UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

NICOLA CHERICHEL,

Plaintiff,

v. Civil Action No. 12-1452 (JDB)

ERGO SOLUTIONS, LLC,

 

 Defendant.

MEMORANDUM OPINION

Nicola Cherichel alleges severe and pervasive sexual harassment—constituting a hostile 

work environment—at her former workplace, Ergo Solutions. The vast majority of these 

allegations, however, are time-barred by the relevant statute of limitations. In fact, only one 

allegation occurred within the appropriate time-frame. But because that allegation occurred well 

after Cherichel was fired and left Ergo, it cannot contribute to a claim of hostile work environment: 

there was no “work environment” for Cherichel at Ergo at that time. As a result, the Court must 

grant Ergo’s motion to dismiss.

BACKGROUND

The following facts are taken from the complaint and assumed to be true. See Maljack 

Prods., Inc. v. Motion Picture Ass’n of Am., Inc., 52 F.3d 373, 375 (D.C. Cir. 1995). Cherichel 

began working at Ergo Solutions in late 2006. Am. Compl. [ECF No. 34] ¶ 6. Soon after she 

joined the company, CEO George Brownlee began making persistent and personal advances

toward her. Id. ¶ 7–10. As time went on, Brownlee’s actions progressed to inappropriate touching 

and even sexual assault. Id. ¶ 13, 20. Cherichel was fired in September 2010. Id. ¶ 28. But this 

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behavior continued until that October, when—in the wake of another sexual advance—Cherichel 

filed a formal complaint with Ergo’s Human Resources Office. Id. ¶ 27. 

In February and March 2011—after Cherichel was no longer employed at Ergo—Brownlee 

continued to initiate contact with her. Id. ¶ 31. He promised employment (at Ergo or elsewhere) 

were Cherichel to meet with him. Id. She refused. Id.

Cherichel filed a complaint with the Equal Employment Opportunity Commission in June 

2011. Id. ¶ 32. That September, Brownlee attempted to dissuade her from pursuing her complaint. 

Id. ¶ 33. In particular, he “threatened to use his contacts to get Ms. Cherichel” and “told her that 

he knew people at the Washington Field Office of the EEOC and would have the complaint 

dismissed.” Id. 

Cherichel filed suit in this Court in August 2012. When Ergo failed to respond, Cherichel 

sought a default judgment. See Mot. for Default J. [ECF No. 12]. The Court’s review of the 

complaint, however, “reveal[ed] . . . obvious and significant defects.” May 20, 2014 Order [ECF 

No. 28] at 1. In response, Cherichel filed an amended complaint in July 2014, mooting the motion 

for default judgment. See July 18, 2014 Order [ECF No. 33]. The amended complaint raised

hostile work environment and sexual harassment claims under both 42 U.S.C. § 1983 and the D.C. 

Human Rights Act. Cherichel abandoned the § 1983 claim at a status conference that same day. 

Ergo has now moved to dismiss what remains of the amended complaint, citing the DCHRA’s 

statute of limitations, and has also requested sanctions.

LEGAL STANDARD

“A defendant may raise the affirmative defense of a statute of limitations via a Rule 

12(b)(6) motion when the facts giving rise to the defense are apparent on the face of the complaint.” 

Nat’l R.R. Passenger Corp. v. Lexington Ins. Co., 357 F. Supp. 2d 287, 292 (D.D.C. 2005). At 

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this stage, the Court “construe[s] the complaint liberally in [the plaintiff’s] favor, taking all the 

facts alleged as true, and giving [the plaintiff] the benefit of all reasonable inferences from those 

facts.” Maljack, 52 F.3d at 375.

ANALYSIS

I. MOTION TO DISMISS

The DCHRA permits suit only “within one year of the unlawful discriminatory act, or the 

discovery thereof.” D.C. Code § 2-1403.16(a). Because the initial complaint was filed in August 

2012, only acts occurring after August 2011 are fair game. And the amended complaint provides 

exactly one allegation that occurs within the relevant time-frame: the phone call Brownlee placed 

to Cherichel in September 2011. Cherichel hopes that this single allegation can serve as an anchor, 

tying in the earlier allegations of discrimination. This theory, however, cannot match the claims 

she has pleaded under the DCHRA.

