UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

MELISSA COOPER, )

)

Plaintiff, )

) 

v. ) Civil Action No. 14-1526(EGS)

)

KAYA HENDERSON, )

Chancellor of the District )

of Columbia Public Schools, )

)

Defendant. )

______________________________)

MEMORANDUM OPINION

Plaintiff Melissa Cooper (“Ms. Cooper”) brings this action 

against Kaya Henderson, in her official capacity as the 

Chancellor of the District of Columbia Public Schools (“DCPS”) 

alleging (1) disability discrimination, failure to accommodate, 

and retaliation for protected activity, in violation of the 

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et 

seq.; (2) discrimination on the basis of race and gender and 

retaliation for protected activity, in violation of the Title 

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 

2000e et seq.; (3) discrimination on the basis of age and 

retaliation for protected activity, in violation of the Age 

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et 

seq.; and (4) retaliation for protected activity in violation of 

the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et 
2

seq. Am. Compl., Docket No. 25. Chancellor Henderson moves to 

dismiss the amended complaint. See generally Def.’s Mot., Docket 

No. 27. Upon consideration of the motion, the response and reply 

thereto, the applicable law, the entire record, and for the 

reasons stated below, Chancellor Henderson’s motion to dismiss 

is GRANTED in part, and DENIED in part.

I. BACKGROUND 

Ms. Cooper is an African-American female over the age of 

forty. Am. Compl., ¶ 8. Ms. Cooper was hired by DCPS in 1980 to 

serve as a special education teacher at Roosevelt Senior High 

School. Id. ¶¶ 8, 10. At some point during Ms. Cooper’s tenure 

at DCPS, she suffered an injury to her foot and requested leave 

to receive surgery. Id. ¶ 13. Following surgery, Ms. Cooper 

required crutches and an orthopedic boot to ambulate. Id. ¶ 14. 

Ms. Cooper’s classroom was located on the upper floor of 

Roosevelt Senior High School. Id. When she returned from her 

surgery, she requested access to an elevator to accommodate her 

injury. Id. The only functioning elevator in the building was a 

freight elevator in a remote wing of the building, approximately 

one city block from the building’s entrance. Id. ¶ 15. Use of 

the freight elevator involved use of a freight key and lifting a 

wrought iron door. Id. ¶ 14. In order to use the freight 

elevator, Ms. Cooper had to find someone with a key. Id. ¶ 15. 

The one individual with a key was often unavailable or difficult 
3

to locate, causing Ms. Cooper to be late for class. Id. Ms. 

Cooper also requested a parking spot close to the building’s 

entrance, but her request went unanswered. Id. ¶ 17. 

Ms. Cooper alleges that the principal and assistant 

principal of Roosevelt Senior High frequently harassed her about 

her age, and that the harassment intensified after she returned 

from medical leave. Id. ¶ 16. Ms. Cooper alleges that she was 

reprimanded for arriving late to class and meetings. Id. ¶ 17.

When she attempted to explain herself to management, her 

teaching rating was lowered by ten points. Id. ¶ 18. 

Ms. Cooper alleges that she duly reported every action she 

believed to be discriminatory to the administration, the school 

principal, and her union, but received little response. Id. ¶ 

20. She alleges that she received non-work-related telephone 

calls from the principal at all hours of the day and night, 

which she believes were intended to harass and intimidate her. 

Id. ¶ 23. She alleges that she was reprimanded in front of her 

students on a regular basis, which she believes was intended to 

humiliate her. Id. ¶ 24. Ms. Cooper believes the harassing 

conduct was intended to force her to retire. Id. ¶ 26. She 

alleges that various members of the administration reminded her 

of her seniority and inquired as to her retirement plans. Id. ¶ 

26. 
4

Ms. Cooper was discharged from her employment with DCPS on 

August 10, 2012. Def.’s Ex. 1, Docket No. 27-1 at 3. Ms. Cooper 

alleges that her discharge was discriminatory, and in

retaliation for exercising rights under the FMLA. Compl. ¶¶ 29, 

79. She further alleges that after her termination, her 

retirement paperwork was not processed for nearly two years, 

during which time she was without income or benefits. Id. ¶ 28. 

Ms. Cooper believes the delay in processing her retirement 

paperwork was in retaliation for her previous complaints to 

school management regarding discrimination. Id.

Ms. Cooper filed a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”) on December 20, 2013. 

Def’s. Ex. 1 at 3. The allegations in the charge read as 

follows: 

I was hired in 1980 as a Special Education Teacher. On 

August 10, 2012, I was discharged. Prior to my discharge, 

I requested a reasonable accommodation in which I was 

denied. I was subjected to harassment. 

