United States District Court, D. Columbia.
TONIA L. JONES, et al., Plaintiffs,
DISTRICT OF COLUMBIA, Defendant
For Tonia L. Jones, Kenniss M. Weeks, Plaintiffs: Michael J. Kator, LEAD ATTORNEY, Cathy Ann Harris, Juliette Markham Niehuss, KATOR, PARKS & WEISER, PLLC, Washington, DC.
For District of Columbia, Defendant: Denise J. Baker, Martha J. Mullen, Steven J. Anderson, LEAD ATTORNEYS, Jonathan Hale Pittman, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, DC.
ROSEMARY M. COLLYER, United States District Judge.
Without explanation, the District of Columbia Office of Human Rights consistently fails to cite the statutory language of the D.C. Human Rights Act when it dismisses a complaint administratively. This leaves it to judges to figure out later what the agency intended. Such intrusion would be unnecessary and inappropriate if the agency followed its own statute. This case demonstrates the problem.
Defendant District of Columbia moves for judgment in its favor on all claims in Plaintiffs' Third Amended Complaint that are based on the D.C. Human Rights Act. Plaintiffs initially filed those claims with the D.C. Office of Human Rights, which investigated, found probable cause, and then dismissed " administratively." The District argues that Plaintiffs may proceed in court only if the dismissal was for " administrative convenience," as provided by D.C. Code § 2-1403.16(a) and caselaw. It contends that the nature and language of the dismissal establish that the dismissal was for the convenience of Plaintiffs and not the D.C. Office of Human Rights. Plaintiffs oppose.
It is a very close question. After Plaintiffs posed certain questions to the agency and the District of Columbia agreed to dismissal, the D.C. Office of Human Rights dismissed. The agency did not say that its dismissal was for " administrative convenience." These half measures allowed both parties to make strong arguments on how the Court should interpret the agency's action. As explained below, and despite some discomfort, the Court concludes that the D.C. Office of Human Rights dismissed Plaintiffs' complaints for administrative convenience. It, therefore, will deny the motion.
Plaintiffs Tonia L. Jones and Kenniss M. Weeks are female officers in the District of Columbia's Metropolitan Police Department (MPD). They became squad car partners in early 2006 and began a lesbian relationship in July 2006. At that time, Plaintiffs were both assigned to the same patrol service area within the Seventh District under the supervision of Sergeant Jon Podorski. Plaintiffs informed Sgt. Podorski of their relationship in September 2006. They allege that thereafter they suffered ongoing harassment from superior officers and disparate treatment. They further allege that, after they complained to MPD in January 2007, their supervisors blatantly retaliated against them. See Third Am. Compl. [Dkt. 26] ¶ ¶ 3-112. Because the alleged discrimination is not relevant to the immediate issue, the Court will not detail the lengthy allegations.
A. The DCOHR Complaints
After following internal MPD procedures, Plaintiffs filed formal charges of discrimination based on sexual orientation with the D.C. Office of Human Rights (DCOHR) on March 31, 2008, based on the D.C. Human Rights Act (DCHRA), D.C. Code § 2-1401.01 et seq. They amended their complaints with DCOHR on December 23, 2008, to include charges of gender discrimination, sexual harassment, and reprisal. These latter charges were cross-filed with the U.S. Equal Employment Opportunity Commission (EEOC) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Id. ¶ ¶ 121-122.
DCOHR investigated Plaintiffs' allegations and, on July 16, 2010, issued a probable cause finding in Plaintiffs' favor on their complaints of gender discrimination, sexual orientation discrimination, and reprisal. The parties then attempted conciliation through DCOHR's mediation program. Those efforts, however, ended unsuccessfully in August 2010. Id. ¶ ¶ 123-124.
During the course of mediation, Plaintiffs learned of a DCOHR policy to not award compensatory damages or attorneys' fees to employees of the District. See Opp'n [Dkt. 39], Ex. 1 (Jan. 4, 2011 Letter to DCOHR) (erroneously dated 2010) [Dkt. 39-2] at 3. This information prompted Plaintiffs to write to Alexis P. Taylor, DCOHR General Counsel on January 4, 2011. Plaintiffs sought " written opinions" from Ms. Taylor " on two lingering questions which could greatly affect [Plaintiffs'] rights: (1) whether [Plaintiffs] may withdraw their claims and proceed to court de novo prior to the [DC]OHR hearing; and (2) the basis of [DCOHR's] position that District employees are not entitled to attorney[s'] fees or compensatory damages before [DC]OHR." Id. at 1.
Plaintiffs told Ms. Taylor that DCOHR's mediator had " indicated that [Plaintiffs] might still have rights to pursue their claims de novo in court," citing Weaver v. Gross, Civ. Nos. 84-1944 & 84-1945, 1986 WL 7553 (D.D.C. Apr. 25, 1986), Jones v. Management Partnership, Inc., Civ. No. 82-2854, 1983 WL 143571 (D.D.C. July 22, 1983) and Blake v. American College of Obstetricians & Gynecologists, 608 F.Supp. 1239 (D.D.C. 1985). Plaintiffs also told Ms. Taylor that opposing counsel representing the District of Columbia had indicated that de novo review in court was still possible and preferable. Jan. 4, 2011 Letter to DCOHR at 2. However, Plaintiffs also noted that Ms. Taylor's office previously had directed them to Adams v. District of Columbia, 740 F.Supp.2d 173 (D.D.C. ...