United States District Court for the District of Columbia
March 17, 2004.
ELLIOTTE PATRICK COLEMAN, Plaintiff
POTOMAC ELECTRIC POWER COMPANY, Defendant
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Elliotte Patrick Coleman complains that the Potomac Electric Power
Company ("Pepco)" violated Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and the D.C.Human Rights Act,
D.C. CODE ANN. § 2-1401.01 et seq. ("DCHRA"), by continuously
retaliating against him for exercising rights afforded him by law.
Pepco. has filed a motion to dismiss, arguing that Mr. Coleman's
complaint was filed too late and is barred by the applicable statutes of
limitations. After briefing on the motion to dismiss was completed, Mr.
Coleman filed a motion for a preliminary injunction alleging additional
This Court previously reviewed and dismissed Mr. Coleman's complaint
that his discharge violated the Family and Medical Leave Act,
29 U.S.C. § 2601, et seq. ("FMLA"). Coleman v. Pepco,
281 F. Supp.2d 250 (D.D.C. 2003) ("Coleman I") The instant complaint
(Coleman II) alleges that the same discharge was part of retaliatory acts
by Pepco. in response to Mr. Coleman's protected activities involving
equal employment opportunity ("EEO"). After careful consideration of the
parties ' arguments and the entire record, the Court concludes that the
in Coleman II should be dismissed. However, because Mr. Coleman is
proceeding pro se, the Court must grant him leeway when construing his
complaint and other papers. See Haines v. Kerner, 404 U.S. 519, 520
(1972). The Court will therefore treat his recent pleading as a motion to
amend the complaint (Coleman III). See FED. R. CIV. P. 15(a). The Court
will grant him leave to amend.
Mr. Coleman has worked for Pepco. as a customer service representative
for many years. He is a member of Local Union 1900 of the International
Brotherhood of Electrical Workers ("IBEW") and is covered by a collective
bargaining agreement. He has had concerns about possible discrimination
in his workplace since 1999.
A detailed history of Mr. Coleman's actions is necessary to understand
the disposition of his current complaint.*fn1 In 1999, Mr. Coleman met
with an internal representative of Pepco's EEO program on October 1 and,
on November 4, he filed an internal EEO complaint concerning his failure
to receive promotions for which he had applied. On April 18, 2000, he met
with B.J. Williams, General Manager of Human Resources ("HR"), to discuss
his complaint. Ms. Williams allegedly "promised that she would resolve
the internal complaint by seeing that Plaintiff secured a position
commensurate with his education and experience within six (6) months."
Compl. ¶ 30. Mr. Coleman "accepted" this resolution, although he
stated he would file a charge with the Equal
Employment Opportunity Commission ("EEOC") despite it. Id. When, on May
3, 2000, he did file a formal charge alleging discrimination, Ms.
Williams "refused to honor the agreement that she made with [Mr. Coleman]
on April 18, 2000." Id. ¶ 38. In addition, Mr. Coleman relates that
he visited a hospital on June 14, 2000, where "[t]he Physician determined
that Plaintiff suffered from work related stress, anxiety and
depression." Opp. at 4.
The EEOC dismissed Mr. Coleman's May 2000 EEO charge on September
29, 2000. The EEOC also issued a "right to sue" letter, which is a
prerequisite to instituting a lawsuit. Mr. Coleman "did not exercise his
right to sue." Compl. ¶ 42.
On February 5, 2001, Mr. Coleman was placed on "Decision Making Leave"
("DML"), which is the last level of discipline prior to termination.
Pursuant to the parties' progressive discipline system under the
collective bargaining agreement, the DML was to remain in Mr. Coleman's
file for 18 months. The IBEW filed a grievance challenging the DML
("Grievance"). Opp. at 4-5.
