AHUJA v. DETICA INC

Not all forms of offensive or discriminatory conduct, however, give rise to a hostile work environment claim. A workplace becomes "hostile" only "[w]hen the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In determining whether a hostile work environment exists, the Supreme Court has directed courts to examine the totality of the circumstances, including "`the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris, 510 U.S. at 23). "These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a `general civility code.'" Id. at 788 (citations omitted). "Even a few isolated incidents of offensive conduct do not amount to actionable harassment." Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citing Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996)); see also Nurriddin v. Bolden, 674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismissing a hostile work environment claim in part because "the alleged events are temporally diffuse, spread out over a four-year period suggesting a lack of pervasiveness"); Childs-Pierce, 383 F. Supp. 2d at 79 (dismissing a hostile work environment claim that plaintiff "attempt[ed] to cobble together . . . from discrete acts of alleged discrimination against her that are neither severe nor widespread").

In her Opposition, Plaintiff argues that her Complaint sufficiently stated a hostile work environment. Pl's Opp'n at 8. Plaintiff's entire justification for this assertion is that "she was ostracized, removed from projects, reassigned and lies told about her." Id. (citing Compl. ¶¶ 52, 70, 76; Intake Questionnaire at 6-7). The Court concludes, however, that these allegations are insufficient to state a claim for hostile work environment.

First, paragraphs seventy and seventy-six of the Complaint cannot support Plaintiff's hostile work environment claim because they characterize Defendant's behavior and do not allege specific facts sufficient to support a hostile work environment claim. See Celotex Corp., 477 U.S. at 324 (requiring the non-moving party in a motion for summary judgment to "designate specific facts showing that there is a genuine issue for trial'") (quoting Fed.R.Civ.P. 56(e); Ashcroft v. Iqbal, 129 S.Ct. at 1949 ("Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement'") (quoting Twombley, 550 U.S. at 557); see also Compl. ¶¶ 70, 76. The remaining paragraph that Plaintiff cites in support of her hostile

work environment claim alleges that Plaintiff experienced retaliation from Mr. Vincenzes and Mr. Travis after complaining to Defendant's human resources department in December 2006. Id. ¶ 52. An allegation of retaliation, however, is insufficient to allege a distinct hostile work environment claim. See Keeley v. Small, 391 F. Supp. 2d 30, 51 (D.D.C. 2005) ("The remainder of plaintiff's alleged `hostile' events are the very employment actions he claims are retaliatory; he cannot so easily bootstrap alleged retaliatory incidents into a broader hostile work environment claim.").

Second, even when the Court examines the entire Complaint, it is clear that Plaintiff has not alleged that her workplace was "permeated with discriminatory intimidation, ridicule and insult that is sufficiently . . . pervasive. . . ." Harris, 510 U.S. at 22 (1993). At most, Plaintiff has alleged five discrete events of discrimination spread out over more than four years. See Compl. ¶¶ 25-29, 33, 46-48, 52-53, 57-59. The fact that these alleged events span more than four years indicates that the alleged discrimination was not pervasive. Compare Nurriddin v, 674 F. Supp. 2d at 94 ("[T]he alleged events are temporally diffuse, spread out over a four-year period suggesting a lack of pervasiveness"), with Hutchinson v. Holder, 668 F. Supp. 2d 201, 219 (D.D.C. 2009) (refusing to dismiss plaintiff's hostile work environment claim when the complaint contained " dozens of incidents that [plaintiff] alleges constituted a hostile work environment") (emphasis added).

Furthermore, two of these discrete events are not properly considered as a basis for a hostile work environment claim. Specifically, Plaintiff has failed to allege that the September 2004 incident with Mr. Zimmerman and the February 2007 incident with Ms. McDonald "occurred because of her race or disability." Childs-Pierce, 383 F. Supp. 2d at 77; see also Intake Questionnaire at 6 (alleging that Ms. McDonald harassed Plaintiff regarding Plaintiff's work performance). Absent a connection between these alleged discriminatory acts and Plaintiff's sex, race, or ethnicity, these allegations cannot be grounds for a Title VII hostile work environment claim. Childs-Pierce, 383 F. Supp. 2d at 77-78 ("Everyone can be characterized by sex, race, [or] ethnicity. . . . It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage of correlation to the claimed ground of discrimination. Otherwise the federal courts will become a court of personnel appeals") (quoting Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002).

