The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
MEMORANDUM OPINION DENYING THE DEFENDANT'S MOTION TO DISMISS;DENYING WITHOUT PREJUDICE THE DEFENDANT'S MOTION IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
This matter is before the court on the defendant's motion to dismiss or, in the alternative, for summary judgment. The plaintiff, a female correctional officer stationed at the District of Columbia Jail, alleges that the defendant permitted her to be sexually harassed by a fellow officer and retaliated against her 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. Human Rights Act ("DCHRA"), D.C. Code §§ 2-1401.01 et seq. The plaintiff has also asserted a claim for intentional infliction of emotional distress ("IIED"). The defendant moves to dismiss or, in the alternative, for summary judgment, arguing that the plaintiff's Title VII sexual harassment claims are time-barred, that the plaintiff has failed to state a claim for retaliation under Title VII, that the plaintiff failed to exhaust her administrative remedies with respect to certain of her retaliation claims and that the doctrine of res judicata bars the plaintiff's DCHRA and IIED claims.
For the reasons discussed below, the court denies the defendant's motion to dismiss the Title VII sexual harassment claims as time-barred and denies without prejudice the defendant's motion in the alternative for summary judgment. In addition, the court denies the defendant's motion to dismiss the plaintiff's retaliation claims for failure to state a claim and failure to exhaust her administrative remedies. The court, however, grants as conceded the defendant's motion to dismiss the DCHRA and IIED claims.
The plaintiff is a female correctional officer who has been stationed at the District of Columbia Jail since 1989. 2d Am. Compl. ¶ 6. After being laid off due to a reduction in force in 2002, she was rehired in September 2004. Id. ¶ 7. Upon returning to duty, the plaintiff began working alongside correctional officer Pablo Rodriguez. Both officers were supervised by Sergeant Luis Stephens. Id. ¶¶ 8-10.
The plaintiff alleges that "soon after" she began working with Rodriguez in 2004, he began to sexually harass her. Id. ¶ 11. As alleged in the complaint, Rodriguez repeatedly directed comments of a sexual nature toward the plaintiff. Id. ¶¶ 18-20. On one occasion, Rodriguez allegedly grabbed the plaintiff and "tried to push her head into his 'private parts.'" Id. ¶ 11. On yet another occasion, Rodriguez allegedly called the plaintiff asking her about oral sex while broadcasting the call over the intercom. Id.
The plaintiff alleges that she complained about Rodriguez's behavior to Sergeant Stephens, who admonished Rodriguez to discontinue his behavior and persuaded the plaintiff to give Rodriguez another chance.*fn1 Id. ¶¶ 12-13. Rodriguez, however, persisted in his harassing conduct. Id. ¶ 13. In June 2005, the plaintiff brought her complaints to the attention of Lieutenant Gloria Profit, who allegedly informed the plaintiff that there was nothing she could do about Rodriguez's behavior. Id. ¶ 15. The plaintiff then sent an e-mail to Deputy Warden Larry Corbett regarding Rodriguez's behavior. Id. ¶ 16. Corbett allegedly informed the plaintiff that all employees alleging sexual harassment were required to proceed through the Office of the Special Inspector, which had been established by court order to address the D.C. Department of Correction's ("DOC") failure to enforce its policy against sexual harassment and retaliation. See Neal v. Dir., D.C. Dep't of Corr., 1995 WL 517244, at *2-3 (D.D.C. Aug. 9, 1995) (Lamberth, J.). The plaintiff alleges that Corbett stated that the Office of the Special Inspector was her sole avenue of filing a complaint regarding Rodriguez's behavior. Pl.'s Aff. ¶ 4. The plaintiff alleges that Profit and other supervisors also advised her that she was required to proceed through the Special Inspector. 2d Am. Compl. ¶ 17. The plaintiff filed a complaint with the Special Inspector on June 19, 2005, which commenced an investigation into the plaintiff's allegations. Pl.'s Aff. ¶¶ 3-4; Pl.'s Opp'n at 6.
