The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
Pending for determination by the undersigned United States Magistrate Judge is the Motion of Defendant District of Columbia for Summary Judgment (Docket No. 48). Plaintiff, a female employed by the District of Columbia Metropolitan Police Department, brings this action against her employer alleging eight constitutional, statutory and common law tort claims. Second Amended Complaint for Damages and Demand for Jury Trial ("Amended Complaint") ¶¶ 1-28. Plaintiff's Amended Complaint alleges sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Counts I and VII); assault and battery (Count II); deprivation of civil rights, conspiracy to interfere with civil rights, and neglect to prevent the same, in violation of 42 U.S.C. §§ 1983, 1985, 1986 (Counts III and IV); intentional infliction of emotional distress (Count V); negligence (Count VI), and denial of Due Process (Count VIII). Id. ¶¶ 5-23. Upon consideration of the motion, the memoranda in support thereof and in opposition thereto and the entire record herein, defendant's motion will be granted.
Plaintiff, an employee of by the Metropolitan Police Department since 1990, alleges that in one of her supervisor, Captain Adrian Barnes "repeatedly accosted [her] using profane gestures and language, without [her] consent, in attempts to obtain sexual favors from [her]." Amended Complaint ¶ 6. Plaintiff contends that once she rejected Captain Barnes' advances he "would use his influence to create a hostile work environment for [her]." Id. Further, plaintiff contends that throughout her employment period other of the defendant's employees "routinely and continuously propositioned [her] for sexual favors." Id. ¶ 9. As a result of Captain Barnes' behavior, plaintiff filed an Equal Employment Office ("EEO") complaint on September 3, 1992. Id. ¶ 6.
Plaintiff alleges that from 1992 until 1997, while she was detailed to the Central Cell Block, she was repeatedly physically assaulted by a co-worker, Officer Darryl Taylor. Id. ¶ 11. Plaintiff submits that Officer Taylor "would repeatedly assault [her] on MPD property. . . including beating with fists, kicking with shod feet, sexual assault, aiming a service weapon at [her]; raising weapons at [her], and verbal threats to kill [her] and certain co-workers." Id. Plaintiff contends that her efforts to report Officer Taylor's abusive behavior were consistently "ignored or rebuked." Id. Further, plaintiff contends that defendant "was fully aware of [Officer] Taylor's assaults on [her] and/or his propensity for dangerous behavior, but took no administrative or criminal action to prevent or stop said assaults." Id. ¶ 13.
Plaintiff claims that defendant retaliated against her by continually "harassing and/or disciplining [her] without cause, or by denying her perks, privileges, and benefits of employment, because of the sexual harassment complaint" she filed with the EEO office. Id. ¶ 20. Among the retaliatory acts alleged by plaintiff are: withholding her salary for prolonged periods of time without explanation; denying plaintiff paid leave for on the job injuries; locking her out of her workstation, and then subsequently suspending her for her absence; criticizing her for wearing her hair in braids; repeatedly transferring her between units, and consequently preventing her from being awarded seniority privileges; and failing to properly investigate her reported grievances. Id. ¶ 20(a)-(g).
CONTENTIONS OF THE PARTIES
Defendant now moves for summary judgment with respect to each of the eight claims asserted by plaintiff in her Amended Complaint. Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Defendant's Memorandum") at 4-5.
A. Plaintiff's Title VII Claims (Counts I & IV)
Defendant submits that summary judgment is appropriate with respect to plaintiff's Title VII claims as plaintiff failed to exhaust her administrative remedies by not raising "either of [her Title VII] claims in her Charge of Discrimination to the Equal Employment Opportunity Commission." Id. at 7. Specifically, defendant contends that plaintiff's November 4, 1999 EEOC complaint alleged discrimination based only on race and disability, but failed to allege the two violations claimed in her Amended Complaint: sexual harassment and retaliation. Id. at 9. Further, defendant contends it is entitled to summary judgment with respect to plaintiff's sexual harassment claim as plaintiff did not file the EEOC claim within 180 days of the occurrence. Id. at 10. Defendant contends that the alleged behavior that forms the basis of plaintiff's sexual harassment claim occurred prior to 1993, whereas plaintiff filed her EEOC complaint in 1999. Id. at 11. Additionally, defendant argues, with respect to plaintiff's retaliation claim, that plaintiff has failed to "show any adverse employment action taken against her by defendant the District" as she "cannot demonstrate any 'diminution in pay benefits,' nor any materially adverse consequence' or 'objective tangible harm' to the terms and conditions of her employment resulting from the alleged acts." Id. at 11, 15 (referring to Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).
Plaintiff, in her opposition, asserts that she has made a prima facie case of racial discrimination, as she is a black female, and is thus a member of a protected class. . . [she] was subjected to disparate treatment in that she was sexually harassed, deprived of her civil rights, subjected to intentional infliction of emotional distress, battery, denied due process and subjected to adverse employment actions. . . [she] has pointed to similarly situated white and male officers who were not treated in the manner in which Defendant treated Plaintiff Brown.
Memorandum of Points and Authorities in Support of Plaintiff's Opposition to Defendant' Motion for Summary Judgment ("Plaintiff's Opposition") at 28. However, plaintiff concedes that she did not allege race discrimination in her Amended Complaint. Id. at 29. Plaintiff claims that her September 3, 1992 EEO complaint satisfies her obligation to exhaust her administrative remedies; in the alternative, plaintiff asserts that she exhausted her administrative remedies by "making allegations reasonably related to her sexual harassment and retaliation claims." Id. at 31. Finally, plaintiff asserts that she has established a "continuing violation" and therefore has exhausted all of her administrative remedies. Id. at 31.
