CARMEN JONES,

v. 

### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Plaintiff, Civil Action No. 08-1914 (RJL) THE WASHINGTON TIMES, etaI., Defendants.


### MEMORANDUM OPINION This matter is before the Court on defendants' motions to dismiss or for a more definite statement. Forthe reasons discussed below, the Court grants defendants' motions inpart, and Counts One, Three, and Four ofplaintiffs amended complaint may proceed as against The Washington Times, LLC. I. BACKGROUND Plaintiffis an African American female who was at least 40 years ofage at all times relevantto the complaint. Amd. CompI.**~~** 4, 140-41. She brings this employment discrimination action against her former employer, The Washington Times, LLC ("the Times"), and two ofits employees, R. Scott Daeschner, Single Copy Sales Manager, and James Dick of the Times' Loss Prevention Section, underthe Americans with Disabilities Act of 1990 ("ADA"), see 42 U.S.C. § 12112 etseq., the Age Discrimination in Employment Act of 1967 ("ADEA"), see 29 U.S.C. § 621 etseq., the Equal Pay Act of 1963 ("EPA"), see 29 U.S.C. § 206(d), Title VII ofthe Civil Rights Act of 1964 ("Title VII"), see 42 U.S.C. § 2000e etseq., and

142 U.S.C. § 1981. 1 See id. (caption); see also id.**~~** 6-7. From August 2005 until hertermination on October 17, 2006, plaintiffheld the position ofSingle Copy Supervisor and she oversawdelivery routes for the Times' daily circulation newspaper inNorthernVirginia. See Amd. Compi.**~~** 17, 113. The Times representedthat "[e]ssential elements ofPlaintiffsjob included being able to take papers from the warehouse to her car and then to stores and dispensing boxes. Itwas also necessary to have a valid driver's license, a clean driving record, and a car." Mem. ofP. & A. Supporting the Mot. to Dismiss or for More Definite Statementby Def., The Washington Times, LLC ("Times Mot.") at 3. OnNovember 1, 2005, "[ w]hile loading bundles ofnewspapers into her vehicle," plaintiff sustained an injury to herright hand and forearm. Amd. Compi.**~** 23. She sought medical attention, and onNovember 5,2005, she was "placed in an wrist/arm brace, and on Work restriction oflimited lifting." Id.**~** 24. In the following months, disagreements arose pertaining to plaintiffs injury and its impact onher ability to perform her duties. See id.**~~** 46-55. On January 5, 2006, she was issued a written warning "formissing Doctor's appointments while on vacation." Id.**~** 27. On March 2,2006, plaintiffwas issued a written warning "for Insubordination and Disrespectful and Courteous Conduct.

.. for incidents from 2 and 4 weeks earlier," id.**~** 58, and onMarch 7, 2006, plaintiffwas issued an oral warning arising from a separate incident, id.**~** 64, and these incidents apparently pertainedto plaintiffs work restrictions and duties she was unable to perform. Plaintiffsoughttreatment at a hospital emergency room

Plaintiffalso named Randall Casseday, Tim Gibson and Rick Epstein, the Times' Human Resources Director, Single Copy Operations Manager, and Circulation Director, respectively, as defendants to this action. Amd. Compi.**~~** 5, 8-9. These defendants have been dismissed withoutprejudice as parties to this action due to improper service ofprocess. 2

### on March 24, 2006 after experiencing "tingling in [her] fingers/spasms" she described as "an exacerbation ofthe Work-comp injury," and thereafter her arm was placed "in [a] sling" and she

was given instructions to rest for three days. Id.**~** 

### 67. OnMarch 29, 2006, plaintiffwas issued "aWritten Reprimand for 3 consecutive unexcused absences" from work. Id.**~** 

### 73. Thereafter, plaintiffunderwent "WorkHardening Rehab for 3.5 months," during which time she "was still expected to be physically present at the office" to perform her other duties. Id.**~** 

### 89; see id.**~~** 

### 90-91,93-95. Apparently plaintiffreturned to full duty on or about July 1,2006. See id.**~** 

### 100. While driving onAugust 31, 2006, plaintiffwas pulled overby a police officer, who discovered that plaintiffs driver's license had been suspended for a period of90 days. Amd. CompI.**~~** 

### 103-04. Plaintiffwas not able to obtain a restricted license or written confirmation as to the date on which her license would be reinstated. See id.**~** 

