Gordon v. Office of the Architect of the Capitol
750 F. Supp. 2d 82
D.D.C.2010Background
- Gordon is an African American female employed by the Office of the Architect of the Capitol since January 2005 in the Superintendent's Office of the Senate Office Buildings as an Administrative Support Assistant (GS-08/Step 6).
- A Supervisory Secretary vacancy SOB 2008-104 was announced on Nov. 16, 2007, re-advertised twice due to an omission, and plaintiff applied and interviewed for the position.
- Christine Camera, a Caucasian female, was chosen by Morey for the position; Camera had only five months of employment and was GS-1 in Time and Attendance at selection.
- Gordon was informed of non-selection on Jan. 30, 2008; Morey’s decision was communicated via AVUE and circulated within the agency.
- Gordon sought counseling from the Office of Compliance on July 28, 2008 alleging race discrimination, later pursuing mediation; the action alleges discrimination, retaliation, and hostile environment claims under the Congressional Accountability Act (CAA).
- The Court declines some claims for lack of exhaustion and dismisses others in part, holding that timely exhaustion exists for the discrimination claim but that retaliation based on participation in counseling/mediation lacks jurisdiction, and that the hostile environment claim is dismissed without prejudice in part; summary judgment is denied without prejudice as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gordon timely exhausted the administrative remedies for the discrimination claim. | Gordon contends notification or discovery rule makes her 7/28/2008 counseling timely. | Exhaustion must occur within 180 days of the alleged violation; the non-selection occurred 1/24/2008. | Discrimination claim timely under either rule; Count I survives 12(b)(1) but other claims limited. |
| Whether Gordon properly exhausted retaliation claims based on counseling/mediation. | Retaliation tied to opposition and initial meetings; exhaustion adequate for those events. | Retaliation tied to counseling/mediation requires separate exhaustion. | Count II dismissed to extent based on retaliation for counseling/mediation; other retaliation tied to initial opposition survives. |
| Whether Gordon's hostile environment claim was properly exhausted. | Plaintiff includes hostile environment within retaliation; not expressly raised in initial counseling. | No hostile environment allegation in counseling/mediation requests. | Count III dismissed in full (without prejudice dismissal noted). |
| Whether the case is appropriate for summary judgment at this stage. | Discovery imminent; genuine issues of material fact exist regarding statute of limitations. | Summary judgment premature without discovery. | Summary judgment denied without prejudice as premature. |
| What is the court’s jurisdiction given the CAA’s exhaustion requirements? | CAA allows jurisdiction for claims with completed counseling/mediation. | Jurisdiction limited to exhausted claims per 2 U.S.C. § 1408; incomplete for some claims. | Court retains jurisdiction over timeliness-discrimination claim; lacks jurisdiction for some retaliation/hostile environment claims without further exhaustion. |
Key Cases Cited
- Del. State College v. Ricks, 449 U.S. 250 (1981) (notice triggers accrual for discrimination actions under Title VII concepts incorporated by the CAA)
- Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir. 1990) (discovery rule can apply to accrual under CAA-incorporated statutes)
- Crandall v. Paralyzed Veterans of Am., 146 F.3d 894 (D.C. Cir. 1998) (Delaware State College v. Ricks applied to accrual for CAA-incorporated statutes)
- Murphy v. PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 16 (D.D.C. 2008) (D.C. Circuit contract-based exhaustion considerations; accrual principles cited)
- Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 2009) (CAA three-step process is jurisdictional; equitable tolling not available for CAA claims without exhaustion)
- Brady v. Livingood, 456 F. Supp. 2d 1 (D.D.C. 2006) (case used notification of demotion to determine accrual date under CAA)