254 F. Supp. 3d 230

D.D.C.

2017

Mаrtha Lucia SIERRA, Plaintiff, v. Carla HAYDEN, in her official capacity as Librarian of Congress, Defendant.

Civil Action No.: 16-1804 (RC)

United States District Court, District of Columbia.

June 1, 2017

RUDOLPH CONTRERAS, United States District Judge

§ 2D1.1(c)(8) (2017) (Drug Quantity Table).

[REDACTED] I must now determine whether any further reduction to Thompson‘s 60-month sentence “is warranted ... under the particular circumstances of th[is] case.” Dillon, 560 U.S. at 827, 130 S.Ct. 2683. I conclude it is not. In making this decision, I consider the factors set forth in 18 U.S.C. § 3553(a), see 18 U.S.C. § 3582(c), as well as “post-sentencing conduct of the defendant that occurred after imposition of the term of imprisonment ....” U.S.S.G. § 1B1.10 Commentary, Application Note 1(B)(iii).

My evaluation of the § 3553(a) factors and § 1B1.10 compels me to deny the Motion. Mr. Thompson was originally convicted of knowingly distributing phencyclidine in the Washington, D.C. and Maryland area, and my 60-month sentence was based on a careful consideration of the § 3553 factors. However, Mr. Thompson‘s post-sentencing conduct in this case has been particularly egrеgious and troubling, and weighs heavily in my decision to exercise my discretion and deny his motion to reduce his sentence by the requested 11-14 months. In August 2013, Mr. Thompson was designated to a residential reentry center (“RRC“). On October 24, 2013, Mr. Thompson escaped from the RRC and was on “escape status” for more than thirteen months until December 2014, when he was arrested, and ultimately pleaded guilty in D.C. Superior Court to unlawful possession of a firearm at the time of his arrest. Probation Memorandum [Dkt. # 169]. Mr. Thompson‘s thirteen-month escape and commission of a crime, during the time when he was supposed to be serving the sentence he now seeks to reduce, render it inconceivable that I would grant a request to reduce his sentence. Indeed, it takes some chutzpаh for him to even ask!

Accordingly, taking into account the sentencing factors set forth in 18 U.S.C. § 3553(a) and the policy statement set forth at U.S.S.G. § 1B1.10, defendant‘s motion to reduce his sentence is hereby DENIED. A separate order consistent with this decision accompanies this opinion.

Christopher Mayfield Brown, Ackerman Brown, PLLC, Washington, DC, for Plaintiff.

Benton Gregory Peterson, U.S. Attorney‘s Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT‘S PARTIAL MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Defendant Carla Hayden, in her official capacity as Librarian of Congress, moves to dismiss certain claims of discriminatory and retaliatory non-promotion by Plaintiff Martha Lucia Sierra, a Library of Congress employee, that were not timely raised to the Library of Congress‘s Equal Employment Opportunity Complaints Office. Ms. Sierra argues that, although she did not bring her claims within the prescribed time, the delаy was justified for a variety of reasons. First, she argues that she adhered to the purpose and spirit of the regulations, because she gave the Library of Congress notice of her claims and an opportunity to investigate them. Second, she argues that, by investigating and ruling on certain claims, the Library of Congress has waived its ability to argue that Ms. Sierra did not timely raise her claims. Third, with respect to claims administratively raised after filing the complaint in this case, Ms. Sierra argues that they are part of an ongoing pattern of discrimination and retaliation that continues to this day.

Ms. Sierra‘s arguments come up short. Adhering to the “purpose” of required regulations cannot excuse failure to exhaust in accordance with the regulations’ text. And, аlthough in certain circumstances a defendant can waive its exhaustion defense by raising it in court after disregarding it in the administrative context, Ms. Sierra fails to show that the Library of Congress ignored the timing deficiencies of her administrative complaint. In fact, the Library‘s decision on her complaint, which Ms. Sierra attaches as an exhibit in her opposition, shows just the opposite. Finally, Ms. Sierra‘s theory of ongoing discrimination has previously been rejected by the Supreme Court, and thus does not excuse her failure to administratively raise certain claims until after filing the instant lawsuit. Taken together, the Court dismisses claims related to the allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012 and from 2014 to 2016.

II. REGULATORY BACKGROUND

Under Title VII of the Civil Rights Act of 1964, “[a]ll personnel actions affecting employees or applicants for employment ... [in] the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16. However, before one can file a Title VII lawsuit in a federal district court, she must seek relief from the agency that allegedly discriminated against her. Brown v. GSA, 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The administrative procedure that one must follow to seek relief from the Library of Congress (“LOC“) is different from most federal agencies. See 29 C.F.R. § 1614.103(d)(3). Title VII charges the Librarian of Congress with exercising Equal Employment Opportunity Commission (“EEOC“) authority with respect to the LOC. See 42 U.S.C. § 2000e-16(b). The Librarian of Congress has done so in the form of LOC regulations, see LCR 2010-3.1 § 1, several of which Defendant reproduces as an exhibit. See ECF No. 4-3.²