In conclusion, for the reasons set forth above, no reasonable trier of fact could find in favor of Plaintiff in regards to her Title VII hostile work environment claim. Therefore, the Court shall grant Defendant's converted motion to dismiss Plaintiff's Title VII hostile work environment claim.

B. The Converted Motions to Dismiss for Failure to Exhaust Administrative Remedies

In addition, Defendant moves to dismiss Plaintiff's ADEA discrimination claim (Count III), ADEA retaliation claim (Count IV), and Title VII retaliation claims (Count IV) for failure to exhaust administrative remedies.

"Before suing under either the ADEA or Title VII, an aggrieved party must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident." Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998). A lawsuit following a charge is limited "to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard University 71 F.3d 904, 907 (D.C. Cir. 1995). In particular, these claims "must arise

from `the administrative investigation that can reasonably be expected to follow the charge of discrimination.'" Id. (quoting Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)); see also Hodge v. United Airlines, 666 F. Supp. 2d 14, 22 (D.D.C. 2009) (dismissing a hostile work environment claim because the information in the charge was "not specific or elaborate enough to allow the EEOC to infer the existence of a hostile work environment claim."). "Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the responsibility of pleading and proving it." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990).

To assert a claim of retaliation, Plaintiff must "show[] (1) that [s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially adverse action by his employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). "An activity is `protected' for the purposes of a retaliation claim `if it involves opposing alleged discriminatory treatment by the employer or participating in legal efforts against the alleged treatment.'" Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 91 (D.D.C. 2006) (quoting Coleman v. Potomac Elec. Power Co., 422 F. Supp. 2d 209, 212-13 (D.D.C. 2006)). An action is "adverse" if the employer's actions are likely to have "`dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 126 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).

In this case, Plaintiff admits that her EEOC Complaint and Notice of Charge do not reference her ADEA discrimination, ADEA retaliation, or Title VII retaliation claims. See Pl.'s Opp'n at 4, 8. Nevertheless, Plaintiff argues that she exhausted her administrative remedies in regards to these claims by including allegations supporting these claims in her Intake Questionnaire. See id. at 3-6, 8. In response, Defendant contends that Plaintiff cannot rely on the Intake Questionnaire to exhaust administrative remedies. See Def.'s Reply at 2-4. For the reasons set forth below, the Court shall grant Defendant's motion to dismiss Plaintiff's ADEA discrimination and ADEA retaliation claims for failure to exhaust administrative remedies and shall hold in abeyance Defendant's motion to dismiss Plaintiff's Title VII retaliation claim for failure to exhaust administrative remedies.

1. Plaintiff's ADEA Discrimination and Retaliation Claims

As mentioned above, Plaintiff concedes that her EEOC Complaint and Notice of Charge do not mention age discrimination. See Pl.'s Opp'n at 8. The Court agrees. Significantly, neither document contains a single allegation that Plaintiff was discriminated against because of her age, much less a reference to Plaintiff's age. See Def.'s Mot. Ex. 1. In fact, in her EEOC Complaint Plaintiff only alleges that she was "discriminated against because of [her] sex, female, relating to pregnancy; race (Asian); and national origin (India). . . ." Id. at 1. Similarly, in the Notice of Charge prepared by the EEOC and sent to Defendant based on Plaintiff's EEOC Complaint, the EEOC only filled in the boxes on the standardized form corresponding to claims under Title VII for race, sex, and national origin discrimination, while the boxes corresponding to age discrimination and claims under the ADEA were empty. See id. at 3.

Despite the EEOC Complaint filed with the EEOC and the Notice of Charge served on Defendant omitting any reference to age discrimination or the ADEA, Plaintiff argues that the Intake Questionnaire she submitted to the Arlington Human Rights Commission is sufficient to exhaust the administrative remedies for her ADEA discrimination and ADEA retaliation claims. See Pl.'s Opp'n at 8. In response, Defendant argues that Plaintiff may not rely on the Intake Questionnaire to exhaust administrative remedies because the Intake Questionnaire is not a charge of discrimination. See Def.'s Reply at 2-6. The Court, however, does not need to reach the issue of whether Plaintiff may rely on the Intake Questionnaire because assuming arguendo that Plaintiff could rely on the Intake Questionnaire, the Court finds that Plaintiff nonetheless failed to exhaust administrative remedies for her ADEA claims.

