United States District Court, District of Columbia
TIMOTHY J. KELLY UNITED STATES DISTRICT JUDGE.
Savage filed this suit against the District of Columbia and
several employees of its Department of Corrections (DOC) in
August 2018, over six years after pursuing a charge of
discrimination with the District of Columbia Office of Human
Rights (OHR) about the same matter. ECF No. 1. In his
operative complaint, he alleges that on September 13, 2011,
Defendants rescinded a DOC employment posting for which he
applied and was qualified because they did not want to hire
him on account of his disability. ECF No. 16
(“Compl.”) ¶¶ 14-15. He alleges
violations of the District of Columbia Human Rights Act
(DCHRA), D.C. Code § 2-1401.01 et seq., the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.,
and 42 U.S.C. § 1983, and he also brings a common-law
claim of negligent failure to select, train, and supervise.
Id. ¶¶ 16-21. Before the Court are
Savage's Motion for Leave to File a Second Amended
Complaint, ECF No. 22, and Defendants' Motion for
Judgment on the Pleadings, ECF No. 34, in which they assert,
among other things, that Savage's claims are untimely.
For the reasons explained below, the Court will deny Savage
leave to amend on futility grounds, grant Defendants'
motion, and dismiss the case with prejudice.
Rule of Civil Procedure 15(a)(2) provides that when a party
moves for leave to amend its complaint, the court should
“freely give leave [if] justice so requires.”
That said, a district court may deny such a motion when the
amendment would be futile, including where the amended
complaint “would not survive a motion . . . for
judgment on the pleadings.” Jung v. Ass'n of
Am. Med. Colls., 226 F.R.D. 7, 9 (D.D.C. 2005).
moving for judgment on the pleadings “must show that no
material issue of fact remains to be solved and that it is
entitled to judgment as a matter of law.” Judicial
Watch, Inc. v. U.S. Dep't of Energy, 888 F.Supp.2d
189, 191 (D.D.C. 2012); see also Fed.R.Civ.P. 12(c). Although
a motion for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c) “is functionally equivalent to a
Rule 12(b)(6) motion, ” Rollins v. Wackenhut
Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012), where
“matters outside the pleadings are presented to . . .
the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d).
“Summary judgment is appropriately granted when,
viewing the evidence in the light most favorable to the
non-movants and drawing all reasonable inferences
accordingly, no reasonable jury could reach a verdict in
their favor.” Lopez v. Council on Am.-Islamic
Relations Action Network, Inc., 826 F.3d 492, 496 (D.C.
moved for judgment on the pleadings on the ground, among
others, that all of Savage's claims in the operative
complaint are time-barred. See ECF No. 34. Savage,
for this part, sought leave to amend, although the claims
asserted in his proposed amended complaint are materially
identical to those in the operative complaint. See
ECF No. 22. As explained below, Savage may not proceed
with his DCHRA claims because he elected to avail himself of
administrative remedies, and his remaining claims are
untimely. Thus, permitting him to amend his complaint would
be futile, and this action must be dismissed.
as Savage appears to concede, his DCHRA claim is
“barred due to [his] election to seek an administrative
remedy.” ECF No. 35 at 8; see Carter v. District of
Columbia, 980 A.2d 1217, 1223 (D.C. 2009) (“[T]he
jurisdiction of the court and OHR are mutually exclusive in
the first instance. Thus, where one opts to file with OHR, he
or she generally may not also file a complaint in
court.” (quoting Brown v. Capitol Hill Club,
425 A.2d 1309, 1311 (D.C. 1981))); ECF No. 24 at 10
(“Plaintiff concedes that DCHRA claims are unavailable
due to his election of administrative remedies, pursuant to
DC Code Sec. 2-1403.16(a) . . . .”). The record
reflects that Savage chose to file a complaint with OHR, was
fully heard, and lost. See ECF No. 34-1; ECF No.
34-3; ECF No. 35 at 6.