Defendant, in reply, contends that "[p]laintiff has put the cart before the horse by contending that her Title VII claims survive because she has established a prima facie case" as "[e]xhaustion of administrative remedies is the threshold which a plaintiff must cross before the filing of Title VII lawsuit."
Defendant's Reply to Plaintiff's Opposition to Motion for Summary Judgment ("Defendant's Reply") at 2. Further, defendant contends that plaintiff's sexual harassment and retaliation claims are not reasonably related to the race and disability discrimination claims in her EEOC complaint. Id. Lastly, defendant points out that plaintiff has "never suffered the required adverse action, materially affecting the conditions of her employment" and therefore, her assertion that she has made a prima facie showing is incorrect. Id. at 9.
B. Plaintiff's Claims Brought Pursuant to 42 U.S.C. § 1981, 1983, 1985, 1986 (Counts III- IV)
Defendant asserts that summary judgment is appropriate with respect to plaintiff's claims brought pursuant to 42 U.S.C. §1981(a)(race-based discrimination), 42 U.S.C. §1983 (deprivation of civil rights), 42 U.S.C. §1985(3)(conspiracy to interfere with civil rights), and 42 U.S.C. §1986 (neglect to prevent conspiracy to interfere with civil rights). *fn1 Defendant contends that summary judgment is appropriate with respect to plaintiff's claim under 42 U.S.C. § 1981(a) as "plaintiff cannot show that the alleged 'violations' were racially motivated" and has made no "allegation whatsoever in the Second Amended Complaint that she was discriminated upon the basis of race." Defendant's Memorandum at 17. Defendant asserts that summary judgment is appropriate with respect to plaintiff's section 1983 claim, as (1) defendant is a municipality and "[a] municipality cannot be held liable under 42 U.S.C. § 1983 on the theory of respondeat superior," and (2) plaintiff does not allege that a policy of custom of defendant's was the cause of her injuries. Id. at 17-18. With respect to plaintiff's section 1985(3) claim, defendant asserts that summary judgment is appropriate as plaintiff "failed to allege any facts that would constitute a conspiracy," and if she had, defendant would be entitled to summary judgment in any event as "plaintiff failed to allege any facts evidencing that the alleged conspiracy was motivated by race-or class-based, invidiously discriminatory animus." Id. at 19.
Further, defendant asserts that plaintiff's claims brought under Sections 1981(a), 1983, 1985(3), and 1986 should be dismissed as they are all time-barred. Id. at 20. Specifically, defendant asserts that plaintiff's section 1981, 1983, and 1985 claims are time-barred as they violate the three year statute of limitations and are not subject to equitable tolling. Id.
Plaintiff, in opposition, submits that she has made a prima facie case of race discrimination under 42 U.S.C. §§ 1981, 1983, 1985, 1986, using the same analysis on which she relied with respect to her Title VII claims. Plaintiff's Opposition at 28-29. With respect to her section 1983 claim, plaintiff submits that the policy or custom alleged is the District's "failure to train" her supervisors, which she contends was evidenced by "the fact that they had knowledge of the constitutional violations and assaults occurring in the workplace against Plaintiff Brown however, they failed to do anything." Id. at 40. With respect to defendant's assertion that the claims are time-barred, plaintiff submits "[i]t is without dispute that the statute of limitations for Section 1981, 1983, and 1985 actions is three years . . . [h]owever, Plaintiff is not time-barred from pursuing claims against the Defendant based upon the continuous harassment and violations she endured." Id. at 41.
Defendant, in reply, asserts that "[s]section 1981 was mentioned only once in the Second Amended Complaint, in paragraph 1, regarding Jurisdiction and Venue" and "[p]laintiff never moved the Court for leave to amend her complaint and add a claim of race discrimination; she articulates a Section 1981 claim for the first time in her Opposition." Defendant's Reply at 3. Defendant asserts further that "[p]laintiff has supplied no evidence whatsoever of disparate treatment based on race" and that "[n]owhere in the record - in her Complaints, deposition, or Opposition - does plaintiff identify or otherwise 'point to' any white male officers who were treated differently then herself." Id. With respect to plaintiff's section 1983 claim, defendant submits that "[p]laintiff provides absolutely no evidence to support her conclusory allegation that defendant 'failed to train' its employees" and has therefore failed to carry her "burden of showing that she was deprived of constitutional rights, and that the deprivation was caused by a policy or custom of the municipality." Id. at 6-7. With respect to the statute of limitations, defendant contends that there is no authority for the court to use a continuing violations theory to allow plaintiff to avoid a statute of limitations in cases brought under sections 1981, 1983, 1985, 1986. Id. at 4. Defendant asserts that although these statutes of limitations may be tolled, plaintiff has provided no reason why they should be tolled in the case at hand. Id.
C. Plaintiff's Common Law Claims (Counts II, V, and VI)
Defendant asserts that summary judgment is appropriate with respect to Count II (Assault and Battery), Count V (Intentional Infliction of Emotional Distress), and Count VI (Negligence), as plaintiff failed to satisfy the applicable notification requirement outlined in D.C. Code. § 12-309. Specifically, defendant contends that "plaintiff failed to satisfy the statutory requirement to notify the Mayor of her intent to file a claim against defendant District of Columbia." Defendant's Memorandum at 23. In the alternative, defendant asserts that summary judgment is appropriate with respect to plaintiff's common law claims, as they are time-barred. Specifically, defendant contends that the statute of limitations for assault and battery is one year, and the statute of limitations for intentional infliction of emotional distress and negligence is three years. Id. at 24. Defendant contends that because plaintiff commenced the instant action on February 25, 2000, plaintiff's claims for assault ...