Similar to Plaintiff's EEOC Complaint, the Intake Questionnaire does not indicate that Plaintiff alleged she was discriminated against based on her age. Significantly, the Intake Questionnaire asks complainants "on what basis do you believe that you were discriminated" and asks them to "check all that apply." Intake Questionnaire at 4. Similar to the allegations in her EEOC Complaint, Plaintiff checked the Intake Questionnaire's boxes for race, sex, pregnancy, and national origin. See id. However, Plaintiff did not check the box indicating that she believed she was discriminated against based on age. See id. The fact that Plaintiff checked the boxes for the other forms of discrimination indicates that she understood the significance of checking the age discrimination box and that her failure to do so was because she did not believe she was discriminated against because of her age. Furthermore, Plaintiff omitted a single explicit allegation of being discriminated against based on her age in the over eight pages, single space description she includes in the Intake Questionnaire regarding why she believed was discriminated against. See id. at 4-11. This omission, along with Plaintiff's failure to check the Intake Questionnaire's box for age discrimination, is glaring and belies Plaintiff's claim that an investigation regarding age discrimination "can reasonably be expected to follow" the Intake Questionnaire. See Park, 71 F.3d at 907.

Plaintiff disputes this conclusion and argues that by stating in the Intake Questionnaire that "she was the most senior person in the IT divisions . . . and that a majority of people over 50 were laid off in 2007," she sufficiently raised the issue of age discrimination. Pl.'s Opp'n at 8 (citing Intake Questionnaire at 8-9, 11). This purported reference to age discrimination, however, is not "specific or elaborate enough to allow the EEOC to infer the existence" of Plaintiff's age discrimination claims. Hodge, 666 F. Supp. 2d at 22. Moreover, it does not allege that Plaintiff engaged in any protected activity opposing age discrimination from which an ADEA retaliation claim could arise. See Lemmons, 431 F. Supp. 2d at 91 (D.D.C. 2006) ("An activity is `protected' for the purposes of a retaliation claim `if it involves opposing alleged discriminatory treatment by the employer or participating in legal efforts against the alleged treatment'") (quoting Coleman, 422 F. Supp. 2d at 212-13)). Finally, and perhaps most significantly, the statements cited by Plaintiff do not actually refer to any age discrimination against Plaintiff herself.

Thus, for the reasons stated above, the Court concludes that Plaintiff failed to exhaust the administrative remedies for her ADEA discrimination and ADEA retaliation claims. Consequently, the Court shall grant Defendant's converted motions to dismiss the ADEA discrimination claim (Counts III) and the ADEA retaliation claim (Count IV). 2. Plaintiff's Title VII Retaliation Claim

As a threshold matter, the Court reiterates that Plaintiff concedes, as she must, that she did not reference a Title VII retaliation claim in her EEOC Complaint. See Pl.'s Opp'n at 3-4. In short, Plaintiff's EEOC Complaint does not indicate that she engaged in any protected activity that could serve as a predicate for a retaliation claim. See Def.'s Mot. Ex. 1, at 1-2. The EEOC apparently agreed with this interpretation of Plaintiff's EEOC Complaint, as the EEOC filled in the boxes for discrimination based on race, sex, and national origin, but not for retaliation, in the Notice of Charge it prepared and sent to Defendant. See id. at 3.

Thus, similar to above, Plaintiff instead relies on the Intake Questionnaire to argue that she exhausted her administrative remedies for her Title VII retaliation claim. See Pl.'s Opp'n at 4, 6. In support of her reliance on the Intake Questionnaire, Plaintiff cites to Federal Express Co. v. Holowecki, 552 U.S. 389 (2008), and its progeny. See Pl.'s Opp'n at 4. In reply, Defendant argues that (1) the D.C. Circuit has already held in Park v. Howard University, 71 F.3d 904 (D.C. Cir. 1995), that intake questionnaires cannot replace an EEOC charge, Def.'s Reply at 3; and (2) in any event, the cases Plaintiff relies on are factually distinguishable from the instant case, id. at 4. For the reasons set forth below, however, the Court shall hold in abeyance Defendant's converted motion to dismiss Plaintiff's Title VII retaliation claim.

