Barot v. Embassy of the Republic of Zambia, Civil Action No. 13–451 (ABJ)

264 F.Supp.3d 280

Dolores BAROT, Plaintiff,

v.The EMBASSY OF the REPUBLIC OF ZAMBIA, Defendant.

Civil Action No. 13–451 (ABJ)

United States District Court, District of Columbia.

Signed September 8, 2017

Denise Marie Clark, Jeremy Greenberg, Clark Law Group, PLLC, Washington, DC, Leonardo Abueg Canseco, Canseco Law Group, LLC, Rockville, MD, for Plaintiff.

Laina Catherine Lopez, Berliner, Corcoran & Rowe, L.L.P., Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Dolores Barot brought this action against the Embassy of the Republic of Zambia alleging that when defendant terminated her employment, it discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. , and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). Compl. [Dkt. # 1] at 4. Plaintiff later amended her complaint to include an allegation that defendant also violated the District of Columbia Wage Payment and Collection Law, D.C. Code § 32–1301, et seq. ("DCWPCL"), when it failed to pay her wages she was owed after her termination. 1st Am. Compl. [Dkt. # 17–1] ¶¶ 63–65; 2d Am. Compl. [Dkt. # 60] ¶¶ 87–90. In its answer, defendant asserted statute of limitations as an affirmative defense to the wage claim. Am. Answer [Dkt. # 63] ¶ 94.

Plaintiff has moved for partial summary judgment on the DCWPCL claim (Count IV), arguing that defendant owes her wages and that her claim is timely. Mot. for Partial Summ. J. [Dkt. # 75] ("Pl.'s Mot."); Mem. in Supp. of Pl.'s Mot. [Dkt. # 75–2] ("Pl.'s Mem."). Defendant filed a cross-motion for partial summary judgment, contending that plaintiff's claim is time-barred and that no equitable remedy tolls the three-year statute of limitations. Def.'s Cross–Mot. for Partial Summ. J. [Dkt. # 78] ("Def.'s Cross–Mot."); Def.'s Mem. in Opp. to Pl.'s Mot. & in Supp. of Def.'s Cross–Mot. [Dkt. # 77] ("Def.'s Cross–Mem").

The Court finds that plaintiff's DCWPCL claim is time-barred, and it will grant summary judgment on Count IV in favor of defendant. Defendant's other pending motion for summary judgment on Counts I, II, and III remains under advisement, and it will be addressed in a separate opinion.

BACKGROUND

I. Factual Background

The following facts are undisputed unless otherwise noted.¹

• Plaintiff began working for defendant as a secretary in January 1998 . Pl.'s SOF ¶¶ 1, 6; Def.'s SOF ¶¶ 1, 6.

• Over time, she took on duties she described as "accounting" duties, Ex. A to Def.'s Cross–Mot. [Dkt. # 77–2] ("Barot Dep.") at 314:17–317:12, and she requested an increase in her salary to reflect those additional duties on September 8, 2009 . 2d Am. Compl. ¶ 37.

• On September 10, 2009 , defendant placed plaintiff on administrative leave, during which she was paid fifty-percent of her regular salary. Pl.'s SOF ¶ 21; Def.'s SOF ¶ 21.

• In a letter dated November 5, 2009 , defendant informed plaintiff that she had "been terminated with effect from 31st October 2009 ," and that she would be "paid one month's salary in lieu of notice." See Pl.'s SOF ¶¶ 5, 26; Def.'s SOF ¶¶ 5, 26.

• Notwithstanding the date of the letter, defendant mailed it to plaintiff on November 23, 2009, Pl.'s SOF ¶ 27; Def.'s SOF ¶ 27; see Ex. 11 to Pl.'s Mot. [Dkt. # 75–4] ("Ex. 11"), and she received it the next day, on November 24, 2009 . Ex. L to Def.'s Cross–Mot. [Dkt. # 77–2] ("Ex. L").

