The opinion of the court was delivered by: REGGIE B. WALTON, District Judge
This is an action arising under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e-16. The plaintiff
seeks damages, injunctive relief, and other equitable relief for
claims based on race discrimination. Plaintiff's Complaint
(Demand For Jury Trial) ("Compl.") ¶¶ 14, 16. Currently before
the Court are the Defendant's Motion to Dismiss ("Def.'s Mot.")
[D.E. #3], the plaintiff's opposition thereto, and the Defendants
Reply in Support of Motion to Dismiss ("Def.'s Reply"). For the
following reasons, the Court will grant the defendant's motion.
The plaintiff, Kim Marie Wilson ("Wilson" or "the plaintiff")
is an African American female. Compl. ¶ 2. In May of 1998, the
plaintiff was hired by Riggs Bank ("Riggs") as a manager/bank
officer. Defendant's Memorandum of Points and Authorities in
Support of its Motion to Dismiss Plaintiff's Complaint ("Def.'s
Mem.) at 1. On June 21, 2001, the plaintiff's employment was
terminated by Riggs after discovering that the plaintiff "ignored
bank procedures designed to protect against fraud[.]" Id.
Specifically, the plaintiff "allow[ed] two new accounts to be opened without obtaining proper documentation from
the individual opening the accounts." Id.; Compl. ¶¶ 7, 9.
Those two accounts were determined to be fraudulent and resulted
in the bank losing $32,500. Def.'s Mem. at 1-2.
Consequently, on December 20, 2001, the plaintiff filed an
administrative complaint against the Bank with the Equal
Employment Opportunity Commission ("EEOC") wherein she alleged
discrimination based on race, gender, and retaliation for filing
a charge against a former employer. Compl. ¶ 3; Def.'s Mem. at 2
(citing Exhibit ("Ex.") 2 (Notice of Charge of Discrimination
dated December 31, 2001)). On July 22, 2002, the plaintiff
withdrew her EEOC complaint. Id. ¶ 4 & Def.'s Mem., Ex. 3
(letter from the plaintiff's previous attorney to defendant
attaching EEOC Request for Withdrawal of Charge of Discrimination
dated July 24,2002.) However, before withdrawing the EEOC charge,
the plaintiff "filed suit against Riggs in [the Superior Court of
the District of Columbia ("Superior Court")] claiming that Riggs
discriminated against her in violation of the [District of
Columbia] Human Rights Act, based on her sex, family
responsibilities, personal appearance and age." Def.'s Mem. at 2.
The EEOC subsequently, on September 30, 2002, dismissed the
plaintiff's charge finding that the plaintiff's claims "lack[ed]
merit because she was terminated for misconduct and was replaced
by an African American female." Id. (citing Ex. 4 (Letter from
EEOC to Kim Wilson dated September 30, 2002)). In the letter
dismissing the plaintiff's claim, the EEOC also advised the
plaintiff that she was required to file her lawsuit within 90
days of the receipt of the dismissal notice. Id.*fn1 In addition, the Superior Court eventually granted summary
judgment in favor of the Bank Id. at 3. The Superior Court
found that the plaintiff had not provided evidence of
discrimination based on sex, parental responsibilities, personal
appearance, age, or for engaging in a protected activity. Def.'s
Mem. at 3 & Ex. 1 (Superior Court of the District of Columbia
Memorandum of Order and Judgment dated July 28, 2003) at 3-6. The
plaintiff later filed her complaint with this Court on June 21,
2004, more than a year after the Superior Court's dismissal
Order, and 625 days after the EEOC issued its right-to-sue
letter. Def.'s Mem. at 3. The defendant has now moved to dismiss
the complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Def.'s Mot. at 1.
On a motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Federal Rule of Civil Procedure
12(b)(6), this Court must construe the allegations and facts in
the complaint in the light most favorable to the plaintiff and
must grant the plaintiff the benefit of all inferences that can
be derived from the facts alleged. Conley v. Gibson,
355 U.S. 41, 45-46 (1957); Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.
Cir. 2004) (citing Kowal v. MCI Communications Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994)). However, the Court need not accept
asserted inferences or conclusory allegations that are
unsupported by the facts set forth in the complaint. Kowal,
16 F.3d at 1276. In deciding whether to dismiss a claim under Rule
12(b)(6), the Court can only consider the facts alleged in the
complaint, documents attached as exhibits or incorporated by
reference into the complaint, and matters about which the Court
may take judicial notice. E.E.O.C. v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). Moreover,
the Court will dismiss a claim pursuant to Rule 12(b)(6) only if
the defendant can demonstrate "beyond doubt that the plaintiff can
prove no set of facts in support of [her] claim which would
entitle [her] to relief." Conley, 355 U.S. at 45-46
A. Right to Sue Notice Statute of Limitations
"A person aggrieved under Title VII who seeks to file a civil
action must do so within ninety days from receipt of the [Equal
Employment Opportunity Commission's] right-to-sue notice."
Griffin v. Acacia Life Ins. Co., 151 F. Supp. 2d. 78, 80
(D.D.C. 2001) (citing 42 U.S.C. § 2000e-5(f)(1) (2000); Hogue v.
Roach, 967 F. Supp. 7, 8 (D.D.C. 1997)). Where the date of
receipt is unknown, there is a presumption that the letter was
received three days after the mailing date. Griffin,
151 F. Supp. 2d at 80; Fed.R.Civ.P. 6(e). Administrative deadlines
such as these serve as a statute of limitation and "are subject
to equitable doctrines of waiver, estoppel, and tolling." Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982);
accord Smith v. District of Columbia, No. Civ.A.02-418, 2005
WL 488824 at *3 (D.D.C. Feb. 28, 2005) (citing Brown v. Marsh,
777 F.2d 8, 14 (D.C. Cir. 1985). The defendant has the burden of
proving that an action is untimely and once the defendant
satisfies that burden, the burden shifts to "the plaintiff to
argue in favor of the `equitable avoidance of the defense.'"
