UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) DEBRA AUGUSTUS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1003 (EGS) ) GARY LOCKE, Secretary, ) U.S. Department of Commerce, ) ) Defendant. ) ) ______________________________)
MEMORANDUM OPINION
Plaintiff Debra Augustus brings this action against
Defendant United States Department of Commerce (the “DOC”)
alleging race and sex discrimination and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Pending before the Court is defendant’s motion to dismiss, or in
the alternative, for summary judgment. Upon consideration of the
motion, the response and reply thereto, the applicable law, the
entire record, the arguments of counsel made during the motions
hearing held on March 24, 2010, and for the reasons stated below,
the Court DENIES defendant’s motion for summary judgment as to
plaintiff’s race and sex discrimination claims and GRANTS without
prejudice defendant’s motion for summary judgment as to
plaintiff’s retaliation claim. I. BACKGROUND
Plaintiff is an African-American female employed as an
Equipment Facilities Services Assistant in the Office of
Facilities Management at the DOC. Compl. ¶¶ 5, 6. She has been
employed in that position since approximately June 2004. Compl.
¶ 6. Her rank is roughly equivalent to a GS-8 rank, and
plaintiff’s annual salary is approximately $52,000. Compl. ¶ 6.
On or about December 18, 2007, defendant assigned plaintiff
the duties of the Contracting Officer Technical Representative
(“COTR”) in the cafeteria at the Herbert C. Hoover Building in
addition to her duties as an administrative assistant. Compl.
¶ 7. Her duties as a COTR include, among other things,
performing twice daily inspections of the cafeteria, monitoring
the employees for health code compliance, and inventory
maintenance. Compl. ¶ 9. Plaintiff spends approximately 45-50%
of her work time performing COTR duties. Compl. ¶ 10.
A. Plaintiff’s Allegations of Race & Sex Discrimination (Agency Complaint No. 08-51-00148)
When plaintiff was assigned the COTR duties, she was
informed by her first-line supervisor, Ms. Pat McNutt (white,
female), that she would receive a pay increase. Compl. ¶ 11.1
Plaintiff’s second-line supervisor (white, male) and fourth-line
supervisor (white, male), however, allegedly stalled efforts to
increase plaintiff’s salary. See Compl. ¶¶ 12-17.
1 The previous COTR was GS-12 rank (white, male), and the previous back-up COTR was a GS-11 rank (white, male); both earned salaries of approximately $75,000. Compl. ¶ 8.
2 Accordingly, on June 23, 2008, plaintiff filed a formal
complaint of discrimination (Agency Complaint No. 08-51-00148)
alleging that she was not properly compensated for her additional
COTR duties because of her race and sex. See Def.’s Statement of
Material Facts (“SMF”) ¶ 2; Pl.’s Ex. 1, Declaration of Debra
Augustus (“Augustus Decl.”) ¶ 6; see also Def.’s Ex. C. The
agency accepted these claims for investigation on July 9, 2008.
See Pl.’s Ex. 3. The agency completed its investigation on
September 23, 2008, and advised plaintiff that she had 30 days to
either request a hearing before an Equal Employment Opportunity
Commission (“EEOC”) administrative judge or a Final Agency
Decision based on the record. See Def.’s Ex. E. On September
29, 2008, Ms. Augustus elected to proceed with a hearing before
an administrative judge. See Def.’s SMF ¶ 3; Def.’s Ex. F.
On December 10, 2008 - 170 days after plaintiff filed her
agency complaint – the Washington field office of the EEOC sent
the parties an “Acknowledgment and Order.” See Def.’s Ex. H.
This order acknowledged receipt of plaintiff’s request for a
hearing, and provided an overview of the hearing process,
including the parties’ discovery obligations. See Def.’s Ex. H.
Specifically, the order advised that “[a]bsent prior approval
from the Administrative Judge, a party must initiate discovery
within twenty (20) calendar days of receipt of this Order.”
Def.’s Ex. H. Plaintiff’s counsel received the Acknowledgment
and Order on December 19, 2008, see Augustus Decl. ¶ 8, and
3 served discovery requests on the DOC on January 7, 2009. On
January 8, 2009, however, the DOC advised plaintiff that it would
not respond to her discovery requests, explaining that the
requests were due by January 5, 2009 and were therefore untimely.
