The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
In an amended complaint naming as defendants numerous related corporate entities, plaintiff alleges that her employer discriminated against her on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and 42 U.S.C. § 1981. Defendants have moved to dismiss the entire amended complaint under Rule 12(b)(1) and 12(b)(6),*fn1 arguing that plaintiff filed untimely, failed to exhaust her Title VII administrative remedies against all defendants other than Norwest Mortgage, Inc. ("Norwest"), failed to allege a prima facie § 1981 claim, and pled a § 1981 retaliation claim that is not actionable. Because plaintiff mistakenly filed her initial complaint against Wells Fargo Corporation, instead of her actual employer, Wells Fargo Home Mortgage, Inc. ("Wells Fargo Home Mortgage"), her amended complaint will relate back to the date of her initial complaint and defendants' motion will be denied as to defendant Wells Fargo Home Mortgage. As to Norwest Mortgage, Inc., that entity no longer exists and will be dismissed from the case. In addition, based on defendants' representations in plaintiff's related case, Gipson v. Wells Fargo Home Mortgage, Inc., Civ. A. No. 05-1184, it is the court's intention that Wells Fargo Corporation and Wells Fargo & Company should also be dismissed, but plaintiff will be given the opportunity to show cause why they should remain in the case.
As for plaintiff's substantive claims, because plaintiff has alleged a prima facie case of race discrimination under § 1981, and claims for retaliation are actionable under § 1981, defendants' motion will be denied on plaintiff's § 1981 claims. Finally, because defendants have failed to advance any argument in support of their motion on plaintiff's ADEA claims, their motion will be denied on those claims.
At the time of the complaint, plaintiff was an African-American employee of Wells Fargo Home Mortgage, which had conducted business under the name Norwest prior to changing its name on April 3, 2000. Defendants' Motion to Dismiss First Amended Complaint ("Defs.' Mot.") at 5; Plaintiff's Supplemental Brief in Opposition to Defendants' Motion to Dismiss ("Pl.'s Supplement"), Ex. 1, at 4. In 1998, plaintiff filed a complaint with Norwest alleging that certain managers had discriminated against her on the basis of race and age. Amended Complaint ("Am. Compl.") ¶ 14. Gipson and Norwest reached a settlement regarding these allegations. Am. Compl. ¶ 15. On November 3, 1999, she filed a charge of discrimination against Norwest with the Equal Employment Opportunity Commission ("EEOC") alleging that she had been denied a promotion on the basis of race, sex, and age and that one individual involved in the decision to deny her the promotion was a manager she had accused of discriminating against her in her 1998 complaint. Plaintiff's Opposition to Wells Fargo and Company's Motion to Dismiss ("Pl.'s Opp'n") at 1-2. On August 31, 2000, the EEOC issued a right to sue letter regarding her charge of discrimination against Norwest. Defs.' Mot. at 4.
Upon receiving her right to sue letter, plaintiff attempted to exercise her right to sue her employer. Plaintiff was aware that her employer had changed its corporate name, and her attorney's office contacted the D.C. Corporation Commission in an attempt to determine under what name her employer should be sued. Pl.'s Supplement at 2; id., Ex. 3, at 2; Pl.'s Opp'n, Ex. 5. Plaintiff's attorney's office was informed by the D.C. Corporation Commission that Wells Fargo was registered to conduct business under the name "Wells Fargo Corporation." Pl.'s Supplement at 2. Plaintiff subsequently named "Wells Fargo Corporation" in her first complaint, which she filed on November 29, 2000.
Wells Fargo Corporation never responded to the initial complaint, and plaintiff, accordingly, moved for default judgment on April 4, 2001. Pl.'s Opp'n at 2. On April 6, 2001, Wells Fargo & Company, which was concerned that plaintiff intended to name it rather than Wells Fargo Corporation, filed an opposition to plaintiff's motion for default judgment. Memorandum in Opposition to Plaintiff's Motion for Default Judgment ("Mem. in Opp'n to Pl.'s Mot. for Default J.") at 4. In response to defendants' argument that plaintiff had not named her employer in her first complaint, plaintiff filed an amended complaint on April 20, 2001 naming every corporate entity that could conceivably be her employer. Pl.'s Opp'n at 2.
Defendant Wells Fargo Corporation contends that plaintiff's Title VII claims in Counts I and III*fn2 are defective because plaintiff failed to obtain a right to sue letter against it. The remaining defendants argue that they are entitled to judgment as a matter of law on Counts I and III of the amended complaint because the amended complaint was filed after the ninety-day period for bringing suit as required by Title VII and the amended complaint does not relate back to the date of the initial filing. The defendants further contend that plaintiff's claim of discrimination under § 1981 in Count IV is defective because plaintiff has failed to allege a prima facie case. Finally, defendants argue that they are entitled to judgment as a matter of law on plaintiff's claim of retaliation under § 1981 in Count V because § 1981 does not provide for such a cause of action.
Summary judgment is appropriate when a party can establish "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (emphasis in original).
A. Title VII Claims in Counts I and III
Plaintiff argues that, even though the Title VII claims brought against additional parties in her amended complaint were filed after the ninety-day period in which she could bring suit, the claims relate back to the date when she filed her initial complaint. Pl.'s Supplement at 4. Federal Rule of Civil Procedure ("Rule") 15(c) states, in relevant part:
An amendment of a pleading relates back to the date of the original pleading when . . .
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision
(2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
In this case, defendants do not dispute that the conduct that serves as the basis for the amended complaint is the same conduct that was set forth in the original complaint. Likewise, defendants have not alleged that they will be prejudiced by allowing plaintiff to file her amended complaint. Thus, for these claims to relate back, plaintiff need only show that (1) a newly named defendant knew, or should have known, that but for a mistake concerning the identity of the proper party, the action ...