UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ELIANA M. AARON, Plaintiff v. Civil Action No. 17-2507 (CKK) MICHAEL POMPEO, Defendant
MEMORANDUM OPINION (October 25, 2018)
Plaintiff, proceeding pro se, alleges that, while she was an employee of the United
States Department of State, she was discriminated against in various ways on the basis of
her sex (female), nationality (Israeli and American), religion (Orthodox Jewish), and
disability (bilateral De Quervain’s and flexor tendonitis) in violation of Title VII of the
Civil Rights Act of 1963. 42 U.S.C. § 2000e, et seq. She also claims that she was
retaliated against for reporting the discrimination. Defendant has moved for a partial
dismissal of Plaintiff’s Complaint, or in the alternative, for partial summary judgment.
Fed. R. Civ. Pro 12(b)(6), 56(a). Defendant argues that the bulk of Plaintiff’s claims
should be dismissed as untimely as they were filed after the 90-day deadline for filing a
court action after a final decision by the Equal Employment Opportunity Commission
(“EEOC”). 42 U.S.C. § 2000e-16(c). Defendant further argues that the remaining
portions of Plaintiff’s hostile work environment claims should be dismissed for failure to
exhaust administrative remedies and failure to state a plausible claim to relief.
1 Upon consideration of the pleadings,1 the relevant legal authorities, and the record
as a whole, the Court GRANTS-IN-PART and DENIES-IN-PART Defendant’s motion.
The Court GRANTS Defendant’s motion for summary judgment as to Plaintiff’s claims
which were raised in her first EEOC action because those claims were filed outside the
90-day deadline for filing an action after the EEOC’s final determination. But, the Court
DENIES Defendant’s motion to dismiss Plaintiff’s hostile work environment claims.
Considering only the allegations were which exhausted and timely, Plaintiff has stated a
claim for which relief can be granted.
I. BACKGROUND
For the purposes of the motion before the Court, the Court accepts as true the
well-pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true,
however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts
alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir.
2014). Further, because Plaintiff proceeds in this matter pro se, the Court must consider
not only the facts alleged in Plaintiff’s Complaint, but also the facts alleged in Plaintiff’s
Opposition to Defendant’s motion. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d
1 The Court’s consideration has focused on the following documents: • Def.’s Mot. for Partial Dismissal, or in the Alternative, for Partial Sum. Judg., ECF No. 6 (“Def.’s Mot.”); • Pl.’s Opp’n to Def.’s Mot. for Partial Dismissal, or in the Alternative, for Partial Sum. Judg., ECF No. 15 (“Pl.’s Opp’n”); • Def.’s Reply in Support of the Mot. to Dismiss in Part, ECF No. 16 (“Def.’s Reply”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 2 146, 152 (D.C. Cir. 2015) (“a district court errs in failing to consider a pro se litigant’s
complaint ‘in light of’ all filings, including filings responsive to a motion to dismiss”)
(quoting Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)).
Plaintiff alleges that, in 2004, she began working for the American Consulate
General in Jerusalem, Israel (“ACJI”) as an occupational health nurse tasked with
developing an independent medical-services unit within the ACJI. Compl., ECF No. 1, ¶¶
10, 12. Plaintiff claims that she encountered various forms of discrimination while
working for ACJI. In all, Plaintiff raises eight claims for relief under Title VII of the Civil
Rights Act:
1) Failure to provide reasonable accommodations for her disability; 2) Disparate treatment based on national origin, religion, and/or sex with respect to providing reasonable accommodations; 3) Disparate treatment based on national origin, religion, and/or sex with respect to providing tuition reimbursement; 4) Wrongful non-selection for a Registered Nurse position at the United States embassy in Tel Aviv, Israel; 5) Wrongful removal of Plaintiff’s prescription-writing privileges; 6) Wrongful termination of Plaintiff’s employment at ACJI; 7) Subjection to a hostile work environment involving negative and discriminatory comments; and 8) Continued subjection to a hostile work environment.
Pl.’s Opp’n, ECF No. 15, 5.
Beginning with Plaintiff’s first and second claims, Plaintiff alleges that she faced
discrimination when she was refused reasonable accommodations for a disability that she
developed on the job. According to Plaintiff, as part of her job, she was required to
communicate via email and text through an ACJI-issued Blackberry, which had a small
keyboard. Compl., ECF No. 1, ¶ 16. Plaintiff claims that, over time, she developed
bilateral De Quervain’s and flexor tendonitis caused and aggravated by her use of the
3 Blackberry keyboard. Id. at ¶ 17. Plaintiff contends that she requested an accommodation
in the form of a FOB, which would let her send work communications through devices
other than the Blackberry, or a touch-screen Blackberry which would not require the use
of a keyboard. Id. at ¶ 18. Plaintiff alleges that the ACJI employee charged with finding
her a suitable accommodation failed to do so. Plaintiff claims that she was not suitably
accommodated due to her engagement in protected EEOC activity, her nationality, her
religion, and her sex. Id. at ¶ 19. As evidence of the discrimination, Plaintiff claims that
another similarly-situated employee, who was of a different religion and nationality, was
given the appropriate accommodation of a FOB when facing a similar disability. Id. at ¶
21. When Plaintiff purchased her own accommodation in the form of a touch-screen iPad,
Plaintiff alleges that she was not allowed to use the iPad until it became known that other
similarly-situated employees used similar devices. Id. at ¶ 22.