My employer provided no specifics concerning my 

termination of employment. 

I believe I have been discriminated against in violation 

of the Americans With Disabilities Act of 1990 because 

of my disability and in retaliation (hostile work 

environment and whistle blower). I believe I have been 

discriminated against in violation of the Age 

Discrimination In Employment Act of 1967 because of my 

age (58). Race + Hostile Work Environment.1

 1 While the body of the charge is typed, the phrase “Race + 

Hostile Work Environment” is handwritten in pen and initialed by 

Ms. Cooper. See Def.’s Ex. 1. 
5

My request for a reasonable accommodation did not cause 

undue hardship for my employer. Being denied the 

request, resulted in me being late to classes and 

meetings. 

Id. On the charge, Ms. Cooper checked the boxes for “Race,” 

“Retaliation,” “Age,” “Disability,” and “Other,” next to which 

she wrote “Hostile Work Environment.” Id. In the box entitled 

“Date(s) Discrimination Took Place,” the “Earliest” date of 

discrimination is type-written as August 10, 2012, the date of 

Ms. Cooper’s termination. Id. For the “Latest” date of 

discrimination, it appears Ms. Cooper crossed out the typewritten entry of August 10, 2012, and wrote in November 30, 

2013. Id. Ms. Cooper signed the charge on November 25, 2013, 

five days prior to her alleged “Latest” date of discrimination. 

Id. Ms. Cooper also checked the box entitled “Continuing 

Action.” Id.

The EEOC issued Ms. Cooper a Dismissal and Notice of Rights 

informing her that any lawsuit must be filed within 90 days of 

her receipt of the notice. Id. at 1-2. The handwritten date on 

the Notice indicates it was mailed May 30, 2014. Id. at 1. Ms. 

Cooper filed her lawsuit on September 8, 2014.2

 2 While Ms. Cooper’s initial complaint was uploaded to the 

Court’s electronic docket on September 9, 2014, the “Civil Cover 

Sheet” accompanying the complaint is dated September 8, 2014. 

For purposes of ruling on the instant motion to dismiss, given 

that the Court must draw all reasonable inferences in the 
6

Chancellor Henderson now moves to dismiss Ms. Cooper’s

amended complaint pursuant to Federal Rule of Civil Procedure 

12(b)(6). See generally Def.’s Mot. Chancellor Henderson raises 

four arguments in support of her motion: (1) the District of 

Columbia (“the District”) is the proper defendant in this action 

and Ms. Cooper’s failure to name the District is grounds for 

dismissal of her amended complaint; (2) Ms. Cooper’s gender 

discrimination claim is barred because Ms. Cooper failed to 

exhaust her administrative remedies by asserting this claim in 

her charge before the EEOC; (3) Ms. Cooper’s Title VII, ADA, and

ADEA claims are barred for failure to timely file these claims 

with the EEOC, and for failure to timely bring these claims 

before this Court following the EEOC’s issuance of a right-tosue notice; and (4) Ms. Cooper’s FMLA claims are barred for 

failure to bring suit within the two-year limitations period 

applicable to FMLA claims. Id. at 1-2. 

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6) “tests the legal sufficiency of a complaint.” Browning 

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must 

contain a “short and plain statement of the claim showing that 

the pleader is entitled to relief, in order to give the

 

plaintiff’s favor, the Court will presume the complaint was 

filed on September 8, 2016. 
7

defendant fair notice of what the . . . claim is and the grounds 

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal quotation marks omitted). While detailed 

factual allegations are not necessary, the plaintiff must plead 

enough to “raise a right to relief above the speculative level.” 

Id.

When ruling on a Rule 12(b)(6) motion, the Court may 

consider “the facts alleged in the complaint, documents attached

as exhibits or incorporated by reference in the complaint, and 

matters about which the Court may take judicial notice.” 

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002). 

The Court must construe the complaint liberally in the 

plaintiff’s favor and grant the plaintiff the benefit of all 

reasonable inferences deriving from the complaint. Kowal v. MCI 

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court 

must not accept inferences that are “unsupported by the facts 

set out in the complaint.” Id. “Nor must the court accept legal 

conclusions cast in the form of factual allegations.” Id.

“[O]nly a complaint that states a plausible claim for relief 

survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 

679 (2009). 
8

III. DISCUSSION

A. The District of Columbia will be substituted for 

Chancellor Henderson as defendant in this action. 