• Defendant notified the United States Department of State that it had terminated plaintiff with a "termination date" of November 30, 2009 . Ex. 12 to Pl.'s Mot. [Dkt. # 75–4] ("Ex. 12").

• On November 30, 2009 , Frank Mbewe—defendant's First Secretary of Accounts, to whom plaintiff reported—submitted a request to Minister Counselor Alfred Chioza for approval of "final payments" to be made to plaintiff. Pl.'s SOF ¶¶ 7, 16, 29; Def.'s SOF ¶¶ 7, 16, 29; Ex. 13 to Pl.'s Mot. [Dkt. # 75–4].

• On December 2, 2009 , plaintiff sent a letter to defendant requesting full payment of the money she believed she was owed and stating that she had consulted with an attorney. Ex. L.

• Mr. Chioza approved the final payment amounts in Mr. Mbewe's letter on December 4, 2009 . Def.'s SOF ¶ 32; Pl.'s Resp. SOF ¶ 32.

• Plaintiff requested payment again on December 4, 2009 . Pl.'s SOF ¶ 30; Def.'s SOF ¶ 30; Ex. 14 to Pl.'s Mot. [Dkt. # 75–4] ("Ex. 14").

• On December 7, 2009 , plaintiff received $6,155.00 from defendant. Pl.'s SOF ¶ 32; Def.'s SOF ¶ 32.² That same day, plaintiff informed Mr. Mbewe that she believed she had been underpaid. Def.'s SOF ¶ 32; Pl.'s Resp. SOF ¶ 32.

• On December 9, 2009 , plaintiff sent a letter to Mr. Chioza, reiterating that she had been underpaid. Pl.'s SOF ¶ 33; Def.'s SOF ¶ 33; Ex. 15 to Pl.'s Mot. [Dkt. # 75–4].

• On December 15, 2009 , Mr. Mbewe emailed plaintiff a calculation of "Final Payments of Leave Days and Salary in Lieu of Notice." Def.'s SOF ¶ 34; Pl.'s Resp. SOF ¶ 34; Ex. FF to Def.'s Cross–Mot. [Dkt. # 77–3] ("Ex. FF"). He stated that the computations would be submitted to Mr. Chioza as "final," and that "the case can be declared as closed thereafter" unless plaintiff had any other objections. Def.'s SOF ¶ 34; Pl.'s Resp. SOF ¶ 34; Ex. FF.

• The next day, December 16, 2009 , plaintiff responded to Mr. Mbewe, confirming that she did "not dispute this at all." Ex. GG to Def.'s Cross–Mot. [Dkt. # 77–3].³

• Notwithstanding this exchange, plaintiff states that Mr. Mbewe informed her on December 23, 2009 , that First Secretary of Political and Administration, Chembo Felix Mbula, would be reviewing her underpayment claim. Pl.'s SOF ¶ 34; Decl. of Dolores Barot, Ex. 4 to Pl.'s Mot. [Dkt. # 75–4] ("Barot Decl.") ¶ 17.

• Thereafter, on January 10 and January 24, 2010 , plaintiff contacted Mr. Mbula to request that she be paid the money she believed she was owed. Pl.'s SOF ¶ 35; Def.'s SOF ¶ 35; Ex. 16 to Pl.'s Mot. [Dkt. # 75–4]; Ex. 17 to Pl.'s Mot. [Dkt. # 75–4].

• On February 1, 2010 , plaintiff received $1,155.00 from defendant. Pl.'s SOF ¶ 36; Def.'s SOF ¶ 36.⁴

• Plaintiff continued to communicate with individuals at the Embassy between February and April 2010 in an effort to resolve her claim that she was still owed money. Pl.'s SOF ¶ 40; Def.'s SOF ¶ 40.

• On March 22, 2010 , Mr. Mbewe emailed plaintiff and asked her to come to the Embassy "so that [they] [could] put this matter to rest." Ex. AA to Def.'s Cross–Mot. [Dkt. # 77–3] ("Ex. AA").

