Hairston v. Tapella

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) KEVIN HAIRSTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1531 (RWR) ) ROBERT C. TAPELLA, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Kevin Hairston filed a discrimination complaint

under Title VII of the Civil Rights Act of 1964, alleging that

his employer, the Government Printing Office (“GPO”), failed to

promote him because of his race and retaliated against him for

complaining about it. The GPO moved to dismiss the complaint

under Federal Rule of Civil Procedure 12(b)(1) for lack of

jurisdiction due to Hairston’s failure to timely exhaust his

administrative remedies, and Rule 12(b)(6) for failure to state a

claim. Because there are disputed material facts about

Hairston’s timeliness in complaining about his non-promotions,

the GPO’s motion to dismiss Hairston’s first cause of action,

treated as a motion for summary judgment, has been denied.

However, because Hairston failed to exhaust his administrative

remedies for his claim of retaliation, the GPO’s motion to

dismiss Hairston’s second cause of action has been granted. -2-

BACKGROUND

Kevin Hairston, a black man, has worked for the GPO since

1987. He currently works in the Press Division of the GPO’s

Production Department. (Compl. ¶¶ 4-7.) Hairston has served in

his current role as Offset Pressperson for five years and works

the night shift. (Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss

(“Pl.’s Opp’n”) at 1, 3; Decl. of Kevin Hairston, Jan. 30, 2009

(“First Decl.”) ¶ 2.)

On August 14, 2006, the GPO posted vacancy announcement

No. 06-476 for the position of Second Offset Pressperson (“first

posting”), a position open only to permanent GPO employees.

(Compl. ¶¶ 11-12; Def.’s Mem. in Supp. of Mot. to Dismiss

(“Def.’s Mem.”) ¶ 2.) Hairston applied for the position listed

in the first posting on August 24, 2006, and alleges that he was

selected for the position in September 2006. (Compl. ¶¶ 13, 16-

17; First Decl. ¶ 11 n.1). However, on September 6, 2006, the

GPO withdrew the first posting before filling the position.

(Def.’s Mem. ¶ 3; Compl. ¶ 18.) Hairston alleges that on

October 5, 2006, he contacted the GPO’s equal employment

opportunity office (“EEO”) alleging that he had been denied the

promotion to Second Offset Pressperson on account of his race

(“first complaint”). (Compl. ¶ 25.) Hairston alleges that an

EEO counselor he met with named Teri Brown advised him to

withhold filing a formal complaint until he had more evidence of -3-

discrimination beyond his mere non-promotion. Because of the EEO

counselor’s advice, Hairston took no further action. (Pl.’s

Opp’n at 3-4; First Decl. ¶¶ 9-10.)

The GPO re-posted the Second Offset Pressperson announcement

(“second posting”) as vacancy announcement No. 06-554 on

October 13, 2006, but this time opened applications to non-GPO

employees. (Compl ¶¶ 26-27.) Hairston alleges that

Superintendent George Domarasky stated that the GPO re-posted the

position because “[the GPO] had no qualified applications on the

last posting.” (Compl. ¶ 24.) Hairston re-applied in response

to the second posting and received confirmation of his

qualification for the position on December 4, 2006. (Compl.

¶¶ 29-30.) While the GPO did not interview candidates for the

first posting, the GPO interviewed applicants for the second

posting. The GPO interviewed Hairston on December 27, 2006.

(Compl. ¶¶ 31-32.) In January 2007, Hairston found out that he

had not been selected for the position of Second Offset

Pressperson, but Hairston did not know if the GPO had left the

position vacant, as it did after withdrawing the first posting.

(Pl.’s Opp’n at 4; First Decl. ¶ 10.)

On March 19, 2007, the GPO hired as a Second Offset

Pressperson Douglas Davis, a white man with no prior GPO

experience. (Compl. ¶ 34; Def.’s Mem. ¶ 4.) Hairston alleges

that he did not find out that the second posting vacancy had been -4-

filled until June 14, 2007, when a co-worker informed him that a

white person had been hired for the position. (Compl ¶ 34; Pl.’s

Opp’n at 5; First Decl. ¶ 12.) Hairston returned to the EEO on

June 21, 2007 alleging again that the GPO had denied him a

promotion because of his race (“second complaint”). (Compl.