Chancellor Henderson first argues that because Ms. Cooper’s 

lawsuit is an employment discrimination action for money 

damages, the proper defendant in this action is Ms. Cooper’s

employer, the District of Columbia, and not Chancellor 

Henderson. Def.’s Mot. at 1, 3-4. Ms. Cooper responds that the 

lawsuit was not intended to sue Chancellor Henderson in her 

individual capacity, and that she named Chancellor Henderson 

“solely in her official capacity in order to reach the state 

agency.” Pl.’s Opp., Docket No. 29 at 1-2.3

There is little dispute that the proper defendant in an 

action by a District employee for employment discrimination is 

the District of Columbia itself. See Smith v. Janey, 664 F. 

Supp. 2d 1, 8 (D.D.C. 2009) (“there is no individual liability 

under Title VII, the ADEA or the ADA.”); see also Blue v. 

District of Columbia, 850 F. Supp. 2d 16, 22 (D.D.C. 2012) 

(“Courts in this District have held on numerous recent occasions

that DCPS is non sui juris – that is, non-suable as an entity 

separate from the District of Columbia.”). Therefore, the 

relevant dispute for purposes of resolving Chancellor 

 3 Ms. Cooper’s surreply further clarifies that her intention was 

to sue the District “as a government agency.” Pl.’s Surrep., 

Docket No. 33, ¶ 16. 
9

Henderson’s motion is the effect of Ms. Cooper’s failure to name 

the District as a defendant in her amended complaint. Chancellor 

Henderson argues that Ms. Cooper’s failure to name the District 

is grounds for dismissal of the lawsuit. Def.’s Mot. at 1. Ms. 

Cooper argues that the Court should construe Chancellor 

Henderson’s motion to dismiss as a motion to substitute the 

District for Chancellor Henderson as the defendant, and should 

order substitution of the District rather than dismiss the 

action. Pl.’s Opp. at 3.

Chancellor Henderson’s motion to dismiss argues that 

substituting the proper party or allowing Ms. Cooper leave to 

amend her complaint would be futile as Ms. Cooper’s claims would 

not survive a motion to dismiss. Def.’s Mot. at 4. Based on the 

Court’s contemporaneous determination that Ms. Cooper’s amended 

complaint does survive a motion to dismiss in part, see infra 

Section III.B-III.E, the Court rejects this argument as a basis 

for dismissing Ms. Cooper’s amended complaint. 

Chancellor Henderson’s reply brief raises several 

additional arguments in support of dismissing Ms. Cooper’s 

amended complaint for failure to name the proper party, each of 

which will be addressed in turn. First, Chancellor Henderson 

argues that Ms. Cooper “does not refute or even address 

[Chancellor] Henderson’s argument that she is not a proper 

defendant” and accordingly, “the Court should deem those 
10

arguments unopposed and grant Chancellor Henderson’s motion to 

dismiss.” Def.’s Rep., Docket No. 31 at 3. Chancellor Henderson 

misunderstands Ms. Cooper’s argument: Ms. Cooper does not 

dispute that Chancellor Henderson is not a proper party, but 

argues that substitution, rather than dismissal, is appropriate

under the circumstances. Pl’s. Mot. at 1-3; Pl.’s Surrep., 

Docket No. 33 at 5. Hence, Ms. Cooper has not waived her 

opposition to Chancellor Henderson’s motion to dismiss for 

failure to name the proper defendant. 

Second, Chancellor Henderson argues that the Court should 

not construe Ms. Cooper’s motion to dismiss as a motion to 

substitute the proper party because “Chancellor Henderson has 

not moved to substitute the District for her, nor has [Ms. 

Cooper] moved to amend her complaint to name the District as a 

defendant.” Def.’s Rep., at 2 (emphasis in original). Ms. Cooper 

responds that even though she has not formally requested 

substitution, the Court may sua sponte order substitution of the 

proper defendant. Pl.’s Surrep., Docket No. 33 at 4.4

 4 Ms. Cooper asserts that the basis for this substitution is 

found in Federal Rule of Civil Procedure 25(d) which provides 

for automatic substitution of public officers named in their 

official capacity when that officer “dies, resigns, or otherwise 

ceases to hold office while the action is pending.” Fed. R. Civ. 

P. 25(d). Ms. Cooper’s reliance on Rule 25(d) is misplaced. 

First, Chancellor Henderson remains Chancellor of DCPS, and 

second, there is no individual liability under Title VII, the 

ADA, or the ADEA. See Smith, 664 F. Supp. 2d at 8. Hence, 

contrary to Ms. Cooper’s assertion, Rule 25(d) is an improper 
11

Where a plaintiff, through unknowing mistake, names an 

improper defendant in her complaint, many courts in this 

district have sua sponte ordered substitution of the proper 

defendant. Sampson v. D.C. Dep’t of Corr., 20 F. Supp. 3d 282, 

285 (2014) (sua sponte ordering substitution of the District of 

Columbia where plaintiff had named the D.C. Department of 

Corrections); Paul v. Didizian, 292 F.R.D. 151, 151 n. 1 (D.D.C. 

