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Bartlette v. Hyatt Regency

United States District Court, District of Columbia

September 25, 2016



          TANYA S. CHUTKAN, United States District Judge.

         Plaintiff Leroy Bartlette was employed by the defendant Hyatt Regency (“Hyatt”) for over twenty years before his termination. He alleges that he suffered discrimination during his employment and that he was terminated for discriminatory reasons. Before the Court is Hyatt's Motion to Dismiss. (“Motion”) (ECF No. 13). For the reasons set forth below, the Court will GRANT the motion in part and DENY the motion in part.


         Bartlette was employed as an Assistant Server in a restaurant located in the Washington, D.C. Hyatt Regency Hotel. In May 2000, he had surgery on his back that left him disabled, though able to work with accommodations. On September 14, 2011, Hyatt terminated Bartlette. (ECF No. 27, Pls. Verified Suppl. Notice ¶ 1). He subsequently filed a charge of discrimination with the EEOC, which issued a notice of right to sue from its Indianapolis, Indiana office on Monday July 22, 2013. (ECF No. 13, Defs. Ex. B). Bartlette claims that he received the notice seven days later, on Monday July 29, 2013, at his home in Silver Spring, Maryland. (ECF No.20, Pls. Notice. of Filing at Ex. B). Less than 90 days after receiving the letter, on October 25, 2013, he filed this lawsuit, naming Hyatt as the defendant in the case caption. However, the body of the Complaint contains only one reference to Hyatt and to Bartlette, in the introductory paragraph:

Plaintiff Leroy Bartlette, by and through counsel, C. Sukari Hardnett and the Law Office of C. Sukari Hardnett, brings this civil action against Defendant Hyatt Regency, on the grounds and in the amounts set forth herein.

(Compl. at p. 1). The remainder of the Complaint involves parties and factual allegations unrelated to Bartlette or his employment with Hyatt. Specifically, the Complaint deals with plaintiff Leona Adams and defendant Community Development Institute Head Start (“CDI”). (Id. ¶¶ 1-2). The factual allegations center around Adams's claims that, as Director of Family Services, she attempted to bring CDI into compliance with certain Head Start Regulations, and that CDI wrongfully discharged her as a result of her actions.[1]

         On October 28, 2013, three days after Bartlette filed his original complaint, he filed a document that he described on the court's Case Management/Electronic Case Files docketing system as a “Notice of Correct Complaint.” (ECF No. 2) (hereinafter “Corrected Complaint”). The document is titled “Complaint” and contains claims and factual allegations involving Hyatt. According to the preliminary statement and the counts in the Corrected Complaint, Bartlette appears to assert that Hyatt discriminated against him in violation of: (1) Title VII (retaliation and race based disparate treatment and hostile environment), [2] 28 U.S.C. § 2000(e); (2) the Age Discrimination in Employment Act (“ADEA”) (disparate treatment, retaliation, hostile work environment), [3] 29 U.S.C. § 621 et seq.; and (3) the Americans With Disabilities Act (“ADA”) (retaliation, hostile work environment, and failure to accommodate)[4], 42 U.S.C. § 12101, et seq. Bartlette also asserts what appears to be a District of Columbia common law claim for “Wrongful Termination” in violation of public policy.[5] Additionally, the Corrected Complaint contains oblique references to the Fair Labor Standards Act (“FLSA”), [6] 29 U.S.C. § 201 and, in one paragraph, he cites to the Title VII provision that provides relief for disparate impact claims.[7]

         Hyatt moves for dismissal of the this action, pursuant to Federal Rule of Civil Procedure 12(b)(5), because Bartlette failed to serve the Corrected Complaint within 120 days after filing this lawsuit, as required by then Federal Rule of Civil Procedure 4(m). Hyatt also seeks dismissal on the grounds that the filing of the Corrected Complaint was untimely, that Bartlette has not set forth a prima facie case to support his claims, and that he failed to exhaust his administrative remedies. See Fed. R. Civ. P. 12(b)(6) (allowing for dismissal where the complaint fails “to state a claim for which relief may be granted.”). Alternatively, Hyatt seeks summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 13, Defs. Br. at p. 2 n.1).


