LATSON v. HOLDERLATSON v. HOLDER
The plaintiff, Elvenia A. Latson, brings this civil action against Eric H. Holder, in his official capacity as the Attorney General of the United States Department of Justice, alleging that her employer, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“BATF”) (a component of the Department of Justice, see Complaint (“Compl.”) ¶ 4) discriminated against her on the bases of her race, sex, and color, in violation of Title VII of the Civil Rights Act of 1964, as amended,
I. BACKGROUND
The plaintiff, an African-American female, Compl. ¶ 1, has worked for the BATF since 1990 and is currently a GS-13 Industry Operations Investigator in the agency’s Tallahassee Satellite Office of its Tampa Field Division, id. ¶ 10. Between 2009 and 2010, the plaintiff applied for two vacant BATF Supervisory Industry Operations Investigator positions, the first located in Jacksonville, Florida, and the second located in Harrisburg, Pennsylvania. Id. ¶¶ 11-13. The plaintiff alleges that her name was “improperly omitted from the certified list of applicants” for both vacancies, id. ¶ 17, and that she was not selected for either position, id. ¶¶ 12-13. According to the Complaint, the BATF selected two white males to fill both the Jacksonville and Harrisburg vacancies. See id. ¶ 26.
Following an EEO investigation conducted by the defendant, the Equal Employment Opportunity Commission (“EEOC”) “issued a Decision in favor of the Agency on October 22, 2013.” Compl. ¶ 7. On December 4, 2013, the Agency issued a Final Agency Decision affirming and adopting the EEOC’s determination. Id. ¶ 8. The plaintiff subsequently brought this action alleging discrimination based on her race, sex, color, age, and a disability, and for retaliation resulting from her prior EEO activity. Id. ¶¶ 1, 28-40.
II. STANDARDS OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) permits a party to move to dismiss for “lack of subject-matter jurisdiction.”
“Although ‘the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject[-]matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) on the complaint standing alone,’ ‘where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). Thus, “the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Federal Rule of Civil Procedure 12(b)(6)
A Rule 12(b)(6) motion tests whether a complaint “state[s] a claim upon which relief can be granted.”
“In determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (citation omitted). And among the documents “subject to judicial notice on a motion to dismiss” are “public records.” Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004). Thus, “[a] court may consider an EEOC complaint and Notice of Charge without converting a motion to dismiss into a motion for summary judgment because such records are ‘public document[s] of which a court may take judicial notice.’” Ndondji v. Interpark Inc., 768 F. Supp. 2d 263, 272 (D.D.C. 2011) (alteration in original) (quoting Ahuja v. Detica Inc., 742 F. Supp. 2d 96, 101-102 (D.D.C. 2010)).
C. Federal Rule of Civil Procedure 56
If a district court considers matter which require that a Rule 12(b)(6) motion be converted to one for summary judgment pursuant to Rule 56, the motion can be granted only if “there is no
When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255 (citation omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the absence of a genuine issue of material fact and that the non-moving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (citation and internal quotation marks omitted). “The mere existence of a scintilla of evidence in support of the [non-moving party’s] position [is] insufficient” to withstand a motion
“The decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006) (citation omitted). In exercising this discretion, a “reviewing court should not automatically treat a dismissal where external materials were not excluded as a summary judgment, although such treatment may be the most common result . . . . Rather, the reviewing court must assure itself that summary judgment treatment would be fair to both parties in that the procedural requirements of the applicable rules were observed.” Tele-Commc’ns of Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985). “A motion may be treated as one for summary judgment even if the parties have not been provided with notice or an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside of the pleadings such that they are not taken by surprise.” Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 86 (D.D.C. 2012) (citations omitted).
III. ANALYSIS
The defendant moves to dismiss the plaintiff’s claims of discrimination based on her disability and age, as well as her retaliation claim, contending that the plaintiff failed to exhaust her administrative remedies as to these claims. Def.’s Mem. at 1. Specifically, the defendant argues that the claims it seeks to dismiss fail as a matter of law because the plaintiff did not include them in either her administrative EEO complaint or her emails to her EEO counselor requesting that her administrative complaint be amended. See id. at 6 (“Here, neither [the] [p]laintiff’s initial EEO complaint nor her two subsequent amendments to the formal EEO complaint ever mentioned that the agency somehow discriminated against her based on a
Title 29 of the Code of Federal Regulations sets forth the administrative process for filing discrimination complaints against the federal government. First, one who believes she has been subjected to discrimination by her federal-government employer “must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.”
