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Eyohka Tarta, Plaintiff v. Nation Care

June 5, 2012


The opinion of the court was delivered by: Judge Beryl A. Howell


Plaintiff Eyohka Tarta brought suit against defendants Pius Fon and Nation Care, Inc. (collectively, "defendants") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq., and Maryland law, alleging a hostile work environment and retaliation by defendant Nation Care, Inc. ("NCI") and common law battery by defendant Fon. Amended Complaint, ECF No. 13 ("Am. Compl."), ¶¶ 39-59.*fn1 Pending before the Court is the Defendants' Motion to Dismiss Plaintiff's Amended Complaint, ECF No. 14. The defendants seek to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).*fn2 Defs.' Mot. to Dismiss, ECF No. 14 ("Defs.' Mot"), at 1. The defendants argue that the plaintiff's Amended Complaint should be dismissed, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), because (1) the plaintiff "failed to bring her Title VII claims against Nation Care, Inc. within 90 days of receipt of her right-to-sue letter," Defs.' Mem. in Supp. of Mot. to Dismiss, ECF No. 14 ("Defs.' Mem"), at 4, and (2) the plaintiff has failed to show that the defendant NCI received notice of the claims before expiration of the 90-day limitations period and, consequently, the Amended Complaint does not satisfy the prerequisites under Federal Rule of Civil Procedure 15(c) for relation back to the Original Complaint. The defendants further argue that the plaintiff's state law claims must be dismissed because the Court may not exercise supplemental jurisdiction over them upon dismissal of the Title VII claims. Defs.' Mot. at 1. For the reasons discussed below, the defendants' Motion to Dismiss is DENIED.


The plaintiff Tarta was formerly employed for approximately six months as a certified home health aide by defendant NCI, which is allegedly owned by defendant Fon. Am. Compl. ¶¶ 3, 11, 16, 36. *fn3 The plaintiff alleges that defendant Fon sexually harassed her beginning from the time defendant Fon interviewed her for the job and continuing throughout her employment. Id. ¶¶ 14-36. Specifically, the plaintiff alleges that defendant Fon "upon meeting her, immediately began asking her personal questions and making sexual and or romantic comments to her, including telling her that she was 'sexy,' and asking her out on a date." Id. ¶ 14. Despite this initial interaction, the plaintiff "[r]eluctantly . . . accepted a position with [NCI] in or about March or April of 2010." Id. ¶ 16.

Following the plaintiff's training by NCI, she was allegedly the only "new hire" who was not assigned a home health care case. Id. ¶ 18. If home aides are not assigned cases, they do not make hourly wages. Id. ¶ 19. When the plaintiff queried defendant Fon about why she was not assigned a case, he allegedly responded "I don't really want to give you a case, I want to date you." Id. ¶ 18. On one occasion, defendant Fon responded to the plaintiff's complaint about not being assigned a case by requesting that the plaintiff meet him in the office after hours. Id. ¶ 20. According to the plaintiff, defendant Fon chose this time "so that he could make sexual advances . . . while the offices were empty." Id. ¶ 21. During the meeting, defendant Fon asked the plaintiff to "sit on my lap" and asked "what's wrong with that?" Id. ¶ 22. The plaintiff alleges that defendant Fon then "turned down the lights in the office, approached [the plaintiff], pressed his body against hers, and attempted to lift her body up off the ground." Id. ¶ 23. The plaintiff told defendant Fon "to stop, and fled the office." Id. ¶ 24.

When the plaintiff had not been assigned a new case after approximately two weeks in her new position, she contacted defendant NCI, and employees directed her to speak with defendant Fon. Id. ¶¶ 25-26. Defendant Fon requested that the plaintiff meet him at a hotel, the "Econolodge." Id. ¶ 27. The plaintiff "initially refused, but relented when defendant Fon promised to give her an assignment." Id. ¶ 28. At the hotel, defendant Fon "offered her alcohol, despite the fact that he knew that she was under the age of twenty-one" and asked her "to sit on the bed, and touched her breasts repeatedly, stating that 'you're lucky to have such nice breasts.'" Id. ¶¶ 29-30. The plaintiff then fled the hotel. Id. ¶ 31.

The plaintiff "eventually received a case assignment by demanding one repeatedly from office staff." Id. ¶ 34. The plaintiff alleges, however, that the "[d]efendants withheld wages from [the plaintiff], in violation of law, in retaliation for her refusal to enter a sexual relationship with [d]efendant Fon." Id. ¶ 35. The plaintiff alleges that she was then "terminated, actually and or constructively, by [d]efendants, in or about August of 2010." Id. ¶ 36.