See Def.’s SMF ¶ 4; Augustus Decl. ¶ 10. Plaintiff’s counsel
immediately filed a motion to extend the deadline to initiate
discovery nunc pro tunc and to compel discovery responses,
stating her intent to file suit in federal court if the request
was denied. See Def.’s SMF ¶ 4; Augustus Decl. ¶ 10.2
On or about February 11, 2009, the administrative judge
advised counsel that he would not grant plaintiff’s motion and
ruled that plaintiff would be precluded from conducting
discovery. See Def.’s SMF ¶ 5; Augustus Decl. ¶ 11.
Accordingly, on February 16, 2009, plaintiff’s counsel advised
the EEOC that plaintiff had decided to file a complaint in
federal district court. See Pl.’s Ex. 6.
B. Plaintiff’s Allegation of Retaliation (Agency Complaint No. 09-51-00510)
Plaintiff also alleges that after she filed her
administrative complaint asserting race and sex discrimination
claims (Agency Complaint No. 08-51-00148), her first-line
supervisor, Ms. McNutt, began retaliating against her by, inter 2 See also Pl.’s Ex. 5, Plaintiff’s Motion To Extend Deadline to Initiate Discovery (“There is no reason to believe that the two day delay between when discovery requests were due – January 5, 2009 – and when Complainant served discovery – January 7, 2009 – would prejudice or cause any harm to the Agency. Furthermore, if the Agency refuses to respond to discovery, Complainant’s recourse would be to file a lawsuit in federal court, which would result in unnecessary delay and cost to all parties.”).
4 alia, scrutinizing her work performance, threatening to give
plaintiff’s COTR duties to other employees, prohibiting plaintiff
from leaving her desk during certain hours, and withholding
pertinent information from plaintiff. See Compl. ¶¶ 20-27.
Accordingly, on June 15, 2009, plaintiff filed another formal
complaint of discrimination (Agency Complaint No. 09-51-00510),
alleging that Ms. McNutt subjected her to a hostile work
environment in retaliation for filing her initial EEO complaint
(Agency Complaint No. 08-51-00148). See Def.’s SMF ¶ 6; Augustus
Decl. ¶ 15. This complaint was accepted for investigation on
July 1, 2009. See Pl.’s Ex. 7. On September 1, 2009, plaintiff
amended her complaint to include additional events in support of
her claims for hostile work environment and retaliation. See
Augustus Decl. ¶ 16. Plaintiff’s amended complaint was accepted
for investigation on September 8, 2009, and was completed on
December 3, 2009. See Docket No. 14, Pl.’s Status Report dated
March 23, 2010 (“Pl.’s Status Report”) ¶ 3. On December 10,
2009, plaintiff elected to proceed with a hearing before an
administrative judge. See Pl.’s Status Report ¶ 4. The parties
are currently engaged in discovery, which is set to close on
April 2, 2010. Pl.’s Status Report ¶ 6.
C. This Action
Plaintiff filed a complaint in this Court on May 29, 2009,
alleging sex discrimination, race discrimination, and
retaliation. On August 24, 2009, defendant filed a motion to
5 dismiss, or in the alternative, for summary judgment based on
plaintiff’s alleged failure to exhaust her administrative
remedies as to these claims. This motion is now ripe for
determination by the Court.
II. STANDARD OF REVIEW3
Summary judgment is appropriate when the moving party has
shown that there are no genuine issues of material fact and that
the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). A material fact is one that is capable of affecting
the outcome of the litigation. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986). A genuine issue is one where the “evidence
is such that a reasonable jury could return a verdict for the
non-moving party.” Id. at 252. A court considering a motion for
3 Motions to dismiss for failure to exhaust Title VII administrative remedies are generally resolved as motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Marcelus v. Corr. Corp. of America, 540 F. Supp. 2d 231, 234-35 (D.D.C. 2008) (citing cases and explaining that because the Title VII exhaustion requirement is not jurisdictional, cases should not be resolved under Federal Rule of Civil Procedure 12(b)(1)). In this case, however, the Rule 12(b)(6) standard is inappropriate, as plaintiff’s complaint does not attach or reference the relevant agency documents needed to resolve the exhaustion issue. Cf. id. at 235 n.5 (treating an EEOC charge as incorporated in the complaint because it was referenced therein). Therefore, because the Court must look outside the pleadings to resolve defendant’s motion, the Court will analyze plaintiff’s alleged failure to exhaust her Title VII administrative remedies under the summary judgment standard. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6). . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”).