### 110. Plaintiffs lack ofa valid driver's license apparently triggered her termination on October 17,2006. 1 See id.**~** 

### 113. On or about May 24,2007, plaintifffiled with the Equal Employment Opportunity Commission ("EEOC") a formal charge ofdiscrimination based onrace, sex, retaliation, and disability, occurring between January 9, 2006, and October 17,2006. Times Mot., Ex. 1(Charge ofDiscriminationNo. 570-2006-01419). In relevant part, the charge stated: IwashiredbyWashingtonTimesinAugustof2004. Iwas employed as a Single[] Copy Supervisor when I was terminated on 10117/06. Between 02115/06 and 10117/06 Respondent refused to provide a reasonable accommodationformydisability. BetweenJanuary2006 and 10117/06 I was treated differently than the white Single[] Copy
"PlaintiffDENIES that failure to maintain a license was the final strawin a long list ofissues" culminating in her termination. Statement ofP. & A. 

### in Opp'nto Dismiss orfor More Definite Statementby Def., The Washington Times, LLC ("PI.'s Opp'nto Times Mot.") at 7 (page number designated by the Court). In her view, the "termination was retaliatory, and [] license issue wasjusta stratagem orpretext to hide the retaliation." Id. 

### 3SupervisorDavidRichards. Iwasrequiredto assistMr. Richards but he was notrequiredto assistme. Ibelieve Ihave beendiscriminated against based on my disability and in retaliation for asking for a reasonable accommodation in violation of the Americans with Disabilities Act of 1990 as amended. I also believe I have been discriminated against based on my race, Black, and my sex, female, inviolation ofTitle VII ofthe CivilRights Actof 1964, as amended. 

### Id. at 1. Plaintifffiled an Amended Charge on October 25,2007, and added a claim for discrimination based onthe Equal Pay Act: In additiontothe discriminationchargethatIfiled withtheEEOC on May 24, 2007, I would like to amend additional allegations to my original charge. Approximately inJune 2006, Ibecame aware that I received lower bonuses even with my high sales record at the time. I also was paid lowerthan my similarly situated male coworkerwho performed the same job duties as me. Furthermore, I have not received an evaluationor a raise that were [sic] due in August 2006. On the otherhand, my counterpart had received his. I believe that I have been discriminated against because ofmy race (Black), sex (female), and retaliated against in violation ofTitle VII ofthe Civil Rights Act of 1964, as amended. I believe that I have been discriminated against because ofmy disability, in violation of the Americans with Disabilities Act of 1990, as amended. I also believe that I have been discriminated against in violation of the Equal Pay Act of 1963, as amended. 

### Id. at 2 (Amendmentto Charge No. 570-2006-01419). The EEOC was "unable to conclude that the information obtained [during its investigation] establishe[d] violations ofthe statutes," and, accordingly, dismissed the charge onJuly 10, 2008. CompI., Ex. (Dismissal andNotice of Rights, EEOC Charge No. 570-2006-01419 (Amended». II. DISCUSSION 

### A. Disability Discrimination (Count One) Daeschner and Dick move to dismiss Count One ofplaintiffs Amended Complaint on

4the ground that they cannot be held liable under the ADA in their individual capacities. 

### See Statement ofP. & A. Supp. the Mot. to Dismiss or for More Definite Statement by Defs. R. Scott Daeschner and James Dick ("Daeschner & Dick Mot.") at 2. "The ADA prohibits discrimination 

### byan employer against a qualified individual with a disability who with or without reasonable accommodation canperform the essential functions of the positionthat the person desires to hold." 

### Amariglio v. 

### Nat 'IR.R. Passenger Corp., 941 F. Supp. 173, 177 (D.D.C. 1996) (citing 42 U.S.C. § 12112(a)) (emphasis added). Because an individual cannotbe held liable underthe ADA, the Court concludes that Count One must be dismissed as to Daeschner and Dick in their individual capacities. 

### See id. at 178 (dismissingthe individual defendants from the suit "because the ADA, like Title VII and the ADEA, does not provide for liability against individuals"); 

### Smith v. 

### Janey,
_ F. Supp. 2d_,_,2009 WL 2584821, at *5 (D.D.C. Aug. 24,2009) ("[T]here is no individual liability under Title VII, the ADEA or the ADA"); 

### Cooke-Seals v. 

### District o/Columbia, 973 F. Supp. 184, 187 (D.D.C. 1997) (dismissing ADA claim against defendantpolice officers in their individual capacities). 