¶ 39; Pl.’s Opp’n 5)

Hairston alleges that shortly after he complained to the EEO

in June 2007, his direct supervisor, assistant foreman David

Eigenbrode, began a course of retaliatory conduct that included

threatened disciplinary actions, degrading treatment in front of

co-workers, unwanted bodily contact, and “disparaging comments.”

(Compl. ¶¶ 40-43; Pl.’s Opp’n at 6.) After no resolution was

reached in the informal EEO process, Hairston filed a formal

complaint on August 3, 2007 with the EEO alleging race

discrimination. (Compl. ¶ 44.) Hairston’s complaint did not

allege retaliation. (Pl.’s Opp’n at 7.) Rather, Hairston

contends that he did nothing in response to Eigenbrode’s alleged

retaliatory conduct, other than make an initial complaint to

Eigenbrode’s supervisor, because Hairston worried that Eigenbrode

would downgrade his work evaluations “or otherwise jeopardiz[e]

his chances of receiving a promotion in the future . . . .”

(Id.; First Decl. ¶¶ 20-21.)

Hairston brought this action under 42 U.S.C. §§ 2000e-16(a)

and 2000e-3(a) alleging racial discrimination and retaliation. -5-

The GPO has moved to dismiss both of Hairston’s claims under

Rules 12(b)(1) and 12(b)(6), arguing that Hairston failed to

exhaust his administrative remedies by seeking EEO counseling

within 45 days of the alleged discriminatory and retaliatory

acts, and because Hairston did not allege retaliation in the

formal EEO complaint he submitted on August 3, 2007. (Def.’s

Mem. at 1, 4.) Hairston responded by contending that the time

limit on his first complaint should be tolled because Hairston

relied on the advice of an EEO counselor in not pursuing the

claim further. (Pl.’s Opp’n at 9-13.) Hairston also argued that

he timely filed his second complaint because the action did not

accrue until he discovered that the position had been filled by a

white man without prior GPO experience, and that his retaliation

claim is appropriately before this court because courts do not

require amendments to EEO complaints to allege retaliation that

occurs after filing an initial EEO complaint. In the

alternative, Hairston sought a dismissal without prejudice in

hopes of re-filing his case, albeit with a much broader scope.1

1 Hairston moved for leave to file a surreply, arguing that the GPO’s Reply “raises more questions than it answers.” (Pl.’s Mem. for Leave to File Surreply (“Mem. for Surreply”) at 1.) Although motions for leave to file a surreply are not favored, they are granted when a reply is filed leaving “a party . . . ‘unable to contest matters presented to the court for the first time.’” Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)). Courts may be inclined to grant leave to file a surreply when it responds to new factual allegations “of substantial import.” Tnaib v. Document Techs., LLC, 450 F. Supp. 2d 87, 89 -6-

DISCUSSION

“[M]otions to dismiss for failure to exhaust administrative

remedies are . . . appropriately analyzed under Rule 12(b)(6).”

Hopkins v. Whipple, 630 F. Supp. 2d 33, 40 (D.D.C. 2009)(quoting

Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59,

64 (D.D.C. 2008) and Hazel v. Wash. Metro Transit Auth., Civil

Action No. 02-1375 (RWR), 2006 WL 3623693, at *3 (D.D.C.

December 4, 2006)); see also Arbaugh v. Y & H Corp., 546 U.S.

500, 516 (2006) (“[W]hen Congress does not rank a statutory

limitation on [the statute’s] coverage as jurisdictional, courts

should treat the restriction as non-jurisdictional in

character.”); Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997) (“The administrative time limits created by the EEOC

erect no jurisdictional bars to bringing suit.”). “Moreover,

‘[b]ecause untimely exhaustion of administrative remedies is an

affirmative defense, the defendant bears the burden of pleading

and proving it.’” Battle v. Rubin, 121 F. Supp. 2d 4, 7 (D.D.C.

2000) (quoting Bowden, 106 F.3d at 437).

n.3 (D.D.C. 2006). The GPO attached to its reply a declaration from EEO Counselor Barbara Utz contesting the alleged content of conversations at Hairston’s initial EEO meetings. (See Def.’s Reply Ex. 1 (“Utz Decl.”).) The factual allegations contained in the declaration raised, for the first time, factual disputes regarding whether the EEO advised Hairston against filing a complaint in October 2006. Therefore, Hairston’s motion for leave to file a surreply has been granted. -7-

In order to survive a motion to dismiss under Rule 12(b)(6),

the plaintiff must “plead[] factual content that allows the court

to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007)). However, “when ‘matters outside the pleadings are

presented to and not excluded by the court’ on a motion to

dismiss under Rule 12(b)(6), ‘the motion must be treated as one

for summary judgment[.]’” Highland Renovation Corp. v. Hanover

Ins. Group, 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R.