Under the LOC‘s regulations, “[a] staff member ... who believes that []she has been, or is being, discriminated against ... shall notify and consult with a Counselor not later than 20 workdays after the date of the alleged discriminatory matter.” LCR 2010-3.1 § 4(A). This time limit may be extended through a formal request, but, with few exceptions, otherwise must be complied with before a plaintiff may file a federal lawsuit. See id. § 4(B); see also Nichols v. Billington, 402 F.Supp.2d 48, 69 (D.D.C. 2005), aff‘d, 2006 WL 3018044 (D.C. Cir. Mar. 7, 2006). Counselors work in the LOC‘s Equal Employment Opportunity Complaints Office (“EEOCO“), which is headed by the EEOCO Chief and largely run by the EEOCO Assistant Chief. See LCR 2010-3.1 § 3. The EEOCO Chief operates under the general guidance of the associate Librarian for Management. Id. at § 3(A). The EEOCO is charged with pro- viding impartial counseling, and library staff are instructed to permit employees to contact counselors. See id. §§ 2(A), 3(A).

III. FACTUAL BACKGROUND

Because Defendant moves to dismiss solely on failure-to-exhaust grounds, see generally Def.‘s Partial Mot. Dismiss (“Def.‘s Mot. Dismiss“), ECF No. 4, the Court‘s description of the facts of the case is largely confined to the timing of Plaintiff‘s administrative complaints vis a vis the alleged discrimination. Martha Lucia Sierra has been an employee of the LOC for over twenty years. Compl. ¶ 7, ECF No. 1. She alleges that she has been discriminated and retaliated against because of her race, sex, and national origin. Compl. ¶ 1. Ms. Sierra specifically alleges that her supervisors, Karen Lloyd and Dianne Houghton, discriminatorily refused to promote her several times from 2008 through 2015, retaliatorily refused to promote her after she filed an administrative complaint, and engaged in other discriminatory actions. See Compl. ¶¶ 12, 25-28. Ms. Sierra alleges that she was publicly mocked by Ms. Lloyd, starting as early as 2009, because English was not her first language. See Compl. ¶¶ 16, 19. Ms. Lloyd also allegedly called Ms. Sierra a “traitor” in 2010, because Ms. Sierra helped the American Embassy in Mexico with its library program. Compl. ¶ 25(c). Although it is not clear when the specific instances of non-promotion occurred during the course of the alleged timeframe of discrimination, according to the complaint, “[i]n 2008 and continuing through 2015, Ms. Lloyd refused to approve a detail assignment for Ms. Sierra ... [which] has adversely [affected] her professional development.” Compl. ¶ 25(a). The Complaint does not set out, in detail, the timing of discrete instances of discriminаtion and retaliation that allegedly occurred before she filed her first administrative complaint. See generally Compl.

According to the complaint, Ms. Sierra filed her first formal “Allegation of Discrimination” with the LOC on December 27, 2013, and then a formal complaint in the LOC‘s EEOC Office on April 9, 2014. Compl. ¶ 26. The parties attached these complaints to their filings. See ECF No. 4-4, 6-2 (“December 2013 LOC Compl.“);³ ECF No. 6-3 (“April 2014 EEOC Compl.“). Ms. Sierra‘s December 27, 2013 LOC complaint alleges that she was harassed, mocked, and treated differently from other employees a month earlier on November 27, but also suggests that the problems had been ongoing. See December 2013 LOC Compl. at 1, 2.⁴ Her April 2014 EEOC complaint also references November 27, 2013, but states that Ms. Lloyd “continually exhibited hostility toward [her]” since as early as 2008. See April 2014 EEOC Compl. at 1, 3. The LOC accepted Ms. Sierra‘s complaints and investigated them. Compl. ¶ 26.

Since filing her first administrative complaint, Ms. Sierra has asked for a promotion each year but has not received one, allegedly in retaliation for filing administrative complaints. See Compl. ¶¶ 28-29. Three days after she filed this case in federal court on September 9, 2016, see Compl. at 14, she filed another LOC “Allegation of Discrimination.” See ECF No. 6-7 (“September 2016 LOC Compl.“). The 2016 complaint mentions only the allegedly retaliatory failures-to-promote that occurred in 2015 and on August 4, 2016—not the one in 2014. See September 2016 LOC Compl. at 2.

IV. LEGAL STANDARD

The rules for Rule 12(b)(6) motions apply to motions to dismiss for failure to exhaust ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍administrative remedies under Title VII. See Laughlin v. Holder, 923 F.Supp.2d 204, 208 (D.D.C. 2013). To survive such a motion a complaint must contain sufficient factual allegations that, if accepted as true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge[] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

“In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff‘s complaint necessarily relies even if the document is produced not by the parties.” Busby v. Capital One, N.A., 932 F.Supp.2d 114, 133-34 (D.D.C. 2013) (internal citations and quotation marks omitted). “[A] document need not be mentioned by name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.” Strumsky v. Wash. Post Co., 842 F.Supp.2d 215, 218 (D.D.C. 2012) (internal citation omitted). Of course, courts may also take “judicial notice of facts on the public record ... to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted.” See Covad Commc‘ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)).

Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec‘y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleаding and proving a failure to exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the record. See Bowden, 106 F.3d at 437.

V. ANALYSIS

Defendant moves to dismiss only Ms. Sierra‘s claims of allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012, and from 2014 to 2016, on the grounds that Ms. Sierra failed to exhaust her administrative remedies. See Def.‘s Mot. Dismiss at 6. With respect to the former category of non-promotions, Ms. Sierra contends that she adhered to the purpose of the LOC‘s administrative procedure, and that even if she did not, Defendant has waived her failure-to-exhaust defense, because the LOC accepted, investigated, and decided her complaint. See Pl.‘s Opp‘n Def.‘s Mot. Dismiss (“Pl.‘s Opp‘n“) at 7-11, ECF No. 6. With respect to the non-рromotions from 2014 to 2016, Ms. Sierra contends that those specific instances of retaliation or discrimination were part of an ongoing pattern of discrimination that the LOC was on notice of from her previous complaint. See Pl.‘s Opp‘n at 6-7. Plaintiff also argues that any reliance on the administrative record requires the Court to convert Defendant‘s motion to dismiss into one for summary judgment. See Pl.‘s Opp‘n at 13.

Plaintiff‘s arguments come up short. Adherence to the spirit of regulations is insufficient when it comes to timely exhaustion of administrative remedies. And, although agencies can waive the exhaustion defense when they decide a case on the merits without mentioning timeliness, that was not the case here. With respect to the alleged non-promotions between 2014 and 2016, Plaintiff relies on a case that is no longer good law in this circuit. Although it is true that the D.C. Circuit used to allow plaintiffs to raise claims related to those that were timely exhausted, the Supreme Court rejected such an approach in National Railroad Passenger Corp. v. Morgan. Finally, the Court need not convert Defendant‘s motion into one for summary judgment, because it may take judicial notice of the only administrative documents needed to rule on this motion. Thus, the Court grants Defendant‘s partial motion to dismiss, dismissing Plaintiff‘s complaint insofar as it seeks recovery for discrete non-promotions occurring from 2008 to 2012 and from 2014 to 2016.⁵

A. Conversion into a Motion for Summary Judgment

Plaintiff argues that the Court cannot look to the administrative record to resolve Defendant‘s motion, because to do sо would require converting this motion into one for summary judgment. See Pl.‘s Opp‘n at 13.⁶ Because the Court need only look to documents to which it can take judicial notice or that Plaintiff references in her complaint, conversion to a motion for summary judgment is unnecessary.

In general, if the Court relies on materials other than those permitted to be considered on a motion to dismiss—namely, the facts alleged in the complaint, documents attached as exhibits or incorporated by reference, documents upon which the plaintiff‘s complaint necessarily relies, and facts of which the Court may take judicial notice—“it converts the motion to one for summary judgment.” See Void v. Smoot, 218 F.Supp.3d 101, 108 (D.D.C. 2016), appeal docketed, No. 16-5367 (D.C. Cir. Dec. 8, 2016). In the сontext of exhaustion, courts are willing to rely upon administrative orders and administrative complaints without converting the motion into one for summary judgment when the documents are “referred to in the complaint, ... are integral to [the plaintiff‘s] exhaustion of administrative remedies, and are public records subject to judicial notice.” See Laughlin, 923 F.Supp.2d at 209. “[C]ourt[s] may take judicial notice of matters of a general public nature ... without converting the motion to dismiss into one for summary judgment.” Koutny v. Martin, 530 F.Supp.2d 84, 89 (D.D.C. 2007) (quoting Baker v. Henderson, 150 F.Supp.2d 17, 19 n.1 (D.D.C. 2001)). “Thus, courts have taken judicial notice of ... parties’ administrative complaints when no party disputes their authenticity.” Vasser v. McDonald, 228 F.Supp.3d 1, 10 (D.D.C. 2016) (citing Ahuja v. Detica Inc., 742 F.Supp.2d 96, 103 (D.D.C. 2010); Redmon v. U.S. Capitol Police, 80 F.Supp.3d 79, 83 (D.D.C. 2015)). Even a court adopting a strict interpretation of the outside materials that may be considered at the motion-to-dismiss stage conсluded that the court could consider the plaintiff‘s EEOC complaint. See id.; Latson v. Holder, 82 F.Supp.3d 377, 386 (D.D.C. 2015) (“[T]he Court, in addition to the pleadings, may only consider the plaintiff‘s EEOC Complaint and Notice of Charge without converting the motions to dismiss.” (internal citation, quotation marks, and alterations omitted)).

As explained below, the Court need only consider Plaintiff‘s administrative complaints to resolve Defendant‘s partial motion to dismiss. Those complaints are subject to judicial notice and, in the case of Ms. Sierra‘s 2013 and 2014 complaints, referred to in the complaint. See Compl. ¶ 26. Thus, the Court need not convert this motion into one for summary judgment.