Considering Plaintiff’s third claim, Plaintiff alleges that she was discriminated
against when she was refused adequate reimbursement for her continued studies in health
policy. Id. at ¶ 23. According to Plaintiff, ACJI informed Plaintiff that she could apply for
50% reimbursement for the cost of her courses only after completing her continuing
education program. But, Plaintiff alleges that ACJI reimbursed Arab employees for their
continuing studies immediately, and not upon completion of the program. Id. at ¶ 24. She
alleges that she was refused adequate reimbursement for her continuing studies on the
basis of her nationality, religion, and sex.
4 Next, Plaintiff’s fourth, fifth, and sixth claims relate to the retaliation that she
claims that she faced due to reporting her discrimination and engaging in protected
EEOC activity. Id. at ¶ 26. Plaintiff contends that ACJI personnel learned of her first
EEOC complaint, which alleged that she had been discriminated against on the basis of
her nationality, religion, disability, sex, and reprisal. Id. at ¶ 26. According to Plaintiff, the
discovery of her EEOC complaint led to multiple attempts by ACJI to fire her for
allegedly unsupported and pretextual reasons. Id. at ¶¶ 26-29. For example, ACJI
management alleged that Plaintiff had written a prescription in violation of Israeli law
and had received an immunization in the Health Unit in violation of State Department
policy. Id. at ¶ 30. Soon after these allegations were reported, Plaintiff was no longer
allowed 24/7 access to the Health Unit. Id. at ¶ 25. Additionally, her local prescription
writing privileges were removed. Id. at ¶ 31. Plaintiff also alleges that she was not hired
for a job as a registered nurse at the United States Embassy in Tel Aviv, Israel because
ACJI employees discouraged the embassy from hiring her in retaliation for her EEOC
complaint. Id. at ¶¶ 32-33. Finally, Plaintiff alleges that this retaliation culminated in her
wrongful termination from ACJI. Id. at ¶ 34.
Finally, Plaintiff’s seventh and eighth claims relate to the hostile work
environment that Plaintiff alleges she faced. In addition to some of the incidents
described above, Plaintiff claims that, from the beginning of her employment, she faced a
hostile work environment because she was a Jewish, Israeli woman. Id. at ¶ 13.
According to Plaintiff, she was told that Palestinian supervisors did not want to work
with her because she was Jewish and Israeli. Id. at ¶ 12. Plaintiff alleges that many other
5 employees refused to work with her or to submit her supply orders, causing her to have to
re-order medical supplies multiple times. Id. at ¶ 13. She also claims that she was subject
to other hostile acts and comments by her co-workers due to her religion and nationality.
Id. at ¶ 14. Plaintiff contends that ACJI officials knew about the discriminatory acts and
behaviors, but the officials did not effectively address the discrimination and were
sometimes complicit in it. Id.
II. PROCEDURAL HISTORY
Prior to filing a complaint of employment discrimination against a federal agency,
a plaintiff must first file an official complaint with the EEOC. Within 90 days of
receiving a final decision by either the agency or the EEOC, the plaintiff must file a
complaint in a United States district court. 42 U.S.C. § 2000e-16(c).
In her Complaint, Plaintiff alleges that she filed two actions with the EEOC.
Plaintiff alleges that she filed her first EEOC complaint on May 12, 2011. This complaint
alleged discrimination based on national origin, religion, disability, reprisal, and sex.
Compl. ECF No. 1, ¶ 6. According to Plaintiff, the EEOC rejected her claim on
September 30, 2013 and the appeal is still pending. Id. at ¶ 7. Plaintiff alleges that she
filed her second EEOC complaint in or about September 2013, claiming discrimination
on the basis of national origin, religion, and reprisal. Id. at ¶ 8. According to Plaintiff, on
August 23, 2017, the EEOC granted Defendant summary judgment, and Plaintiff filed
this action in federal district court within 90 days of that decision. Id. at ¶¶ 8-9.
In its motion, Defendant disputes the timeline in Plaintiff’s Complaint. According
to Defendant, Plaintiff did file her first EEOC complaint on May 12, 2011, but the appeal
6 is not still pending. Instead, on March 17, 2017, the EEOC issued a final determination in
favor of the Defendant on Plaintiff’s appeal and mailed the decision to the address of
record for Plaintiff’s counsel. Def.’s Mot., ECF No. 6, 7-8. Under this timeline, Plaintiff’s
complaint, which was filed November 20, 2017, was not filed within the 90-day deadline.
In her opposition to Defendant’s motion, Plaintiff does not contest Defendant’s
timeline for her first EEOC action. Instead, Plaintiff argues that the EEOC sent the notice
of its final determination only to her attorney’s address, which was no longer the correct
address. Accordingly, Plaintiff contends that she never received notice of the final
determination, so the 90-day deadline never started running and her complaint filed in
this Court is timely. Pl.’s Reply, ECF No. 15, 8-13.