The plaintiff alleges that throughout this period, Rodriguez continued to sexually harass her. 2d Am. Compl. ¶¶ 18-20. She alleges that nearly every time she spoke to Rodriguez, he would respond with sexual innuendo, and that this behavior occurred every weekend the plaintiff worked with Rodriguez. Id. ¶ 20. The plaintiff alleges that Rodriguez's behavior caused her to be nervous and forced her to leave her work station for prolonged periods to avoid being around Rodriguez, for which she was reprimanded. Id. ¶¶ 21-22. The plaintiff alleges that she endured this behavior from Rodriguez from September 2004 to June 2005. Pl.'s Aff. ¶ 2.
On March 20, 2006, the Special Inspector concluded its investigation and generated a report recommending that "a probable cause finding be made with regard to the claim of hostile work environment." Pl.'s Mot., Ex. 2 at 22.*fn2 After receiving the Special Inspector's report, the plaintiff contacted the District of Columbia Office of Human Rights ("DCOHR") in late March or early April 2006 to determine what steps she needed to take to enforce her rights. Pl.'s Aff. ¶ 7. The plaintiff was allegedly told by a DCOHR employee that because she had already received a favorable finding from the Office of the Special Inspector, she was not permitted to file a complaint with the DCOHR. Id.
On May 21, 2006, the plaintiff alleges that she was forced to stop working because she was experiencing headaches, chest pain and depression. 2d Am. Compl. ¶ 39. In July 2006, a DOC psychiatrist diagnosed the plaintiff with Major Depressive Disorder. Id. ¶ 34. The psychiatrist recommended that the plaintiff be separated from working with Rodriguez "because her symptoms [were] related to Mr. Rodriguez's harassing conduct in the workplace." Id. ¶ 35. The psychiatrist further recommended that the plaintiff take a three- to four-week absence for treatment and then be returned to light duty. Id. The plaintiff, however, was placed on absent without leave ("AWOL") status, meaning that she was not paid during her absence. Id. ¶¶ 40-41. The plaintiff alleges that she was ordered to report back to work on November 27, 2006 and that upon her return, she was harassed and retaliated against by her co-workers and supervisors. Id. ¶ 42. Within two hours of reporting to work, a supervisor instructed her to go home, which she did. Id.
On August 11, 2006, the plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Def.'s Mot., Ex. 4. The administrative charge indicates that she simultaneously cross-filed the charge with the DCOHR. Id. On August 17, 2006, the plaintiff filed a complaint in the Superior Court for the District of Columbia against Rodriguez and the District of Columbia ("the District"), alleging sexual harassment and retaliation under Title VII and the DCHRA, IIED against the District and assault and battery against Rodriguez. See Def.'s Mot., Ex. 1. On November 14, 2006, the District removed the case to federal court. Id. at 1. The plaintiff subsequently withdrew her Title VII claims for failure to exhaust her administrative remedies, and the case was remanded to the Superior Court, at which time the plaintiff filed an amended complaint. Id. at 1-2 & Ex. 2.
The plaintiff received a right to sue letter from the EEOC on November 17, 2008. 2d Am. Compl. ¶ 31. On December 2, 2008, the plaintiff moved in the Superior Court for leave to file a second amended complaint incorporating her Title VII claims. Def.'s Mot. at 2. The Superior Court granted the plaintiff's motion. Id., Ex. 3. At the same time, however, the Superior Court granted the District's motion to dismiss the DCHRA and IIED claims asserted against it. Id. at 2 & Ex. 3.
On January 8, 2009, the District again removed this case to federal court based on federal question jurisdiction. See Notice of Removal. The defendant filed the instant motion on January 15, 2009. See generally Def.'s Mot. On May 15, 2009, the plaintiff filed a notice of dismissal of her claims against Rodriguez, leaving the District as the ...