True, the DCHRA “must be generously construed,” with a scope exceeding that of Title 

VII. Lively v. Flexible Packaging Ass’n, 830 A.2d 874, 887 (D.C. 2003) (en banc) (internal 

quotation marks omitted). But the D.C. courts have “often looked to cases construing Title VII” 

to interpret their own statute, id. (internal quotation marks omitted), including reliance on National 

Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In particular, the D.C. Court of Appeals 

has noted that Morgan “distinguished a discrete act of discrimination from a hostile work 

environment claim.” Lively, 830 A.2d at 889. “A discrete . . . discriminatory act occurred on the 

day that it happened. Each discrete discriminatory act starts a new clock for filing charges alleging 

that act.” Id. (quoting Morgan, 536 U.S. at 110, 122) (alteration, citation, and internal quotation 

marks omitted). Hence, “‘discrete discriminatory acts are not actionable if time barred, even when 

they are related to acts alleged in timely filed charges.’” Id. (quoting Morgan, 536 U.S. at 122).

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Hostile work environment, however, is a different animal: it “cannot be said to occur on 

any particular day.” Id. (quoting Morgan, 536 U.S. at 123). Thus, “if ‘an act contributing to the 

hostile work environment claim occurs within the filing period, the entire time period of the hostile 

environment may be considered by the court for the purposes of determining liability.’” Id. at 890 

(quoting Morgan, 536 at 117) (alteration omitted). “[B]ut at least one act contributing to the claim 

must occur within that period in order for the filing to be timely.” Id. at 892 (internal quotation 

marks omitted).

This framework presents problems for Cherichel along both axes. Consider first her 

discrimination claim—to the extent the complaint may be construed as raising one. As Lively

teaches, one timely filed allegation does nothing to render justiciable those “discrete 

discriminatory acts” occurring earlier. And standing alone, that final allegation here (occurring 

within the filing period) does not refer to employment discrimination based on sex, but merely to 

odious and harassing behavior. Any discrimination claims must therefore be dismissed.

Hostile work environment may present a different story: if this one timely allegation 

“contribut[es]” to the claim, then everything earlier is timely as well under the hostile work 

environment label. But such a “contribution” is precisely the link missing here. The September 

2011 phone call occurred one year after Cherichel was fired from, and hence left, Ergo Solutions. 

Even a “generous construction” of the DCHRA, Lively, 830 A.2d at 887 (internal quotation marks 

omitted), still requires that a hostile work environment occur at—it should go without saying—a 

work environment. To accept Cherichel’s reading of the statute would imply that any unfortunate 

chance encounter with a former employer—even years later and far removed from the 

workplace—could reopen a hostile work environment claim long after the employment 

relationship ended. This cannot be the meaning of the DCHRA.

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Cherichel acknowledges that the September 2011 allegations occurred when she was only 

a former, not current, employee. She argues, however, that such a distinction “does not defeat her 

claim . . . because [it] is the type of claim that Title VII was directed to address.” Pl.’s Opp’n [ECF 

No. 37] at 5. As her only support for this proposition, Cherichel points to Robinson v. Shell Oil 

Co., 519 U.S. 337 (1997).

Robinson does indeed hold that Title VII “include[s] former employees within the scope 

of ‘employees’ protected by” the statute. Id. at 345. But there are two problems with analogizing 

the cases. First, Cherichel ignores the textual difference between Title VII and the DCHRA. The 

federal statute defines “employee” as “an individual employed by an employer.” 42 U.S.C. 

§ 2000e(f). In reading that definition to include former, as well as present, employees, the Supreme 

Court noted that the statutory definition “lacks any temporal qualifier.” Robinson, 519 U.S. at 

342. But the definition of “employee” provided by the DCHRA focuses more clearly on present 

and future tense, to the exclusion of past: “an individual employed by or seeking employment from 

an employer.” D.C. Code § 2-1401.02(9). 