2013) (sua sponte ordering substitution of the District of 

Columbia where pro se plaintiff had named D.C. Office of Risk 

Management); Henneghan v. Dist. of Columbia Pub. Sch., 597 F. 

Supp. 2d 34, 37 (D.D.C. 2008) (sua sponte ordering substitution 

of the District of Columbia where pro se plaintiff had named 

DCPS); Di Lella v. Uni. of Dist. of Columbia, 570 F. Supp. 2d 1, 

1 n.1 (D.D.C. 2008) (sua sponte ordering substitution of the 

Board of Trustees of the University of the District of Columbia 

where pro se plaintiff had named the University of the District 

of Columbia). While in most of these cases the plaintiff was 

proceeding pro se, some courts in this district have sua sponte

ordered substitution where the plaintiff was represented by 

counsel. Sampson, 20 F. Supp. 3d at 285; Bennet v. Henderson, 

10-CIV-1680, 2011 WL 285871, at *1 (D.D.C. Jan. 28, 2011); (sua 

sponte ordering substitution of the District of Columbia for 

 

vehicle for substituting the District of Columbia for Chancellor 

Henderson as defendant in this action. 
12

Chancellor Henderson). In view of this persuasive authority, the 

Court is not convinced that Ms. Cooper’s failure to name the 

District in her amended complaint warrants dismissal of her 

case. 

Finally, Chancellor Henderson argues that substituting the 

District of Columbia is inappropriate because Ms. Cooper has yet

to serve either the Mayor or the Attorney General of the 

District of Columbia with a summons and complaint. Def.’s Rep. 

at 4-6 (citing Arrington v. Dist. of Columbia, 673 A.2d 674, 681 

(D.C. 1996)). In Arrington, the plaintiff’s lawsuit named “D.C. 

General Hospital” as defendant and attempted to serve process on 

the hospital by mailing the summons and complaint to the 

hospital’s address in southeast Washington, D.C. Arrington, 673 

A.2d at 676. Later, when the plaintiff moved to amend her 

complaint to name the District of Columbia, the District opposed 

the motion arguing the action was time-barred because the suit 

against the District had not been filed, and the District had 

not been served, within the applicable statute of limitations. 

Id. at 677. The D.C. Court of Appeals, agreeing with the 

District, held that the plaintiff’s complaint against the 

District was time-barred: 

The District had received no notice of the suit prior to 

the expiration of the limitations period. Mailing of the 

summons and complaint to a hospital at an intersection 

in southeast Washington, D.C. provided the District with 

no more notice than would have been effected by serving 
13

a clerk at the Department of Sanitation or a police 

officer at the Fourth District. That is not sufficient. 

Like any large metropolis, the District of Columbia is 

required to defend thousands of cases every year. The 

Corporation Counsel, as the attorney for the District, 

must keep track of each of these cases and must settle 

or litigate all of them. This formidable task cannot be 

carried out successfully if someone who wishes to sue 

the District can satisfy her responsibilities, as Ms. 

Arrington attempted to do, by filing her complaint 

against a different entity and by mailing the complaint 

and summons to an address which has no connection 

whatever with the defense of lawsuits against the 

District. Indeed, an important reason for requiring 

plaintiffs to sue the District (rather than a Districtoperated instrumentality) and for requiring service on 

the Mayor and the Corporation Counsel (rather than on 

that instrumentality is to enable the District’s lawyers 

to become and remain apprised of their docket and to 

conduct their legal business in an organized and 

efficient manner.

Id.

Arrington, however, is clearly distinguishable from the 

present facts. Here, the Office of Attorney General for the 

District of Columbia, the same Office charged with representing 

the District of Columbia, has been representing Chancellor 

Henderson, in her official capacity, throughout this action.5

Unlike Arrington, this is not a case where the complaint and 

summons were sent to an address with “no connection whatever 

with the defense of lawsuits against the District.” Indeed, in 

 5 Chancellor Henderson waived formal service on February 26, 

2015, and the Office of the Attorney General for the District of 

Columbia entered its appearance on February 27, 2015. See Waiver 

of Service, Docket No. 10; Notice of Appearance, Docket No. 8. 
14

this case, it appears the District’s lawyers were able to 

“become and remain apprised of their docket and to conduct their 

business in an organized and efficient manner.” The rationale 

underlying Arrington is inapplicable under the circumstances. 

Under Federal Rule of Civil Procedure 15(c)(1)(C), an 

amendment to a complaint changing the name of the defendant 

relates back to the date of the original complaint when the new 

party “received such notice of the action that it will not be 

prejudiced in defending on the merits” and “knew or should have 

known that the action would have been brought against it, but 

for a mistake concerning the party’s identity.” Fed. R. Civ. P. 

