Gordon v. Napolitano
786 F. Supp. 2d 82
D.D.C.2011Background
- Gordon, a FEMA employee under DHS, filed EEOC charges alleging gender, race, color, and age discrimination plus reprisal.
- Her 2004 and 2007 EEOC charges led to a Right to Sue Notice, and she filed this 2009 federal suit asserting retaliation and hostile work environment.
- Napolitano seeks dismissal under Rule 12(b)(6) or summary judgment under Rule 56, arguing failure to exhaust and lack of meritorious claims.
- The court must assess whether federal employees must exhaust for each discrete act and whether hostile environment claims may rely on continuing conduct under Morgan.
- The court also considers whether discovery is required before ruling on the sufficiency of the retaliation and hostile environment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count I retaliation is exhausted | Gordon properly exhausted some retaliation acts via May 2007 EEOC filing. | Many alleged acts occurred before the 45-day window or were not in the EEOC charge, thus unexhausted. | Partially granted; discrete acts before 45 days are dismissed, but some acts may serve as background evidence. |
| Whether Count II hostile environment is exhausted | Morgan allows continuing conduct to support a hostile environment claim even if some acts fall outside the filing period. | Exhaustion should not bar, but Morgan permits reliance on acts within filing period for liability assessment. | Not dismissed for failure to exhaust; Morgan exception applies. |
| Whether Rule 12(b)(6) or summary judgment is appropriate given discovery needs | Discovery is needed to bolster the retaliation and hostile environment claims. | The court can test sufficiency now and later with discovery; pre-discovery summary judgment is improper. | Partial denial of dismissal; discovery may proceed before summary judgment on remaining claims. |
Key Cases Cited
- National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (discrete vs. ongoing acts; ongoing acts can toll exhaustion for hostile environment claims)
- United Air Lines, Inc. v. Evans, 431 U.S. 553 (U.S. 1977) (background evidence may support exhausted claims)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (claims must be plausible on their face)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleading)
- Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163 (U.S. 1993) (exacting pleading standard is not required)
- Dura Pharm., Inc. v. Broudo, 544 U.S. 336 (U.S. 2005) (analysis of alleged facts under Rule 12(b)(6))
- Yates v. District of Columbia, 324 F.3d 724 (D.C. Cir. 2003) (regarding treatment of matters outside pleadings)