The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, Margaret Holmes, brings this action alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (2000) ("Title VII") against defendant PHI Service Co. Complaint ("Compl.") ¶¶ 28-46. Count I of the complaint alleges that the plaintiff was treated differently than other employees on account of her gender, id. ¶¶ 28-35, while Count II of the complaint alleges that the plaintiff was disciplined and ultimately terminated in retaliation for bringing an administrative action before the Equal Employment Opportunity Commission ("EEOC") alleging the disparate treatment contained in Count I, id. ¶¶ 36-46.
Currently before the Court are the plaintiff's motion to remand this matter to the District of Columbia Superior Court and the defendant's motion to dismiss the retaliatory discharge claim contained in Count II of the plaintiff's complaint for failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2 Because the Court must examine material beyond the pleadings, it will treat the defendant's motion as seeking summary judgment under Rule 56. See Fed. R. Civ. P. 12(b); Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003) (holding that parties' submissions and the Court's consideration of matters outside pleadings "had the effect of converting the Rule 12 motion . . . into a motion for summary judgment"). For the reasons set forth below, the Court denies both parties' motions.
The plaintiff alleges the following facts in support of her complaint. The plaintiff, who commenced her employment with the defendant in 1989, Compl. ¶ 8, alleges that she began to experience disparate treatment in October 2002, when she notified her supervisor that she was pregnant. Id. ¶¶ 9-10. After that revelation, the plaintiff alleges that her time away from her desk was scrutinized in a way different than male or non-pregnant female employees, id. ¶ 10, that her request for a seat change was denied with rude remarks by her supervisor, id. ¶¶ 11-12, that she was inappropriately disciplined for spending time away from her desk, id. ¶¶ 15-17, that her lunch hour was changed, id. ¶ 21, and that, following a December 2002 miscarriage, she was required to notify her supervisor in advance whenever she would be away from her desk more than fifteen minutes, id. ¶ 21.
In March 2003, in response to this allegedly disparate treatment, the plaintiff filed a complaint with the EEOC alleging sexual discrimination in violation of Title VII and the District of Columbia Human Rights Act of 1977. Compl. ¶ 22; Def.'s Mot., Ex. 1 at 1. After she had filed this complaint, the plaintiff alleges that her supervisor failed to inform her of a job opening contrary to company practice, Compl. ¶ 23, that she was denied a job change for which she applied and for which she was sufficiently qualified, id. ¶ 24, that she was assigned additional responsibilities formerly performed by other employees for which she received no commensurate increase in compensation, id. ¶ 25, and that the defendant failed to provide her with performance evaluations for two years, id. ¶ 26. All of these actions, according to the plaintiff, were taken in retaliation for her filing the administrative complaint with the EEOC in March 2003. Id. ¶ 43.
On January 21, 2004, the plaintiff amended the discrimination charge she had filed with the EEOC to include charges relating to her supervisor's failure to inform her of a job opening, denying her application for a job change, assigning her additional responsibilities without an increase in pay, and failing to give her a performance evaluation. See Def.'s Mot., Ex. 2 at 1-2. The defendant then terminated the plaintiff's employment on March 4, 2005, Compl. ¶ 27, which the plaintiff contends was also done in retaliation for her EEOC complaint, id. ¶ 43. The plaintiff did not, however, amend her EEOC charge to include a claim for retaliatory discharge at that time. The EEOC dismissed the plaintiff's discrimination and retaliation charges, and issued the plaintiff a right-to-sue letter on May 5, 2005, citing as the reason for dismissal that "[t]he EEOC has adopted the findings of the state or local fair employment practices agency that investigated this charge." Pl.'s Opp., Ex. 2 at 9.
The plaintiff filed the instant action in the Superior Court for the District of Columbia on August 4, 2005. Attempting to serve the defendant, the plaintiff sent a copy of her complaint by certified mail to Jill D. Flack, the defendant's Associate General Counsel, which Flack received on August 22, 2005. Pl.'s Mot. at 1. Flack, however, was not an agent authorized by the corporate defendant to receive service of process on its behalf. See Def.'s Opp., Ex. 2 (Declaration of Jill D. Flack ("Flack Decl.")) at 1-2. The defendant therefore moved in the Superior Court to dismiss the plaintiff's complaint for insufficient service of process on September 12, 2005. See Pl.'s Mot. at 2; Def.'s Opp., Ex. 1 (Defendant's Motion to Dismiss for insufficient service of process). The plaintiff subsequently perfected service on September 20, 2005, see Supplemental Memorandum in Support of Plaintiff's Opposition to Defendant's Motion to Dismiss, Holmes v. Pepco Holdings, Inc., Civ. No. 05-006214 (D.C. Super. Ct. Oct. 5, 2003), Ex. A (Notarized Affidavit of Process Server Stephen Robinson) ("Robinson Aff."), and the Superior Court accordingly denied the defendant's motion to dismiss, see Def.'s Opp., Ex. 3.
The defendant then filed a notice of removal in this Court on October 13, 2005. See Not. of Rem. at 1. On October 20, 2005, once the case had been removed, the defendant filed an Answer to the plaintiff's complaint. Ans. at 1. Along with its Answer, the defendant also moved to dismiss the retaliatory discharge claim in Count II of the plaintiff's complaint on the ground that the plaintiff had not exhausted her administrative remedies as to that claim, as her EEOC complaint, both as originally filed and as amended, did not refer to her discharge. See Def.'s Mot. at 1-2. The plaintiff moved to remand the case to the Superior Court on October 28, 2005, asserting that the defendant had not timely filed its notice of removal. Pl.'s Mot. at 1. The defendant opposed the plaintiff's motion to remand, contending that its notice of removal was timely filed. Def.'s Opp. at 1-2.
That same day, October 28, 2005, the plaintiff filed a new administrative action with the EEOC, alleging that her discharge on March 4, 2005, was in retaliation for her prior EEOC discrimination charge. Pl.'s Supp., Ex. 1. The EEOC denied the plaintiff's retaliatory discharge claim and issued a second right-to-sue letter on December 5, 2005. Pl.'s Supp., Ex. 2.*fn3 The plaintiff therefore asserts that her earlier failure to exhaust administrative remedies with respect to her retaliatory discharge claim has now been cured. Pl.'s Supp. at 1-2.
The statute governing the procedure for removal to this Court is 28 U.S.C. § 1446(b) (2000), which states in pertinent part:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 28 U.S.C. § 1446(b). Once a plaintiff has moved to remand back to state court a case removed to federal court, the defendant bears the burden of establishing that the federal court does have jurisdiction. Phillips v. Corr. Corp. of Am., 407 F. Supp. 2d 18, 20 (D.D.C. 2005) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). "Where the need to ...