The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Ronald E. DuBerry worked as a corrections officer for the
District of Columbia Department of Corrections ("DOC") for many
years, either at the prison in Lorton, Virginia ("Lorton"), or
the District of Columbia Central Detention Facility ("D.C.
Jail"). He lost his job on March 18, 2002,*fn1 when he was
affected by a reduction in force ("RIF") at the DOC, occasioned
by the closing of Lorton. Despite his efforts since that time,
Mr. DuBerry has been unable to obtain re-employment with the DOC.
He complains that the District of Columbia has discriminated
against him because of his race (African-American), disability
(diabetes), and age (unspecified), retaliated against him,
subjected him to unlawful harassment and violated his civil
rights under federal laws. Mr. DuBerry moves for summary judgment
in his favor. The District of Columbia moves to dismiss.
Mr. DuBerry is proceeding pro se. He has filed a motion for
summary judgment, asserting that "[t]here are no genuine issues to be litigated."
Plaintiff's Motion for Summary Judgment ("Pl.'s Mot.") at 1. Mr.
DuBerry attached his complaint to his motion for summary judgment
as his brief in support of the motion and has also submitted some
supporting documentation. The Court draws the following facts
from the complaint:
Mr. DuBerry was assigned to the Youth Center at
Lorton on the Number 2 Shift (7:30 am to 4:00 pm) in
June 1997. At that time, he was a newly-promoted
Captain. Compl. ¶ 2(1).
Mr. DuBerry was diagnosed with diabetes on January
17, 1998, which required him to regulate his food
intake and to take medication. Compl. ¶ 2(2)(a).
Mr. DuBerry was reassigned to the Number 3 Shift
(3:30 p.m. to 12 midnight) on June 30, 1998. The
shift change interfered with his medical routine so
he requested to be returned to the Number 2 Shift.
This request was denied on July 13, 1998. Compl. ¶
2(2)(b) & (c)).
Mr. DuBerry filed a discrimination complaint based
on alleged disability discrimination in August 1998,
without success in obtaining a change to his shift.
Compl. ¶ 2(2)(d).
On October 18, 1998, Mr. DuBerry was assigned to
the Number 1 Shift (11:30 p.m. to 8 a.m.), which did
not cause problems with controlling his diabetes. He
was unable to obtain restoration of sick leave that
had been used when he was on the Number 3 Shift.
Compl. ¶ 2(2)(e).
In November 1999, Mr. DuBerry filed a complaint
with the D.C. Office of Human Rights ("OHR"),
charging the DOC with discrimination, disparity in
treatment, and retaliation. Compl. ¶ 2(2)(i).
On August 15, 1999, Mr. DuBerry was transferred
from Lorton to the D.C. Jail but remained Shift
Commander for the Number 1 Shift. Compl. ¶ 2(2)(g).
On January 2, 2000, Mr. DuBerry was transferred
back to Lorton and assigned to the Number 3 Shift.
When he was unable to obtain a different shift, he
filed a complaint with the OHR, charging the DOC with
disability discrimination, harassment and
retaliation. Compl. ¶ 2(2)(h).
Mr. DuBerry participated in a meeting at the OHR on
February 18, 2000, concerning his November 1999
discrimination complaint. At that time, the DOC
agreed to assign him to the Number 1 Shift at the
maximum security facility at Lorton. Compl. ¶
Lorton's Maximum Security Facility was closed in
late 2000 and Mr. DuBerry was transferred to the D.C.
Jail on December 3, 2000, as the shift commander on
the Number 1 Shift. Compl. ¶ 2(2)(j).
Because of the retirement of another officer, Mr.
DuBerry was informed that he would be reassigned to
the Number 3 shift, effective June 29, 2001. When he
complained to his supervisors, he was returned to the
Number 1 Shift and other officers took command of the
Number 3 Shift. Compl. ¶ 2(2)(j).