         1. Motions to Dismiss pursuant to Rule 12(b)(5).

         When a defendant moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(5) for insufficient service of process, “the party on whose behalf service is made has the burden of establishing its validity when challenged; to do so, he must demonstrate that the procedure employed satisfied the requirements of the relevant portions [of the Federal Rules] and any other applicable provision of law [regarding service of process].” Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987) (internal quotations omitted). Under the version of Federal Rule of Civil Procedure 4 in effect during the relevant time period, a plaintiff must serve the complaint and summons within 120 days after filing the complaint. Fed.R.Civ.P. 4(m).[8]

         2. Motions to Dismiss pursuant to Rule 12(b)(6)

         “A Rule 12(b)(6) motion tests the legal sufficiency of a complaint.” Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (internal quotation marks and citation omitted). “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where “recovery is very remote and unlikely, ” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (internal quotation marks and citation omitted). Moreover, a pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). If the facts as alleged, which must be taken as true, fail to establish that a plaintiff has stated a claim upon which relief can be granted, the Rule 12(b)(6) motion must be granted. See, e.g., Am. Chemistry Council, Inc. v. U.S. Dep't of Health & Human Servs., 922 F.Supp.2d 56, 61 (D.D.C. 2013); Clay v. Howard Univ., 82 F.Supp.3d 426, 430 (D.D.C. 2015).

         3. Motions for Summary Judgment Pursuant to Rule 56

         When a party moves to dismiss under Rule 12 for failure to state a claim upon which relief may be granted and presents matters outside the pleading and not excluded by the court, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Colbert v. Potter, 471 F.3d 158, 167 (D.C. Cir. 2006) (alterations omitted). Summary judgment is appropriate “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).[9]

         To defeat summary judgment, the nonmoving party must “designate specific facts showing there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, (1986) (internal quotation marks omitted). A dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party; a fact is only “material” if it is capable of affecting the outcome of the litigation. Id.; see also Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party's motion, “[a]ll underlying facts and inferences are analyzed in the light most favorable to the nonmoving party.” N.S. ex rel. Stein v. District of Columbia, 709 F.Supp.2d 57, 65 (D.D.C. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).

         C. ANALYSIS

         1. Timeliness of the Corrected Complaint[10]

         Hyatt first seeks summary judgment on the grounds that Bartlette's lawsuit is untimely. Pursuant to Title VII of the Civil Rights Act, a plaintiff must file suit “within ninety days after obtaining notice of right to sue from the EEOC.” Dougherty v. Barry, 869 F.2d 605, 609 (D.C. Cir. 1989) (citing 42 U.S.C. § 2000e-5(f)(1)). These same deadlines apply to ADEA and ADA cases. See 29 U.S.C. § 626(e); 42 U.S.C. § 12117(a).

         There is a rebuttable presumption that a claimant received her right to sue letter within three to five days after mailing:

When the date that a right-to-sue notice was received is unknown or disputed, courts routinely presume that the notice was received either three days or five days after it was mailed. Nkengfack v. Am. Ass'n of Retired Persons, 818 F.Supp.2d 178, 181 (D.D.C. 2011); Ruiz v. Vilsack, 763 F.Supp.2d at 171. Receipt within three days is usually presumed, based on Rule 6(d) of the Federal Rules of Civil Procedure. See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. at 148 n. 1, 104 S.Ct. 1723 (stating that “presumed date of receipt” is three days after issuance of right-to-sue letter and citing Rule 6); Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998) (same, citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. at 148 & n. 1, 104 S.Ct. 1723). Courts have employed a more generous five-day presumption instead where particular circumstances made that presumption more reasonable. See, e.g., Nkengfack v. Am. Ass'n of Retired Persons, 818 F.Supp.2d at 181; Ruiz v. Vilsack, 763 F.Supp.2d at 171; Washington v. White, 231 F.Supp.2d 71, 75 (D.D.C. 2002).

Mack v. WP Co., LLC, 923 F.Supp.2d 294, 299 (D.D.C. 2013) (some citations omitted).

         Bartlette's EEOC right to sue letter was dated July 22, 2013, and therefore, Bartlette's claim against Hyatt was timely only if he filed it by Wednesday October 23, 2013 (applying the three-day presumption) or by Friday October 25, 2013 (applying the five-day presumption). While Bartlette did file this lawsuit by October 25, 2013, the Complaint he filed on that day contained no factual allegations involving himself or Hyatt and, therefore, did not stop the running of the ninety-day clock because it did not put Hyatt on notice of the charges against it.