II. LEGAL STANDARDS
A. Federal Rule 12(b)(6)- Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint on the grounds that it “fail[s] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a
complaint must contain sufficient factual allegations that, if accepted as true, “state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678.
7 B. Federal Rule 56
Summary judgment should be granted to the movant if the pleadings, the
discovery and disclosure materials on file, and any affidavits show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).
The party opposing a motion for summary judgment “‘may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that
there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288
(1968)); see Fed. R. Civ. P. 56(c)(1) (opposing party must demonstrate genuine issue by
“citing to particular parts of materials in record, including depositions, documents,
electronically stored information, affidavits or declarations, [or] stipulations”). “The
object of [Rule 56] is not to replace conclusory allegations of the complaint or answer
with conclusory allegations of an affidavit,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990). Instead, the non-moving party must identify a genuine issue of material fact.
“[A] material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Summary judgment
is appropriate when “the tendered evidence is in its nature too incredible to be accepted
by reasonable minds.” Minor v. Washington Terminal Co., 180 F.2d 10, 12 (D.C.Cir.1950)
(citation and internal quotation marks omitted).
8 III. TIMELINESS OF CLAIMS FROM PLAINTIFF’S FIRST EEOC ACTION
Under 42 U.S.C. § 2000e-16(c), a complaint of employment discrimination
against a federal agency must be filed in a United States district court within 90 days of a
final decision by either the agency or the EEOC. In this case, Plaintiff sought relief
through two different EEOC actions. At issue here is whether Plaintiff filed this suit
within 90 days of the final determination of her first EEOC action.
The 90-day deadline to file suit in district court is not a jurisdictional requirement
but is instead similar to a statute of limitations. Colbert v. Potter, 471 F.3d 158, 167 (D.C.
Cir. 2006). Similar to a statute of limitations, the 90-day rule is an affirmative defense
which Defendant bears the burden of proving. Id. at 165. If Defendant meets its burden,
then Plaintiff bears the burden of proving that she is entitled to an equitable avoidance of
the defense. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir 1997).
In her Complaint, Plaintiff claimed that her appeal was still pending in her first
EEOC action. Compl., ECF No. 1, ¶ 7. But, in its motion, Defendant presented evidence
that there had been a final determination of Plaintiff’s appeal on March 17, 2017. Def’.’s
Mot., ECF No. 6, Ex. E. Because Plaintiff did not file her Complaint in this Court until
November 20, 2017, nearly eight months after the EEOC’s final determination,
Defendant argues that Plaintiff did not file within the 90-day deadline. Accordingly,
Defendant contends that Plaintiff’s claims which were raised in her first EEOC action are
untimely. In her opposition to Defendant’s motion, Plaintiff counters that her claims are
not untimely because the final determination of her first EEOC action was sent to her
lawyer’s previous address, so she never received actual notice of the final determination.
9 At the outset, the Court must decide whether to consider Defendant’s timeliness
argument as a motion to dismiss or as a motion for summary judgment. The Court
concludes that the issue is most appropriately dealt with under the summary judgment
standard. Both Defendant and Plaintiff attached exhibits to their briefing on Defendant’s
motion. While some of the attached exhibits are referred to in the Complaint, others are
not incorporated or referenced in the Complaint and are arguably outside the scope of the
Complaint. Accordingly, as the Court is considering material outside the four corners of
the Complaint, the Court evaluates Defendant’s timeliness argument under the summary
judgment standard. See Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226
n. 5 (D.C. Cir. 1993) (advising that it is “probably the better practice for a district court
always to convert to summary judgment so as to avoid ... question[s]” as to whether
attached exhibits were properly considered in ruling upon a motion to dismiss under Rule
12(b)(6)). Accordingly, Defendant must prove that there is “no genuine dispute as to any
material fact” and that it is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In considering the merits of Defendant’s timeliness argument, the first question
the Court must answer is whether the delivery of the final EEOC determination to the
address of record for Plaintiff’s counsel, which was no longer his correct address,
constitutes “receipt of notice” and triggers the 90-day clock. McGary v. Crowley, 266 F.
Supp. 3d 254, 258 (D.D.C. 2017). Neither the D.C. Circuit nor the United States Supreme
Court has decided whether there has been “receipt of notice” when a final EEOC
determination is sent to the address of record for the plaintiff’s attorney which is no
longer the correct address. In considering this question, the Court is especially persuaded
10 by the excellent reasoning of Judge Randolph Moss in McGary v. Crowley, 266 F. Supp.
3d 254 (D.D.C. 2017). As explained in McGary, the court receives guidance primarily
from three decisions.
First, in Bell v. Brown, 557 F.2d 849 (D.C. Cir. 1977), the D.C. Circuit interpreted
Title VII’s then 30-day, now 90-day, clock as beginning to run only on actual notice to
the plaintiff. 557 F.2d at 857. Because neither party disputes that Plaintiff did not receive
actual notice of the EEOC’s final determination, Bell would seem to foreclose
Defendant’s timeliness argument.