However, Mr. DuBerry was notified on January 10,
2001, that he was being reassigned to the Number 3
Shift. Mr. DuBerry immediately complained to his
superiors but got no response. On January 24, 2001,
he filed an informal complaint with the OHR,
complaining of retaliation, harassment and
discrimination "for continuously [sic] reassignment to the Number Three
Shift (3:30 p.m. to 12 midnight) as Shift Commander
knowing that it constituted a direct hardship and
hazard to my health." Compl. ¶ 2(2)(l).
On Friday, March 1, 2002, Mr. DuBerry received a
15-day notice of termination from his position as a
supervisory correctional officer with DOC, effective
on March 18, 2002. He alleges that he was transferred
to the Number 3 Shift because that position was
targeted to be abolished in the RIF while his Number
1 Shift position was not. Id. ¶ 2(m). ("Later it
was discovered that I had been moved from my
assignment on the Number One Shift (11:30 to 8:00
a.m.), as the Shift Comander[,] [a] non-abolished
position[,] and assign[ed] to the number three shift
(3:30 p.m. to 12 midnight) as Shift Commander[,] a
position that the department knew was either an
abolished position, or one that had been targeted to
be abolished."). Compl. ¶ 2(2)(m).
In June or July 2002, Lieutenant William Burns, a
non-disabled white American in his early to
mid-forties, younger than Mr. DuBerry, was appointed
to the position of Acting Shift Commander on the
Number 1 Shift, the position that Mr. DuBerry had
held and from which he had been removed "because the
Department had allegedly abolished the position" in
the RIF following the closure of Lorton. Compl. ¶
Mr. DuBerry filed a discrimination complaint with
the Equal Employment Opportunity Commission ("EEOC")
on December 3, 2002. Apparently, this complaint was
intended to be an amendment to his earlier charge,
filed in November 1999 with the OHR, and it added
charges of race and age discrimination to his previous disability claim. On July 27, 2004, the EEOC
issued a right-to-sue letter to him. See Compl. ¶
20 ("DuBerry filed EEOC complaint December 3, 2002
amended November 19, 1999 to include? Age and Race
Discrimination. . . . On July 27, 2004 the
U.S.E.E.O.C. issued plaintiff a right to sue
In late December 2002, Mr. DuBerry wrote to the
Director of the District of Columbia Office of
Personnel applying for a position recently vacated at
the D.C. Jail. Mr. DuBerry stated that he had been
the last Captain removed from his position and should
be considered for the position in the Management
Supervisory Service ("MSS"), for which he qualified
to be converted from his former competitive-service
position. The Complaint does not indicate whether Mr.
DuBerry ever received a response to his letter.
Compl. ¶ 2(2)(o).
The DOC posted a vacancy announcement for a
supervisory correctional officer at the D.C. Jail on
February 6, 2003. Mr. DuBerry applied for the job but
did not receive it. On July 13, 2003, six lieutenants
working at the DOC were promoted to the rank of
captain. Mr. DuBerry complains that he was not
considered for a captain's position, although at
least one of the promoted persons was younger than he
and one or more were white. Compl. ¶ 2(2)(p).
Mr. DuBerry's complaint, filed on September 27, 2004, has three
counts. Count I alleges that the DOC failed to follow proper RIF
procedures that it favored younger and/or white corrections
officers and that it committed a continuing tort by acts of
discrimination from November 14, 1997 to the present. See
Compl. ¶¶ 23-24. Count II alleges that Mr. DuBerry was RIFed in disregard of proper law and procedure and due to his
race, disability and age. Id. ¶ 26. Count III alleges that the
DOC continuously moved him to the Number 3 Shift because of his
disability. Id. ¶ 30.
For the court to grant a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, it must
"appear? beyond doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The
primary issue in resolving a motion to dismiss is not whether the
plaintiff will ultimately prevail, but whether he or she is
entitled to offer evidence to support his or her claims. See
Scheuer v. Rhodes, 416 U.S. 232, 236 (1984), overruled on other
grounds, Davis v. Scherer, 468 U.S. 183 (1984). At this early
stage of the proceedings, the court must accept as true all of
the plaintiff's well-pled factual allegations and draw all
reasonable inferences in favor of the plaintiff. See Alexis v.
