Uzoukwu v. Metropolitan Washington Council of Governments

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE
OFFICIAL REPORTERS

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CHINYERE UZOUKWU, )
)
Plaintiff, )
)
vs. ) Civil Action No. 11-cv-391 (RLW)
)
METROPOLITAN WASHINGTON )
COUNCIL OF GOVERNMENTS, et )
al., )
)
Defendants. )
)

MEMORANDUM OPINION 1

In this employment discrimination action pro se plaintiff Chinyere Uzoukwu asserts

disparate treatment and retaliation claims pursuant to Title VII, 42 U.S.C. § 2000e, et seq., the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Americans

With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (See Compl. ¶¶ 1-2.) She also raises

potential claims under the Equal Pay Act, 29 U.S.C. § 206(d) and asserts various claims under

District of Columbia law. (See Compl. ¶¶ 2, 51, 52.) Uzoukwu brings these claims against the

Metropolitan Washington Council of Governments (“MWCG”) and eight individual defendants,

seven of whom are current and former MWCG employees. An eighth individual defendant,

Molly Keller, is associated with MHNET, a behavioral health entity that provides services to

1
This is a summary opinion intended for the parties and those persons familiar with the
facts and arguments set forth in the pleadings; not intended for publication in the official
reporters.

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MWCG. MWCG is an independent nonprofit association comprised of elected officials from 21

local governments, members of the Maryland and Virginia state legislatures, and members of the

U.S. Congress. (See Doc. 2, MWCG Mot. to Dismiss at 2; Compl. ¶ 5.)

Presently before the court are nine motions. 2 For the reasons set forth below, the court

2
The nine motions are as follows:

1. “Defendants’ Motion to Dismiss” filed by MWCG and its seven current and
former employees: Calvin L. Smith, Sr., Paul DesJardin, Dennis Bailey, Imelda
Roberts, Janet Ernst, Eulali Gowers Lucas (misidentified in the complaint as
“Eulalie”), and Abdul Mohammed (misidentified in the complaint as “Abdoul
Mohammad”), (Doc. 2.);

2. “Plaintiffs’ [sic] Motion in Opposition to Motion to Dismiss and Alternatively
Request for Leave to Amend,” (Docs. 3-4);

3. “Motion to Reinstate Plaintiffs’ [sic] Filing to Date of Presentation of November
16, 2010,” (Doc. 14);

4. “Plaintiffs’ [sic] Motion for Surreply in Opposition to Defendants [sic] Reply in
Support of Their Motion to Dismiss and Opposition to Plaintiff’s Motion to
Reinstate Filing Date and in the Alternative Plaintiffs’ [sic] Resubmission of
Request for Leave to Amend,” (Doc. 21);

5. “Motion to Dismiss” filed by defendant Molly Keller, (Doc. 23);

6. “Defendants’ Motion to Strike Plaintiff’s Surreply and Amended Complaint” filed
by MWCG and its current and former employees, (Doc. 24);

7. “Plaintiff’s Opposition to Defendant Molly Keller’s Rule 12(b)(2), 12(b)(5), and
12(b)(6) Motion to Dismiss and in the Alternative Request for Leave to Amend
Complaint,” (Doc. 26)

8. “Motion for Notice and Leave to Transfer (Change of Venue) Pursuant to U.S.C.
28 § 1404(a) of an Action in the Superior Court for the District of Columbia
CA No. 2011-04405-B to the U.S. District Court for the District of Columbia,
Pursuant to Supplemental Jurisdiction, U.S.C. 28 § 1367(a) and in the Alternative,
Request for Leave to Join and/or Amend,” (Doc. 30); and

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will grant both motions to dismiss. All other motions will be denied.

II. STANDARD OF REVIEW

“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, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). The court must treat a Rule 12(b)(6) motion to dismiss as a Rule 56 motion for

summary judgment if “matters outside the pleadings are presented to and not excluded by the

court.” Fed. R. Civ. P. 12(d).

The party seeking summary judgment bears the initial burden of demonstrating no

genuine issues of material fact exist. See Fed. R. Civ. P. 56. When determining whether genuine

issues of material fact exist, the court must draw all justifiable inferences from the evidence in

favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), cited in

Cruz-Packer v. Dist. of Columbia, 539 F. Supp.2d 181, 189 (D.D.C. 2008). However the

nonmovant cannot simply rest on her pleadings; rather “the nonmoving party [must] go beyond

the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted).