But, the Supreme Court’s decision in Irwin v. Department of Veteran Affairs, 498
U.S. 89 (1990) scaled back Bell’s holding. In Irwin, the Court ruled that a plaintiff had
constructive notice of the EEOC’s final determination when notice is received by the
plaintiff’s attorney. 498 U.S. at 92. Following, Irwin actual notice by the plaintiff is no
longer required before § 2000e-16(c)’s 90-day clock begins to run. Actual notice by the
plaintiff’s attorney is sufficient to start the clock. But, Irwin did not address the issue of
whether or not there is “receipt of notice” when neither the plaintiff nor the plaintiff’s
attorney receives actual notice of the EEOC’s final determination.
Following Irwin, the D.C. Circuit appears to have somewhat reconsidered its
approach to “receipt of notice,” as is shown in Rao v. Baker, 898 F.2d 191 (D.C. Cir.
1990). That case involved an EEOC regulation which required an employee to bring an
EEOC appeal within 20 days of the agency’s final decision. 29 C.F.R. § 1613.233(a).
While Rao involved a different EEOC regulation, Rao is still instructive in determining
how the D.C. Circuit interprets the requirement for notice.
11 In Rao, the Court questioned whether or not notice was received by a plaintiff
when an agency mailed its final decision to the plaintiff’s last known address and to
plaintiff’s attorney. The plaintiff had left the country and failed to alert the agency to a
change of address, and the plaintiff’s attorney did not file his appeal within the 20-day
deadline. Rao, 898 F.2d at 192. Even though the plaintiff did not actually receive notice,
the D.C. Circuit held that his EEOC appeal was untimely because he had been
constructively notified of the EEOC’s final decision when the notice was sent to his
address of record. Id. at 193-94.
The court declined to extend the holding of Bell, which required actual notice, in
part because “Rao himself, not the agency, [had] designated the faulty mechanism which
resulted in his nonreceipt of the notice.” Id. at 197. The Court explained that imposing a
requirement of actual notice where the agency has taken reasonable steps to send proper
notice, but the employee has made inadequate arrangements for receipt, would allow
employees to evade filing deadlines by providing incorrect addresses. Id.
The court went on to highlight why Rao reached a different conclusion than Bell
on whether or not actual notice is required. According to Rao, Bell required actual notice
because “the 30-day [now 90-day] statutory limit for filing a civil suit brooked no
exceptions.” Id. at 194. Because there were no exceptions, the Bell court determined that
the remedial purpose behind Title VII would be best served by giving the plaintiff a full
30 days to file suit after he or she was actually made aware of the final determination. Id.
at 194-95. The Rao court went on to explain that Bell’s rationale did not apply in Rao
because the regulation at issue in Rao was subject to equitable tolling. Id. at 195.
12 According to the Rao court, “[h]ad equitable tolling been explicitly available in Bell, the
court might not have felt compelled to interpret the statutory ‘receipt’ requirement as
calling for actual receipt in all cases to protect Title VII complainants.” Id.
The hypothetical contemplated in Rao has come to pass as equitable tolling now
applies to the 90-day deadline under § 2000e-16(c). See Irwin, 498 U.S. at 94-97; see
also 29 C.F.R. § 1614.604(c). The availability of equitable tolling obviates much of the
rationale behind the D.C. Circuit’s requirement of actual notice in Bell. But regardless of
whether or not the rationale underpinning Bell is still valid, Bell remains binding on this
Court. See United State v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) (“[D]istrict
judges, like panels of this court, are obligated to follow controlling circuit precedent until
either we, sitting en banc, or the Supreme Court, overrule it.”). And, if this case falls
within the scope of Bell, the Court must apply Bell’s requirement of actual notice before
the 90-day deadline begins to run.
However, the Court concludes that the facts of this case fall into an exception not
considered in Bell. That exception applies when the plaintiff’s lack of notice is the
plaintiff’s own fault, in which case the 90-day deadline begins to run from the date that
the notice would have been received if the plaintiff had made the proper arrangements to
receive it. This exception extends Rao’s reasoning to § 2000e-16(c) because equitable
tolling, which was available in Rao, is now available under § 2000e-16(c).
The Court finds support for its conclusion in Maggio v. Wisconsin Ave.
Psychiatric Center, Inc., 795 F.3d 57 (D.C. Cir. 2015), which involved a private-sector
Title VII suit under the analogous § 2000e-5(f)(1). In that case, the plaintiff had never
13 received actual notice of the EEOC’s final determination because he had failed to update
his address. The plaintiff never argued that the 90-day limitations period did not begin to
run until he received actual notice. But, the court observed that “‘when plaintiffs fail to
receive notice through their own fault, the ‘actual-notice’ rule does not apply.’” Maggio,
795 F.3d at 59 n.1 (quoting Day v. Lincoln Ins. Agency, Inc., 1 Fed. Appx. 521, 523 (7th
Cir.2001) (per curiam) (unpublished)).