Smith, 2005 WL 488824 at *3 (quoting Bowden v. United States,
106 F.3d 433, 437 (1997). "Although the court may consider
whether the doctrine of equitable tolling should apply once a
factor that might justify such tolling is identified, it is not
an independent basis for invoking the doctrine and sanctioning
deviations from established procedures." Baldwin County Welcome
Ctr. v. Brown, 466 US 147, 152 (1984). "[I]n the absence of some
equitable tolling, a civil suit filed even one day late is barred
and may be dismissed." Burgh v. Borough Council of Borough of
Montrose, 251 F.3d 465, 470 (3d Cir. 2001).
Here, the defendant asserts that the EEOC sent the plaintiff a
right-to-sue letter with respect to her race and gender
discrimination claims on September 30, 2002.*fn2 Def.'s Mem.
at 3. Riggs opines that because the plaintiff did not file her
suit in federal court until 625 days after the issuance of a
right to sue letter, the plaintiff is barred from bringing this
civil action. Id. The plaintiff offers no argument to counter
the defendant's assertion and only contends that she "does not
agree" with Riggs' position. Pl.'s Opp. at 3. The plaintiff also
cites three cases under the heading "equitable tolling," Pl.'s
Opp. at 4, without any explanation concerning their applicability
to this case.*fn3 One of those cases is Chakanos v. City of
Chicago, 42 F.3d 1132, 1135 (7th Cir. 1994). The Chakanos
Court held that equitable tolling is appropriate when the
plaintiff, despite all due diligence, is unable to obtain vital
information bearing on the existence of her claim. Id.
(citation omitted). For example, if a reasonable person in the
plaintiff's position would have been aware that the actions of
the employer were in violation of discrimination statutes but the
plaintiff was not, equitable tolling would not apply). Here, the
plaintiff argues that "[Riggs] has exclusive possession of
documents that could allow the bank to conceal it (sic) fraud."
Pl.'s Opp'n at 1. The plaintiff also argues that she "invokes the
equitable exception of fraudulent concealment by Riggs as the
corporations credibility in this matter is discriminatory,
conspiratorial and bogus." Id. at 3. The plaintiff also cited
Pruet Prod. Co. v. Ayles, 784 F.2d 1275 (5th Cir. 1986), which reiterated that as
with limitation statutes, the filing periods for Title VII claims
is subject to tolling where equitable considerations are present.
Id. at 1279. These equitable considerations preclude a statute
of limitations from running "until the facts which would support
a cause of action are apparent or should be apparent to a person
with a reasonably prudent regard for his rights." Id. (quoting
Reeb v. Econ. Opp. Atlanta, Inc., 516 F.2d 924, 930 (5th Cir.
However, despite the plaintiff's assertions, she does not
identify any factors or provide any justification that would
cause this Court to conclude that equitable tolling should apply.
The plaintiff did not lack vital information bearing on the
existence of her claim but rather was in possession of all the
information she needed to file her claim. Indeed, in December,
2001, she filed her charge of discrimination with the EEOC
alleging "unlawful discrimination based on race, gender and
retaliation for filing a charge against a former employer."
Def.'s Mem., Ex. 2. The defendant is correct in asserting that
the plaintiff is barred from bringing this civil action in
federal court because more than 90 days have passed since her
receipt of the right-to-sue letter from the EEOC. Assuming that
the plaintiff received her right-to-sue letter by October 3,
2002, the plaintiff had until January 1, 2003 to file this civil
action in federal court. Baldwin County Welcome Ctr.,
466 U.S. at 148 n. 1 (letter mailed on January 27, 1981, was presumed
received on January 30, 1981); Griffin, 151 F. Supp. 2d at 80
(right-to-sue letter considered received three days after it was
mailed). Filing this action almost two years after the plaintiff
was issued a right-to-sue letter is clearly outside the time period allotted by Title VII.
See Smith, WL 488824 at *1 (plaintiff barred from pursuing
her civil action filed 16 months after receiving her right-to-sue
letter). Accordingly, the plaintiff is precluded from bringing
her Title VII race discrimination claim in this Court because it
was filed more than 90 days after the issuance of her
right-to-sue letter and she has not satisfied her burden of
showing that she should be excused from timely filing her claim
on equitable tolling grounds.
B. Application of Res Judicata
Even if this court action could be construed as having been
filed timely, see supra, note 1, res judicata would bar the
relitigation of this matter before this Court. "The doctrine of
res judicata prevents a party from litigating a claim based on
the same ? transaction and the same parties if that claim was
raised or could have been raised in a prior action that was
decided on the merits." Appalachian Power Co. v. Envtl. Prot.
Agency, 251 F.3d 1026, 1033-34 (D.C. Cir. 2001); Polsby v.
Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002 (citing I.A.M.
Nat'l Pension Fund v. Indus. 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) an identity of the cause
of action in both suits." Id. (citing U.S. Indus., Inc. v.
Blake Constr. Co., 765 F.2d 195, 205 n. 21 (D.C. Cir. 1985).
"The purpose of res judicata is to `conserve judicial
resources, avoid inconsistent results, engender respect for
judgments of predictable and certain effect, and to prevent
serial forum-shopping and piecemeal litigation'" Id. (quoting
Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981)).
Moreover, pursuant to 28 U.S.C. § 1738, state court judicial
proceedings have the same full faith and credit in every United
States Court as they have in the courts in the ...