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COLEMAN v. POTOMAC ELECTRIC POWER COMPANY

March 17, 2004.

ELLIOTTE PATRICK COLEMAN, Plaintiff
v.
POTOMAC ELECTRIC POWER COMPANY, Defendant



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

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 retaliatory actions.

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 complaint Page 2 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.

  BACKGROUND FACTS

  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 Page 3 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 Page 4 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. Page 5

  LEGAL STANDARDS

  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 ...


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