The Court finds further support for its conclusion that actual notice is not required
in this case based on decisions from other district courts in this circuit. Other district
courts in this circuit have concluded that when a plaintiff has failed to receive notice of a
final EEOC determination through the plaintiff’s own fault, the 90-day deadline begins to
run from the date the plaintiff would have received notice had the plaintiff taken the
appropriate steps to receive the notice. For example, in Redding v. District of Columbia,
828 F. Supp. 2d 272 (D.D.C. 2011), the plaintiff did not receive notice of the EEOC’s
final determination in time to make a timely complaint because she failed to collect her
mail due to various hospitalizations. 828 F. Supp. 2d at 281-82. The court concluded that
the 90-day deadline began to run when the letter was delivered to the address of record,
even though the plaintiff did not actually receive the letter. Id. at 282. As the court
explained, the plaintiff had “constructive receipt of a Right to Sue Letter at the time it
[was] delivered to the address on file with the EEOC [because the plaintiff was] the one
at fault for the delay in obtaining it.” Id. at 281; see also Snead v. Mosbacher, 1991 WL
7166, at *3 (D.D.C. Jan. 9, 1991), aff’d 953 F.2d 688 (D.C. Cir. 1992) (per curiam)
(“Absent exceptional circumstances, when a plaintiff fails to provide the minimum
14 assistance to the administrative process by ensuring delivery of notice to his current
address, he should not be heard to complain that he did not receive the letter delivered to
his last known address.”); see also McGary, 266 F. Supp. 3d at 261 (explaining that
actual notice is not required when lack of notice is the plaintiff’s own fault).
Based on the above reasoning, the Court concludes that the 90-day deadline to file
suit in federal court began to run when Plaintiff would have received the notice if she had
appropriately updated her counsel’s address. The EEOC issued its final determination in
Plaintiff’s appeal on March 17, 2017 and the decision was mailed that same day to
Plaintiff’s counsel at the address counsel had provided. Def.’s Mot., ECF No. [6], Ex. E
at 20. Accordingly, Plaintiff’s suit in federal court, which was filed nearly eight months
later, on November 20, 2017, was not filed within the 90-day deadline for her first EEOC
action.
However, even if Plaintiff’s suit was filed outside the 90-day deadline, her claims
can still be maintained in this Court if there are grounds for equitable tolling. See Irwin,
498 U.S. at 94-97 (allowing equitable tolling for complaints filed outside the 90-day
window under § 2000e-16(c)). Federal courts typically allow equitable tolling only
sparingly. Irwin, 498 U.S. at 96. For example, courts will allow equitable tolling “in
situations where the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where complainant has been induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Id.
Courts are much less likely to use their equitable powers to forgive late filings “where the
claimant failed to exercise due diligence in preserving his legal rights.” Id. Here, the
15 Court does not find suitable grounds to equitably toll the 90-day deadline in § 2000e-
16(c) because this is a case of “what is at best a garden variety claim of excusable
neglect.” Id.
As the Court reads Plaintiff’s opposition, Plaintiff presents two arguments for why
the Court should equitably toll the 90-day deadline. First, Plaintiff argues that, while the
agency did mail two letters to the address of record for Plaintiff’s attorney, the agency did
not take sufficient steps to ensure that notice was received by Plaintiff. Second, Plaintiff
argues that her counsel did inform the EEOC of his new address in Plaintiff’s second
EEOC action, and the EEOC failed to send notice of the final determination of the first
action to that new address. The Court has considered both of Plaintiff’s arguments but is
persuaded by neither.
First, Plaintiff argues that the Court should equitably toll the 90-day deadline
because the EEOC did not take sufficient steps to ensure that Plaintiff received notice of
its final determination. Plaintiff explains that the EEOC sent two letters to Plaintiff’s
counsel at his address of record which were returned to the EEOC as undeliverable. The
EEOC did not send a letter to Plaintiff’s home address, nor did the EEOC call or email
Plaintiff or her counsel. Plaintiff further argues that the EEOC had normally
communicated with her counsel by email and should have done so regarding the notice of
a final determination.
But, Plaintiff fails to consider that, as long as there was not deception or trickery
on the part of the defendant, the test for equitable tolling does not focus on whether or not
the defendant should have done more. Instead, the test for equitable relief focuses on
16 whether or not Plaintiff took sufficient actions to diligently preserve her legal rights.
Irwin, 498 U.S. at 96 (explaining that courts “have generally been much less forgiving in
receiving late filings where the claimant failed to exercise due diligence in preserving his
legal rights”). And, the Court finds that Plaintiff did not take steps to diligently preserve
her legal rights in this case.
It was Plaintiff’s obligation to notify the EEOC of any change of address. 29
C.F.R. § 1601.7(b). On Plaintiff’s Notice of Appeal, which Plaintiff sent to the EEOC, an
incorrect address is listed for Plaintiff’s attorney. Def.’s Mot., ECF No. 6, Ex. D, 3. The
EEOC mailed an acknowledgment of Plaintiff’s appeal to the address of record for
Plaintiff’s attorney. Id. at Ex. L, ¶ 4. The acknowledgment letter explained that Plaintiff
was “responsible for providing the Commission with notice of any change of address.”
