this Order, it is hereby ORDERED that defendants' motion to dismiss or, in the alternative, for summary judgment [#20] is granted in part and denied in part. It is further
ORDERED that plaintiff's Section 1983 claims are dismissed. It is further
ORDERED that summary judgment is granted in defendants' favor regarding plaintiff's Title VII disparate treatment and retaliation claims. It is further
ORDERED that the complaint will not be dismissed pertaining to defendant Rachel Petty based upon improper service. It is further
ORDERED that the Motion of University of the District of Columbia and Rachel Petty to Strike the July 30, 2002, Amended Complaint [#24] is denied.