6 summary judgment must draw all “justifiable inferences” from the
evidence in favor of the nonmovant. Id. at 255. To survive a
motion for summary judgment, however, the requester “must do more
than simply show that there is some metaphysical doubt as to the
material facts”; instead, the nonmoving party must come forward
with “‘specific facts showing that there is a genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986) (quoting Fed. R. Civ. P. 56(e)).
III. ANALYSIS
Defendant argues that plaintiff’s complaint must be
dismissed, or, alternatively, summary judgment must be granted,
because plaintiff has failed to exhaust her administrative
remedies. First, with regards to plaintiff’s claims of race and
sex discrimination, defendant argues that plaintiff is precluded
from pursuing those claims because she purportedly “abandoned”
them by withdrawing from the administrative hearing process on
February 16, 2009. Second, with regards to plaintiff’s
retaliation claim, defendant argues that Ms. Augustus has not yet
exhausted this claim as she is actively litigating the issue
before an administrative judge. The Court will explore these
arguments in turn.
A. Exhaustion of Administrative Remedies Generally
It is well settled that prior to commencing a Title VII suit
in federal district court, a plaintiff must exhaust his or her
remedies at the administrative level by asserting all claims in
7 an administrative complaint and allowing the agency time to act
on the complaint. See generally 42 U.S.C. § 2000e-16(c). The
exhaustion requirement “serves the important purposes of giving
the charged party notice of the claim and narrowing the issues
for prompt adjudication and decision.” Park v. Howard Univ., 71
F.3d 904, 907 (D.C. Cir. 1995) (internal quotation marks
omitted). “The Court may dismiss a claim when a plaintiff fails
to exhaust administrative remedies before filing a discrimination
action.” Jones v. Wash. Times, 668 F. Supp. 2d 53, 57 (D.D.C.
2009)(citing Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir.
2003)).
B. Exhaustion of Plaintiff’s Race and Sex Discrimination Claims
Defendant argues that “[w]hen a plaintiff elects to request
a hearing before an EEOC administrative judge, her failure to
complete the hearing process is regarded as an abandonment of the
administrative process,” which “bar[s] [her] from seeking redress
from the courts.” Def.’s Mot. at 11-12. Plaintiff responds that
she should not be precluded from seeking relief as to her race
and sex discrimination claims in this Court because she assisted
the agency in its initial investigation of her complaint and
waited more than 180 days to file suit. See Pl.’s Opp’n Br. at 6
(citing 29 C.F.R. § 1614.407).4 This Court agrees with
4 The right of federal employees to file a civil action against the government is provided by section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c). The regulation interpreting this statute is 29 C.F.R. § 1614.407. This regulation provides that a
8 plaintiff, and finds that Ms. Augustus has sufficiently exhausted
her race and sex discrimination claims at the administrative
level.
While the Court is aware that at least two judges in this
district have held that voluntary dismissal of a request for an
administrative hearing precludes a plaintiff from filing suit in
federal district court, see Wiley v. Johnson, 436 F. Supp.2d 91,
95 (D.D.C. 2006) (finding that the plaintiff, who voluntarily
dismissed his administrative hearing action nearly two years
after filing his agency complaint, had failed to exhaust his
administrative remedies; “[I]nstead of exhausting his
Administrative Claim, [plaintiff] voluntarily dismissed it. . . .
[Plaintiff] cannot use a voluntary dismissal to avoid the
requirement of exhaustion, as this would undermine the purposes
behind the exhaustion doctrine. . . . Because [plaintiff] failed
to exhaust his administrative remedies, the Court lacks
jurisdiction and will dismiss this suit.”); Smith v. Koplan, 362
F. Supp. 2d 266, 268-69 (D.D.C. 2005) (“Upon completion of the
[agency] investigation, plaintiff had the option of either
complainant is deemed to have exhausted all administrative remedies and is authorized under Title VII to file a civil action in the appropriate United States District Court if any of the following conditions are met: “(a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final action has not been taken; (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission.” 29 C.F.R. § 1614.407.