15(c)(1)(C). For example, in Kangethe v. Dist. of Columbia, the 

plaintiff initially filed his lawsuit against the D.C. Office of 

Employment Services (“DOES”), a non-suable entity within the 

District of Columbia. 75 F. Supp. 3d 433, 438 (D.D.C. 2014).

When the plaintiff amended his complaint to name the District,

the court held that the plaintiff’s complaint against the 

District related back to the filing of the original complaint 

because the plaintiff “mailed even his first complaint to the 

Attorney General’s office” and because “the office has 

represented the defendant in this case continuously since it was 

filed naming DOES.” 75 F. Supp. 3d at 438-39. Similarly, in this 

case, because the D.C. Attorney General’s Office has been 

defending this lawsuit since Chancellor Henderson waived formal 
15

service, the Court finds that the District will not be 

prejudiced in defending this action on the merits. Further, the 

District either knew or should have known that but for Ms. 

Cooper’s mistake in naming Chancellor Henderson rather than the 

District, this action would have been brought against the 

District. See Kangethe, 75 F. Supp. 3d at 437-39; see also 

Rendall-Speranza v. Nassim, 107 F.3d 913, 918 (D.C. Cir. 1996) 

(“The commentary to Rule 15(c) clearly indicates that the rule 

is intended to be a means for correcting the mistakes of 

plaintiffs suing official bodies in determining which party is 

the proper defendant.”)(internal citations omitted).

Moreover, “it is well settled that the Federal Rules of 

Civil Procedure are to be liberally construed to effectuate the 

general purpose of seeing that cases are tried on the merits and 

to dispense with the technical procedural problems and thus that 

amendments pursuant to Rule 15(c) should be freely allowed.” 

Bayatfshar v. Aeronautical Radio, Inc., 934 F. Supp. 2d 138, 145 

(D.D.C. 2013) (quoting Staren v. American Nat’l Bank & Trust Co. 

of Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976) (alterations 

omitted)). Therefore, the Court does not find that Ms. Cooper’s 

mistake in naming Chancellor Henderson rather than the District 

is grounds for dismissal of the amended complaint. 

Accordingly, the Court DENIES Chancellor Henderson’s motion 

to dismiss for failure to name the proper party, and sua sponte
16

substitutes the District of Columbia for Chancellor Henderson as 

the defendant in this action. 

B. Ms. Cooper will be permitted to proceed to discovery 

on her ADA, Title VII, and ADEA claims only with 

respect to her claim that the District delayed in 

processing her retirement paperwork in retaliation for 

her protected activity. 

Chancellor Henderson argues that Ms. Cooper’s ADA, Title 

VII, and ADEA claims must be dismissed because Ms. Cooper failed 

to timely exhaust these claims before the EEOC. Def.’s Mot. at 

6-8. Ms. Cooper responds with a general assertion that these 

claims were timely exhausted. Pl.’s Opp. at 9-10. Before filing 

a lawsuit under the ADA, Title VII, or ADEA, a plaintiff must 

exhaust her administrative remedies by filing a charge of 

discrimination with the EEOC within 180 days of the alleged 

unlawful employment practice. 29 U.S.C. § 626(d)(1); 42 U.S.C. § 

2000e-5(e)(1).6 If the complainant has first instituted 

proceedings with a state or local agency, the limitations period 

is extended to 300 days. See Ashraf-Hassan v. Embassy of France 

 6 The ADA does not include its own statute of limitations, but 

adopts the procedures set forth in Title VII. 42 U.S.C. § 

12117(a) (“The powers, remedies, and procedures set forth in 

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this 

title shall be the powers, remedies, and procedures this 

subchapter provides . . . to any person alleging discrimination 

on the basis of disability in violation of any provision of this 

chapter.”). 
17

in U.S., 878 F. Supp. 2d 164, 170 (D.D.C. 2012); Gordon v. Dist. 

of Columbia, 605 F. Supp. 2d 239, 244 (D.D.C. 2009). 

The amended complaint alleges a number of allegedly 

discriminatory and retaliatory incidents that occurred prior to 

Ms. Cooper’s termination on August 10, 2012,7 alleges that Ms. 

Cooper’s termination was itself discriminatory and retaliatory 

in nature, and alleges that following her termination her 

retirement paperwork was neglected and not processed for two 

years in retaliation for her protected activity. Am. Compl., ¶¶ 

16-18, 23-29. 

