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 ...