9 requesting an immediate final decision from the agency, or a
hearing before an EEOC administrative judge. Plaintiff chose the
latter, but failed to complete the process. . . . Plaintiff
abandoned the administrative proceedings that she initiated with
regard to her claims, and is therefore prohibited from seeking
redress of those claims in this Court.”), the Court declines to
follow those decisions. Instead, the Court concludes this
court’s decision in Brown v. Tomlinson, 462 F. Supp. 2d 16
(D.D.C. 2006) – which holds that, pursuant to 29 C.F.R.
§ 1614.407(b), a plaintiff may withdraw from an administrative
hearing after cooperating with an agency’s investigation for 180
days – is most consistent with the case law of this and other
Circuit courts, and should be followed.
In Brown, the plaintiff filed a formal administrative
discrimination complaint against the defendant agency. Id. at
17. After the agency completed its investigation of the
complaint, the plaintiff elected to have a hearing before an EEOC
administrative judge. Id. After missing several discovery
deadlines, the plaintiff withdrew his complaint from the hearing
process in order to pursue his claim in federal district court.
Id. While the Brown court initially granted defendant’s motion
for summary judgment based on the plaintiff’s alleged failure to
exhaust his administrative remedies, id. at 18, the court
subsequently vacated the decision, concluding that plaintiff had
satisfied 29 C.F.R. § 1614.407(b) because “more than 180 days had
10 elapsed before plaintiff withdrew from the administrative
proceeding[.]” Id. at 20; see 29 C.F.R. § 1614.407(b) (allowing
a complainant to bring a lawsuit in federal court “[a]fter 180
days from the date of filing an individual or class complaint if
an appeal has not been filed and a final action has not been
taken”).
Defendant urges the Court to reject Brown, arguing that the
decision overlooked regulations governing the hearing and post-
hearing administrative process. See Def.’s Reply Br. at 3-4; see
also 29 C.F.R. § 1614.109 (requiring an administrative judge to
issue a decision within 180 days of receipt of the complaint
file); id. § 1614.110(a) (requiring the agency to issue a final
order within 40 days of receipt of the hearing file).
Specifically, defendant argues that “Brown improperly compressed
the entirety of the administrative process into a single 180-day
period, even though the plaintiff requested an EEOC hearing and
the applicable regulations allow an 180-day period for the
hearing process.” Def.’s Reply Br. at 3-4. What defendant fails
to recognize, however, is that “the EEOC’s guidance makes clear
that a complainant may voluntarily withdraw a request for hearing
at any time.” Abdelkarim v. Tomlinson, 605 F. Supp. 2d 116, 120
(D.D.C. 2009) (Sullivan, J.); see Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1
(Nov. 9, 1999) (“Generally, an Administrative Judge will conduct
a hearing on the merits of a complaint unless . . . the hearing
11 request is voluntarily withdrawn.”). While a complainant may
elect to allow an administrative hearing to run its full course,
there is no statute or regulation requiring a plaintiff to
complete the administrative hearing process if more than 180 days
has passed without a final determination by the agency; to the
contrary, the plain language of 42 U.S.C. § 2000e-16(c) and 29
C.F.R. § 1614.407(b) give federal employees the right to sue in
federal district court if an agency fails to take final action on
his or her Title VII complaint with 180 days. This determination
is consistent with the purpose of the 180-day provision, which
our Circuit has described as follows:
The 180 day provision represents a Congressional determination that providing prompt access to the courts in discrimination disputes is so important that the administrative process will be given only a finite time to deal alone with a given dispute. . . . Requiring a complainant to further pursue administrative remedies after fulfilling all the prerequisites to suit specified by the EEOA, and most importantly, after 180 days have elapsed without final administrative action, would frustrate that response.
Wilson v. Pena, 79 F.3d 154, 167 (D.C. Cir. 1996)(quoting Grubbs
v. Butz, 514 F.2d 1323, 1327-28 (D.C. Cir. 1975)).