Notably, even if the Court were to treat this motion as one for summary judgment, the Court would likely still be able to resolve it. In responding to a motion for summary judgment, a party may not simply rest on the assertions in its pleadings. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). But it can, under Federal Rule of Civil Procedure 56(d) (“When Facts Are Unavailable to the Nonmovant“), “show[] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” It is appropriate for the Court to rule on the merits of a converted motion for summary judgment when “(1) the evidence submitted is sufficiently comprehensive to conclude that further discovery would be unnecessary; and (2) the non-moving party has not been unfairly disadvantaged by being unable to access the sources of proof necessary to create a genuine issue of material fact.” Ryan-White v. Blank, 922 F.Supp.2d 19, 24 (D.D.C. 2013); see also Rosier v. Holder, 833 F.Supp.2d 1, 5 (D.D.C. 2011) (treating a motion as one for summary judgment because “both parties refer[red] to doсuments outside of the complaint and there [was] nothing in the record ... indicat[ing that] the parties did not have a reasonable opportunity to present all pertinent material“).

Ms. Sierra has not complied with Rule 56(d) in two ways. First, she did not submit an affidavit or declaration germane to the issue of unavailable facts. See generally Pl.‘s Opp‘n. Second, even in her brief in support of her opposition she has not articulated what further discovery would be necessary to oppose Defendant‘s motion. Instead, she merely states that she “believes that additional discovery is required to allow the parties to offer evidence in support of their factual allegations and respectfully requests ... additional time to ... take discovery.” Pl.‘s Opp‘n at 13. She suggests that the Court may need to consider “additional evidence from [Ms.] Sierra and perhaps [Mr.] Page,” the LOC CFO. Pl.‘s Opp‘n at 13. But she offers no “specified reasons” that discovery would shed light on the seemingly straightforward timing issues necessary to resolving this motion to dismiss for failure to exhaust. See Pl.‘s Opp‘n. Any evidence from Ms. Sierra could have been provided at this stage, or at the very least described in greater detail in an affidavit, and Mr. Page, CFO of the LOC, has no apparent connection to the timing of Ms. Sierra‘s administrative complaints (beyond the tolling issue rejected below). Thus, Plaintiff has not shown that she is entitled to discovery before resolution of the instant motion.

B. Non-Promotions Before 2012

Defendant moves to dismiss Ms. Sierra‘s claims for discriminatory and retaliatory non-promotions that occurred from 2008 through 2012, on the grounds that Ms. Sierra failed to timely administratively file her complaints with the LOC. See Def.‘s Mot. Dismiss at 6. Plaintiff responds that (1) the purpose ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the exhaustion doctrine has been satisfied, (2) the LOC waived its non-exhaustion defense by accepting Plaintiff‘s administrative complaints, and (3) the twenty-workday time limit was tolled until Ms. Sierra knew the facts supporting her claim. The Court addresses these three issues in turn.

1. Plaintiff Did Not Satisfy the LOC‘s Administrative Timing Requirements

Ms. Sierra appears to concede that she did not adhere to the black letter of the library regulations. See Pl.‘s Opp‘n at 10-11. As noted above, LOC regulations require an employee who believes she has been discriminated against to consult with a counselor within twenty workdays of “the date of the alleged discriminatory matter.” LCR 2010-3.1 § 4(A). Unlike with other Title VII cases, where the regulations provide for more time when a plaintiff “did not know and reasonably should not have known that the discriminatory matter or personnel action occurred,” see 29 C.F.R. § 1614.105(a)(2), the LOC regulations only explicitly allow for extensions upon prior request by the complainant. See LCR 2010-3.1 § 4(B).

Ms. Sierra thus contends only that she has adhered to the purpose of the library regulations—namely, to give the agency sufficient notice of the alleged grievance—by filing the administrative complaints when she did. See Pl.‘s Opp‘n at 7-11. Because completely missing a deadline is not a mere “technical flaw” that can be excused so long as it provides sufficient notice, the Court rejects Plaintiff‘s argument.

Ms. Sierra is correct that, in many respects, “the basic demand on the complainant is that the agency be given sufficient, even if technically flawed, notice of the grievance.” Bethel v. Jefferson, 589 F.2d 631, 644 (D.C. Cir. 1978). This standard stems from the idea that the administrative complaint procedure was meant to be maneuvered by laypersons, not lawyers. See id. at 643. However, completely missing an administrative deadline is not a mere technical flaw; timely administrative filing is, with rare exception, a prerequisite to filing suit. See Achagzai v. Broad. Bd. of Governors, 170 F.Supp.3d 164, 180 (D.D.C. 2016) (characterizing a Title VII administrative filing deadline as a “cutoff“), reconsideration denied, 185 F.Supp.3d 135 (D.D.C. 2016); see also Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007); Horsey v. U.S. Dep‘t of State, 170 F.Supp.3d 256, 267 (D.D.C. 2016); Laughlin, 923 F.Supp.2d at 211. Indeed, a late-filed administrative complaint does not provide the agency with any timely notice, let alone “sufficient” notice. Thus, the twеnty-workday requirement is not a mere technicality that can be circumvented by adherence to the “purpose” of the library regulations. See Nichols v. Billington, 402 F.Supp.2d 48, 69-70 (D.D.C. 2005) (“Problematically for Plaintiff, she did not file an allegation of discrimination as to any of these selections within 20 workdays of the discriminatory event as required by LCR 2010-3.1.” (emphasis added)), aff‘d, No. 05-5326, 2006 WL 3018044 (D.C. Cir. Mar. 7, 2006).