Second, the point here is not that Cherichel, as a former Ergo employee, is ineligible to sue 

under the DCHRA (or Title VII, for that matter). Rather, it is simply that actions long after she 

has left employment at Ergo do not constitute a hostile work environment so as to make timely her 

otherwise plainly untimely claim.

Third, and most important, Robinson focuses on the context of retaliation claims—which 

are not part of Cherichel’s amended complaint. See 519 U.S. at 345 (“Insofar as § 704(a) expressly 

protects employees from retaliation . . . it is far more consistent to include former employees within 

the scope of ‘employees’ protected by § 704(a).”). The difference matters, both logically and 

textually. Since retaliation often takes the form of firing, “it would be destructive of th[e] purpose 

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of the antiretaliation provision for an employer to be able to retaliate with impunity against an 

entire class of acts under Title VII.” Id. at 346. No such concern accompanies hostile work 

environment claims. And the DCHRA seems to recognize this distinction in its text: where the 

anti-discrimination provisions protect current employees and employment-seekers, the antiretaliation provision is broader: “It shall be an unlawful discriminatory practice to coerce, threaten, 

retaliate against, or interfere with any person” regarding the exercise of any rights under the statute. 

D.C. Code § 2-1402.61(a) (emphasis added). Again, Cherichel does not raise a retaliation claim 

in her amended complaint, and nothing here suggests that actions taken against former employees 

long after they have left the workplace create a hostile work environment for them. 

Thus, in this context—hostile work environment—and under this statute—the DCHRA—

Cherichel has failed to put forth any timely allegations that might allow her amended complaint to 

proceed. As a result, the Court must grant Ergo’s motion to dismiss.

II. MOTION FOR SANCTIONS

A court may impose sanctions on an attorney or party who violates Federal Rule of Civil 

Procedure 11(b). That rule requires—as relevant here—that “claims, defenses, and other legal 

contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, 

or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2). Furthermore, the 

pleading or motion must not be “presented for any improper purpose, such as to harass, cause 

unnecessary delay, or needlessly increase the cost of litigation.” Fed. R. Civ. P. 11(b)(1). The 

rule is not, however, “intended to chill an attorney’s enthusiasm or creativity in pursuing factual

or legal theories.” Fed. R. Civ. P. 11 Advisory Comm. Note (1983 Amend.). 

“The test for sanctions under Rule 11 is an objective one: that is, whether a reasonable 

inquiry would have revealed that there was no basis in law or fact for the asserted claim. The 

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Court must also take into consideration that Rule 11 sanctions are a harsh punishment, and what 

effect, if any, the alleged violations may have had on judicial proceedings.” Hickey v. Scott, 738 

F. Supp. 2d 55, 72 (D.D.C. 2010) (alteration, citation, and internal quotation marks omitted). 

Ergo contends that sanctions are warranted here, because the Court had previously warned 

Cherichel about the tenuous validity of her claims under the statute of limitations. As explained 

above, the Court agrees that Cherichel has not presented a viable legal theory: the only factual 

allegation occurring within the statute of limitations happened after Cherichel was no longer an 

Ergo employee. Attempting to shoehorn the rationale of retaliation claims into the framework of 

hostile work environment is not a successful strategy. But the Court is reluctant to conclude that 

it is so frivolous a legal theory as to merit sanctions—particularly given that the DCHRA is 

considered to be broader in scope than Title VII, and given the predilection towards permitting 

cases under the DCHRA to proceed. See Lively, 830 A.2d at 887.

The Court is also mindful that neither side in this case has, to date, behaved with either the 

most laudable strategy or the cleanest of hands. Indeed, Ergo’s own motion for sanctions was 

originally included as part of its motion to dismiss, in violation of Rule 11(c)(2). And when it 

finally filed a separate motion, it focused largely on counsel’s behavior in other cases—rather than 

providing an argument about the merits or demerits of the legal claim at issue here. Hence, the 

Court will deny Ergo’s motion for sanctions.

CONCLUSION

For the reasons set forth above, Ergo’s motion to dismiss is granted, and its motion for 

sanctions is denied. A separate Order will issue on this date.

 /s/ 

 JOHN D. BATES

 United States District Judge

Dated: March 30, 2015

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