MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITE STATES DISTRICT JUDGE
Presently
before the Court is Defendant's [12] Motion to Dismiss
Plaintiff's Amended Complaint for age discrimination
pursuant to the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et
seq. [Count I]; gender discrimination pursuant to Title
VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e et seq.
[Count II]; and sexual orientation discrimination in
violation of the District of Columbia Human Rights Act of
1977 (“DCHRA”), D.C. Code § 2-1401.01 et
seq. Plaintiff Tanga Payne's action is predicated on
her being twice denied - allegedly because of her gender, age
and sexual orientation - a position as a Supervisor Youth
Development Representative (“SYDR”) at the
Department of Youth Rehabilitation Services. See Am.
Compl. at 4-6. According to the Plaintiff, these positions
were filled by “male heterosexual candidates at least
10 years younger than [Plaintiff] despite [Plaintiff's]
vastly superior experience and qualifications.” Am.
Compl. at 3.
As a
preliminary matter, the Court notes that Defendant Department
of Youth Rehabilitation Services (“Defendant” or
“DYRS”) asserts that it is non sui
juris, a claim that Plaintiff does not contest, and this
necessitates a dismissal without prejudice of Plaintiff's
Amended Complaint so that the District of Columbia may be
substituted as the defendant. For purposes of judicial
efficiency, this Court shall hold in abeyance Defendant's
non sui juris claims until March 8, 2019, while
Plaintiff shall be permitted to amend her Amended Complaint
to substitute the Defendant. Furthermore, the Court will
consider the merits of Defendant's other claims in
support of dismissal, namely, whether Plaintiff has exhausted
her ADEA claim, whether Plaintiff's DCHRA sexual
orientation discrimination claim was timely, and whether
Plaintiff has alleged a causal nexus between gender and her
non-selection regarding her Title VII gender discrimination
claim. Upon consideration of the pleadings, [1] the relevant
legal authorities, and the record for purposes of this
motion, the Court GRANTS IN PART AND DENIES IN
PART Defendant's [12] Motion to Dismiss.
Plaintiff's sexual orientation discrimination claims are
DISMISSED WITH PREJUDICE. Plaintiff's
claims for gender and age discrimination remain standing.
Defendant's non sui juris claims are held in
abeyance until March 8, 2019, while Plaintiff shall be
permitted to amend her Amended Complaint in order to
substitute the District of Columbia as the Defendant. If
Plaintiff does not substitute the District of Columbia as a
Defendant, the Court will dismiss her Amended Complaint.
I.
LEGAL STANDARD
Defendant
moves to dismiss for “failure to state a claim upon
which relief can be granted” pursuant to Federal Rule
of Civil Procedure 12(b)(6). A motion to dismiss is designed
to “test[ ] the legal sufficiency of a
complaint.” Browning v. Clinton, 292
F.3d 235, 242 (D.C. Cir. 2002). “[A] complaint [does
not] suffice if it tenders ‘naked assertion[s]'
devoid of ‘further factual enhancement.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)). Rather, a complaint must allege facts that, if
accepted as true, sufficiently “state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678.
In
deciding a Rule 12(b)(6) motion, a court may consider
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint,
” or “documents upon which the plaintiff's
complaint necessarily relies even if the document is produced
not by the plaintiff in the complaint but by the defendant in
a motion to dismiss.” Ward v. District of Columbia
Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119
(D.D.C. 2011) (internal quotation marks and citation
omitted). The court may also consider documents in the public
record of which the court may take judicial notice. Abhe
& Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.
Cir. 2007). For example, a court may consider an EECO
complaint and Notice of Charge without converting a motion to
dismiss into a motion for summary judgment because such
records are “public document[s] of which a court may
take judicial notice.” Ahuja v. Detica Inc.,
742 F.Supp.2d 96, 101-02 (D.D.C. 2010) (citing Wiley v.
NEBF Invs., No. 09-CV-223, 2010 WL 114953, at *1 n. 1
(D.D.C. January 12, 2010)).
