United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
Kimberly King's pro se suit alleges that, while
working as a salesperson for Kate Spade & Company here in
Washington, she was discriminated against on the basis of her
pregnancy. In now moving to dismiss, the company points out
that King did not wait the requisite 180 days after filing
her administrative charge before coming to court. As
Defendant is correct that Plaintiff has initiated her suit
prematurely, the Court will grant the Motion without
prejudice so that King can exhaust her administrative
the facts in the Complaint are true, as it must at this
stage, the Court need offer the briefest of synopses. King,
hired as a “sales muse” by Kate Spade, alleges
that in December 2017 she informed her supervisor of her
nascent pregnancy. See Compl., ¶¶ 3-4.
(The company points out that the proper Defendant is
Tapestry, Inc., which owns Kate Spade Holdings LLC,
see Motion at 1 n.1, but this has no effect on the
Court's Opinion.) Within two weeks, the company ceased
scheduling her for regular shifts and deprived her of other
work privileges and incentives. Id., ¶¶ 5,
ultimately filed a Charge of Discrimination with the D.C.
Office of Human Rights on October 24, 2018, see
Compl., Exh. 1, and, less than a month later, requested that
the Equal Employment Opportunity Commission issue her a
Notice of Right to Sue. See Opp., Exh. 1. The
Notice, issued November 27, informed her that, although fewer
than 180 days had elapsed since the filing of the charge, the
EEOC had “determined that it is unlikely that the EEOC
will be able to complete its administrative processing within
180 days from the filing of this charge.” Compl., Exh.
2 at 1.
received that Notice, she filed the current action on
December 19, 2018, which asserts one count for sex
discrimination, presumably under Title VII. See
Compl. at 2. Defendant now moves to dismiss.
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of an action where a complaint fails to “state a claim
upon which relief can be granted.” Although
“detailed factual allegations” are not necessary
to withstand a Rule 12(b)(6) motion, Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007), “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 quotations marks and citation omitted). In weighing
a motion to dismiss, a court “may consider only the
facts alleged in the complaint, any documents either attached
to or incorporated in the complaint[, ] and matters of which
[the court] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C.
Cir. 1997). The Court “must treat the complaint's
factual allegations as true and must grant [the] plaintiff
‘the benefit of all inferences that can be derived from
the facts alleged.'” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)
(quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979)) (internal citations omitted). It need not
accept as true, however, “a legal conclusion couched as
a factual allegation” or an inference unsupported by
the facts set forth in the Complaint. Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
the Rule 12(b)(6) stage, a Court can review “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. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d
117, 119 (D.D.C. 2011) (citations omitted); see also
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133
(D.C. Cir. 2015) (“A district court may consider a
document that a complaint specifically references without
converting the motion into one for summary judgment.”).
In this case, King has included her Charge of Discrimination,
her Notice of Right to Sue, and her email exchange seeking
the Notice. The Court may, therefore, properly consider these
items without converting Defendant's Motion into one for
spends no time in its Motion discussing either fashion or
discrimination; instead, it makes one simple point: Plaintiff
has jumped the gun. More specifically, she must wait 180 days
under 42 U.S.C. § 2000e-16(c) for the full EEOC process
to play out before running to court. This is correct. The
D.C. Circuit addressed this very question in Martini v.
Fed. Nat'l Mortg. Ass'n, 178 F.3d 1336 (D.C.
Cir. 1999). Faced with a plaintiff who had, like King,
requested a right-to-sue letter within 180 days of the filing
of her administrative complaint and then had also filed her
federal suit before the full period had run, the Circuit
concluded: “We thus hold that Title VII complainants
must wait 180 days after filing charges with the EEOC before
they may sue in federal court.” Id. at 1347.
The basis was that short-circuiting the EEOC process
“undermines [the Commission's] express statutory
duty to investigate every charge filed.” Id.;
see also Murthy v. Vilsack, 609 F.3d 460, 464 (D.C.
Cir. 2010) (explaining that Martini
“interpreted the 180-day period . . . to be a mandatory
did acknowledge that the waiting period is not
jurisdictional, but is instead “a requirement that,
like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling.” 178 F.3d at 1348
(internal quotation marks and citation omitted). As Defendant
has certainly not waived the defense, having asserted it at
the first possible instance, and as King does not posit that
some equitable basis should prevent its application, the
Court must find her suit premature.
with this unambiguous command from the Court of Appeals,
Plaintiff's Opposition largely emphasizes the policy
implications behind pregnancy-discrimination laws. The Court
casts no shade on the merits of such points, but notes only
that they are irrelevant to the exhaustion question at issue
here. In a Sur-reply, King cites numerous out-of-circuit
cases to show that other courts have handled the matter
differently from the D.C. Circuit. See ECF No. 16 at
3-4. This Court, of course, cannot pick which precedent it
most esteems; instead, it has an obligation to follow the law
of this Circuit, which, while acknowledging that
others have disagreed, has articulated a clear interpretation
of the statute at issue. See Martini, 178 F.3d at
Court should also note that it is not terribly helpful for
the Commission to deliver a right-to-sue letter to plaintiffs
before the 180 days have run, even if plaintiffs so request.
It is possible that some EEOC confusion is caused by the
different circuit law, but the Washington Field Office should
be cautioning plaintiffs in clearer language than appears in
the ambiguous email here that they must wait for the full ...