• Plaintiff responded the same day, March 22, 2010 , saying that she could not come into the Embassy because she was "traumatized with what [they] had done to [her]." Id.

• On April 21, 2010 , plaintiff contacted defendant again to request payment, and she informed defendant that she intended to pursue legal remedies if it did not pay her the money she believed she was owed. Pl.'s SOF ¶ 41; Def.'s SOF ¶ 41; Ex. 18 to Pl.'s Mot. [Dkt. # 75–4].

• Then, in a letter dated April 28, 2010 , defendant notified plaintiff that it had actually overpaid her by $2,150, and it demanded repayment. Pl.'s SOF ¶ 42; Def.'s SOF ¶ 42; Ex. 19 to Pl.'s Mot. [Dkt. # 75–4].

• Plaintiff acknowledged receipt of this letter on April 30, 2010 . Ex. 20 to Pl.'s Mot. [Dkt. # 75–4].

• There is no evidence in the record that the parties engaged in any further conversations about the wage issue or that either party made any payments to the other after April 30, 2010.

II. Procedural Background

On March 18, 2013,⁵ plaintiff filed her initial complaint, alleging violations of Title VII and the ADEA. Compl. Plaintiff did not explicitly mention the DCWPCL or assert a claim under it until she filed her first amended complaint on November 22, 2013.⁶ Pl.'s SOF ¶ 46; Def.'s SOF ¶ 46; 1st Am. Compl. ¶¶ 63–65.

On April 11, 2014, the Court dismissed plaintiff's amended complaint for lack of personal jurisdiction based on plaintiff's failure to perfect service on defendant in accordance with the Foreign Sovereign Immunities Act ("FSIA"). Barot v. Embassy of the Republic of Zambia , 11 F.Supp.3d 24 (D.D.C. 2014). The Court denied plaintiff's motion for reconsideration on June 2, 2014. Barot v. Embassy of the Republic of Zambia , 11 F.Supp.3d 33 (D.D.C. 2014). Plaintiff appealed the dismissal of her amended complaint, and the Court of Appeals reversed and remanded the case to "afford [plaintiff] ... the opportunity to effect service pursuant to 28 U.S.C § 1608(a)(3)." Barot v. Embassy of the Republic of Zambia , 785 F.3d 26, 29–30 (D.C. Cir. 2015) ; see also Mandate of United States Court of Appeals [Dkt. # 41].

After plaintiff perfected service, see Return of Service Aff. [Dkt. # 52], defendant moved to dismiss the amended complaint on the grounds that it failed to state a claim upon which relief could be granted. Def.'s Mem. of Law in Supp. of Def.'s Mot. to Dismiss [Dkt. # 53–1]. In response, plaintiff filed a motion for leave to file a second amended complaint pursuant to Federal Rule of Civil Procedure 15, Mot. for Leave to File 2d Am. Compl. [Dkt. # 54], which the Court granted. Min. Order (Jan. 19, 2016).

Plaintiff filed a second amended complaint on January 19, 2016. 2d Am. Compl. [Dkt. # 60]. On February 12, 2016, defendant filed an answer, which included a counterclaim for trespass to chattel against plaintiff. Answer [Dkt. # 62]. Defendant voluntarily dismissed the counterclaim on February 26, 2016, Notice of Voluntary Dismissal [Dkt. # 64] after filing an amended answer on February 25, 2016. Am. Answer [Dkt. # 63].

Following discovery, plaintiff moved for partial summary judgment on her DCWPCL claim, Pl.'s Mot., and defendant filed a cross-motion for summary judgment on the same count. Def.'s Cross–Mot. The motion has been fully briefed.⁷ Defendant also filed a motion for summary judgment on Counts I, II, and III on March 9, 2017. Def.'s Mot. for Summ. J. on Counts I, II, and III [Dkt. # 80]. That motion is also fully briefed, but this opinion deals only with Count IV.

STANDARD OF REVIEW

Summary judgment is appropriate "if the movant...