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Smith v. Ergo Solutions, LLC

United States District Court, District of Columbia

March 30, 2015

TWILA SMITH, et al., Plaintiffs,
ERGO SOLUTIONS, LLC, et al. Defendants.


JOHN D. BATES, District Judge.

Twila Smith and several of her former co-workers have brought a putative class action against their sometime-employer, Ergo Solutions. The salacious facts alleged in the complaint are countered by the driest of oppositions: Ergo-and two of its owners, as named defendants-contend that the complaint was not served on time, that certain claims are barred by the statute of limitations, that various defenses and estoppels bar individual plaintiffs, and that the motion for class certification is untimely. Having waded through this morass of procedural arguments, the Court finds that nearly all of the plaintiffs are entitled to move forward, at least pending some discovery. Class certification will be denied for now-but limited discovery is permitted to determine whether the injuries alleged by the plaintiffs affected a wider scope of Ergo employees.


The named plaintiffs in this purported class action allege a satyric and lecherous hostile work environment at Ergo Solutions. In general, they allege: "Ergo created a corporate and organizational culture where the environment not only allowed and tolerated sexual harassment but also one in which the environment promoted and perpetrated sexual harassment." Am. Compl. [ECF No. 5] ¶ 20. And "[t]here were constant rumors about untoward actions by the owners involving female employees." Id . Specifically: Ergo CEO and owner George Brownlee, id. ¶ 13, sent employee Twila Smith a sexually explicit video, id. ¶ 23. He propositioned her for sex, id. ¶¶ 23, 26, 29; "forced a kiss on her lips, " id. ¶ 26; and "exposed his genitals and masturbated to conclusion" in front of her, id. ¶ 27.

But there's more, as alleged. Brownlee discussed other employees' physical attributes with plaintiff Deirdra Gilliam, id. ¶ 39, before focusing on her own. He texted her graphic pictures, id. ¶ 41, and initiated sex in the office, id. ¶ 42. Brownlee made similar sexual advances to plaintiff Alexis Dixon, id. ¶ 54, escalating to inappropriate touching, id. ¶ 58, and an incident where "Brownlee even came to her office with [Chief Information Officer and owner Jason] Henderson and physically touched her breasts in the presence of Mr. Henderson and attempted to make her perform oral sex on him while Mr. Henderson looked on, " id. ¶ 60. Employee Nicola Cherichel, too, was the recipient of Brownlee's inappropriate touching-and more. Id . ¶ 62. And Henderson's sexual advances, inappropriate touching, and requests for sex were also de rigueur for employee Lori Robinson. Id . ¶ 65. These women feared the consequences of complaining, or found it inefficacious. See id. ¶¶ 27, 40, 48, 49, 55, 58, 59, 60. And they allege that their experiences at Ergo were not unique. See id. ¶ 68 ("There are numerous [up to 120] other female employees or independent contractors who have been victims of sexual advances, invitations, requests to date, inappropriate touching[, and] demands for oral sex and sexual intercourse....").

The plaintiffs filed their complaint against Ergo, Brownlee, Henderson, and their insurance company[1] on March 10, 2014. No summons was issued. The plaintiffs filed an amended complaint (alleging various counts of hostile work environment under both Title VII and the D.C. Human Rights Act, as well as quid pro quo sexual harassment under the latter) on July 9, 2014. This amended complaint was served days later. The defendants (minus the insurance company) moved to dismiss the suit shortly thereafter. Presumably spurred on by the motion to dismiss, plaintiffs filed a motion to certify the class on August 8, 2014. Both motions-as well as Ergo's motion for sanctions-are now pending before the Court.


"A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint." Lewis v. Dist. of Columbia, 535 F.Supp.2d 1, 8 (D.D.C. 2008). To pass the test, "the plaintiff must allege a plausible entitlement to relief, by setting forth any set of facts consistent with the allegations." Id. at 9 (internal quotation marks and citation omitted). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief, " a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

At this stage, the Court "must treat the complaint's factual allegations-including mixed questions of law and fact-as true and draw all reasonable interferences therefrom in the plaintiff's favor." Lewis, 535 F.Supp.2d at 9. But the Court "need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations." Id . And "[a] defendant may raise the affirmative defense of a statute of limitations via a Rule 12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint." Nat'l R.R. Passenger Corp. v. Lexington Ins. Co., 357 F.Supp.2d 287, 292 (D.D.C. 2005).


Defendants have moved to dismiss the amended complaint on the grounds that (for Title VII purposes) it was served too late, and that (for DCHRA purposes) it is barred by the statute of limitations. Failing that, defendants argue that each of the women named in the complaint cannot proceed. The Court agrees that dismissal is warranted as to one plaintiff, but finds that dismissal of the other plaintiffs' claims is inappropriate at this stage. Finally, the Court denies plaintiffs' motion for class certification at this time, and will permit further discovery on that score.


Defendants advance, foremost, a highly technical argument-but it boils down to an assertion that they received plaintiffs' summons several days late. Under Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court... must dismiss the action without prejudice against that defendant or order that service be made within a specified time." The plaintiffs narrowly missed that 120-day deadline. They filed their original complaint on March 10, 2014, but neglected to request a summons. The 120-day period to issue a summons, then, expired on July 8, 2014. But instead of serving the defendants, plaintiffs filed an amended complaint on July 9, the summons for which was issued on July 11 and served on July 15.[3] In short, the defendants received the summons and amended complaint immediately after the amended complaint was filed, and only a few days after the service deadline for the original complaint.

The defendants attach greater importance to this problem than one might typically expect. They point out that the original complaint was never served at all. Thus, the contention goes, the amended complaint cannot relate back to it. And the amended complaint, standing alone, was not filed within ninety days of the right-to-sue letter, as required. See 42 U.S.C. § 2000e-5(f)(1). The syllogism, as ...

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