9. “Plaintiff’s Motion and Memorandum in Support for Appointment of Counsel,
Joinder of Additional Defendants and Request for Leave to File and Serve the
Third (3rd) Amendment [sic] Complaint,” (Doc. 35).

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III. ANALYSIS

In their Motion to Dismiss, MWCG and its seven current and former employees argue

that the claims asserted against the individual defendants are not actionable and Plaintiff

concedes that Defendants are correct. (See Doc. 3, Pl.’s Resp. to MWCG’s Mot. to Dismiss at

11); see Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991) (holding that “relief

granted under Title VII is against the employer, not individual employees whose actions

constituted a violation of [Title VII]”), cited in Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir.

1995). Accordingly, Plaintiff’s federal claims asserted against these seven individuals (Calvin L.

Smith, Sr., Paul DesJardin, Dennis Bailey, Imelda Roberts, Janet Ernst, Eulali Gowers Lucas,

and Abdul Mohammed) will be dismissed with prejudice. 3

With respect to the timeliness of the present action, MWCG argues Plaintiff’s lawsuit

was untimely because she failed to file the lawsuit within ninety days after she received her right

to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1) (Title VII); 29 U.S.C. § 626(e)

(ADEA); 42 U.S.C. § 12117(a) (applying Title VII limitations period to ADA claims). “Because

3
Although Plaintiff admitted in her response to Defendant’s brief that she did not have
viable claims against these seven individual defendants, (see Doc. 3, Pl.’s Resp. to MWCG’s
Mot. to Dismiss at 11), she later attempted to file a sur-reply brief and motion for leave to amend,
in which she claims these defendants should not be dismissed because she may properly pursue
other claims against them. (Doc. 21, Mot. to file Sur-reply at 7.) While she submitted a
proposed amended complaint, certain information was redacted and she never spelled out how
the proposed complaint differed from her original complaint. (See Doc. 21-3.) It appears that
she added new state law claims against the individual defendants, but there is nothing in the
complaint that establishes the court’s jurisdiction over those claims.
Later Plaintiff filed another request to amend, (Doc. 26), and included a thirty-six page
proposed complaint, but again failed to indicate how those proposed amendments differ from her
initial complaint in this lawsuit.

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untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the

burden of pleading and proving it. If the defendant meets its burden, the plaintiff then bears the

burden of pleading and proving facts supporting equitable avoidance of the defense.” Bowen v.

United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citation omitted).

The following facts are relevant to the timeliness issue. In connection with her

employment and subsequent termination from MWCG, Plaintiff filed an EEOC charge and

ultimately obtained a “right to sue” letter dated August 18, 2010, which informed Plaintiff of her

obligation to bring any discrimination claims within 90 days of receipt of the letter. (See Doc. 1-

1, Attachment to Compl.) Although Plaintiff has not submitted a sworn declaration to support

any of her factual assertions, she claims she received the right to sue letter on August 26, 2010.

If so, she had until November 24, 2010 to file a timely law suit.

On November 16, eight days before the deadline expired, Plaintiff attempted to initiate

her lawsuit in this court by filing an “Application to Proceed Without Payment of Fees and

Affidavit,” also known as an application to proceed in forma pauperis (“IFP”). (See Doc. 1,

Uzoukwu v. Metropolitan Washington Council of Governments, 11-mc-15-UNA). Her IFP

request was denied on November 20 and apparently mailed on November 23, but Plaintiff claims

she received the denial order on December 2, 2010. (Doc. 3, Pl’s Response to MWCG’s Mot. to

Dismiss at 4; id. at Exs. 3-4.)

Forty days later, on January 11, 2011, Plaintiff filed a motion for reconsideration of her

IFP request and, in the alternative, asked for the court to “reinstate filing and relate the time back

to the presented [sic] of November 16, 2010.” (Doc. 1, Uzoukwu v. Metropolitan Washington

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Council of Governments, 11-mc-15-UNA.) In her motion to reconsider, Plaintiff indicated she

was still unable to secure employment and therefore faced financial and economic hardship.

