The opinion of the court was delivered by: Richard W. Roberts United States District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Linda Cruz-Packer, a former employee of the District of Columbia's ("District's") Department of Youth Rehabilitation Services ("DYRS"), has sued the District and eight individual defendants, alleging common-law defamation and various instances of employment discrimination on the basis of age, sex, and retaliation in violation of federal and state statutes. The individual defendants have moved to dismiss under Rule 12(b)(6) for failure to state a claim as to some or all of the claims. All defendants have moved under Federal Rule of Civil Procedure 12(b)(5) to dismiss for failure to effect proper service of process. They also argue that her employment discrimination claims are barred because she failed to exhaust her administrative remedies. Cruz-Packer has opposed the District's motion. Because she has failed to state a claim against the individual defendants with respect to some claims, the motions to dismiss claims will be denied in part and granted in part. Because Cruz-Packer did not effect proper service on the individual defendants, the individual defendants will be dismissed from the case for lack of personal jurisdiction. Service on the District was also not effective, but because Cruz-Packer appears to have complied with the requirements for properly serving the District but the District unjustifiably thwarted her efforts, the District's Rule 12(b)(5) motion will be denied without prejudice and Cruz-Packer will be allowed time to cure. Because she has cured her failure to exhaust her mandatory administrative remedies, the motion to dismiss for failure to exhaust will be denied.
Cruz-Packer, a former employee at DYRS' Oak Hill Youth Center, first complained of discriminatory treatment to the District's Office of the Inspector General in late October 2006. She then complained of her treatment to the DYRS Human Resources' Office of Equal Employment ("OEE") on or about November 13, 2006. She filed a civil action in the Superior Court for the District of Columbia on November 21, 2006 and subsequently filed administrative charges with the Equal Employment Opportunity Commission ("EEOC") on November 30, 2006. (See Opp'n, Jan. 31, 2007, Ex. 9.) The District removed the Superior Court action to this court.
After removal, Cruz-Packer amended her complaint to allege discrimination on the basis of sex and retaliation for protected activities in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"), unfair pay in violation of the Equal Pay Act, 29 U.S.C. §§ 206(d), and ---- for each of these alleged violations of a federal statute ---- a parallel violation under the District's Human Rights Act, D.C. Code §§ 2-1402 et seq. ("DCHRA"). In addition, she alleges a denial of family leave in violation of the federal Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"), and common law defamation for statements made by District officials regarding the termination of her employment. The District and seven of the individual defendants filed a motion to dismiss the amended complaint, arguing that service of process was ineffective, that required administrative remedies for Title VII and the ADEA had not been exhausted, and that the individual defendants could not, as a matter of law, be liable under Title VII, the ADEA, the FMLA, and the DCHRA. The eighth individual defendant, Pili Robinson, filed a separate motion to dismiss the amended complaint on the grounds that service of process was ineffective, that he could not be liable under Title VII, and that the complaint failed to allege any conduct by Robinson capable of stating a claim upon which relief could be granted.
Within days after the motions to dismiss were filed, the DYRS OEE issued an exit letter dated March 8, 2007, officially terminating that agency's administrative process. (See Pl.'s Notice to Court ("Notice"), Ex. E.) Subsequently, at Cruz-Packer's request, the EEOC issued a right to sue notice on May 18, 2007. (See id., Ex. J.)
I. FAILURE TO STATE A CLAIM
The individual defendants argue that the amended complaint fails to state a claim as to each of them because they are not her employers and cannot be held liable for the claims she asserts. Title VII does not impose liability on individuals in their personal capacity. "[W]hile a supervisory employee may be joined as a party defendant in a Title VII action, that employee must be viewed as being sued in his capacity as the agent of the employer, who is alone liable for a violation of Title VII." Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995). Similarly, "[t]he ADEA does not provide for liability against individual defendants in their personal capacities." Gill v. Mayor of Dist. of Columbia, Civil Action No. 07-64 (EGS), 2007 WL 1549100, at *3 (May 25, 2007) (citing Murphy v. PriceWaterhouseCoopers, LLP, 357 F. Supp. 230, 244 (D.D.C. 2004)). And, "'because an official capacity suit against an individual is the functional equivalent of a suit against the employer," plaintiff's claims against the [individuals in their official capacities] under the ADEA are "redundant and an inefficient use of judicial resources.'" Id. (quoting Cooke-Seals v. Dist. of Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997)); see also Henderson v. Williams, Civil Action No. 05-1966 (RWR), 2007 WL 778937, at *1 n.1 (D.D.C. Mar. 12, 2007) ("'When sued in their official capacities, government officials are not personally liable for damages.'") (quoting Atchinson v. Dist. of Columbia, 73 F.3d 418, 424 (D.C. Cir. 1996)) (alterations omitted). Accordingly, the Title VII and ADEA claims against the individual defendants will be dismissed.
The FMLA, the Equal Pay Act, and the DCHRA all provide for employer liability. In each statute, however, "employer" is defined to include a person acting directly or indirectly in the interest of the employer in relation to the employee. See 29 U.S.C. § 2611(4)(A)(ii) (defining employer for purposes of FMLA liability); 29 U.S.C. § 203 (defining employer for purposes of Equal Pay Act liability); D.C. Code § 2-1401.02 (defining employer for purposes of liability under the DCHRA). Whether any of the individual defendants was Cruz-Packer's employer as that term is interpreted with respect to each of the statutes would have to be determined on the basis of facts not in evidence at this point. Accordingly, the defendants' motion to dismiss the FMLA, Equal Pay Act and DCHRA claims is premature.*fn1
There is no suggestion, though, that a defendant cannot be liable in his personal capacity for common law defamation. Defendant Robinson has argued that the amended complaint offers no facts to link him to the defamation claim, and that this claim against him should be dismissed. Cruz-Packer has not rebutted his argument with either facts or argument. Therefore, the defamation claim against defendant Robinson will be dismissed.*fn2
II. INEFFECTIVE SERVICE OF PROCESS
A motion under Rule 12(b)(5) to dismiss for failure to effect service of process may be granted when a plaintiff fails to "demonstrate that the procedure employed satisfied the requirements of Rule 4 and any other applicable provision ...