But even if the “did not know and reasonably should not have known” discovery rule were to apply in the context of the LOC regulations, Plaintiff‘s claims would still be untimely for two reasons. First, as explained below, infra Part V.B.3, the “knew or should have known” standard would apply only to knowledge of the non-promotions, not the allegedly improper motivation for the non-promotions. Ms. Sierra‘s complaint seems to suggest that she was aware that other employees were being approved for advancement while she was not and that, at each of her annual reviews, she was told that she would not be promoted that year. See Compl. ¶¶ 18, 25(a). Second, even if the “knew or should have known” standard applied to Ms. Sierra‘s understanding of Ms. Lloyd‘s motivation, she accuses Ms. Lloyd of overtly discriminatory statements and criticism as early as 2009. See Compl. ¶¶ 19, 25(c).

In short, because Ms. Sierra did not adhere to the timing requirements of the LOC regulations, with respect to the alleged non-promotions occurring before 2012, she did not exhaust her administrative remedies in a timely fashion. And even if the timeline were to have only begun after she “knew or should have known” of the discriminatory actions, shе still would not have timely exhausted.

2. The LOC Did Not Waive Its Non-Exhaustion Defense

Plaintiff next contends that the LOC waived its non-exhaustion defense by accepting and investigating her administrative complaint. Notwithstanding a complainant‘s untimely submission of an administrative complaint, agencies can, under certain circumstances, waive the defense of exhaustion by accepting a plaintiff‘s complaint out of time. See Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997). Once a defendant shows non-exhaustion—as is the case here—the plaintiff carries the burden of showing waiver. Estate of Rudder v. Vilsack, 10 F.Supp.3d 190, 195 (D.D.C. 2014).

“[A]gencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint ....” Bowden, 106 F.3d at 438. Successfully invoking the equitable doctrine of waiver requires a plaintiff to show not only that an agency accepted and investigated a discrimination complaint, but also that it decided it on the merits “without mentioning timeliness.” Nurriddin v. Bolden, 674 F.Supp.2d 64, 86 (D.D.C. 2009) (quoting Bowden, 106 F.3d at 438). The out-of-jurisdiction case that Plaintiff cites in support of her claim, see Pl.‘s Opp‘n at 11, goes even further, holding that an agency waives the defense of non-exhaustion only by “making an express finding that the complaint was timely or failing to appeal an EEOC determination of timeliness.”⁷ See Seals v. Potter, 787 F.Supp.2d 239, 243 (N.D.N.Y. 2011) (quoting Bruce v. U.S. Dep‘t of Justice, 314 F.3d 71, 74 (2d Cir. 2002)). In Seals, the plaintiff argued that the agency had waived its non-exhaustion argument because it “accept[ed] and pursu[ed]” her administrative complaint. Id. Reasoning that “government agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a discrimination complaint,” that court rejected that argument because the agency did not make an express finding of timeliness. Id. (quoting Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (per curiam)).

Ms. Sierra in no way shows that the LOC decided her discrimination complaint on the merits without mentioning timeliness, as required under Nurriddin, 674 F.Supp.2d at 86. In fact, she does the opposite. Ms. Sierra attaches the LOC‘s administrative decision to her opposition, which contains the following paragraph:

The record revealed that you first contacted an EEO Counselor on or about December 27, 2013, and that the last time you asked Ms. Lloyd for a promotion ... was 2012. Accordingly, your claim of non-promotion failed to comply with the time limits of Library of Congress Regulation 2010-3.1, Policy and Procedures for Filing Equal Employment Opportunity Complaints of Discrimination.

ECF No. 6-5 (“LOC Administrative Decision“) at 10. Thus, rather than ignoring the timeliness issue or expressly finding thаt Plaintiff‘s claims were timely, the LOC found that they were untimely. Accordingly, Plaintiff has failed to show that the LOC waived its defense of untimely exhaustion.

3. Plaintiff Has Not Demonstrated that She Is Entitled to Equitable Tolling

Ms. Sierra next argues that the twenty-workday deadline was tolled until she knew that she was discriminated against and could assert her claims without fear of reprisal, which occurred in December 2013 when “the confluence of facts and the needed support from [the LOC‘s CFO] enabled [Ms.] Sierra to ... safely assert her claims for the first time.” Pl.‘s Opp‘n at 12. In support of her assertion that she could not assert her claims without fear of reprisal, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Ms. Sierra contends that Ms. Lloyd “isolated [her] by forbidding her from speaking to ... the Library CFO.” Pl.‘s Opp‘n at 12. In support of her assertion that she did not have аll the facts, she contends that when she finally spoke to the CFO, the CFO informed her that another employee was asserting discrimination. Pl.‘s Opp‘n at 12. Because Ms. Sierra‘s argument is incongruent with the relevant legal standard for tolling, the Court rejects her argument.

