UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) BARBARA JEAN KONE, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 11-0054 (RJL) DISTRICT OF COLUMBIA, etaI., ) ) Defendants. )

### ----------------------------~) MEMORANDUM OPINION This matter is before the Court on the District ofColumbia's motion to dismiss. For the
reasons discussed below, the motion will be granted. 

### 1. BACKGROUND Plaintiffalleges that defendant discriminated against her on the basis ofher age by terminating her employment as a special educationteacher with the District ofColumbia Public Schools ("DCPS") effective August 1, 2008. 1 See CompI. at 1. She filed a formal charge of
It appears that plaintiffwas terminated because she did not obtain the proper license. DCPS submitted the following statement to the EEOC: Ms. Kone's termination was based solely on her failure to attain her teacher licensure. Despite being repeatedly advised ofthe need to attain a teacher license Ms. Kone failed to meetall necessaryrequirements and still hadnotearnedapassing score ... on the Praxis I Math examination at the time ofher termination. While DCPS acknowledges that Ms. Kone attempted on at least four occasionsto pass the PraxisIMathexamination,underthefederal NoChildLeftBehindlegislation,DCPS is required to ensurethat all ofitsteachers are certifiedandhighlyqualifiedto teach. 

## * * * (continued
...)

1discrimination with the Equal Employment Opportunity Commission ("EEOC"), and on September 21,2010, the EEOC issued its right-to-sue letter. Compl., Ex. (Dismissal and Notice ofRights, EEOC Charge No. 570-2008-02337, dated September 21,2010). Plaintiffbrings this action under the Age Discrimination in Employment Act ("ADEA"),


### see 29 U.S.C. §§ 621-34, and she demands "lost wages, back pay, benefits restoration, the value ofhealth benefits for retirement, severance pay, compensatory damages, punitive damages due to pain and suffering[,] personnel file correction, attorney fees and court costs." CompI. at 2. II. DISCUSSION 

### A. Plaintiff's Complaint Was Timely Filed In relevant part, the ADEA provides: Ifa charge filed withthe [EEOC]
...is dismissed orthe proceedings ofthe [EEOC] are otherwiseterminatedby the [EEOC], the [EEOC] shall notify the person aggrieved. A civil action may be brought underthis sectionby aperson ... againsttherespondentnamedinthe charge 

### within 90 days after the date of the receipt of such notice. 29 U.S.C. § 626(e) (emphasis added). It is generally presumed that a person receives her copy of the EEOC's notice within three days ofits issuance. 

### See Baldwin Cly. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (applying the presumptive three-day allowance set forth in FED. R. \
...continued) Ms. Kone did not meet all of[the] requirements. [She] received no fewer than five (5) letters reminding her ofthe teacher licensure requirement, that her continued employment was contingent upon complying with this requirement and that failure to comply would result in termination. All teachers who failed to satisfy the licensurerequirementreceived theseletters,regardless oftheirage. As aresultofher failure to comply, Ms. Kone was notified on July 22, 2008 that she would be terminated effective August 1, 2008. Compl., Ex. (Position Statement, EEOC Charge No. 570-2008-02337)**~** 2 (internal citations omitted). 2

### CIv. P. 6(e) for receipt offilings by mail); Coleman v. Potomac Elec. Power Co., 310 F. Supp. 2d 154, 158 (D.D.C. 2004). Defendant moves to dismiss the complaint onthe ground that it is untimely. See Mem. ofP. & A. 

### in Supp. ofDef.'s Mot. to Dismiss ("Def.'s Mem.") at 3. According to defendant, "[a]fter applying the presumptive three days allowed for receipt by mail, plaintifffiled her complaint on the one hundred and seventh day i.e. seventeen days after the days allowed." Id. 

### Review ofthe Court's docket reveals that the Clerk ofCourt received plaintiffs complaint and application to proceed informapauperis on December 23,2010,2 that the Court approved plaintiffs application to proceed informapauperis onJanuary 5, 2011, and that the Clerk ofCourt officially filed these documents onJanuary 10, 2011. Plaintiffis not responsible for the delay between the date the Clerk ofCourt received her complaint and the date on which the Clerk officially enters the complaint on the Court's electronic docket. See Guillen v. Nat 'I Grange, 955 F.Supp. 144, 145 (D.D.C. 1997) (finding a Title VII litigant "not responsible for the administrative delay associated with the Court's review ofpetitions to proceed informapauperis

. . .. [T]he presentation ofa complaint [and] a petition to proceed informapauperis tolls the ninety-day period oflimitations
....") (citations omitted). Assuming that plaintiffreceived the right-to-sue notice on September 24,2010, three days after its issuance, the last day on which she could submit her complaint to the Clerk ofCourt would have been ninety days later, on December 23, 2010. The Court concludes that plaintiffs complaint was timely filed. See Stone
v. Landis Const. Corp., 733 F. Supp. 2d 148, 151 (D.D.C. 2010) (denying motion to dismiss Title

2 It

### is the Clerk's practice to date stamp the first page ofapro se plaintiffs complaint and application to proceed informapauperis upon receipt ofthe original papers. 

### 3VII and ADEA claims where the complaint was received five days before expiration of90-day filing period calculated from the first date on which Clerk ofCourt received the complaint). B. 

### Plaintiff Concedes Defendant's RemainingArguments Under Local Civil Rule 7(b), ifa party fails to file a memorandum ofpoints and authorities in opposition to a dispositive motion by the deadline set bythe Court, "the Court may treat the motion as conceded." LCvR 7(b). "[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded." 

### Rosenblatt v. 

### Fenty, 734 F. Supp. 2d 21, 22 (D.D.C. 2010)( citing 

### Bonaccorsy v. 

### District of Columbia, 685 F. Supp. 2d 18,24 (D.D.C. 2010)) (other citations omitted); 

### Hopkins v. 

### Women's Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) ("It is well understood in this Circuit that when a plaintifffiles an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintifffailed to address as conceded.") ( citations omitted). Defendant argues that the exclusive remedy for any claim regarding plaintiffsretirement falls under the District's Comprehensive Merit Personnel Act ("CMPA"), 

### see D.C. Code 

### § 1- 

### 601.01 et seq., rather than a lawsuit in federal district court. 

### See Def.'s Mem. at 4. In addition, defendant asserts that plaintifffailed to comply with mandatory notice requirements, 

### see D.C. Code § 12-309, prior to seeking damages for any loss ofretirement benefits. 

### See Def.'s Mem. at 5-6. Plaintiffs opposition, although timely filed, addresses neither ofthe arguments defendant raised. The Court will treat defendant's two remaining arguments for dismissal as conceded. 

### See Hoffman v. 

### District of Columbia, 681 F. Supp. 2d 86, 94 (D.D.C. 2010) (granting as conceded the District's motion to dismiss because plaintifffailed to respond to its arguments for dismissal
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### ofplaintiffs' claims against it); see also Cummings ex reI. 

## Jc. v. Woodson Senior High 

### Sch., 563 

### F. Supp. 2d 256,259 (D.D.C. 2008) ("The brief[plaintiff's counsel] filed
... is filled with irrelevant legal principles and citations
... , and does not address the substance ofdefendants' arguments as to why plaintiff's claims under the IDEA should be dismissed. As a result, the Court will dismiss plaintiff's IDEA claims."). 

### III. CONCLUSION The Court finds that plaintifftimely filed her complaint. The complaint must be dismissed, however, because plaintiffhas conceded the remaining arguments set forth in defendant's dispositive motion. The Court will grant defendant's motion and will dismiss this action. An Order accompanies this Memorandum Opinion. 

# r;Z'

# :ICH~ United States District Judge

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