### B. Age Discrimination (Count Two) 1. PlaintiffFailed to Her Available Exhaust Administrative Remedies With Respect Her Age Discrimination Claim The Times, Daeschner and Dick move to dismiss plaintiffs ADEA claim onthe ground thatplaintifffailed to exhaust administrative remedies. Times Mot. at 5-7; Daeschner & Dick Mot. at 2-3. Generally, a plaintiffcannot bring a claim in a lawsuit unless she first exhausts her administrative remedies as to that claim. 

### See 29 U.S.C. § 626(d) (providing that "[n]o civil



### 5action may be commencedby an individual

... until.

.. after a charge alleging unlawful discrimination has been filed with the [EEOC]"); 

### see Washington v. Washington Metro. Area TransitAuth., 160 F.3d 750, 752 (D.C. Cir. 1998). A subsequent civil action is limitedto the matters addressed at the administrative level. 

### See Parkv. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) ("A Title VII lawsuit following the EEOC charge is limited in scope to claims that are 'like orreasonably related to the allegations ofthe charge and growing out ofsuch allegations."') (citation omitted), 

### cert. denied, 519 U.S. 811 (1996). The Court may dismiss a claim when a plaintifffails to exhaust administrative remedies before filing a discrimination action. 

### Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003) (affirming the trial court's dismissal ofthe plaintiffs ADEA claim for failure to exhaust administrative remedies), 

### cert. denied, 543 U.S. 809 (2004). 

### In this case, plaintifffiled a formal charge ofdiscrimination onMay 24,2007, and amended the charge on October 25,2007. 

### See Times Mot., Ex. 1 (Charge No. 570-2006-01419 and Amendment). Plaintiffneither checked the box for discrimination based on age, nor included allegations ofage discrimination in the text ofher charge. 

### See id. 

### In her oppositionto defendants' motions, plaintiffmerely argues, without support, that her "Complainthas sufficient facts for which a claim for reliefcan be granted," and that "the Complaint does identify adverse action that were [sic] suffered because ofPlaintiffs age." Statement ofP. & A. in Opp'nto Dismiss or for More Definite Statementby Def., The Washington Times, LLC CPl.'s Opp'nto Times Mot.") at 4. Because plaintiffdid not pursue an age discrimination claim before the EEOC, she may not pursue an age discrimination claim in this Court. 

### See Peterson v. Archstone, 601 F. Supp. 2d
6123, 127 (D.D.C. 2009) (dismissing retaliation claim where EEOC charge alleged only age discrimination);

### Alfredv. 

### ScribnerHall & 

### Thompson, LLP, 473 F. Supp. 2d 6, 9 (D.D.C. 2007) (dismissing age discrimination claim where the EEOC charge alleged only race discrimination). 2. Daeschner and Dick CannotBe Held Liable In Their Individual Capacities Underthe ADEA Daeschner and Dick also move to dismiss onthe ground thatthey cannot be held personally liable under ADEA. Daeschner & Dick Mot. at 2-3. The Court concurs. 

### See Smith v. 

### Janey, 2009 WL 2584821, at *5; 

### Cruz-Packer v. 

### District of Columbia, 539 F. Supp. 2d 181, 185 (D.D.C. 2008) (dismissing Title VII and ADEA claims against the individual defendants because neitherprovides for liability against individual defendants in theirpersonal capacities); 

### Murphy

v. 

### PriceWaterhouseCoopers, LLP, 357 F. Supp. 2d 230,244 (D.D.C. 2004) (dismissing ADEA claims against all individual defendants). Count Two will be dismissed as against all defendants. C. 

### Race andSex Discrimination under Title VII(Counts Four andFive) Daeschner and Dick move to dismiss plaintiffs Title VII claims on the groundthatthe statute does not authorize lawsuits against supervisors in their individual capacities. Daeschner & DickMot. at 3. The law fully supports theirposition. "[W]hile a supervisory employee may bejoined as a party defendant in a Title VII action, that employee mustbe viewed as being sued in his capacity as the agent ofthe employer, who is alone liable for a violation ofTitle VII." 

### Gary v. 

### Long, 59 F.3d 1391,1399 (D.C. Cir. 1995). Title VII does not impose liability on individuals in their personal capacities. 