Apparently, she also claims to have discovered that the EEOC allegedly failed to investigate her

retaliation allegations and/or consider her evidence in opposition to that presented by MWCG.

However, Plaintiff failed to put forth any new and material arguments or facts in her motion to

reconsider. The motion was denied on January 31, 2011. 4 (Doc. 2, Uzoukwu, 11-mc-15-UNA.)

It is not entirely clear when Plaintiff received the denial order, but she filed the current lawsuit on

February 16, 2011, sixteen days after entry of the order.

Plaintiff’s complaint in the present law suit, filed 174 days after she claims to have

received her right to sue letter, was clearly untimely. However, the 90 day limitations period was

tolled during the time her IFP application was pending. 5 See, e.g., Williams-Guice v. Board of

4
Other judges on this court handled Plaintiff’s IFP application and her motion for
reconsideration. In the order denying the motion for reconsideration, the court noted that
Plaintiff’s request to “reinstate” her filing back to the date presented to the court was a moot
point because the document was not “filed.” (Doc. 2, Uzoukwu, 11-mc-15-UNA, Mem. Op. at
n.1.) Instead her documents were “received” by the Clerk of the Court because they did not
meet “the requirements for filing, i.e., payment of the applicable filing fee or the grant of in
forma pauperis status.” (Id.)
5
There is conflicting authority about whether the issuance of the IFP denial order or the
plaintiff’s receipt of the order ends the tolling period. See Williams-Guice,45 F.3d at 164-65;
Nkengfack v. American Ass’n of Retired Persons, Civil Action No. 11–00530 (BAH), ___ F.
Supp.2d ___, 2011 WL 4894227, at *4 (D.D.C. Oct. 14, 2011) (citing cases from the instant
court and Williams-Guice,45 F.3d at 165). Even if the plaintiff’s receipt of the order ends the
tolling period, the instant court is reluctant to credit Plaintiff’s unsworn claims about when she
received the IFP denial order and the various documents at issue. Nonetheless, because crediting
Plaintiff’s claims has no negative impact on the Defendants, the court has given Plaintiff the
benefit of the doubt.

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Educ. of City of Chicago, 45 F.3d 161, 164-65 (7th Cir. 1994); Truitt v. County of Wayne, 148

F.3d 644, 647 (6th Cir. 1998); Williams v. Court Services and Offender Supervision Agency for

D.C., Civil Action No. 08–1538 (RWR), ___ F. Supp.2d ___, 2012 WL 35554 (D.D.C. Jan. 9,

2012). Crediting Plaintiff’s claims that she received the IFP denial order on December 2, 2010,

the limitations period resumed on that same date and, therefore, her complaint was due eight days

later on December 10.6

Rather than pay the fee by December 10, or within a reasonable time thereafter, see

Williams-Guice, 45 F.3d at165, Plaintiff waited until January 11, 2011 to file a motion to

reconsider and request permission to pay the filing fee. This motion was filed 32 days after the

December 10 deadline and the motion was not accompanied by payment of the filing fee.

Indeed, Plaintiff did not pay the filing fee until she filed the complaint in the instant lawsuit on

February 16, 2011, which was 68 days after the December 10 deadline.

Plaintiff asks for leniency with respect to her late filing, but she fails to present any facts

which might support further tolling of the limitations period beyond December 10. It is apparent

from the record that the Plaintiff was aware she faced a critical filing deadline. Yet, she fails to

offer a legitimate explanation for why she did not pay the fee and/or file her motion to reconsider

before the December 10 deadline, or within a reasonable amount of time thereafter. Rather, she

claims she believed her claim was dead upon denial of the IFP motion, but “[u]pon further and

6
Plaintiff had eight days remaining in the limitations period when she submitted her
original complaint and IPF application. Accordingly, once tolling ended, she had the benefit of
the remaining eight days

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diligent investigation,” she discovered otherwise, at which time she filed her motion to

reconsider. (Doc. 3, Pl’s Resp. to MWCG’s Mot. to Dismiss at 4.) She blames her tardiness on

the failure of the Clerk’s office to inform her within the 90 day window to re-submit her IFP

application. (Doc. 26, Pl.’s Resp. to Keller’s Mot. to Dismiss at 3 n.1.)

