The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff Beverly Obaseki filed suit against her former employer, Defendant Fannie Mae, alleging she was discriminated against on the basis of her race and terminated in retaliation for her discrimination complaints, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Defendant moved to dismiss, or in the alternative, to compel arbitration. Def.'s Mot. to Dismiss or, in the Alternative, Mot. to Compel Arbitration, ECF No.  ("Def.'s Mot."). Plaintiff, proceeding pro se, filed a timely opposition. Pl.'s Opp'n, ECF No. . For the reasons stated below, Defendant's motion is GRANTED IN PART and DENIED IN PART. Defendant's motion to dismiss for failure to timely file the complaint is GRANTED. Defendant's motion to compel arbitration is DENIED AS MOOT.
After several years of contract employment with Defendant, Plaintiff became a full time Level II Administrative Assistant at Fannie Mae in June 2001. Compl. at 3. Plaintiff filed a charge of racial discrimination with the Equal Employment Opportunity Commission ("EEOC") in September 2005, alleging Defendant failed to promote Plaintiff because of her race. Id. at 5.
Defendant terminated Ms. Obaseki's employment on March 22, 2006, which Plaintiff alleges was in retaliation for filing the September 2005 EEOC complaint. Id. Plaintiff filed a charge of retaliatory discharge with the EEOC in September 2006. The EEOC initially dismissed Plantiff's charges and issued a notice of Plaintiff's right to sue Defendant ("right to sue letter") in October 2008. Def.'s Ex. 1. The letter indicated Plaintiff was required to file suit within ninety days of receipt of the letter. Id. Six months later, the EEOC issued a Notice of Intent to Reconsider. See Def.'s Mot. at 3; Pl.'s Ex. 1; Pl.'s Opp'n at 2. The EEOC subsequently requested additional information from the parties, and issued its revised determination on July 15, 2010. Pl.'s Ex. 2 (06/22/2009 Ltr C. Bell to D. Stewart, Associate General Counsel for Fannie Mae). The EEOC found the timing of Plaintiff's discharge was "sufficient to create an inference that she was unlawfully terminated from her employment because she had filed a charge of discrimination." Obaseki Decl., Ex. 3 at 1. Fannie Mae declined to conciliate, and the EEOC issued Plaintiff a second right to sue letter on September 29, 2010. Compl. at 5; Obaseki Decl., Ex. 1. The second letter also contained the admonition that Plaintiff must file suit within ninety days. Obaseki Decl., Ex. 2.
Plaintiff alleges she received the second right to sue letter on October 4, 2010. Obaseki Decl. ¶ 3. Plaintiff mailed her complaint, application to proceed in forma pauperis ("IFP"), and other attachments to the Court on December 20, 2010 (id. at ¶ 5), which the Clerk of Court received on December 21, 2010. See Compl. at 1. The Court denied Plaintiff's IFP application on January 19, 2011. Obaseki Decl., Ex. 6. Plaintiff does not remember when she received notification from the Clerk that her application had been denied, but believes "it was no earlier than January 29, 2011 and probably  during the week of January 31, 2011." Obaseki Decl. ¶ 7.
Plaintiff resubmitted her complaint along with the filing fee via courier, which the Court received on February 22, 2011. Id. at ¶¶ 12-13.
Although Defendant's motion is styled as a motion to dismiss pursuant to Rule 12(b)(6), Rule 12(d) provides "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56."Both parties rely on evidence outside the pleadings. Therefore the Court will treat Defendant's motion to dismiss as a motion for summary judgment. Colbert v. Potter, 471 F.3d 158, 167-68 (D.C. Cir. 2006); Ahuja v. Detica Inc., 742 F. Supp. 2d 96, 103 (D.D.C. 2010) ("[I]n an abundance of caution and consistent with this Court's prior practice, the Court shall convert the above-mentioned motion to dismiss to [a] motion for summary judgment.").
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e). When considering a motion for summary judgment, the court may not make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted).
Defendant moves to dismiss Plaintiff's complaint on the basis that the
Complaint was untimely filed under section 2000e-5(f)(1).*fn1
Specifically, Defendant contends the Complaint is untimely
for two reasons: (1) Plaintiff failed to file suit within 90 days
after the initial right to sue letter was issued by the EEOC in 2008;
and (2) Plaintiff failed to file suit within 90 days after the second
right to sue letter was issued in 2010. In the alternative, Defendant
moves to compel arbitration. Because the Defendant is correct that
Plaintiff did not timely file her complaint, the Court does not reach
the issue of arbitration.
A. 2008 Right to Sue Letter
Section 2000e-5(f)(1) provides that if the EEOC decides not to file suit in response to a charge of discrimination, the EEOC must provide the individual who filed the charge that the EEOC will not proceed, and that individual may file suit "within ninety days after the giving of such notice." This time limit is not jurisdictional, but rather functions like a statute of limitations, subject to waiver, estoppel, and equitable tolling. Colbert v. Potter, 471 F.3d 158, 167 (D.C. Cir. 2006). The analysis in this case is slightly more complicated because the EEOC issued Plaintiff a right to sue letter, then reconsidered its initial decision, and ultimately issued Plaintiff a second right to sue letter. EEOC regulations provide that if the EEOC issues a notice of its intent to reconsider within 90 days after a right to sue letter is issued, and "the charging party has not filed suit . . . the notice of intent to reconsider will vacate the dismissal or letter of determination and revoke the notice of right to sue." 29 C.F.R. § 1601.21(b)(1).*fn2 Where, as in this case, the 90 day period has expired [or] the charging party has filed suit, . . . the notice of intent to reconsider will vacate the dismissal or letter of determination, but will not revoke the notice of ...