Accordingly,
for purposes of the pending motion, the Court takes judicial
notice of the Charge of Discrimination filed by the Plaintiff
with the Maryland Commission on Civil Rights, ECF No. 12-2,
and the Dismissal and Notice of Rights by the United States
Equal Employment Opportunity Commission, (Baltimore Field
Office), ECF No. 15-1. See Grant v. Dep't of
Treasury, 194 F.Supp.3d 25, 28 n.2 (D.D.C. 2016) (A
“Final Agency Decision . . . [is] [an] official, public
document[] subject to judicial notice”). Judicial
notice is taken solely for the purposes of ascertaining when
the Charge of Discrimination was filed with the Maryland
Commission on Civil Rights (May 4, 2015), the claims
addressed therein, and the date that the United States Equal
Employment Opportunity Commission, Baltimore Field Office,
issued a Dismissal and Notice of Rights (December 2, 2017).
II.
DISCUSSION
A.
DYRS is Non Sui Juris and Cannot be Sued
District of Columbia government agencies may not sue or be
sued unless specifically permitted by statute. Ray v.
District of Columbia, 535 A.2d 868, 870 n.2 (D.C. 1987);
see also Wilson-Greene v. Dept of Youth Rehab.
Services, Civ. Action No. 06cv2262 (RJL), 2007 WL
2007557, *2 (D.D.C. July 9, 2007) (dismissing Title VII
claims against DYRS because it is non sui juris);
see also ReedJospeph-Minkins v. D.C. Dept. of Youth
Rehab. Services, Civil Action No. ELH-17-45, 2018 WL
3049509 (D. Md. June 20, 2018) (where defendant argued that
DYRS may not be sued and asserted that the District of
Columbia was the proper party, the court sua sponte
ordered the substitution of the District of Columbia for
DYRS).
Because
DYRS is not subject to suit and the District of Columbia will
not be prejudiced by a substitution nor will the substitution
affect the substance of Plaintiff's claims, the Court
concludes that substitution is appropriate in this case.
Accordingly, Defendant's non sui juris claims
are held in abeyance for ten business days while Plaintiff
shall be permitted to amend her Amended Complaint in order to
substitute the District of Columbia as the Defendant.
B.
Exhaustion of ADEA Claim
The
ADEA requires employees to exhaust administrative remedies by
filing a charge of discrimination with the EEOC or a local
equivalent. Washington v Washington Metropolitan Area
Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998);
see 29 U.S.C. § 626 (d)(1)(B) (discussing the
timing for filing a charge). A plaintiff who files a timely
charge may proceed with a subsequent civil suit in federal
court that is “limited in scope to claims that are like
or reasonably related to the allegations of the charge and
growing out of such allegations.” Park v. Howard
Univ., 71 F.3d 904, 907 (DC. Cir. 1995), cert
denied, 519 U.S. 811 (1996); see Thompson v.
District of Columbia, 272 F.Supp.3d 17, 22 (D.D.C. 2017)
(requiring “some specificity in a charge” because
a “liberal interpretation of an administrative
charge” would permit a litigant to avoid the
requirements of an administrative proceeding). If
discriminatory acts alleged by Plaintiff in the complaint
were “not articulated in the administrative charge, are
not reasonably related to the allegations in the charge, and
do not fall within the scope of any administrative
investigation that can reasonably be expected to follow,
[plaintiff] may not proceed with these additional claims
without first exhausting the administrative process.”
Shipman v. Amtrak, 241 F.Supp.3d 114, 123 (D.D.C.
2017) (Kollar-Kotelly, J.), aff'd, 2017 WL
4217244 (D.C. Cir. Aug. 1, 2017).
In the
instant case, Plaintiff checked the box for “sex”
as the basis for her discrimination claim in her Charge of
Discrimination, ECF No. 12-2. “While the boxes aid a
claimant in identifying the nature of her charge, a claimant
is not necessarily limited to the boxes she selected if she
provides a basis for her claims in her written
explanation.” Robinson Reeder v. Am. Council on
Educ., 532 F.Supp.2d 6, 13 (D.D.C. 2008),
aff'd, 417 Fed. App'x 4 (D.C. Cir. 2011). In
this case, even though the box for “age” was not
checked, this Court may examine the Plaintiff's narrative
explanation “to determine whether [it] fairly
embrace[s] [another] claim.” Ellis v. Georgetown
Univ. Hosp., 631 F.Supp.3d 71, 76 (D.D.C. 2009)
(internal quotation marks omitted). A review of
Plaintiff's accompanying narrative in her Charge of
Discrimination reveals that she emphasizes age as a factor
involved in the promotion decision insofar as Plaintiff
specifies that she is “over the age of 40, ” and
a woman “age 40” was offered the position while a
man “age 30” was awarded the position. Charge of
Discrimination, ECF No. 12-2; contra McIver v.
Mattis, 3 ...