As with waiver, the plaintiff bears the burden of showing that she is entitled to equitable tolling. Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007) (citing Harris v. Att‘y Gen. of the U.S., 400 F.Supp.2d 24, 26 (D.D.C. 2005)). The Court‘s equitable power to toll the twenty-workday time limit imposed by the LOC—which, as noted above, begins to run at the time of the alleged discriminatory event, see LCR 2010-3.1 § 4(A)—“will be exercised only in extraordinary and carefully circumscribed instances.” Mondy v. Sec‘y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); see also Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“Federal courts have typically extended equitable [tolling] only sparingly.“).

In the context of non-promotion, courts are open to tolling administrative deadlines until the time when the complainant had reason to know that she was not selected for a promotion. See, e.g., Hairston v. Tapella, 664 F.Supp.2d 106, 114 (D.D.C. 2009). However, such equitable tolling only applies when “despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim,” which does not include details about the decision-making process. Pacheco v. Rice, 966 F.2d 904, 906-07 (5th Cir. 1992) (emphasis added) (also noting that “[t]he doctrine of equitable tolling has its limits,” including “[t]he requirement of diligent inquiry [that] imposes an affirmative duty on the potential plaintiff“); accord Vasser, 228 F.Supp.3d at 13-14, 2016 WL 7480263, at *8.

In the context of allegations that the defendant blocked access to the administrative process, “to successfully assert equitable estoppel, [the plaintiff] must demonstrate that [s]he was diligent and must рoint to ‘active steps’ the defendant took to prevent the plaintiff from making a timely filing.” Cristwell v. Veneman, 224 F.Supp.2d 54, 60 (D.D.C. 2002) (“For a plaintiff to successfully assert equitable estoppel, when it is alleged that an untimely filing was a result of conduct by the defendant, the plaintiff must be able to point to some type of ‘affirmative misconduct’ or misleading information regarding the filing deadline by the defendant.” (citing Irwin, 498 U.S. at 96)). Conclusory allegations lacking particularity that agency officials acted in bad faith are insufficient to show “active steps” preventing timely filing. Id.

Ms. Sierra has not carried the heavy burden of showing that the twenty-workday limitation should be tolled. Her argument that she did not have sufficient information because she was not told of other instances of discrimination is insufficient becausе the existence of such other cases is not “essential” to her own claim under Pacheco and Vasser. See 966 F.2d at 906-07; 228 F.Supp.3d at 13-14, *8. There is no indication that she was unaware that she was passed up for promotion, let alone that she could not have been aware of the fact despite “all due diligence.” See Pacheco, 966 F.2d at 906-07. In fact, she pleads the opposite. Ms. Sierra alleges that Ms. Lloyd consistently “mov[ed] the goalposts” each time she met the previously defined requirements for promotion during her annual reviews. Compl. ¶ 18. She further alleges that Ms. Lloyd told her that she was not going to be promoted during performance reviews. Compl. ¶¶ 19-20. And even further assuming that lacking knowledge of animus justifies tolling, Ms. Sierra alleges that Ms. Lloyd publicly mocked her because English was not her first language as early as 2009 and called her a “traitor” for helping with a 2010 library program in a Spanish-speaking country. See Compl. ¶¶ 19, 25(c). Thus, even assuming that the twenty-workday clock could be tolled by a plaintiff showing that she had no knowledge of the animus against her, Ms. Sierra has, if anything, alleged the opposite.

Nor has Ms. Sierra shown that she was actively prevented from pursuing her claim by anyone in the LOC. The fear of reprisal that she alleges is stated in mere conclusory terms, backed only by her contention that she was prevented from directly contacting the CFO of the library. See Pl.‘s Opp‘n at 12. Although contact with the CFO may have provided Ms. Sierra with information about a separate allegation of discrimination leading her to pursue her own cоmplaint, she does not explain how hindrances to contacting the CFO affected her ability to contact a counselor with the LOC‘s EEOCO. As noted above, the LOC EEOCO is headed by the EEOCO Chief, who operates under the “general guidance” of the associate Librarian for Management. See LCR 2010-3.1 § 3(A). The LOC CFO, in comparison, deals with LOC budget planning and implementation. See Upshaw v. Tenenbaum, No. 12-cv-3130, 2013 WL 3967942, at *1 (D. Md. July 31, 2013).

