Vasser v. Shinseki
228 F. Supp. 3d 1
D.D.C.2016Background
- Vasser sues the VA Secretary alleging race, sex, and age discrimination and retaliation in employment.
- Ten alleged non-selections to promotions occurred between 2007 and 2011; five in 2007–2008, one in 2009, one in late 2010/early 2011, and one in 2011.
- VA argues claims for the first five non-promotions and the seventh were not administratively exhausted within 45 days of each action.
- Vasser argues tolling/equitable relief may save late-exhausted claims and that some obstruction of EEO access occurred.
- Administrative chronology: Vasser’s February 2010 complaint touched the sixth non-promotion; December 2011 complaint referenced the seventh only as background.
- Court grants partial motion to dismiss: dismisses pre-January 2009 non-promotions and the seventh non-promotion, and dismisses a new hostile-work-environment claim as unexhausted; consents to dismissal of certain ADEA and retaliation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether first five non-promotions were exhausted | Vasser seeks tolling due to active duty and potential EEO obstacles. | Claims for 2007–2008 non-promotions untimely; 45-day clock not tolled. | Dismissed for failure to exhaust first five non-promotions. |
| Whether the seventh non-promotion was exhausted | Evidence suggests inclusion in 2011 complaint; position open long-term. | No clear exhaustion; seventh not raised as an independent claim. | Dismissed seventh non-promotion. |
| Whether the hostile-work-environment claim in paragraph 60 was exhausted | Claim reasonably related to exhausted claims. | Not exhausted and not reasonably related to exhausted claims. | Dismissed hostile-work-environment claim for failure to exhaust. |
| Whether ADEA claims and early retaliation claims were exhausted | Consents to dismissal for claims not exhausted; equity tolling possible. | ADEA and initial retaliation claims lack exhaustion. | ADEA and first six retaliation claims dismissed as unexhausted; related conclusions limited to later timeframe. |
| Whether active-duty tolling applies and whether dismissal should convert to summary judgment | Equitable tolling may apply; discovery ongoing. | Motion properly evaluated on record; no conversion necessary. | Court allowed judicial-notice-based resolution without converting to summary judgment; tolling not established. |
Key Cases Cited
- Jakubiak v. Perry, 101 F.3d 23 (4th Cir. 1996) (45-day clock runs from the effective date of the action)
- Hairston v. Tapella, 664 F. Supp. 2d 106 (D.D.C. 2009) (equitable tolling only for extraordinary diligence instances)
- Pacheco v. Rice, 966 F.2d 904 (5th Cir. 1992) (equitable tolling requires diligent inquiry and active steps by plaintiff)
- Miller v. Hersman, 594 F.3d 8 (D.C. Cir. 2010) (context for 45-day administrative deadline in retaliation/ Title VII claims)
- Park v. Howard Univ., 71 F.3d 904 (D.C. Cir. 1995) (exhaustion scope for hostile-work-environment claims related to EEOC charge)
- Covad Communications Co. v. Bell Atl. Corp., 407 F.3d 1222 (D.C. Cir. 2005) (public records and related documents may be judicially noticed in exhaustion context)
- Latson v. Holder, 82 F. Supp. 3d 377 (D.D.C. 2015) (judicial notice and incorporation principles in administrative-exhaustion context)