The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO DISMISS
This employment discrimination case comes before the court on the defendants'*fn1 motion to dismiss, or in the alternative, motion for summary judgment.*fn2 The plaintiff, Tanya D. Lewis, brought suit for discrimination, constructive discharge, hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the D.C. Personnel Rules. Specifically, the plaintiff contends that the defendant discriminated and retaliated against her when it failed to promote her on five separate occasions, failed to adequately compensate her and fostered a hostile work environment. Because the plaintiff failed to exhaust her administrative remedies for two of the five non-selections, and because the plaintiff failed to oppose the defendant's assertion that no private right of action exists for violating D.C. Personnel Rules, the court grants the defendant's motion to dismiss these claims. As to the remaining claims, the plaintiff has pled facts with enough heft to overcome the defendant's motion to dismiss. Finally, the court denies the plaintiff's request to qualify punitive damages as recoverable against the District of Columbia.
The plaintiff is an African-American woman who worked for the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") as an electrical inspector from February 2002 until her resignation in July 2006. Pl.'s Am. Compl. ¶¶ 7-8, 19. Before she joined DCRA, the plaintiff worked as an electrician for 20 years at several private companies in the Commonwealth of Virginia and the District of Columbia. Id. ¶¶ 5-6.
In May 2004, the Chief of the Building Inspection Division at DCRA selected the plaintiff to serve as the Acting Electrical Supervisor ("Acting Supervisor"). Id. ¶ 9. In that position, the plaintiff's job responsibilities included supervising a majority-male staff, overseeing inspection of electrical standards and implementing safety procedures for handling hazardous material. Id. ¶¶ 30, 81.More than a year after the plaintiff assumed the position of Acting Supervisor, the defendant began soliciting applications for a Permanent Electrical Supervisor ("Permanent Supervisor"). Id. ¶¶ 11, 23. The plaintiff submitted an application for the Permanent Supervisor position on April 20, 2005 ("first non-selection"), but the defendant closed the application cycle without selecting a candidate.*fn3 Id. ¶ 11. The plaintiff applied for the position again on August 11, 2005, but the defendant closed the application cycle on August 12, 2005 ("second non-selection") without filling the position. Id. ¶¶ 12-13.Shortly after the second non-selection and without explanation, the defendant removed the plaintiff from the position of Acting Supervisor and returned her to her former position as electrical inspector. Id.
¶ 14. The plaintiff contends that she was not compensated for the services she rendered as Acting Supervisor, although she served in that capacity for a year and four months. Id. ¶¶ 23, 28-29.
While acting as electrical inspector, the plaintiff continued to apply for the Permanent Supervisor position. In three application cycles, she asserts that she was the most qualified applicant among a group of mostly African-American and Caucasian males,*fn4 but the defendant did not select her. Id. ¶¶ 11-18. These non-selections occurred on December 23, 2005 ("third non-selection"), May 1, 2006 ("fourth non-selection")*fn5 and May 31, 2006 ("fifth non-selection"). Id. ¶¶ 15, 17-18. After five application cycles within thirteen months, all resulting in non-selections, and after alleged "wrongful, psychological torment and interference with her ability to work" through "open recalcitrance, discourtesy and insubordination by her subordinates" and "lack of support from her Superiors," the plaintiff resigned from DCRA on July 7, 2006. Id. ¶¶ 19, 33-34. Later that month, the plaintiff learned that DCRA selected an African-American male, who had worked under her supervision, to fill the position. Id. ¶ 22.
The plaintiff first filed a complaint with DCRA on January 3, 2006, for discrimination regarding her third non-selection. Id. ¶ 16. Several months later, on March 16, 2006, the plaintiff filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"), claiming "disparate treatment in the denial of a promotion and a hostile work environment on the basis of  race, gender, and matriculation." Def.'s Mot. for Summ. J. ("Def.'s Mot.), Ex. 1 ("EEOC Compl."). The plaintiff did not include allegations of retaliation or constructive discharge in her EEOC complaint. Id. On December 4, 2006, after more than 180 days had passed since the plaintiff filed her complaint, the EEOC issued a right to sue letter stating that it had terminated its processing of the complaint. Pl.'s Compl., Ex. 1.
The plaintiff filed a complaint in this court on March 5, 2007, and shortly thereafter, she filed an amended complaint outlining six counts of gender discrimination, one count of discrimination in violation of the District of Columbia Personnel Rules, one count of retaliation, one count of hostile work environment, and one count of constructive discharge. See generally Pl.'s Am. Compl. On June 1, 2007, the defendant filed a motion to dismiss for failure to state a claim, or in the alternative, for summary judgment. Def.'s Mot. at 1-2. In her opposition to the defendant's motion, the plaintiff raised, for the first time, a claim of race discrimination. Pl.'s Opp'n at 8. The court now turns to the defendant's motion.
A. The Court Grants in Part and Denies in Part the Defendant's ...