Accordingly, the Court concludes that there is no reason for
it to stray from Brown, finding the decision both well-reasoned
and consistent with Circuit authority. See Saksenasingh v. Sec’y
of Educ., 126 F.3d 347, 350 (D.C. Cir. 1997) (“We have held that
under 42 U.S.C. § 2000e-16(c), a complainant may [] file suit
after the appropriate number of days has elapsed since
12 complaining to the agency . . . .”); Wilson, 79 F.3d at 166
(holding, in the context of an EEOC enforcement action, that
“[o]nce a complainant files a complaint or appeal and cooperates
with the agency or EEOC for 180 days, he is not required to take
any further action to exhaust his administrative remedies”); see
also Martinez v. Dep't of the United States Army, 317 F.3d 511,
511-12 (5th Cir. 2003) (“Because 42 U.S.C. § 2000e-16(c) allows
federal employees to file suit in federal court if an agency has
not taken final action within 180 days and because withdrawing a
request for an EEOC hearing was not a failure to cooperate with
the administrative process, we reverse dismissal of employee’s
lawsuit and remand.”); Waiters v. Parson, 729 F.2d 233, 237 (3d
Cir. 1984) (“[B]efore filing a Title VII suit, a federal employee
charging an employer with discrimination must file a complaint
with the EEOC, and allow 180 days to pass during which the EEOC
will attempt to resolve the dispute without resorting to
litigation. At the end of the 180 day period the employee is
entitled to sue, regardless of the pendency of EEOC
proceedings.”).
Applying Brown to the facts of this case, the Court
concludes that plaintiff has satisfied the requirements of 29
C.F.R. § 1614.407(b) with respect to her race and sex
discrimination claims. Specifically, as discussed above,
plaintiff filed her agency complaint alleging race and sex
discrimination on June 23, 2008. Plaintiff participated in the
administrative hearing process until February 16, 2009 - 238 days
13 after the filing of her agency complaint. After cooperating with
the agency for more than 180 days, plaintiff had no obligation to
continue litigating in the administrative forum.5 The Court
finds, therefore, that plaintiff’s race and sex discrimination
claims are properly before this Court. Accordingly, defendant’s
motion for summary judgment as to plaintiff’s race and sex
discrimination claims is hereby DENIED.
C. Exhaustion of Plaintiff’s Retaliation Claim
Defendant also seeks dismissal of plaintiff’s retaliation
claim. As discussed above, plaintiff’s retaliation claim was
raised in her second agency complaint (Agency Complaint No. 09-
51-00510). On December 10, 2009, plaintiff elected to proceed
with a hearing before an administrative judge as to this claim,
and is currently engaged in discovery in the administrative
action. See generally Pl.’s Status Report. At the motions
hearing held on March 24, 2010, the Court asked plaintiff’s
counsel if she was aware of any authority allowing a party to
simultaneously litigate a claim before an agency and a federal
court; plaintiff’s counsel indicated that she was aware of none.
Accordingly, having been provided with no authority to support
the simultaneous adjudication of plaintiff’s retaliation claim in 5 See also, e.g., Martinez, 317 F.3d at 511(concluding that the plaintiff’s withdrawal of his request for an administrative hearing after more than 180 days had elapsed in order to file suit in federal district court did not constitute “a failure to cooperate with the administrative process”); Brown, 462 F. Supp. 2d at 21 (finding that a plaintiff’s failure to cooperate in an administrative hearing after more than 180 days had elapsed did not “result in the loss of the right to file suit in district court”).
14 both fora, and cognizant of the Circuit’s instruction that
exhaustion of administrative remedies is necessary in order to
“afford the agency an opportunity to resolve the matter
internally and to avoid unnecessarily burdening the courts,” the
Court concludes that plaintiff has failed to exhaust her
administrative remedies as to her retaliation claim. Wilson, 79
F.3d at 164. Accordingly, defendant’s motion for summary
judgment as to plaintiff’s retaliation claim is GRANTED. The
Court notes, however, that this judgment is without prejudice, as
plaintiff has the right to pursue her retaliation claim in a
federal district court pursuant to 29 C.F.R. § 1614.407(b) upon
withdrawal from or completion of the administrative process. See
Pl.’s Ex. 8 (indicating that March 1, 2010 “represents 180 days
from the date of [plaintiff]’s amendment request”).
IV. CONCLUSION For the reasons set forth above, the Court DENIES
defendant’s motion for summary judgment as to plaintiff’s race
and sex discrimination claims, and GRANTS, without prejudice,
defendant’s motion for summary judgment as to plaintiff’s
retaliation claim. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED. Signed: EMMET G. SULLIVAN UNITES STATES DISTRICT JUDGE March 29, 2010