District of Columbia, 44 F. Supp. 2d 331, 336-37 (D.D.C. 1999).
Although the court must construe the complaint in the light most
favorable to the plaintiff, it "need not accept inferences drawn
by the plaintiff if such inferences are not supported by the
facts set out in the complaint." Kowal, 16 F.3d at 1276. In
addition, the court need not accept the plaintiff's legal
conclusions as true. See Alexis, 44 F. Supp. 2d at 337.
Summary judgment is appropriate when the record shows that no
genuine issue exists as to any material fact and the moving party
is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Fed.R.Civ.P. 56(c)). Summary judgment is not a "disfavored legal
shortcut[;]" rather, it is a reasoned and careful way to resolve
cases fairly and expeditiously. Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). In determining whether a genuine issue of
material fact exists, the court must view all facts and
reasonable inferences in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh,
27 F.3d 635, 638 (D.C. Cir. 1994). Only factual disputes that are capable
of affecting the substantive outcome of the case under the
governing law are deemed "material" and "genuine." See
Anderson, 477 U.S. at 248; Laningham v. United States Navy,
813 F.2d 1236, 1242 (D.C. Cir. 1987).
Mr. DuBerry alleges that the DOC engaged in several
discriminatory practices in violation of his rights under Title
VII, the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), and the
policies of the District of Columbia. Defendant argues that Mr.
DuBerry's complaint should be dismissed because his EEO charge of
discrimination was not timely filed and because his claims are
barred by the statute of limitations. See Defendant District of
Columbia's Memorandum of Points and Authorities in Support of
Their Motion to Dismiss ("Def.'s Mem.") at 1. After carefully
considering the parties' arguments, the Court concludes that Mr.
DuBerry's ADA claims that relate to his employment at the DOC
will be dismissed because he failed to exhaust his administrative
remedies. However, Mr. Duberry's additional ADA claims, and his
Title VII and civil rights claims will not be dismissed because,
giving the plaintiff all reasonable inferences at this stage of
the litigation, it appears that they fall within the applicable
statute of limitations period. Finally, Mr. DuBerry's regulatory
claims will not be dismissed because the Defendant failed to address
these claims in its motion to dismiss.
A. Mr. DuBerry's Title VII and ADA Claims
Mr. DuBerry filed his EEO charge with the EEOC on December 3,
2002, complaining that his selection for the RIF resulted from
race and age discrimination. Under Title VII, charges alleging
discrimination must be filed within 180 days of the alleged
unlawful employment practice or within three hundred days if the
charging party has initially instituted proceedings with a State
or local EEO agency. See 42 U.S.C. § 2000e-5. Mr. DuBerry's
December 2002 EEO charge was beyond the 180th day after his
termination. However, Mr. DuBerry's prior OHR charge extended the
applicable limitations period from 180 days to 300 days. Mr.
DuBerry's separation from his position, which he alleges was the
result of race and age discrimination, occurred on March 18,
2002. Thus, he filed his EEOC charge within the 300-day
limitation period and these complaint allegations will not be
Mr. DuBerry's charges of disability discrimination present a
more complex history. He states that after he was transferred to
the Number 3 Shift, on August 7, 1998, he filed a discrimination
complaint through the chain of command at the DOC based on
alleged disability discrimination. Compl. ¶ 2(2)(d). This matter
appears to have been resolved on October 18, 1998, when Mr.
DuBerry was assigned to the Number 1 Shift, although he was
unable to recover the 208 hours of sick leave that he had taken
while on the Number 3 Shift. Id. ¶ 2(2)(e). Since this matter
never reached the point of a complaint with the OHR or the EEOC,
Mr. DuBerry did not exhaust his administrative remedies and these
allegations must be dismissed. See 42 U.S.C. § 2000e-5(f)(1);
see also Park v. Howard University, 71 F.3d 904, 907 (D.C. Cir.
1995) (noting that plaintiffs must exhaust administrative
remedies before the EEOC prior to ...