On January 14, 2002, Mr. Coleman was terminated for attendance
infractions. He asserts here and in his prior suit that this termination
resulted from wilful violations of the FMLA. See Opp. at 5 ("To
effectuate the termination Defendant willfully committed numerous
violations of the Family and Medical Leave Act of 1993. . . ."). He filed
a complaint with the Department of Labor concerning his discharge on
January 22, 2002, and filed suit in this court on February 13, 2003. See
Coleman I, 281 F. Supp.2d at 253.
Meanwhile, the Grievance made its way through the grievance process
under the collective bargaining agreement and was presented to Arbitrator
Ira F. Jaffe on March 13, 2002. In a decision issued on March 18, 2002,
Arbitrator Jaffe determined that a DML was an `"unreasonably
severe penalty'" for the alleged infraction. Opp. at 5. Because the
February 2001 DML was not sustained, Mr. Coleman's discharge
which had rested in part on the pre-existing DML was also
reversed. Coleman I, 281 F. Supp.2d at 252-53. The Arbitrator ordered
Pepco. to reinstate Mr. Coleman and pay him back pay and all related
damages. Supp. I, Exh. G. This was done. Mr. Coleman returned to work on
April 1, 2002. As of that date, his discharge was downgraded to a DML.
Mr. Coleman asserts that Pepco. was again "willfully violating the FMLA
by placing [him] on a second DML after previously being advised by the
U.S. Department of Labor that the action was a violation of the FMLA."
Opp. at 6. This April 2002 DML was removed in August 2002. Coleman I,
Compl. ¶ 70.
Mr. Coleman filed a second charge with the EEOC on July 16, 2002,
complaining that Pepco. had "repeatedly and continuously retaliated
against him as a result of him having reasonably opposed practices he
believed to be discriminatory." Opp. at 6. By letter dated January 31,
2003, the EEOC dismissed his charge and issued a right-to-sue letter.
Mr. Coleman states that the EEOC's letter did not reach him until
February 18, 2003. On May 17, 2003, Mr. Coleman states that he filed an
application with the Court for leave to proceed in forma pauperis
("IFP"), which would allow him to avoid paying the filing fee. He also
states that a copy of the instant complaint was attached to his IFP
application. Mr. Coleman was notified on June 3, 2003, that his IFP
application was denied. He thereafter paid the filing fee and filed the
complaint in Coleman II on June 4, 2003. Opp. at 6.
On June 25, 2003, the United States Postal Service issued an apology to
Mr. Coleman for repeated failures in mail delivery to his home address.
A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure
"tests the legal sufficiency of the complaint." ACLU Found. of S. Cal.
v. Barr, 952 F.2d 457, 472 (D.C. Cir. 1991). Under 12(b)(6), a court
"does not test whether the plaintiff will prevail on the merits, but
instead whether the claimant has properly stated a claim." Price v.
Crestar Sees. Corp., 44 F. Supp.2d 351,353 (D.D.C. 1999). In reviewing
such a motion, the court accepts the allegations in the non-movant's
pleading as true and draws all reasonable inferences in the non-movant's
favor. See Conley v. Gibson, 355 U.S. 41,45-46 (1957); Sinclair v.
Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983). However, the court need
not accept as true plaintiff's legal conclusions. See Papasan v. Allain,
478 U.S. 265, 286 (1986). A complaint may not be dismissed on a Rule
12(b)(6) motion "unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to
relief." Conley, 355 U.S. at 45-46.
The question raised by the motion to dismiss is whether Mr. Coleman
timely brought his EEO complaint to this Court. There are two aspects to
the argument presented by the defendant: first, that Mr. Coleman did not
timely file his lawsuit within 90 days of receipt of the January 31,
2003, right-to-sue letter from the EEOC and, second, that the complaint
fails to identify any acts of retaliation within 300 days of his July
2002 EEO charge or within one year of filing the complaint in Coleman
II. These will be addressed in turn.
A. Timely Filing of the Complaint
A charging party must file a court complaint within 90 days of receipt
of the right-to-sue letter from the EEOC or the party's right to sue
will be lost. See 42 U.S.C. § 2000e-5(f)(1). The
Washington Field Office of the EEOC issued a right-to-sue letter to Mr.