Ms. Cooper’s charge of discrimination is dated November 25, 

2013, and bears a stamp indicating it was received by the EEOC 

on December 20, 2013. Def.’s Ex. 1.8 Ms. Cooper does not allege 

that she first filed a charge with the D.C. Office of Human 

 7 While the amended complaint does not indicate the date of Ms. 

Cooper’s termination, the EEOC charge of discrimination, which 

Ms. Cooper references in the amended complaint, states that she 

was terminated on August 10, 2012.

8 “While a court may not consider ‘matters outside the pleadings’ 

in evaluating a motion to dismiss under Rule 12(b)(6) without 

converting the motion to one for summary judgment under Rule 56, 

see Fed. R. Civ. P. 12(d), documents that are referenced in, or 

are an integral part of the complaint are deemed not ‘outside 

the pleadings.’” Peters v. Dist. of Columbia, 873 F. Supp. 2d 

158, 179 n. 20 (D.D.C. 2012). Ms. Cooper references her EEOC 

charge in her complaint. Am. Compl. at ¶ 30. Hence, the Court 

may consider the charge of discrimination without converting 

Chancellor Henderson’s motion to dismiss into a motion for 

summary judgment. 
18

Rights, hence the 180-day deadline, rather than the 300-day 

extended deadline, applies. Therefore, in order to timely 

exhaust her administrative remedies with respect to her 

termination, Ms. Cooper needed to file a charge of 

discrimination with the EEOC by no later than February 6, 2013. 

Her charge, dated November 25, 2013 and marked received by the 

EEOC on December 20, 2013 comes too late.9 Accordingly, Ms. 

Cooper’s ADA, Title VII, and ADEA claims concerning her 

termination, or any conduct occurring before her termination

must be dismissed for failure to timely file a charge of 

discrimination before the EEOC. 

Ms. Cooper’s claims under the ADA, Title VII, and ADEA must 

be limited to events occurring on or after the date 180 days 

prior to the date her charge was filed with the EEOC. In her 

amended complaint, Ms. Cooper alleges that her employer 

neglected and delayed processing her retirement paperwork in 

retaliation for her protected activity. Am. Compl., ¶ 28. She 

does not specify the date upon which her retirement paperwork 

was processed, except to say that it was two years after her 

discharge. Id. This indicates the delay in processing her 

paperwork took place through about August 20, 2014. Therefore,

 9 The Court notes that even if the 300-day limitations period 

applied, Ms. Cooper’s claims relating to her termination or 

conduct before that date would still be time-barred. 
19

the delayed processing of Ms. Cooper’s retirement paperwork 

would have been ongoing at the time she filed her charge. 

On her EEOC charge, Ms. Cooper checked the boxes for both 

“retaliation” and “continuing action.” Def.’s Ex. 1 at 3. Though 

the written allegations in the EEOC charge fail to mention the 

delay in processing her retirement paperwork, the Court 

considers it plausible that the “continuing action” designation 

was intended to refer to the ongoing alleged retaliation 

concerning the processing of her retirement paperwork. Further, 

because this retaliation was ongoing at the time Ms. Cooper 

filed her charge with the EEOC, the charge is deemed timely. 

Accordingly, Chancellor Henderson’s motion to dismiss Ms. 

Cooper’s claims pursuant to the ADA, Title VII, and ADEA is 

GRANTED in part, and DENIED in part. Ms. Cooper will be 

permitted to proceed to discovery on her claims concerning the 

allegedly retaliatory delayed processing of her retirement 

paperwork. The remainder of her ADA, Title VII, and ADEA claims 

are dismissed as time-barred. 

C. Ms. Cooper’s gender discrimination claim must be 

dismissed due to her failure to raise this claim 

before the EEOC.

Chancellor Henderson also argues that Ms. Cooper’s gender 

discrimination claims under Title VII must be dismissed because 

these claims were not raised in Ms. Cooper’s charge before the 

EEOC. Def.’s Mot. at 8-9. Ms. Cooper responds that her amended 
20

complaint alleges that she filed a charge of sex discrimination 

with the EEOC prior to filing suit in this Court. Pl.’s Opp. at 

9. 

As stated above, before commencing an action based on Title 

VII in federal court, a plaintiff must first exhaust her 

administrative remedies by filing a timely charge of 

discrimination with the EEOC. Lewis v. City of Chicago, Ill., 

560 U.S. 205, 210 (2010). The lawsuit following the EEOC charge 

is “limited in scope to claims that are like or reasonably 

related to the allegations of the charge and growing out of such 

allegations.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 

1995), cert. denied, 519 U.S. 811 (1996). Specifically, a 

plaintiff’s claims “must arise from the administrative 

investigation that can reasonably be expected to follow the 

charge of discrimination.” Id. (citing Chisholm v. U.S. Postal 

Serv., 665 F.2d 482, 491 (4th Cir. 1981)). “While the boxes [on 

the EEOC charge form] aid a claimant in identifying the nature 

of her charge, a claimant is not necessarily limited to the 

boxes she selected if she provides the basis for her claim in 

her written explanation.” Robinson-Reeder v. Am. Council on 

Educ., 532 F. Supp. 2d 6, 13 (D.D.C. 2008). 