Savage's ADA claim fails because he did not file suit
within 90 days of receiving a notice of his right to sue from
the Equal Employment Opportunity Commission (EEOC). 42 U.S.C.
§§ 2000e-5(f)(1), 12117(a). The EEOC issued Savage
his notice on December 14, 2012, which the Court presumes
that he received three days later. See ECF No. 34-2
at 5; ECF No. 1-1, Savage v. District of Columbia
Dep't of Corrections, No. 13-cv-00312 (RJL) (D.D.C.
Mar. 11, 2013); Baldwin Cty. Welcome Ctr. v. Brown,
466 U.S. 147, 148 n.1 (1984) (per curiam) (citing former
Fed.R.Civ.P. 6(e)). Savage brought his ADA claim over five
years later, see ECF No. 1, well outside the required 90-day
Savage's claim under 42 U.S.C. § 1983 is barred by
the applicable three-year statute of limitations. See
Earle v. District of Columbia, 707 F.3d 299, 305
(D.C. Cir. 2012) (citing D.C. Code § 12-301(8)).
“As a general rule, [a] claim normally accrues when the
factual and legal prerequisites for filing suit are in
place.” Id. at 306 (alteration in original)
(internal quotations omitted). Savage's Section 1983
claim is premised on Defendants' “denial of
employment, ” Compl. ¶ 21; ECF No. 22-1 ¶ 21,
and thus Defendants argue that this claim accrued on
September 13, 2011, when DOC rescinded the relevant
employment posting, ECF No. 34 at 8. Savage filed this suit
on August 28, 2018, see ECF No. 1, almost seven years later,
well outside the three-year window. And while neither party
raised the potential effect of the discovery rule on
Savage's claim, the Court notes that it would not, in any
case, render his claim timely.
for similar reasons that his Section 1983 claim is untimely,
Savage's negligence claim fails to meet the three-year
statute of limitations. See D.C. Code § 12-301(8).
Savage's arguments to the contrary save his claims. He
argues that the statutes of limitations did not begin to run
until April 30, 2018, when the D.C. Superior Court denied his
petition for review of his OHR decision. See ECF No. 35 at 7.
But he cites no legal authority for that proposition, or that
his prior related litigation in this Court-which was
dismissed-tolls the statute of limitations either. Indeed,
“once a suit is dismissed, even if without prejudice,
‘the tolling effect of the filing of the suit is wiped
out and the statute of limitations is deemed to have
continued running from whenever the cause of action accrued,
without interruption by that filing.'” Ciralsky
v. C.I.A., 355 F.3d 661, 672 (D.C. Cir. 2004) (quoting
Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir.
Savage's conclusory request for equitable tolling based
on “the tortured course of this case” fails to
show that such tolling is warranted. ECF No. 35 at 8. The
Court notes that the ADA's 90-day limitations period can
be equitably tolled. See Smith-Haynie v. District of
Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998). But
such an exception should be afforded “only in
extraordinary and carefully circumscribed instances.”
Id. at 580 (quoting Mondy v. Sec'y of the
Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). Savage has
not shown that his case merits this extraordinary relief. See
Jordan v. Quander, 882 F.Supp.2d 88, 95 (D.D.C.
2012) (“Plaintiff alone bears the burden of
establishing an equitable basis for excusing h[is] failure to
file h[is] complaint within the 90-day limitations
period.”). Moreover, as a general rule, District of
Columbia law does not recognize an equitable-tolling
exception to the three-year statute of limitations that
governs his Section 1983 and negligence claims. See Bundy
v. Sessions, 387 F.Supp.3d 121, 125 (D.D.C. 2019).
bottom, Savage's claims are untimely or, in the case of
his DCHRA claim, otherwise foreclosed by statute. And the
minor changes he makes in his proposed amended complaint do
not affect these conclusions. See ECF No. 22-1. Accordingly,
permitting Savage to amend his complaint would ...