Id. Not only did Plaintiff and her attorney fail to update the address, but there is no
evidence that Plaintiff took any other actions to diligently pursue her rights, such as
inquiring with the EEOC as to the status of her appeal
When a plaintiff does not receive notice of an EEOC determination because of her
own failure to notify the EEOC of a change of address, she is not entitled to equitable
tolling. See McGary, F. Supp. 3d at 261. Considering this same issue in the private sector
context, the D.C. Circuit has held that “when a complainant fails to receive a right-to-sue
notice because he gave the EEOC an incorrect address or because he neglected to inform
the EEOC when he moved, the complainant is at fault and he is not entitled to equitable
tolling.” Maggio, 795 F.3d at 60. In that case, as in this one, the EEOC had made only
one attempt to contact the employee by mail. Id. at 59.
17 The case before the Court is distinguishable from past cases in this circuit in at
least one respect: here, it was the attorney, not the plaintiff, that failed to update his
address of record. But, the Court finds that this is a distinction without a difference. See
Irwin, 498 U.S. at 92 (explaining that “[u]nder our system of representative litigation,
each party is deemed bound by the acts of his lawyer-agent” (internal quotations
omitted)). The Supreme Court has explained that garden variety claims of attorney
negligence do not warrant equitable tolling. See Holland v. Florida, 560 U.S. 631, 651-52
(2010). Instead, the attorney’s misconduct must be “extraordinary” before equitable
tolling can be applied. Id. Here, Plaintiff is asking the Court to find that her counsel’s
failure to update his address of record was extraordinary and worthy of equitable tolling.
The Court disagrees and concludes that the failure of Plaintiff’s counsel to update his
address was garden-variety negligence. See Galloway v. Watt, 185 F. Supp. 3d 130, 134-
35 (D.D.C. 2016) (refusing equitable tolling where the attorney incorrectly calculated the
90-day deadline following the EEOC’s final determination).
Accordingly, even if the EEOC took only minimal steps to notify Plaintiff of its
final determination, Plaintiff’s own lack of diligence and the absence of extraordinary
circumstances preclude equitable tolling.
Looking next to Plaintiff’s second argument, Plaintiff argues that she did inform
the EEOC of her counsel’s change of address. Pl.’s Opp’n, ECF No. 15, 11. Plaintiff
claims that “from October 2014 until June 2017, the Plaintiff conducted an entire
administrative proceeding where she and her counsel both used the correct, new address.”
Id. Plaintiff further argues that, because the EEOC had referenced the correct address for
18 Plaintiff’s counsel on dozens of exchanges, the EEOC should have used this new, correct
address when mailing the final determination. Id.
The Court is not persuaded by Plaintiff’s argument. In her opposition to
Defendant’s motion, Plaintiff attaches communications from the EEOC which reflect the
correct address for Plaintiff’s counsel. However, each of the communications presented
by Plaintiff come from her second EEOC action rather than from her first. See Id. at Exs.
A-1, A-2. A-3. And, it is the first EEOC action that the Court finds resulted in an
untimely complaint in federal court. Whether or not the EEOC was made aware of the
new address of Plaintiff’s counsel in her second EEOC action is not relevant to the first
action. The burden on Plaintiff and her counsel to maintain a correct address of record is
a minimal burden. But, the burden on the EEOC to pore through its files to determine
whether any employees have multiple actions with different addresses would be
enormous. See St. Louis v. Alverno College, 744 F.2d 1314, 1316-17 (7th Cir. 1984). The
fact that plaintiff’s counsel provided a correct address in a second EEOC action did not
relieve him of his duty to update his address in the first EEOC action.
Considering only Plaintiff’s first EEOC action, there is no evidence that the
EEOC was ever notified of the correct address. In the Notice of Appeal for Plaintiff’s first
EEOC action, Plaintiff’s attorney indicates the incorrect mailing address. Def.’s Mot,
ECF No. 6, Ex. D, 3. The Notice of appeal included the pre-appeal determination from
Plaintiff’s first EEOC action, and that document also lists an incorrect address for
Plaintiff’s counsel. Id. at 5. Plaintiff presents no evidence that either she or her attorney
ever corrected the incorrect address of record in her first EEOC action. And, a declaration
19 from an Associate Director of the EEOC states that “[a] review of the documents in the
digital IMS repository and the hard copy appellate file did not reveal any change of
address or change of representative notices from [Plaintiff or her attorney].” Id. at Ex. L,
¶ 5.
Based on the evidence presented, the Court concludes that Plaintiff’s attorney did
not provide the EEOC with his updated address for Plaintiff’s first EEOC action. Because
neither Plaintiff nor her attorney updated the address of record, the Court will not grant
equitable tolling on this ground.