In her charge before the EEOC, Ms. Cooper did not check the 

box for discrimination on the basis of “sex,” nor did she 

provide any allegations of sex or gender discrimination in her 
21

written complaint. As Ms. Cooper failed to raise any allegation 

of sex or gender discrimination in her charge before the EEOC, 

Ms. Cooper may not proceed with her gender discrimination claim 

in this Court. Moreover, the amended complaint contains no facts 

from which gender discrimination can be inferred. Hence, even if 

Ms. Cooper had exhausted her administrative remedies with 

respect to her gender discrimination claim, her gender 

discrimination claim could be dismissed for failure to state a 

plausible claim. Accordingly, the Court finds an additional 

basis for dismissing Ms. Cooper’s gender discrimination claims. 

Chancellor Henderson’s motion to dismiss Ms. Cooper’s gender 

discrimination claims is therefore GRANTED. 

D. With respect to Ms. Cooper’s surviving claim for 

retaliation under the ADA, Title VII, and the ADEA, 

Ms. Cooper is entitled to discovery on the issue of 

whether she filed suit in this Court within 90 days of 

receiving her right-to-sue notice. 

Chancellor Henderson argues that Ms. Cooper’s Title VII and 

ADA claims must be dismissed because she failed to file suit 

within 90 days of receiving her right-to-sue notice. Def.’s Mot. 

at 7-8. Chancellor Henderson argues that because the notice is 

dated May 30, 2014, and Ms. Cooper’s lawsuit was filed on 

September 8, 2014 – that is, 101 days later, Ms. Cooper’s 

lawsuit was not timely filed. Id. at 7. Ms. Cooper responds by 

referring to her amended complaint wherein she alleges that 

“this lawsuit has been commenced within 90 days of receipt of 
22

the Notice of Right to Sue.” Pl.’s Opp. at 10 (citing Am. 

Compl., ¶ 4) (emphasis added). 

“A person aggrieved under Title VII who seeks to file a 

civil action must do so within ninety days from receipt of the 

EEOC right-to-sue notice.” Griffin v. Acacia Life Ins. Co., 151 

F. Supp. 2d 78, 80 (D.D.C. 2001); see also 42 U.S.C. § 2000e5(f)(1) (“If a charge filed with the Commission . . . is 

dismissed by the Commission . . . the Commission . . . shall so 

notify the person aggrieved and within ninety days after the 

giving of such notice a civil action may be brought against the 

respondent named in the charge.”); Blackwell v. SecTek, Inc., 61 

F. Supp. 3d 149, 154 n. 3 (D.D.C. 2014) (noting that because the 

ADA incorporates Title VII procedures, a plaintiff must bring a 

lawsuit pursuant to the ADA within 90 days of receipt of the 

right-to-sue notice).10

“When the date that a right-to-sue notice was received is 

unknown or disputed, courts routinely presume that the notice 

was received either three days or five days after it was 

received.” Mack v. WP Co., LLC, 923 F. Supp. 2d 294, 299 (D.D.C. 

 10 Although Chancellor Henderson does not argue that Ms. Cooper’s 

ADEA claim must be dismissed for failure to file suit within 90 

days of receipt of the right-to-sue notice, the ADEA contains 

the same requirement. 29 U.S.C. § 626(e); Greer v. Bd. Trustees 

Univ. Dist. of Columbia, 113 F. Supp. 3d 297, 306 (D.D.C. 2015). 

Accordingly, Ms. Cooper’s claims for retaliation under the ADEA 

may also be dismissed if she failed to file suit within 90 days 

of her receipt of the right-to-sue notice.
23

2013) (citing Nkengfack v. Am. Ass’n of Retired Persons, 818 F. 

Supp. 2d 178, 181 (D.D.C. 2011); Ruiz v. Vilsack, 763 F. Supp. 

2d 168, 171 (D.D.C. 2011)). That presumption, however, may be 

rebutted by contrary evidence. Greer, 113 F. Supp. 3d at 306. 

Ms. Cooper is entitled to discovery on the issue of when 

she received her right-to-sue notice from the EEOC. Applying the 

more generous 5-day presumption from the May 30, 2014 mailing 

date, Ms. Cooper would have received the notice June 5, 2014, 

and hence, her lawsuit filed on September 8, 2014, or 95 days 

later, appears untimely. But Ms. Cooper must be afforded an 

opportunity to rebut the three-day or five-day presumption, and 

she will be permitted to conduct discovery for that purpose. 

