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April 3, 2005.

RIGGS BANK N.A., Defendant.

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.

I. Factual Background

  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.

  II. Standard of Review

  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

  III. Legal Analysis

  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. 1975)).*fn4

  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 ...

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