The Clerk’s office has no duty to educate parties about how to interpret federal EEO

statutes and regulations on timeliness. Indeed, the Clerk of Court, her deputies and her assistants

are prohibited from giving legal advice of any kind. See 28 U.S.C. § 955. Whether or not they

did so, Plaintiff’s ignorance of the law and/or neglect were the blame for her tardiness, not some

allegedly belated communication from the Clerk’s office to re-submit her IFP motion. In the

absence of evidence that Plaintiff had a legitimate excuse for failing to diligently to preserve her

claims, she is not entitled to leniency. See Williams, --- F. Supp.2d ----, 2012 WL 35554, at *4

(“Equitable tolling is appropriate where a plaintiff can demonstrate that he acted diligently to

preserve his claim.”)(citations omitted); Mondy v. Secretary of the Army, 845 F.2d 1051, 1057

(D.C. Cir. 1988) (noting that the United States Supreme Court has suggested that equitable

tolling might be appropriate where: “a claimant has received inadequate notice, where a motion

for appointment of counsel is pending and equity would justify tolling the statutory period until

the motion is acted upon, where the court has led the plaintiff to believe that she had done

everything required of her, or where affirmative misconduct on the part of a defendant lulled the

plaintiff into inaction.”) (citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151

(1984)). “Where a pro se litigant has demonstrated previous proficiency in filing timely

[pleadings, she] cannot then use h[er] pro se status as a ‘defensive shield’ from h[er] own

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neglect.” Wallace v. Georgia Dept. of Transp., 212 Fed. Appx. 799, at *803 (11th Cir. 2006)

(citation omitted). Accordingly, Plaintiff’s Title VII, ADA and ADEA claims as asserted against

MWCG will be dismissed as untimely.7

IV. CONCLUSION

For the reasons set forth above, even viewing the facts in the light most favorable to

Plaintiff, the court finds that Plaintiff has failed to assert facts upon which relief may be granted,

pursuant to Federal Rule of Civil Procedure 12(b)(6) with respect to the federal claims asserted

against MWCG and the seven individual current and former employee defendants. To the extent

Plaintiff asserts state law claims against the seven individual defendants, said claims will be

dismissed for lack of subject matter jurisdiction.

Further, the court finds that it lacks subject matter jurisdiction over Plaintiff’s state law

7
Although Plaintiff asserts that this Court has “jurisdiction” pursuant to, inter alia, the
Equal Pay Act (“EPA”), 29 U.S.C. § 206(d), she asserts no facts in support of an EPA claim.
(See Compl. ¶ 2.) Rather, her complaint alleges non-compensation related discrimination and
retaliation. As such, her EPA claims will be dismissed.
Inasmuch as all federal claims will be dismissed, to the extent Plaintiff asserts claims for
invasion of privacy, (see Compl. ¶ 51), said claim will be dismissed because there is nothing in
the complaint that established subject matter jurisdiction for said claim.
Plaintiff has clarified in one of her briefs that the only claims asserted against Molly
Keller, of MHNET Behavioral Services, are for tortious interference and “bias/politically
motivated violence/intimidation in violation of DC Statutes.” (Doc. 26, Pl.’s Resp. to Keller’s
Mot. to Dismiss at 4.) Whether or not the latter claim actually exists in the D.C. Code, Plaintiff’s
claims asserted against Keller will be dismissed because there is nothing in the record which
indicates this Court has subject matter jurisdiction over those state law claims and there is no
evidence that Keller was properly served. (See Doc. 13, Return of Service/Affidavit) (indicating
service to Keller on MWCG.)

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claims asserted against defendant Keller. Additionally said claims are due to be dismissed for

failure to effectuate service of process. Accordingly, by separate order, Defendants’ motions to

dismiss will be granted and all other motions will be denied. 8

Digitally signed by Judge
Robert L. Wilkins
SO ORDERED. DN: cn=Judge Robert L.
February 28, 2012 Wilkins, o=U.S. District Court,
ou=Chambers of Honorable
Robert L. Wilkins,
email=RW@dc.uscourt.gov,
c=US
Date: 2012.02.28 14:29:35
-05'00'
___________________________
Robert L. Wilkins
United States District Judge

8
The motions hearing previously set for March 12, 2012 will be canceled.

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