On November 20, 2010, the plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"). Id. ¶ 37; Original Compl. Att. 1 (Charge of Discrimination Filed with EEOC). On May 31, 2011, the EEOC issued to the plaintiff a Notice of Right to Sue. Am. Compl. ¶ 38; id. Att. 1 (EEOC Notice of Right to Sue).

On August 29, 2011, within the 90 days the plaintiff had to file a lawsuit under Title VII after receiving her Right to Sue Letter, the plaintiff filed a pro se complaint against Pius Fon, alleging that defendant Fon discriminated against her on the basis of sex, in violation of Title VII, by "subjecting [her] to severe and pervasive unwelcome sexual advances -unwelcome physical touching, propositions for sex, and sexual comments, as a condition for offering [her] employment, and requesting sexual favors as a condition for continuing employment with his company." Original Compl. at 1. The Original Complaint did not name NCI as a party to the action. In response, defendant Fon filed a Motion to Dismiss the Complaint, arguing that the plaintiff's claims must be dismissed under Federal Rule of Procedure 12(b)(6) for failure to state a claim on which relief can be granted because Title VII does not provide for individual liability and the plaintiff had named only Pius Fon, and not NCI, as a defendant. Def.'s Mem. in Supp. of Mot. to Dismiss [Original] Compl., ECF No. 6, at 1. The plaintiff retained counsel and filed an Opposition to Defendant's Motion to Dismiss, ECF No. 9, and a Motion for Leave to Amend Complaint, ECF No. 10, to name NCI as a defendant and to add additional claims against defendant Fon. On December 12, 2011, this Court granted the Plaintiff's Motion for Leave to Amend Complaint, and denied as moot Defendant's Motion to Dismiss the Original Complaint, ECF No. 6. See Minute Order (Dec. 12, 2011).

On December 12, 2011, the plaintiff filed an Amended Complaint designating both Pius Fon and NCI as defendants. Am. Compl. Based upon the factual allegations described above, the plaintiff alleges that defendant NCI violated Title VII through a hostile work environment and sex discrimination (Count I) and retaliation (Count II); and defendant Fon committed battery "in or about April or May of 2010" (Count III) and "in the summer of 2010" (Count IV). Id. ¶¶ 39-59.

On December 21, 2011, the defendants filed a Motion to Dismiss the plaintiff's Amended Complaint. Defs.' Mot. The plaintiff filed no timely response to the Defendants' Motion to Dismiss the Plaintiff's Amended Complaint, prompting the Court to order the plaintiff to show cause why the defendants' Motion should not be granted as conceded. See Minute Order (Jan. 18, 2012). On January 30, 2012, the plaintiff filed a response to the Court's Order, and her opposition. ECF No. 17.*fn4 For the reasons explained below, the defendants' Motion to Dismiss, ECF No. 14, is without merit and, therefore, is DENIED.


On a motion to dismiss for lack of subject matter jurisdiction, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. FED. R. CIV. P. 12(b)(1); Mostofi v. Napolitano, No. 11-0727, 2012 WL 251922, at *2 (D.D.C. Jan. 27, 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)); Kim v. United States, No. 08-01660, 2012 WL 34383, at *3 (D.D.C. Jan. 9, 2012); Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). As the Supreme Court has explained "many times," the "district courts of the United States . . . are 'courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.'" Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (internal citations omitted); see also Micei Int'l v. DOC, 613 F.3d 1147, 1151 (D.C. Cir. 2010) ("[T]wo things are necessary to create jurisdiction in an Article III tribunal other than the Supreme Court . . . The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it.") (internal citations and quotation marks omitted). For this reason, a "federal district court's initial obligation is to ascertain its subject matter jurisdiction." Malyutin v. Rice, 677 F. Supp. 2d 43, 45 (D.D.C. 2009), aff'd, No. 10-5015, 2010 WL 2710451 (D.C. Cir. July 6, 2010). When a court lacks subject matter jurisdiction, it must dismiss the case. See Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 48 (D.D.C. 2011); McManus v. District of Columbia, 530 F. Supp. 2d 46, 62 (D.D.C. 2007).

In evaluating whether a complaint sufficiently states a claim for relief to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must first ascertain whether the complaint contains "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" as well as grounds for the court's jurisdiction and the specific relief sought. FED. R. CIV. P. (8)(a). While "detailed factual allegations" are not required, the complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation marks omitted); see also Ciralsky v. CIA, 355 F.3d 661, 668-71 (D.C. Cir. 2004). In assessing whether a complaint is sufficient, the "court 'constru[es] the complaint liberally in the plaintiff's favor,' 'accept[ing] as true all of the factual allegations contained in the complaint.'" Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (citing Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir. 2008) and Stewart v. Nat'l Educ. Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006)); see also Atherton v. Dist. of Columbia Office of the Mayor, 567 F.3d 672, ...

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