Mount v. Napolitano
36 F. Supp. 3d 74
D.D.C.2014Background
- Mount sued under Title VII alleging gender, race discrimination and retaliation based on 43 non-selections after filing an EEO charge; the only exhaustion found valid was the July 2011 Los Angeles ASAC non-selection; defendant moved to dismiss or for partial summary judgment on exhaustion grounds; court treated motion as summary judgment on exhaustion; the record includes multiple ROIs and emails showing the scope of the EEO investigations and amendments; Mount’s attorney limited the agency’s investigation to the Los Angeles non-selection, affecting potential discovery of other non-selections; the court dismissed Counts I and II and limited Count III to the Los Angeles non-selection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-charge retaliation claims require separate exhaustion. | Mount contends Morgan allows like/related post-charge retaliation to be exhausted with the initial charge. | Defendant argues Morgan requires separate exhaustion for each discrete act after filing. | No; the court determines exhaustion fails for most unexhausted acts, regardless of Morgan’s application. |
| Whether Mount exhausted all non-Los Angeles non-selections through the initial EEO filing. | Mount argues related acts should be covered as like/related to initial charge. | Defendant contends only Los Angeles act was exhausted; rest must be dismissed. | Unexhausted acts cannot be deemed exhausted; only the Los Angeles act survives. |
| Whether the court should convert the Rule 12(b)(6) motion to summary judgment for exhaustion. | Discovery is needed; issues remain; conversion would be premature. | Conversion appropriate to address exhaustion with the ROIs. | The court converted to summary judgment on exhaustion issues. |
Key Cases Cited
- National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (discrete acts require separate administrative charges; no continuing violation for discrete claims)
- Park v. Howard University, 71 F.3d 904 (D.C. Cir. 1995) (exhaustion rules and scope of investigations in EEO complaints)
- Hamilton v. Geithner, 666 F.3d 1244 (D.C. Cir. 2012) (exhaustion considerations and Morgan framework in Title VII context)