Ms. Sierra has not carried her burden of showing that extraordinary circumstances justifying tolling are present. She has not demonstrated that she lacked information that was essential to her claim, let alone information that she could not have accessed with due diligence. She also fails to explain how her supervisors actively prevented her from filing an LOC EEOC complaint. Accordingly, she is not entitled to equitable tolling of her untimely non-promotion claims for the years 2008 through 2012.⁸

C. Non-Promotions from 2014 to 2016

Defendant also moves to dismiss Ms. Sierra‘s failure-to-promote claims that occurred from 2014 to 2016, on the grounds that she did not file her administrative complaint until after she filed this case. See Def.‘s Mot. Dismiss at 8. Plaintiff argues that “[t]he discriminatory act of non-promotion began in 2008 and continues to this day,” and notes that she filed a second administrative complaint after she filed the instant complaint. See Pl.‘s Opp‘n at 14. In essence, she invokes the “continuing violation” theory, which holds that an administrative complaint of ongoing discrimination incorporates subsequent, “essentially similar” conduct. See Pl.‘s Opp‘n at 14; Loe v. Heckler, 768 F.2d 409, 420 (D.C. Cir. 1985). Because that theory is inapрlicable to Ms. Sierra‘s claims, the Court will dismiss her claims of non-promotion between 2014 and 2016 for prematurely filing this suit before exhausting her administrative remedies. But even if Ms. Sierra had not prematurely filed this lawsuit, the Court would still dismiss her claims for failure to timely exhaust administrative remedies.

The Supreme Court squarely addressed this issue in National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). There, the plaintiff alleged that he was “consistently harassed and disciplined more harshly than other employees [because] of his race.” Id. at 105-06, 122 S.Ct. 2061. The government moved for summary judgment on all claims that took place prior to the administrative filing period.⁹ Id. at 106, 122 S.Ct. 2061. The Supreme Court held that the plaintiff was required to exhaust all his claims, reasoning that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges,”¹⁰ and “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113-14, 122 S.Ct. 2061. Interpreting Morgan, other courts in this district have explicitly “rejected the ‘continuing violation’ theory that would permit plaintiffs to recover for discrete acts of discrimination and retaliation that were not exhausted but were ‘sufficiently related’ to exhausted claims.” Payne v. Salazar, 628 F.Supp.2d 42, 51 (D.D.C. 2009), aff‘d in relevant part, rev‘d in part, 619 F.3d 56 (D.C. Cir. 2010) (internal quotation marks omitted) (citing Wada v. Tomlinson, 517 F.Supp.2d 148, 183 (D.D.C. 2007)); see also Prescott-Harris v. Fanning, No. 15-cv-1716, 2016 WL 7223276, at *3 (D.D.C. Dec. 12, 2016); Keeley v. Small, 391 F.Supp.2d 30, 40 (D.D.C. 2005).

As noted above, Ms. Sierra has not exhausted her claims of alleged non-promotion occurring from 2014 to 2016. See September 2016 LOC Compl. at 2. Indeed, she did not raise her 2014 or 2015 claim until September 2016 at the earliest. See September 2016 LOC Compl.; see also Pl.‘s Opp‘n at 14. Her argument that the non-promotions were part of a continuing violation has previously been rejected by the Supreme Court in Morgan. Ms. Sierra cites to Loe, 768 F.2d at 420, but, under Morgan, Loe is no longer good law in this circuit. Bowie v. Ashcroft, 283 F.Supp.2d 25, 34 (D.D.C. 2003). Assuming that her supervisors subjected her to ongoing discrimination, Ms. Sierra had an obligation to file administrative complaints within the time required ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under library regulations for each alleged non-promotion, because each instance of non-promotion constituted a “discrete discriminatory action.” See Morgan, 536 U.S. at 114.

In addition, Ms. Sierra‘s 2014, 2015, and 2016 administrative complaints were not timely exhausted. Her third LOC complaint, see Pl.‘s Opp‘n at 14, was filed on September 12, 2016, see September 2016 LOC Compl. In that complaint, she alleges that her supervisor “refused to promote [her] to a GS-14” on August 4, 2016, well more than twenty workdays before she filed her complaint, and at least several months before the next-latеst non-promotion in 2015. September 2016 LOC Compl. Thus, Ms. Sierra did not timely exhaust her administrative remedies for alleged non-promotions occurring from 2014 to 2016. Because Ms. Sierra filed this lawsuit before her latest administrative complaint and did so over twenty workdays after the latest alleged non-promotion, the Court dismisses Ms. Sierra‘s complaint with respect to alleged non-promotions occurring from 2014 to 2016.

D. 2013 Non-Promotion

Ms. Sierra argues that regardless of how the Court rules on the other non-promotions, she has stated a claim for discriminatory non-promotion in 2013. See Pl.‘s Opp‘n at 15. According to the complaint, Ms. Lloyd had the opportunity to promote Ms. Sierra in 2013, but refused to do so.¹¹ Compl. ¶ 24. Ms. Sierra concedes that she did not request a promotion in 2013. See Compl. ¶ 28; LOC Administrative Decision at 10; see also Pl.‘s Opp‘n at 15. Defendant did not move to dismiss any claim related to a 2013 non-promotion, see generally Def.‘s Mot. Dismiss, nor did it brief the issue of whether an employee must request a promotion to state a claim for non-promotion, see generally id.; Def.‘s Reply, ECF No. 8.¹² Nonetheless, the Court briefly analyzes the issue and concludes that Ms. Sierra‘s 2013 non-promotion claim is likely dismissible because she did not seek out a promotion.

