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Giardino v. Dist. of Columbia

August 12, 2008

GLENN GIARDINO, ET AL., PLAINTIFFS,
v.
DISTRICT OF COLUMBIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

Plaintiffs bring this action, in part, against the District of Columbia under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (the "federal employment statutes"), and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01 et seq. The viability of those claims are before the Court as part of the defendants' challenges under 42 U.S.C. § 2000e-5(f)(1) and D.C. Code § 12-309.

I. Right-to-Sue Letters

A. Background

The defendants previously moved for dismissal based on the plaintiffs' failure to obtain right-to-sue letters from the Equal Employment Opportunity Commission ("EEOC"), as is required by 42 U.S.C. § 2000e-5(f)(1)*fn1 and Williams v. Washington Metro. Area Transit Auth., 721 F.2d 1412, 1418 n.12 (D.C. Cir. 1983) ("[T]he receipt of a right to sue notice is a condition precedent to the initiation of a Title VII civil action."). Defendants' Motion for Judgment on the Pleadings or in the Alternative, Motion for Summary Judgment [#31] at 5. The Court granted plaintiffs "sixty days within which to secure the right-to-sue letter from the EEOC." Memorandum Opinion, Aug. 28, 2007 [#37] at 4. Plaintiffs were warned that if this deadline was not met "their claims premised on the federal employment statutes will be dismissed." Id. See also Order, Aug. 28, 2007 [#36] at 1 ("ORDERED that Plaintiffs' claims against Defendant District of Columbia based on the federal employment statutes will be dismissed with prejudice in SIXTY DAYS unless Plaintiffs secure the necessary right to sue letter from the EEOC").

The sixty-day deadline passed without a word from the plaintiffs, who were then ordered to show cause "why any claims premised on the federal employment statutes should not be dismissed." Minute Order, Nov. 26, 2007. In their response, the plaintiffs stated, in relevant part:

The plaintiff Giardino recently received his "right to sue" letter from the department (sic) of Justice after waiting for the same for several months. The plaintiff Shepard has written for his but the same has not been received as yet because of the delays at the Department of Justice. It is anticipated that the same will be received shortly and will be served on the Court and counsel. (sic) for the defendant.

Response to Order to Show Cause [#42] ("First Resp.") at 1. Several months later, the plaintiffs filed a notice with the Court, attached to which was a "'right (sic) to Sue Letter' that [Shepard] recently received from the EEOC although the same was requested several months ago." Notice of Filing of Supplemental Pleadings in Support of Opposition to Motion to Dismiss [#45] at 1.

B. Plaintiff Alexander Shepard

Mr. Shepard has now produced a letter entitled "Dismissal and Notice of Rights," sent to him by the EEOC on February 11, 2008. EEOC Form 161 [#45-2]. This letter states that the EEOC "clos[ed] its file" on Mr. Shepard's charge because he "filed a lawsuit on the same issues in U.S. District Court," and notifies him of his rights to sue. Id.

This Court does not take lightly a litigant's failure to comply with its orders, and there is no question that this right-to-sue letter was received and produced by Mr. Shepard long after the expiration of the Court's sixty-day deadline.*fn2 Memorandum Opinion, Aug. 28, 2007 [#37] at 4; Order, Aug. 28, 2007 [#36] at 1. It is nevertheless true that in this Circuit a plaintiff's Title VII action cannot be dismissed for failure to receive a right-to-sue letter if, as happened here, such a notice is received before the court acts on dismissal. See Williams, 721 F.2d at 1418 n.12 ("[R]eceipt of a right-to-sue notice during the pendency of the Title VII action cures the defect caused by the failure to receive a right-to-sue notice before filing a Title VII claim in federal court."); Holmes v. PHI Service Co., 437 F. Supp. 2d 110, 123 (D.D.C. 2006) ("[A] court should not dismiss [a Title VII] claim [for failure to exhaust administrative remedies] if, after filing the complaint but before dismissal, the plaintiff receives a corresponding right-to-sue letter from the EEOC.").

Because the EEOC dismissed Mr. Shephard's charge and issued a right-to-sue letter prior to the dismissal of his federal employment claims, those claims will not now be dismissed.

C. Plaintiff Glenn Giardino

Mr. Giardino received what he asserts is a right-to-sue letter from the Department of Justice ("DOJ"), but the defendants argue that the DOJ had no authority to issue such a letter. Attached to the plaintiffs' Response is a letter to Mr. Giardino from Janet A. Stump, Supervisory Investigator at the EEOC, dated November 14, 2007 ("EEOC Letter"). In the EEOC Letter, Ms. Stump states that "the EEOC is closing your case upon issuance of the attached Notice of Right to Sue." Id. Ms. Stump is referring to a letter addressed to Mr. Giardino from Karen L. Ferguson, Supervisory Civil Rights Analyst, Employment Litigation Section, Civil Rights Division, Department of Justice ("DOJ Letter"). The DOJ ...


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