         Pursuant to Federal Rule of Civil Procedure 8, a complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 556 (holding that the complaint must contain enough “factual matter” to suggest liability) (citation and alterations omitted); Fed.R.Civ.P. 8(a) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief. . . .”). Without any factual allegations that might suggest that Hyatt was liable for any alleged wrongs involving Bartlette, that initial Complaint-containing only factual allegations by Adams against CDI completely unrelated to Bartlette's claims against Hyatt-did not meet the requirements of Federal Rule 8. Therefore, even though Bartlette filed the initial Complaint within the ninety-day window (assuming application of the five day presumption), that Complaint did not stop the running of the clock because it did not gave Hyatt fair notice of the claims that were later included in the Corrected Complaint. See Garrett v. Structured Cabling Sys., Civ. Action No. 10-55-DLB, 2010 WL 3862994, at *2 (E.D. Ky. Sept. 28, 2010) (finding that claims against two of four defendants named in the original complaint were untimely where the original complaint was filed within the ninety-day window, but contained no factual allegations involving those two defendants); Male v. Tops Friendly Mkts., No. 07-CV-6573, 2008 WL 1836948, at *3-4 (W.D.N.Y. Apr. 22, 2008) (dismissing plaintiff's claims because her original timely complaint was devoid of any factual assertions and her amendment of the complaint outside the ninety-day window to include factual assertions did not cure the failure).

         However, as with any legal presumption, the three/five day receipt rule may be rebutted “by sworn testimony or other admissible evidence from which it could reasonably be inferred that it took longer” for the letter to arrive. Gardner v. Honest Weight Food Coop., 96 F.Supp.2d 154, 158 (N.D.N.Y 2000) (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir. 1996)); Legille v. Dann, 544 F.2d 1, 5-6 (D.C. Cir. 1975) (where opponents offer admissible evidence to contradict a rebuttable presumption, “the presumption disappears as a rule of law, and the case is in the factfinder's hands free from any rule.”) (citations and alterations omitted).

         In response to Hyatt's timeliness argument, Bartlette submitted a sworn affidavit stating that he received his EEOC notice of right to sue on July 29, 2013-seven days after it was mailed-and that he “immediately” called his attorney and delivered the letter to her that same day. (ECF No. 20, Pls. Notice of Filing at Ex. B). Consistent with Bartlette's affidavit, his attorney also submitted a sworn affidavit indicating that she received a call at her office from Bartlette on July 29, 2013, and he delivered the EEOC right to sue letter that same day. (Id.) Accordingly, for summary judgment purposes, this court will accept as true Bartlette's unrebutted claim that he received the notice of right to sue from the EEOC on July 29, 2013- seven days after it was mailed. See Witt v. Roadway Express, 136 F.3d 1424, 1429-30 (10th Cir. 1998) (lower court erred when it granted summary judgment for the defendant and ignored plaintiff's affidavit about the date he received his right to sue letter because the affidavit created a “credibility issue that must be resolved by the trier of fact”); Rodriguez v. Chertoff, 216 F. App'x. 1, 1 (D.C. Cir. 2006) (vacating dismissal of the complaint and noting that the “district court was obliged to accept as true that the 90-day period . . . began on the date that appellant alleges he received the right to sue notice.”) (citations omitted). Given this July 29 receipt date, the court finds that Bartlette timely filed his Corrected Complaint, containing allegations against the Hyatt, within the ninety-day window.[11] Accordingly, dismissal pursuant to Rule 56 is not appropriate.

         2. Title VII and ADEA Substantive Disparate Treatment and Hostile Work Environment Claims.

         Hyatt next argues that Bartlette has not set forth sufficient facts to support his disparate treatment and hostile work environment Title VII and ADEA claims. In Title VII and ADEA cases alleging disparate treatment, a plaintiff establishes a prima facie case of discrimination by pleading facts from which it can reasonably be inferred that

(1) he is a member of a protected class, (2) he suffered an adverse employment action, and (3) the unfavorable action gives rise to an inference of discrimination (that is, an inference that his employer took the action because of his membership in the protected class). A plaintiff can raise an inference of discrimination by showing that [ ]he was treated differently from similarly situated employees who are not part of the protected class.

Brown v. Sessoms, 774 F.3d 1016, 1022 (D.C. Cir. 2014) (citations and internal quotations omitted).

         Hostile work environment or “harassment” claims require a showing that the plaintiff “was subjected to ‘discriminatory intimidation, ridicule, and insult' that is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 577 (D.C. Cir. 2013) (citations omitted). In evaluating harassment claims, courts look “to the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its ...

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