United States District Court, D. Columbia.
[Copyrighted Material Omitted]
CHINYERE UZOUKWU, Plaintiff, Pro se, Adelphi, MD.
For METROPOLITAN WASHINGTON COUNCIL OF GOVERNMENTS, CALVIN L. SMITH, SR., PAUL DESJARDIN, DENNIS BAILEY, IMELDA ROBERTS, JANET ERNST, EULALIE GOWERS LUCAS, ABDOUL MOHAMMAD, Defendants: Joleen Okun, LEAD ATTORNEY, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, DC.
For MOLLY KELLER, Defendant: Daniel A. Brown, LEAD ATTORNEY, Jesse D. Stein, BROWN & GOULD, LLP, Bethesda, MD.
ROBERT L. WILKINS, United States District Judge.
This is the undersigned's third Memorandum Opinion in this action, which was brought by pro se Plaintiff Chinyere Uzoukwu. See Uzoukwu v. Metro. Wash. Council of Govts., 845 F.Supp.2d 168 (D.D.C. 2012); Uzoukwu v. Metro. Wash. Council of Govts., Civil Action No. 11-cv-391 (RLW),983 F.Supp.2d 67, 2013 WL 5425128 (D.D.C. Sept. 30, 2013). The prior opinions spell out the procedural history of this action, including dismissal of Plaintiff's lawsuit and the subsequent reinstatement of several claims after reconsideration of two post-judgment motions. Presently, this action involves Plaintiff's former employer, Metropolitan Washington Council of Governments (" COG" ), and her former co-workers: supervisor Calvin L. Smith (African-American), supervisor Paul DesJardin (Caucasian), and Director of Human Resources, Imelda Roberts (race unspecified). The following claims survived after this Court granted Plaintiff post judgment relief and allowed her to amend her complaint:
Section 1981 - Hostile Work Environment (Smith)
Section 1981 -- Retaliation (Smith)
Tortious Interference With Economic Advantage
Section 1981 -- Retaliation (DesJardin &
Tortious Interference (DesJardin & Roberts)
Section 1981 -- Hostile Work Environment/
Section 1981 -- Retaliation (COG)
( See Doc. 52.) Defendants now seek dismissal of these claims, (Doc. 53), and Plaintiff requests leave to further amend her complaint. ( See Doc. 56, Pl.'s Resp. at 2, 3, 4 n.1, 11, 12-13, 16, 21.) On December 12, 2013, a hearing was held on these matters. For the reasons set forth below, the Court will deny Plaintiff's request and grant Defendants' motion in part.
A. Section 1981 Statute of Limitations
Relying on Carney v. American University, 151 F.3d 1090, 1096, 331 U.S.App.D.C. 416 (D.C. Cir. 1998), the Defendants argue that a three-year statute of limitations applies to Plaintiff's Section 1981 claims. In Carney, our Circuit explained:
For statute of limitations purposes, the Supreme Court treats section 1981 claims like claims under 42 U.S.C. § 1983. See Goodman, 482 U.S. at 660-62, 107 S.Ct. 2617 (applying the rule that courts should look to state personal injury statutes to determine the appropriate
statute of limitations for section 1983 claims, . . . to section 1981 claims) . . . . The Supreme Court has held that in states with multiple statutes of limitations, claims under section 1983 are governed by the residual or general personal injury statute of limitations . . . rather than the statute of limitations for enumerated intentional torts. . . . Accordingly, [in the District of Columbia] section 12-301(8)'s three-year statute of limitations applies to all section 1981 claims.
151 F.3d at 1096 (some citations omitted).
By relying on Carney, Defendants ignore the four-year federal default statute of limitations, the 1991 amendments to Section 1981  and the Supreme Court's post- Carney decision in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). In Donnelley the Supreme Court held that Section 1981 claims relating to contract formation are still governed by the appropriate state limitations period, but Section 1981 claims based on post-contract formation conduct are governed by the federal four-year limitations period. Id. at 378-79, 382-83 (emphasis added).
Consistent with Donnelley, the four-year limitations period applies to the claims in the present case, which are based on alleged conduct that occurred during Plaintiff's employment. Accordingly, Plaintiff's Section 1981 claims are timely. On March 11, 2008 COG notified Plaintiff that she would be terminated and on March 31, 2008 her employment was terminated. (Amend. Compl. ¶ 88.) Less than four years later, Plaintiff filed her initial complaint, on February 16, 2011, and her first proposed amended complaint on June 17, 2011. ( See Docs. 1; 21-3.) The proposed amended complaint included a Section 1981 claim. ( See Doc. 21-3.) Even if one adopts the position of the Defendants that the appropriate marker is March 9, 2012, the date of Plaintiff's last proposed amended complaint, her claims are still timely. Thus, Defendants' timeliness arguments are without merit.
B. Section 1981 claims: ethnicity vs. national origin
Next, Defendants argue that Plaintiff's Section 1981 claims are not actionable because she alleges discrimination based on national origin, rather than ethnicity. Defendants note that Plaintiff mentions " nation of origin" in her complaint, but Defendants contend she does not make any allegations based on " racial or ethnic characteristics associated with the national origin in question." See Wesley v. Howard Univ., 3 F.Supp.2d 1, 3 (D.D.C. 1998)(citing St. Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)). Defendants also contend that Plaintiff has not made any allegation that Defendants were aware of her ethnicity.
While the Supreme Court has made it clear that claims based " solely" on " national origin" may not proceed under Section 1981, claims based on color, race and/or ethnicity are actionable under
Section 1981.See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (explaining that Section 1981 was enacted to protect persons of " every race and color." ); St. Francis College, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (discussing ancestry and ethnicity claims). With respect to claims based on " ancestry or ethnic ...