In summary, The Court concludes that there is no genuine dispute of material fact
concerning whether or not Plaintiff’s claims arising from her first EEOC action were
timely filed under 42 U.S.C. § 2000e-16(c). Even though Plaintiff did not receive actual
notice of the final determination, the 90-day clock began to run on the date on which
Plaintiff would have received notice had she or her counsel taken the appropriate steps to
ensure that her counsel’s address of record was correct. Because the 90-day deadline
began when Plaintiff would have received notice, the Court concludes that her
Complaint, filed eight months later, did not timely raise the claims asserted in Plaintiff’s
first EEOC action. And, Plaintiff provides no appropriate grounds for the Court to grant
equitable tolling. Accordingly, as a matter of law, Defendant is entitled to summary
judgment on the claims asserted in Plaintiff’s first EEOC action. See Fed. R. Civ. Pro.
56(a).
Unlike the claims raised in Plaintiff’s first EEOC action, the claims raised in
Plaintiff’s second EEOC action were filed in district court within 90 days of the EEOC’s
20 final determination. Accordingly, the claims asserted in Plaintiff’s second EEOC action
are timely. But, the Court notes that Plaintiff’s timely filing of the claims raised in her
second EEOC action does not render timely the claims asserted in her first EEOC action.
See Briscoe v. Kerry, 111 F. Supp. 3d 46, 58 (D.D.C. 2015) (explaining that claims
brought in a separate, untimely EEOC action cannot be “piggybacked onto [the
plaintiff’s] timely filed civil action” as such piggybacking would circumvent the purpose
of the deadlines). Accordingly, summary judgment is GRANTED to Defendant on the
claims asserted in Plaintiff’s first EEOC action as those claims are untimely.
IV. HOSTILE WORK ENVIRONMENT CLAIMS
In addition to arguing that the claims raised in Plaintiff’s first EEOC action are
untimely, Defendant also seeks to dismiss Plaintiff’s hostile work environment claims.
Defendant argues that some of the allegations behind Plaintiff’s hostile work environment
claims are untimely, as they were raised by Plaintiff in her first EEOC action, and
unexhausted, as they were never raised before the EEOC. Defendant further argues that,
considering only the timely, exhausted allegations, Plaintiff has failed to state a claim for
which relief can be granted. See Fed. Civ. Pro. R. 12(b)(6).
The Court considers Defendant’s argument in two parts. First, the Court agrees
with Defendant that allegations which are untimely and unexhausted should not be
considered as part of Plaintiff’s hostile work environment claims. Second, considering
only those timely allegations which were raised in Plaintiff’s second EEOC action, the
Court finds that Plaintiff has stated a claim for which relief may be granted.
21 First, the Court agrees with Defendant that allegations which were raised in
Plaintiff’s first EEOC action are untimely and cannot be considered as part of Plaintiff’s
hostile work environment claims. Plaintiff’s Complaint presents two allegations relating
to a hostile work environment which were raised in her first EEOC action. First, Plaintiff
claims that her Palestinian co-workers refused to act on Plaintiff’s submission of
maintenance and purchase orders for medical supplies. In response to this refusal,
Plaintiff alleges that her supervisor was unsupportive and forced her to re-order the
supplies. Compl., ECF No. 1, ¶¶ 12-13; see also Def.’s Mot., ECF No. 6, Ex. C, 23; Ex.
A, 18. Second, Plaintiff claims that one of her supervisors called her a “bitch.” Compl.,
ECF No. 1, ¶ 20; see also Def.’s Mot., ECF No. 6, Ex. C, 17.
Plaintiff relies on National Railroad Passenger Corporation v. Morgan, 536 U.S.
101 (2002) for the proposition that the Court should consider these untimely allegations
which were raised in her first EEOC action. But, Plaintiff misinterprets Morgan. In
Morgan, the Court considered only whether acts occurring outside the 45-day time period
for filing an EEOC complaint can be considered in a hostile work environment claim.
536 U.S. at 122. The Morgan Court did not consider whether a plaintiff can obtain
judicial review of allegations from an EEOC action which were brought outside of the
90-day filing period. See Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1044 (D.C. Cir. 2008)
(explaining that Morgan “does not suggest that a plaintiff can obtain judicial review of an
EEO decision outside the ninety-day period”). Plaintiff provides no other support for her
contention that the Court should consider these allegations as part of her hostile work
22 environment claims. Accordingly, the Court will not consider these untimely allegations
from Plaintiff’s first EEOC action as part of her hostile work environment claims.
There is one additional allegation that the Court finds unexhausted and declines to
consider as part of Plaintiff’s hostile work environment claims. In her Complaint,
Plaintiff alleges that her 24/7 access to the health unit was removed without any
explanation. Compl., ECF No. 1, ¶ 25. Plaintiff did not raise this allegation in her first or
her second EEOC action. Plaintiff again attempts to rely on Morgan to argue that this
unexhausted allegation should be considered. But, Plaintiff’s reliance is again misplaced.
