The opinion of the court was delivered by: Walton, District Judge.
AMENDED MEMORANDUM OPINION
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 two 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'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:
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, also provides:
The decision of the President shall be the final
agency decision on the reduction-in-force. Faculty
members whose appeals to the President are denied will
have thirty (30) calendar days to file petitions for
review in the Superior Court of the District ...