When, as here, a plaintiff alleges that she was denied a promotion in grade and salary—as compared to a promotion into a vacant position—to establish a prima facie case, the plaintiff “must show that (1) [s]he sought and was denied a promotion (2) fоr which [s]he was qualified, and (3) that other employees of similar qualifications ... were indeed promoted at the time the plaintiff‘s request for promotion was denied.” Nurriddin v. Bolden, 40 F.Supp.3d 104, 120 (D.D.C. 2014) (internal alterations and quotation marks omitted) (quoting Taylor v. Small, 350 F.3d 1286, 1294 (D.C. Cir. 2003)), aff‘d, 818 F.3d 751 (D.C. Cir. 2016); see also Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981); Cones v. Shalala, 199 F.3d 512, 517 (D.C. Cir. 2000) (noting that the Bundy test is “designed expressly for denials of pay or grade increases“). This first element requires the plaintiff to affirmatively show that she sought and was denied a promotion. See Taylor, 350 F.3d at 1294-95.

Ms. Sierra did not request a promotion in 2013. Under the circumstances of this case, seeking out an increase in grade or salary is a prerequisite to suing for non-promotion. See Bundy, 641 F.2d at 951. But because Defendant did not move to dismiss the 2013 non-promotion, the Court will do no more than note that Ms. Sierra‘s claim for non-promotion in 2013 is likely dismissible. See Fields v. Bellamy, 1994 WL 549470, at *1 (D.C. Cir. 1994) (“[S]ua sponte Rule 12(b)(6) dismissal is appropriate only when it is ‘patently obvious that the plaintiff could not have prevailed on the facts alleged in [her] complaint.’ “) (alterations omitted) (quoting Baker v. Dir., U.S. Parole Comm‘n, 916 F.2d 725, 727 (D.C. Cir. 1990) (per curiam)).

VI. CONCLUSION

For the foregoing reasons, Defendant‘s Partial Motion to Dismiss is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

RUDOLPH CONTRERAS

United States District Judge

Todd W. SMITH, Plaintiff & Counter-Defendant, v. RUBICON ADVISORS, LLC, Defendant & Counter-Claimant.

Civil Action No.: 17-0030 (RC)

United States District Court, District of Columbia.

Signed June 1, 2017

Notes

Because the parties did not label their exhibits, the Court refers to them by their ECF numbers.

Plaintiff and Defendant each append copies of the December 2013 Library of Congress complaint.

The Court cites to the ECF page numbers.

The Court has not been asked to determine whether these non-promotions may be raised within the context of Plaintiff‘s hostile-work-environment claim. See .

In fact, Plaintiff, purporting to directly quote the court in , asserts that “‘[r]eview of portions of the administrative record that were not included in the Complaint requires that the Defendant‘s Mоtion to Dismiss be converted into a motion for summary judgment.’ ” Pl.‘s Opp‘n at 13. No such quotation in Hansen exists. In fact, the Hansen court explicitly acknowledges that a court may consider facts in “documents ... incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” . That court then went on to state that the Court may, under certain circumstances, convert a motion to dismiss into one for summary judgment. See id. at 103. Never did the Court state that any review of the administrative record always requires such conversion. See generally id. The Court assumes that Plaintiff‘s misstatement resulted from a misunderstanding.

Of course, the Court cites Seals only to address Plaintiff‘s argument, because it is the case she explicitly relies upon. The Court need not and does not adopt the rule in Seals to decide this case.

The Court addresses the issue of non-promotion in 2013 below in Section D.

Although the case involved the EEOC as opposed to the LOC, the relevant language is indistinguishable. Compare LCR 2010-3.1 § 4(A) (“A staff member who believes that []she has been, or is being, discriminated against ... shall notify and consult with a Counselor not later than 20 workdays after the date of the alleged discriminatory matter.” (emphasis added)), with (“A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” (quoting 42 U.S.C. § 2000e-5(e)(1))).

Non-promotions are discrete discriminatory acts. (“Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.“); see also ; .

In its reply, Defendant argues that asserting a 2013 non-promotion is a “new claim” not fairly enсompassed in the complaint. Def.‘s Reply at 3 n.1. Although Plaintiff‘s complaint is not a paragon of clarity, she does specifically allege that Ms. Lloyd had the opportunity to promote her in 2013, but discriminatorily refused to do so. See Compl. ¶ 24. She elaborated on other instances of non-promotion in greater detail later in her complaint, but this does not mean she did not allege a claim with respect to the 2013 non-promotion.

To be sure, in its reply, Defendant does argue that Ms. Sierra never administratively raised a non-promotion claim in 2013. Def.‘s Reply at 3 n.1. But because this argument was not made in Defendant‘s motion to dismiss, see generally Def.‘s Mot. Dismiss, the Court will not dismiss the claim. See (“Because the plaintiff only addresses this particular claim in her ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reply to the motion ... the plaintiff has waived the argument.“).

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