Unlike Plaintiff's ADEA claims, the Intake Questionnaire may contain some allegations that could be construed as allegations that Plaintiff was retaliated against for undertaking protected activity. See, e.g., Intake Questionnaire at 6 (noting that in March 2007 Plaintiff "submitted a complaint in the Human Resources department at [Defendant] that [she] was being subjected to repeated harassment. . . ."). Thus, whether the Court may consider the Intake Questionnaire appears to be determinative as to whether Plaintiff exhausted the administrative remedies for her Title VII retaliation claim. Furthermore, the Court agrees with the parties that for this Court to consider the Intake Questionnaire as Plaintiff urges the Court to do, the Court must first find that the Intake Questionnaire constitutes a charge of discrimination. See Pl.'s Opp'n at 4; Def.'s Reply at 3. For two principal reasons, however, the Court shall hold this issue, and consequently Defendant's converted motion, in abeyance until the parties submit to the Court supplemental briefing on the two issues set forth below.

First, Defendant argues in its Reply that the Intake Questionnaire is not a charge of discrimination in part because it is not verified, as required under 42 U.S.C. § 2000e-5(b). Def.'s Reply at 3. Although courts generally refuse to address arguments that are raised in a reply brief for the first time, see, e.g., Am Wildlands v. Kempthorne, 530 F.3d 991, 1001 (D.C. Cir. 2008) ("We need not consider this argument because plaintiffs . . . raised it for the first time in their reply brief"), the Court realizes that because Plaintiff first mentioned her reliance on Intake Questionnaire in her Opposition, the Reply was Defendant's first opportunity to address the Intake Questionnaire. Accordingly, the Court shall not dismiss Defendant's verification argument out of hand. Rather, the Court shall permit Plaintiff an opportunity to respond to Defendant's verification argument by requiring the parties to submit supplemental briefing as to whether the Intake Questionnaire is verified in accordance with 42 U.S.C. § 2000e-5(b).

Second, both parties have applied Holowecki in this case without first explicitly questioning whether Holowecki in fact applies. At issue in Holowecki was whether an intake questionnaire constituted a timely filed charge of discrimination. See id. at 394. In this case, in contrast, the issue is not whether Plaintiff timely filed a charge, but rather whether Plaintiff may rely upon allegations in her Intake Questionnaire to prove that she exhausted the administrative remedies for her Title VII retaliation claim. Under circumstances similar to those presented here, the Seventh Circuit Court of Appeals recently concluded that Holowecki is "inapposite" because "the issue is not whether a charge was timely filed (it was) but rather it included an allegation of retaliation." See Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 865 (7th Cir. 2010). Whether Holowecki applies in this case appears to be a matter of first impression in this Circuit, an issue not directly addressed by the parties. Therefore, the Court shall also require the parties to submit supplemental briefing as to (1) whether Holowecki applies in this case; (2) whether the D.C. Circuit's holding in Park applies; (3) if Holowecki and its progeny do apply, what specific facts and rationales from these cases supports their respective arguments, and (4) whether the Intake Questionnaire being filed with the Arlington Human Rights Commission, as opposed to the EEOC, affects whether the Intake Questionnaire's allegations may be considered.

In conclusion, the Court shall hold in abeyance Defendant's converted motion to dismiss Plaintiff's Title VII retaliation claim until the parties have submitted supplemental briefing to the Court addressing the following narrow issues: (1) whether the Intake Questionnaire meets 42 U.S.C. § 2000e-5(b)'s requirement that employment discrimination charges must be verified; and (2) whether Holowecki applies to the issue of whether Plaintiff may rely on the Intake Questionnaire's allegations to exhaust the administrative remedies for her Title VII retaliation claim. The Court shall set forth a schedule for the parties' supplemental briefing in the Conclusion to this Memorandum Opinion.

C. Defendant's Remaining Motions 1. Plaintiff's Purported Pattern and Practice Claims

Defendant also moves to dismiss Plaintiff's purported pattern and practice claims for failure to state a claim. Def.'s Mot. at 18-19. In response, Plaintiff argues that she may use evidence of Defendant's pattern and practices to support her claims of discrimination. Pl.'s Opp'n at 9. The Court shall deny Defendant's motion to dismiss Plaintiff's pattern and practice claims because there is no indication that Plaintiff is in fact asserting pattern and practice claims.