As previously explained, Morgan considered only whether acts occurring outside the 45-
day time period for filing an EEOC complaint are time barred. 536 U.S. at 122. Morgan
did not consider whether allegations which were never presented in an EEOC action can
be presented for the first time in district court. See Ikossi, 516 F.3d at 1044 (explaining
that Morgan “does not suggest that a plaintiff can … raise a hostile work environment
claim without first exhausting her administrative remedies”). In short, Morgan dealt with
timeliness, not exhaustion. Moreover, the removal of Plaintiff’s 24/7 access to the health
unit occurred prior to the filing of Plaintiff’s second EEOC action and could have been
raised there. Contrast with Poole v. U.S. Gov’t Publ’g Office, 258 F. Supp. 3d 193, 201-
03 (D.D.C. 2017) (explaining that some courts have allowed plaintiffs to bring related,
unexhausted allegations in support of a hostile work environment claim if those
allegations occurred after the administrative complaint was filed). Plaintiff presents no
other argument for why the Court should consider an unexhausted allegation that was
never raised before the EEOC.
23 Second, the Court next considers whether Plaintiff has stated a claim for which
relief can be granted. Considering only Plaintiff’s timely, exhausted allegations, the Court
concludes that Plaintiff has alleged sufficient facts to avoid dismissal under Rule
12(b)(6). In order to state a hostile work environment claim, a plaintiff must plead facts
which are severe or pervasive enough to “alter the conditions of [her] employment and
create an abusive working environment.” Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.
Cir. 2006) (internal quotations omitted). The Court concludes that Plaintiff has pled facts
sufficient to show that discriminatory actions altered the conditions of her employment
and created an abusive working environment.
In her Complaint, Plaintiff generally described an environment in which
“[t]ensions between employees of the ACJI are common, with Jewish employees
frequently feeling as a discriminated-against minority.” Compl., ECF No. 1, ¶ 11.
Plaintiff went on to claim that “[t]hroughout [her] tenure at ACJI, she was subjected to all
kinds of hostile acts by her co-workers, such as direct discriminatory and hateful
comments about her religion and nationality.” Id. at ¶ 14. She claims that ACJI
management was aware of the discriminatory activity, did nothing to stop it, and was
sometimes complicit in the behavior. Id.
According to Defendant, the above allegations are the only allegations which
Plaintiff presents in support of her hostile work environment claims. But, as the Court
reads Plaintiff’s Complaint, Plaintiff alleges additional incidents contributing to a hostile
work environment.
24 First, Plaintiff also alleges that she was not compensated for engaging in
continuing education in the same manner in which other similarly situated workers not in
Plaintiff’s protected class were compensated. Id. at ¶¶ 23-24. Second, Plaintiff alleges a
hostile work environment based on the fact that “the Regional Medical Officer [at] the
ACJI intended to fire Plaintiff and was actively engaging in pursuing that goal.” Id. at ¶
28. Plaintiff claims that the Human Resources department at ACJI repeatedly initiated
pretextual investigations of Plaintiff, resulting in the loss of her local prescription-writing
privileges. Id. at ¶¶ 29-31. Plaintiff argues that these acts were committed in retaliation
for filing her first EEOC action. The fact that these allegations are part of Plaintiff’s
retaliation claim does not preclude the allegations from also supporting Plaintiff’s hostile
work environment claim. See Román v. Castro, 149 F. Supp. 3d 157, 166 (D.D.C. 2016)
(“The D.C. Circuit has recognized the validity of retaliatory-hostile-work-environment
claims.”) (citing Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011)).
Considering all the circumstances, the Court concludes that Plaintiff has pled
sufficient facts to maintain a claim that her hostile work environment “alter[ed] the
conditions of her employment and create[d] an abusive working environment.” Hussain,
435 F.3d at 366 (D.C. Cir. 2006). The Court makes no judgment on the ultimate merits of
Plaintiff’s claim. The Court only concludes that a motion to dismiss is not the appropriate
vehicle for evaluating the character or consequences of the acts alleged to have created
a hostile work environment. See Holmes-Martin v. Leavitt, 569 F. Supp. 2d 184, 193
(D.D.C. 2008) (denying defendant's motion to dismiss plaintiff's hostile work
environment claim because notice pleading only requires that plaintiff plead facts that
25 “support” a claim, not those that “establish” it); see also Winston v. Clough, 712 F. Supp.
2d 1, 13 (D.D.C. 2010) (explaining that “despite its sparse nature,” plaintiff’s complaint
“sufficiently allege[d] facts that could be probative of a discriminatory hostile work
environment by incorporating the purportedly discriminatory conduct that [plaintiff]
experienced, and asserting that the discriminatory conduct constituted
a hostile work environment”).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS-IN-PART and DENIES-IN-PART
Defendant’s Motion for Partial Dismissal, or in the Alternative, for Partial Summary
Judgment. The Court GRANTS partial summary judgment as to the claims raised in
Plaintiff’s first EEOC action, as those claims were not brought to federal district court
within the 90-day deadline following the EEOC’s final determination. But, the Court
DENIES dismissal of Plaintiff’s hostile work environment claims. Considering only the
allegations which were properly raised, Plaintiff has stated a claim upon which relief can
be granted.
The Court ORDERS Plaintiff to file an Amended Complaint presenting only those
claims which were properly raised and exhausted in her second EEOC action by
NOVEMBER 16, 2018. The Court further ORDERS Defendant to file a response to
Plaintiff’s Amended Complaint by DECEMBER 7, 2018. An appropriate Order
accompanies this Memorandum Opinion.
Dated: October 25, 2018 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 26