Coleman dated January 31, 2003. Compl. ¶ 3. The presumed date of a
party's receipt of a right-to-sue letter from the EEOC is three days after
issuance. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1
(1984). This presumption can be overcome with proof of receipt at another
date and Mr. Coleman asserts that he did not receive the right-to-sue
letter until February 18, 2003. He claims problems with his mail delivery
and backs this up with a letter of apology from the United States Postal
Service for repeated letters returned to senders, rather than delivered
to him, although they were properly addressed.
For purposes of a motion to dismiss, complaint allegations are deemed
true and a plaintiff is given the benefit of all reasonable inferences
therefrom. The Court has no reason to doubt the plaintiff's explanation
or statement that he received his right-to-sue letter on February
18, 2003. Ninety days thereafter would be May 17, 2003, which was a
Saturday and a day when the court was not open. However, the court's
records contain a copy of Mr. Coleman's complaint with a date stamp on
the back of the last page noting: "RECEIVED U.S. COURT OF APPEALS FOR THE
D.C. CIRCUIT 2003 MAY 17 AM 12:17 FILING DEPOSITORY."*fn2
In addition, when Mr. Coleman's IFF application was denied, he re-filed
his complaint and paid the filing fee on June 4, 2003. Were it necessary
to do so, the Court would toll the 90-day period between the filing of
the IFF petition and the June 4, 2003, filing of the complaint
to ensure that the complaint would be timely. See Williams-Guice v. Bd.
of Educ., 45 F.3d 161, 164-65 (7th Cir. 1995). Tolling is unnecessary
where, as here, the complaint was timely filed.
B. Failure to State a Claim
Because the District of Columbia has its own Human Rights Commission
that accepts and investigates charges of employment discrimination, the
statute of limitations for filing a charge alleging a violation of Title
VII in D.C. is 300 days. 42 U.S.C. § 2000e-5(e)(1); see also
Singletary v. District of Columbia, 225 F. Supp.2d 43,60 (D.D.C. 2002).
Mr. Coleman filed his second EEOC charge, complaining of retaliation, on
July 16, 2002. Pepco. argues that all of Mr. Coleman's alleged incidents
of retaliation took place more than 300 days prior to July 16, 2002,
which bars his Title VII claims in this suit. The DCHRA has a one-year
statute of limitations for filing suit on alleged discrimination. D.C.
CODE ANN. § 2-1403.16(a); see also Boulton v. Inst. of lnt'l Educ.,
808 A.2d 499, 503 (D.C. 2002). Pepco. also argues that all of Mr.
Coleman's alleged incidents of retaliation took place more than one year
prior to filing this lawsuit, so that his DCHRA claim is also time
The complaint allegations support Pepco's argument. The complaint
identifies the most recent instance of protected activity by Mr. Coleman
prior to his July 2002 EEOC charge as his May 3, 2000 charge to the EEOC.
Compl. ¶ 35. The only specific retaliatory acts alleged by him
occurred late that same month in 2000. Id. ¶¶ 38 & 40-41. The
complaint alleges a "substantial injury" that occurred on or about June
14, 2000, at the time that Mr. Coleman visited the hospital. Id. ¶
47. The latest event named is a meeting with a doctor in Pepco's medical
department that occurred on or about April 17, 2001. Id. ¶ 49. The
complaint also alleges various, undated and allegedly retaliatory acts
that occurred "[s]hortly following the expiration of the time period
which Plaintiff could exercise his right to sue" on the May 3, 2000
charge, id. ¶ 44, i.e., shortly after December 29, 2000.