“A plaintiff fails to exhaust her administrative remedies when the complaint she files in federal court includes a claim that was not raised in the administrative complaint.” Mogenhan v. Shinseki, 630 F. Supp. 2d 56, 60 (D.D.C. 2009); see also Singleton v. Potter, 402 F. Supp. 2d 12, 32 (D.D.C. 2005) (“[A]s the D.C. Circuit has emphasized: ‘Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.’” (quoting Marshall v. Fed. Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997))). This exhaustion requirement is not a
A. The Plaintiff’s Claim of Discrimination Based on a Disability
“The exclusive remedy for federal employees alleging that federal agencies engaged in disability discrimination is Section 501 of the Rehabilitation Act . . . .” Rand v. Geithner, 609 F. Supp. 2d 97, 100 (D.D.C. 2009). “Federal employees may file a . . . Rehabilitation Act action in federal court only after exhausting administrative remedies before the relevant federal agency for each allegedly discriminatory act.” Mahoney v. Donovan, 824 F. Supp. 2d 49, 58 (D.D.C. 2011). “A failure to exhaust administrative remedies for Rehabilitation Act claims is a jurisdictional defect, requiring dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1).” Id. (citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)). And because it “is a jurisdictional requirement,” the “[p]laintiff has the burden to plead and prove” exhaustion of claims brought under the Rehabilitation Act. Carty v. District of Columbia, 699 F. Supp. 2d 1, 2 n.2 (D.D.C. 2010). While “every detail of the eventual complaint need not be presaged in the [administrative] filing,” the substance of the plaintiff’s Rehabilitation Act claim “must fall within the scope of ‘the administrative investigation that can reasonably be expected to follow the charge of discrimination.’” Marshall, 130 F.3d at 1098 (quoting Park, 71 F.3d at 907).
In its motion for partial dismissal of the plaintiff’s disability claim, the defendant argues that the plaintiff failed to exhaust her administrative remedies because “neither her initial EEO complaint nor her two subsequent amendments to the formal EEO complaint ever mentioned that the agency somehow discriminated against her based on a disability under the Rehabilitation
Similarly, the defendant contends that the plaintiff failed to exhaust her administrative remedies with respect to her claims of age discrimination under the ADEA and retaliation under Title VII because her “federal court Complaint is the first time that she alleges” these claims. Def.’s Mem. at 9. As with other forms of alleged discrimination, plaintiffs must first exhaust their administrative remedies under Title VII and the ADEA by raising these claims in an administrative complaint. See, e.g., Ndondji, 768 F. Supp. 2d at 276 (“Under Title VII, a plaintiff must timely exhaust his administrative remedies before bringing an action in federal court . . . . Only those claims that are contained in the administrative complaint or that are ‘like or reasonably related’ to the allegations of the administrative complaint can be raised in a Title VII lawsuit.” (citations omitted)); Alfred v. Scribner Hall & Thompson, LLP, 473 F. Supp. 2d 6, 9 (D.D.C. 2007) (“[T]he ADEA requires an aggrieved party to file an administrative claim with the EEOC before initiating a civil action in federal court.”). But unlike claims filed pursuant to the Rehabilitation Act, “failure to exhaust administrative remedies under the ADEA and Title VII is an affirmative defense, not a jurisdictional requirement.” Koch v. Walter, 935 F. Supp. 2d 164, 170 (D.D.C. 2013). Thus, “[p]rudential exhaustion under Title VII and the ADEA, by contrast, is evaluated under Rule 12(b)(6) for failure to state a claim . . . ,” id. at 170-71, and it is the defendant’s “burden to show that [the plaintiff] did not exhaust [her] remedies for the claims brought under those statutes,” id. at 170.
At this juncture, the Court notes that, in support of its motion, the defendant has attached seven exhibits to its brief that are not incorporated in the plaintiff’s federal Complaint. See Def.’s Mem., Ex. A (EEO Complaint); Def.’s Mem., Ex. B (January 2010 email); Def.’s Mem., Ex. C (August 2010 email); Def.’s Mem., Ex. D (Jacksonville Vacancy Announcement); Def.’s
With respect to the plaintiff’s retaliation claim, the record lacks the clarity necessary for the Court to enter summary judgment for the defendant. While the plaintiff’s initial administrative complaint does not reference any claims of retaliation, see Def.’s Mem., Ex. A (EEO Formal Complaint), the defendant acknowledges that the plaintiff subsequently emailed her EEO counselor on at least two separate occasions attempting to amend her administrative complaint, see Def.’s Mem., Ex. B (January 2010 email); Def.’s Mem., Ex. C (August 2010 email). In fact, the second email indicates the plaintiff’s intent to amend her complaint and add a claim for “constant harassment and retaliation.” Def.’s Mem., Ex. C (August 2010 email). Based on the record before the Court, it remains unclear whether the allegations in this email were accepted for investigation, whether her complaint was, in fact, amended in any manner, or whether the plaintiff received any response to this email. This lack of clarity creates genuine
Moreover, the Court notes that the exhaustion requirement “should not be construed to place a heavy technical burden” on the plaintiff. See Fennell v. AARP, 770 F. Supp. 2d 118, 126 (D.D.C. 2011) (citing Park, 71 F.3d at 907). Indeed, “[i]t has long been settled that EEO charges be construed liberally in the context of exhaustion to favor complainants who, as a group, are largely unskilled in the formalities of legal pleading.” Lyles v. District of Columbia, 777 F. Supp. 2d 128, 136 (D.D.C. 2011). Because the defendant bears the burden of demonstrating the absence of a genuine issue of material fact with respect to a motion for summary judgment, Celotex, 477 U.S. at 322, and the Court having determined that this burden has not been satisfied, the defendant’s motion with respect to the plaintiff’s retaliation claim must be denied.4
For the foregoing reasons, the Court concludes that it must grant the defendant’s motion to dismiss with respect to the plaintiff’s claims of discrimination based on her age and alleged disability, but deny the defendant’s motion to dismiss with respect to the plaintiff’s retaliation claim.
SO ORDERED this 9th day of March, 2015.5
REGGIE B. WALTON
United States District Judge