### Id.; Bell v. 

### Redding, 539 F. Supp. 2d 423, 424 n.1 (D.D.C. 2008) (dismissing individual as a party defendant because she cannot be held liable under Title VII); 

### Cruz-Packer v. 

### District of Columbia, 539 F. Supp. 2d at 185 (same).

7

### The Court concludes that Counts Four and Five will be dismissed as to defendants Daeschner and Dick. D. Retaliation (Count Five) 

### In Count Five, plaintiffalleges that she "engaged in protected activities under Title VII in opposing unlawful employmentpractices of[the Times]," Amd. CompI.**~** 

### 179, and as a result "suffered adverse employment action which were causally connected between [her] disability, actions and the harm suffered," id.**~** 

### 180. The pleading does not make specific allegations with respect to 42 U.S.C. § 1981. The Times moves to dismiss Count Five because the complaint fails to state a retaliation claim under Title VII or § 1981. See 

### Times Mot. at 8-10. Plaintiff argues, without support, that "on repeated occasions [she] complained ofdiscrimination, regardless ofwhether it was based on race, sex, age, payordisability." PI.'s Opp'nto Times Mot. at 4. Title VII prohibits an employer from "discriminat[ing] against any individual with respect to [her] compensation, terms, conditions orprivileges ofemployment, because ofsuch individual's race, color, religion, sex, or national origin," 42 U.S.c. § 

### 2000e-2(a)(1), and from "discriminat[ing] against any ofhis employees

...because [she] has opposed any practice made

anunlawful employment practice by this subchapter," 42 U.S.C. § 2000e-3(a) ("opposition clause"), or "because [she] has made a charge, testified, assisted, orparticipated in any manner in

an investigation, proceeding, or hearing under this subchapter," id. 

### ("participation clause"). "In order to seek the protection ofthe opposition clause, plaintiffmust be able to ...demonstrate a good faith, reasonable beliefthat the challengedpractice violates Title VII.'" Welzel 

### v. Bernstein, 

### 436 F. Supp. 2d 110, 118 (D.D.C. 2006) (quoting George 

### v. Leavitt, 

### 407 F.3d 405,417 (D.C. 8Cir. 2005». "Section 1981, as amended by the Civil Rights Act of 1991, prohibits racial discrimination in the 'making, performance, modification, and termination ofcontracts, and the enjoyment ofall benefits, privileges, terms and conditions ofthe contractual relationship,'" Pollardv. QuestDiagnostics, 610 F. Supp. 2d 1, 18 (DD.C. 2009) (quoting 42 U.S.C. § 1981), and "encompasses claims ofretaliation," CBOCS West, Inc. v. Humphries,

_ U.S. _, 128 S.Ct. 1951, 1961 (2008). "[T]o be actionable under § 1981, the retaliation must have been inresponse to the claimant's assertion ofrights that were protected by § 1981." Hawkins v. 1115LegalServo Care, 163 F. 3d 684, 693 (2d Cir. 1998». "Anact ofretaliation for engaging in activity protected by Title VII does not give rise to a claim for retaliation that is cognizable under § 1981 unless that activity was also protected by § 1981." Id. As drafted, plaintiffs Amended Complaint nowhere alleges retaliation associated with herrace, color, religion, sex, or national origin, and thus fails to allege retaliation in connection with acts prohibited under Title VII or § 1981. Neither Title VII nor § 1981 prohibits discrimination based on a person's disability. Henneghan v. District of Columbia Pub. Sch., 597 F. Supp. 2d 34,37-38 (D.D.C. 2009) (dismissing sua sponte Title VII claim because "the plaintiffs factual allegations ofdisability discrimination do not state a claim upon which relief

can be granted

... underthe Civil Rights Act of 1964"); DuBerry v. District of Columbia, 582 F. Supp. 2d 27, 40 (D.D.C. 2009) ("Section 1981 does not prohibit discrimination on the basis of disability."). The Court concludes that the Amended Complaint fails to state a retaliation claim under either Title VII or § 1981, and CountFive will be dismissed.
9III. CONCLUSION The Court concludes thatthe age discrimination claim mustbe dismissed as to all defendants because plaintifffailed to exhausther administrative remedies with respect to this claim before filing this lawsuit. Further, the Court concludes that the disability discrimination, age discrimination, and Title VII race and sex discrimination claims against defendants Daeschner and Dick intheir individual capacities mustbe dismissed. Defendants Daeschnerand Dickwill be dismissed as party defendants, Counts Two and Five will be dismissed, and Counts One, Three, and Four may proceed as against The Washington Times, LLC. An Order consistentwiththis Memorandum Opinion is issued separately.

10