Accordingly, with respect to Ms. Cooper’s claims for 

retaliation with respect to the processing of her retirement 

paperwork, Ms. Cooper is entitled to discovery on the issue of 

whether she filed this lawsuit within 90 days of her receipt of 

the right-to-sue notice. Chancellor Henderson’s motion to 

dismiss Ms. Cooper’s ADA and Title VII claims for failure to 

timely file suit in this Court is therefore DENIED. 

E. Ms. Cooper has alleged a willful FMLA violation, and 

is therefore entitled to a three-year statute of 

limitations. 

Chancellor Henderson argues that Ms. Cooper’s FMLA claims 

are barred by a two-year statute of limitations. Def.’s Mot. at 

8-9. Ms. Cooper argues that she has alleged a willful violation 
24

of the FMLA, thereby entitling her to a three-year statute of 

limitations. Pl.’s Opp. at 4-9. The FMLA prohibits employers 

from interfering with or denying an employee’s right to take 

leave under the Act, and further prohibits an employer from 

discharging or discriminating against an employee who returns

from leave. 29 U.S.C. § 2615(a); Dahlman v. Am. Ass’n of Retired

Persons, 791 F. Supp. 2d 68, 79 (D.D.C. 2011). An action under 

the FMLA must be brought within two years of the alleged 

violation, or within three years if the violation is alleged to 

have been willful. 29 U.S.C. § 2617(c). “The three-year statute 

of limitations for willful violations does not apply unless the 

complaint contains some express or implied allegation of willful 

conduct.” Hodge v. United Airlines, 666 F. Supp. 2d 14, 23 

(D.D.C. 2009)(citing Sampson v. Citibank, F.S.B., 53 F. Supp. 2d 

13, 19 (D.D.C. 1999)). “In the context of FMLA, willful conduct 

is generally viewed as an employer that knows its conduct to be 

wrong or has shown reckless disregard for the matter in light of 

the statute.” Id; see also McLaughlin v. Richland Shoe Co., 486 

U.S. 128, 133 (1998)(“The word ‘willful’ is widely used in the 

law, and, although it has not by any means been given a 

perfectly consistent interpretation, it is generally understood 

to refer to conduct that is not merely negligent.”). 

Ms. Cooper has alleged a willful violation of FMLA and is 

therefore entitled to the three-year statute of limitations. Ms. 
25

Cooper alleges that when she returned from FMLA leave, she was 

harassed by her superiors, given a ten-point deduction in her 

performance evaluation, and eventually terminated. Am. Compl.,

¶¶ 16, 23, 26. Ms. Cooper alleges that these actions were taken 

in retaliation for her protected activity with the intent to 

humiliate and harass her. Id. ¶¶ 24, 26. While Ms. Cooper does 

not use the word “willful” in her complaint, the allegations 

clearly set forth an intentional pattern of harassment and 

retaliation, and “not merely negligent” behavior. For purposes 

of surviving a motion to dismiss, these allegations are 

sufficient. See Hodge, 666 F. Supp. 2d at 23 (citing Ricco v. 

Potter, 377 F. 3d 599, 603 (6th Cir. 2004)). 

Ms. Cooper filed her complaint on September 8, 2014, 

approximately two years and one month after her termination. 

Compl., Docket No. 1; Def.’s Ex. 1. Therefore, Ms. Cooper filed 

suit well-within the three-year statute of limitations for 

willful FMLA violations. 

Finally, Chancellor Henderson argues that even if the 

three-year statute of limitations applied, Ms. Cooper failed to 

file suit against her employer, the District of Columbia, within 

the three-year limitations period, which expired on August 20, 

2015. As discussed above, Ms. Cooper’s claims against the 

District of Columbia will relate back to the date she filed her 

original complaint in this Court. See supra Section III.A; see 
26

also Hartley v. Wilfert, 931 F. Supp. 2d 230, 233 (D.D.C. 2013) 

(noting that under the relation-back doctrine, the expiration of 

the applicable statute of limitations does not preclude the 

plaintiff from substituting the proper defendant so long as the 

requirements of Rule 15(c) are met). Accordingly, Chancellor 

Henderson’s motion to dismiss Ms. Cooper’s FMLA claim is DENIED.

IV. CONCLUSION

For the reasons stated above, Chancellor Henderson’s motion 

is GRANTED in part, and DENIED in part, and the District of 

Columbia is substituted for defendant Kaya Henderson. An 

appropriate order accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan

United States District Judge

March 31, 2016