Defendant is correct that Plaintiff may not assert pattern and practice claims as this is not a class-action. See Wagner v. Taylor, 836 F.2d 578, 592 n. 94 (D.C. Cir. 1987). However, the Complaint contains no separate count designating a pattern and practices claim and Plaintiff's Opposition indicates that the allegations regarding Defendant's pattern and practices are meant to support Plaintiff's claims that Defendant discriminated against her. See Pl.'s Opp'n at 9. There is no doubt that Plaintiff may use Defendant's pattern and practices in this manner. See Williams v. Boorstin, 663 F.2d 109, 115 n. 38 (D.C. Cir. 1980) (noting that "evidence of systematic or general instances of discrimination can only be collateral to evidence of specific discrimination against the actual plaintiff"); see also Turner v. District of Columbia, 383 F. Supp. 2d 157, 169 (D.D.C. 2005) ("[E]vidence of a pattern or practice is relevant to an individual's claim for discrimination"). Thus, the Court shall deny Defendant's motion to dismiss Plaintiff's purported pattern and practices claims because Plaintiff is not in fact asserting such claims.

Consequently, the Court shall also deny Defendant's related motion to strike the Complaint's allegations of Defendant's pattern and practice as immaterial and impertinent. See Def.'s Mot. at 19-20. As Plaintiff is allowed to use pattern and practice evidence to support her discrimination claims, such allegations are not immaterial or impertinent. See Fed.R.Civ.P. 12(f) (allowing a court to strike "any redundant, immaterial, impertinent, or scandalous matter").

2. Plaintiff's Title VII Claims

a. Failure to exhaust administrative remedies

Defendant moves to dismiss Plaintiff's Title VII claims based on discrimination in hiring, compensation and benefits, performance evaluations, and demotions for failure to exhaust administrative remedies. See Def.'s Mot. at 8-10 (citing Compl. ¶ 71). Plaintiff's Complaint and Opposition indicate, however, that Plaintiff has not asserted the abovementioned Title VII claims. See Compl. ¶¶ 78-79; see Pl.'s Opp'n (containing no reference to such claims). The allegations Defendant cites to in support of this argument are better understood as part of Plaintiff's abovementioned allegations regarding Defendant's pattern and practices. See Compl. ¶ 71 ("[Defendant], through its agents and officers, has engaged in a pattern and practice of discriminating against minority employees in terms of their hiring, compensation and benefits, performance evaluations, promotions and demotions, and terminations."). Accordingly, the Court shall deny Defendant's motions to dismiss Plaintiff's Title VII claims based on discrimination in hiring, compensation and benefits, performance evaluations, and demotions for failure to exhaust administrative remedies.

b. Barred by the statute of limitations

In addition, Defendant moves to dismiss Plaintiff's Title VII claims based on events arising prior to July 17, 2007, as barred by Title VII's 300-day statute of limitations. Def.'s Mot. at 11; see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) (providing that in states with an agency with authority to grant or seek relief for alleged unlawful employment practices, the deadline under Title VII to submit a charge is 300 days from the alleged discriminatory incident). In response, Plaintiff argues that because her discrimination was ongoing, the continuing violation doctrine prevents her claims from being barred by the statute of limitations. See Pl.'s Opp'n at 9. For the reasons explained below, the Court shall grant Defendant's motion to dismiss Plaintiff's Title VII claims based on discrete discriminatory acts occurring before July 17, 2007.

The Court has already dismissed Plaintiff's Title VII hostile work environment claim for failure to state a claim. As a result, Plaintiff's remaining Title VII claims are only those for discrete acts of discrimination. This is significant because Plaintiff cannot rely upon the continuing violation doctrine to prevent her discrete acts of discrimination from being barred by the statute of limitations. Compare. Morgan, 536 U.S. 101, 118 (2002) ("It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period"), with id. at 113 ("discrete discriminatory acts are not actionable if time barred. . . . Each discrete discriminatory act starts a new clock for filing charges alleging that act."). Therefore, the Court shall grant Defendant's motion to dismiss Plaintiff's Title VII claims based on events occurring prior to July 17, 2007.