Mr. Coleman relies on his January 14, 2002 termination and the April
1, 2002 DML, issued when he returned to work, as retaliatory harassing
incidents that occurred in the 300 days prior to his July 16, 2002 EEOC
charge. Opp. at 5-6; see Compl. ¶ 44. He identifies the alleged
continuing violation as comprising the January 4, 2001 denial of
promotion; an April 2001 statement by a Pepco. manager that Mr. Coleman
would never be promoted; the February 2, 2001 DML; the January 14, 2002
termination; and the April 1, 2002 DML. Supp. I at 2-6.*fn3
The Supreme Court recently held, unambiguously, that Title VII
"precludes recovery for discrete acts of discrimination or retaliation
that occur outside the statutory time period." Nat'l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101,105 (2002). In contrast, "consideration of
the entire scope of a hosfile work environment claim, including behavior
alleged outside the statutory time period, is permissible for purposes of
assessing liability, so long as any act contributing to the hosfile
environment takes place within the statutory time period." Id. Thus,
"[e]ach incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable 'unlawful
employment practice.'" Id. at 114 (emphasis added). "There is simply no
indication that the term 'practice' converts related discrete acts into a
single unlawful practice for the purposes of timely filing." Id. at 111.
This distinction is understandable. A hosfile environment is a single
discriminatory purpose usually evidenced by multiple slights,
statements, or actions that individually
might prove nothing except in hindsight. Retaliation usually is shown by
discrete acts of discrimination that are more visible. The record here
demonstrates the point: the alleged continuing violation is, in fact,
comprised of separate and distinct acts, such as Mr. Coleman's
termination, two disciplinary DMLs, and a statement that he will never be
promoted. Morgan teaches that discrete claims of retaliation that are
time-barred do not become timely by alleging one timely retaliatory act
related to earlier, untimely, retaliatory acts. Id. "While [Mr. Coleman]
alleged that he suffered from numerous . . . retaliatory acts . . . only
incidents that took place within the timely filing period are
actionable." Id. at 114. The Title VII claims arising from acts that
occurred more than 300-days prior to July 16, 2002, must be dismissed.
Likewise, all the DCHRA claims that occurred more than one year prior
to the filing of the complaint in Coleman II are time barred. The D.C.
Court of Appeals has adopted, "for cases filed under the DCHRA, the
Supreme Court's hosfile work environment analysis governing federal civil
rights claims as it is set forth in Morgan." Lively v. Flexible Packaging
Ass'n, 830 A.2d 874, 889-90 (D.C. 2003) ("Morgan highlights the
fundamental difference between a discrete discriminatory act and a
hosfile work environment claim by emphasizing both the cumulative effect
of incidents comprising that [latter] claim, and its unitary nature
that is, it is one unlawful employment practice."). The D.C.
Court of Appeals also quoted Morgan to the effect that a discrete
retaliatory act "occurs" on the day that it happens. Id. at 889. Thus,
while the local court has not explicitly adopted Morgan to hold that a
continuing violation theory is unavailable under the DCHRA for cases
involving discrete retaliatory acts, most probably because Lively did not
raise the question, the Court anticipates that it will do so when the
occasion arises. See Id. at 887 (The D.C. Court of Appeals has `"often
looked to cases construing Title VII to aid us in construing the
[DCHRA].'"). But see Boulton v. Inst. of lnt'l Educ., 808 A.2d 499, 504
(D.C. 2002) (analyzing a claim of retaliation under continuing violations
theory, but finding plaintiff had not established a continuing
violation). On the facts presented by Mr. Coleman, which consist entirely
of discrete acts, the Court finds that the continuing violation theory
does not resuscitate his untimely allegations of retaliation under the
The Court also finds that Mr. Coleman's discharge, which might
otherwise be timely raised, cannot be re-litigated under a Title VII or
DCHRA theory when it has already been tried, and formally dismissed, as
an alleged violation of the FMLA.*fn5 Under the doctrine of res
judicata, "a final judgment on the merits in a prior suit involving the
same parties or their privies bars subsequent suits based on the same
cause of action." I.A.M. Nat'l Pension Fund, Benefit Plan A v. Industrial
Gear Mfg. Co., 723 F.2d 944, 946-47 (D.C. Cir. 1983). "The four factors
that must exist for res judicata to apply are (1) an identity of parties
in both suits; (2) a judgment rendered by a court of
competent jurisdiction; (3) a final judgment on the merits; and (4) the
same cause of action in both suits." Polsby v. Thompson, 201 F. Supp.2d 45,
48 (D.D.C. 2002). A final decision on the merits prohibits any future
case arising from "the same 'nucleus of facts,' for 'it is the facts
surrounding the transaction or occurrence which operate to constitute the
cause of action, not the legal theory upon which a litigant relies.'"
Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (quoting Expert
Elec. Inc. v. Levine, 554 F.2d 1227,1234 (2d Cir. 1977)); see also Woods
v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir. 1992); Booth v. Quantum Chem.
Corp., 942 F. Supp. 580, 584 (S.D. GA. 1996). All of these factors are
met and bar relitigation of Mr. Coleman's discharge.
Mr. Coleman filed suit against Pepco. on February 13, 2003, directly
challenging his discharge as a violation of the FMLA with no mention of
Title VII, the DCHRA or retaliatory harassment. He received his
right-to-sue letter on which the instant suit is based on February 18,
2003. The motion to dismiss the complaint in Coleman I was fully briefed
on April 22, 2004, and was decided by the Court solely on those papers.
Following this briefing, and without amending the Coleman I complaint,
Mr. Coleman filed Coleman II on May 17, 2003. Mr. Coleman had ample time
to amend the Coleman I complaint prior to dismissal. He cannot now rely
on the identical facts to present a different theory of law on which
recovery might be had. Booth, 942 F. Supp. at 584 (citing Kremer v.
Chem. Constr. Corp., 456 U.S. 461,485 (1982)) (Title VII litigants are
not relieved from preclusive effect of res judicata.); Brown v. Ky.,
Dep't for Human Res., No. 82-29, 1987 U.S. Dist. LEXIS 12275, at *2-3
(Res judicata applies to bar second action where employee received
right-to sue-letter after she filed initial complaint but nine months
before earlier claims were dismissed and employee filed second suit
rather than amending initial complaint).*fn6
Although Mr. Coleman's complaint herein (Coleman II) was timely filed
after he received his right-to-sue notice from the EEOC, his Title VII
claim is barred in part by the doctrine of res judicata and in part
because he did not timely file a charge with the EEOC. His DCHRA claim is
untimely as not having been filed within one year of the events at issue
and by the doctrine of res judicata. The Motion to Dismiss is therefore
Mr. Coleman has also filed a Motion for a Preliminary Injunction and a
Motion for Leave to Amend the Preliminary Injunction, which the Court
construes as a motion to amend the complaint. The Court grants leave to
amend the Complaint and the Motion for Preliminary Injunction. Mr.
Coleman shall file an amended complaint by March 29, 2004, or this matter
shall be dismissed. Should any lawyer assist Mr. Coleman with this or any
other pleading, he or she shall properly identify himself or herself.
A separate Order accompanies this Memorandum Opinion.
For the reasons stated in the Memorandum Opinion separately and
contemporaneously issued this 17th day of March, 2004, it is hereby
ORDERED that Defendant's Motion to Dismiss is GRANTED; and it is
FURTHER ORDERED that Plaintiff's Motion to Amendhis Motion for
Preliminary Injunction is GRANTED; and it is
FURTHER ORDERED that Plaintiff is GRANTED leave to file an Amended
Complaint. Plaintiff shall file an Amended Complaint by March 29, 2004,
or this matter shall be dismissed; and it is
FURTHER ORDERED that should any lawyer assist Mr. Coleman with this or
any other pleading, he or she shall properly identify himself or herself