United States District Court, District of Columbia
S. CHUTKAN, United States District Judge.
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.
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
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.
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),
U.S.C. § 2000(e); (2) the Age Discrimination in
Employment Act (“ADEA”) (disparate treatment,
retaliation, hostile work environment),  29 U.S.C. §
621 et seq.; and (3) the Americans With Disabilities
Act (“ADA”) (retaliation, hostile work
environment, and failure to accommodate), 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. Additionally, the Corrected Complaint
contains oblique references to the Fair Labor Standards Act
(“FLSA”),  29 U.S.C. § 201 and, in one
paragraph, he cites to the Title VII provision that provides
relief for disparate impact claims.
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).
Motions to Dismiss pursuant to Rule 12(b)(5).
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.
Motions to Dismiss pursuant to Rule 12(b)(6)
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).
Motions for Summary Judgment Pursuant to Rule 56
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.
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)).
Timeliness of the Corrected Complaint
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. §
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.
Mack v. WP Co., LLC, 923 F.Supp.2d 294, 299 (D.D.C.
2013) (some citations omitted).
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.
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).
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
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. Accordingly, dismissal pursuant to Rule
56 is not appropriate.
Title VII and ADEA Substantive Disparate Treatment and
Hostile Work Environment Claims.
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).
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,