3. Plaintiff's § 1981 Claims

Defendant also moves to dismiss Plaintiff's § 1981 claims arising out of discrete acts of discrimination that occurred prior to November 25, 2005, as being barred by the statute of limitations. See Def.'s Mot. at 13. In response, Plaintiff does not specifically address § 1981's statute of limitations, but argues that the continuing violation doctrine prevents her claims from being dismissed. Pl.'s Opp'n at 9. As explained above, however, the continuing violation doctrine does not apply to discrete acts of discrimination. See Morgan, 536 U.S. at 113. As Defendant moves to dismiss only § 1981 claims based on discrete acts of discrimination, the Court finds that Plaintiff's argument based on continuing violation doctrine lacks support. See Def.'s Mot. at 13 (seeking dismissal of "claims based on Plaintiff being allegedly `ostracized' and `forced to issue a written apology' after an incident involving a harassment complaint against her in August 2004."). Accordingly, the Court shall grant Defendant's motion to dismiss Plaintiff's § 1981 claims based on events arising prior to November 25, 2005 — four years before Plaintiff filed the Complaint. See Jones v. R.R. Donnelley Sons Co., 541 U.S. 369, 382 (2004) (applying 28 U.S.C. § 1658's four year statute of limitations to § 1981 claims). D. Plaintiff's Motion to Amend Her Complaint

In her Opposition, Plaintiff requested leave to amend the Complaint pursuant to Federal Rule of Civil Procedure 15(a) if the Court dismisses any of her age or retaliation claims. See Pl.'s Opp'n at 10. Although not styled as a motion for leave to amend, the Court shall construe it as such. Nevertheless, the Court shall deny this construed motion because it violates Local Civil Rule 7(i) by failing to include "an original of the proposed pleading as amended." Thus, the Court shall dismiss Plaintiff's construed motion for leave to amend without discussing its merits. See Banks v. Kramer, 603 F. Supp. 2d 3, 6-7 (D.D.C. 2009).

Additionally, even if the Court were to reach the merits of Plaintiff's construed motion for leave to amend, the Court would nonetheless deny it as futile. After a party has lost the right to amend its pleading once as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice requires." Fed.R.Civ.P. Rule 15(a)(2). Courts should grant leave to amend so long as there is no indication of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficience by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962) (internal quotation marks omitted). In this case, the Court has dismissed Plaintiff's ADEA discrimination and ADEA retaliation claims (Counts III IV) because Plaintiff failed to exhaust her administrative remedies. Plaintiff cannot cure her failure to exhaust administrative remedies by amending her Complaint. Accordingly, the Court concludes that Plaintiff's motion for leave to amend the Complaint in regards to her ADEA claims is futile and shall be denied.

In conclusion, the Court shall GRANT-IN-PART, DENY-IN-PART, and HOLD-INABEYANCE-IN-PART Defendant's [4] Partial Motion to Dismiss and DENY Plaintiff's construed motion for leave to amend the Complaint. Specifically, the Court shall: (1) grant Defendant's converted motion to dismiss Plaintiff's Title VII hostile work environment claim (Count I) for failure to state a claim; (2) grant Defendant's converted motion to dismiss Plaintiff's ADEA claims (Counts III IV) for failure to exhaust administrative remedies; (3) hold in abeyance Defendant's converted motion to dismiss Plaintiff's Title VII retaliation claim (Count IV) for failure to exhaust administrative remedies; (4) deny Defendant's motion to dismiss Plaintiff's purported pattern and practice claims for failure to state a claim; (5) deny Defendant's motion to strike the Complaint's allegations of Defendant's pattern and practices; (6) deny Defendant's motion to dismiss, for failure to exhaust administrative remedies, Plaintiff's purported Title VII claims for discrimination in hiring, compensation and benefits, performance evaluations, and demotions; (7) grant Defendant's motion to dismiss as time barred Plaintiff's remaining Title VII claims based on events occurring prior to July 17, 2007; (8) grant Defendant's motion to dismiss as time barred Plaintiff's § 1981 claims (Count II) based on discrete acts of discrimination occurring prior to November 25, 2004; and (9) deny Plaintiff's construed motion for leave to amend the Complaint.

The supplemental briefing on the issues requested above — and on those issues only — shall be filed by the parties on or before October 29, 2010. The parties shall be permitted to file oppositions to the other party's supplemental briefing, with such oppositions due on or before November 12, 2010. Replies, if any, shall be due on or before November 26, 2010. An appropriate Order accompanies this Memorandum Opinion.