Civ. P. 12(d)). In particular, “where both parties submit

material outside the pleadings and ‘the parties are not taken by

surprise or deprived of a reasonable opportunity to contest facts

averred outside the pleadings and the issues involved are

discrete’ legal issues, the court may convert the motion to a

motion for summary judgment ‘without providing notice or the

opportunity for discovery to the parties.’” Highland Renovation

Corp., 620 F. Supp. 2d at 82 (quoting Tunica-Biloxi Tribe of La.

v. United States, 577 F. Supp. 2d 382, 405 (D.D.C. 2008) and

Smith v. United States, 518 F. Supp. 2d 139, 145, 155 (D.D.C.

2007)).

Summary judgment is appropriately granted when the moving

party demonstrates that there is no genuine issue as to any

material fact and that moving party is entitled to judgment as a -8-

matter of law. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009) (citing Fed. R. Civ. P. 56 (c) and Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986)). “In considering a motion

for summary judgment, [a court is to draw] all ‘justifiable

inferences' from the evidence ... in favor of the nonmovant.”

Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189

(D.D.C. 2008) (quoting Anderson, 477 U.S. at 255); Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

“The relevant inquiry ‘is the threshold inquiry of determining

whether there is a need for a trial - - whether, in other words,

there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.’” Single Stick, Inc. v.

Johanns, 601 F. Supp. 2d 307, 312 (D.D.C. 2009) (quoting

Anderson, 477 U.S. at 250). A genuine issue is present where the

“evidence is such that a reasonable jury could return a verdict

for the non-moving party,” in contrast to a situation where the

evidence is “so one-sided that one party must prevail as a matter

of law.” Anderson, 477 U.S. at 248, 252.

“Before filing a Title VII suit, a federal employee must

timely pursue [his] administrative remedies, following the

requirements set forth in 29 C.F.R. § 1614.” Hines v. Bair, 594

F. Supp. 2d 17, 22 (D.D.C. 2009). “If a plaintiff believes that

[he] has been unlawfully discriminated against, ‘[he] must -9-

consult an EEO counselor in an effort to resolve the situation

informally.” Id. (citing 29 C.F.R. § 1614.105(a)). This contact

with the EEO counselor must occur within 45 days of the alleged

discriminatory incident. Id. (citing 29 C.F.R.

§ 1614.105(a)(1)). “The agency or the Commission shall extend

the 45-day time limit . . . when the individual shows . . . that

he or she did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred . . . ."

Id. (citing 29 C.F.R. § 1614.105(a)(2)). If informal counseling

proves fruitless, the employee then has 15 days from when the

employee receives notice that counseling has ended to file a

written complaint. See Chandler v. Bernanke, 531 F. Supp. 2d

193, 196 (D.D.C. 2008); 29 C.F.R. § 1614.106(b). However, “the

time period for filing a charge remains subject to application of

equitable doctrines such as waiver, estoppel, and tolling.”

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)

(citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393

(1982)). After filing a written complaint, the employee may file

a civil action once the agency issues an adverse final decision

or 180 days elapse without a decision, whichever happens first.

See 42 U.S.C. § 2000e-16(c).

The procedural requirements governing a plaintiff’s right to

bring a Title VII claim in court are not mere technicalities,

because “it is part and parcel of the Congressional design to -10-

vest in the federal agencies and officials engaged in hiring and

promoting personnel ‘primary responsibility’ for maintaining

nondiscrimination in employment." Patterson v. Johnson, 391 F.

Supp. 2d 140, 145 (D.D.C. 2006). However, Title VII’s purpose is

remedial in nature. While time limits are imposed principally to

insure that employers receive notice of complaints and have an

opportunity to resolve the situation before litigation is filed,

the time limits are “subject to waiver, estoppel, and equitable

tolling when equity so requires.” See Morgan, 536 U.S. at 121

(quoting Zipes, 455 U.S. at 398); see also 29 C.F.R.

§ 1613.214(a)(4) (“The agency shall extend the time limits in

this section when the complainant shows that he/she was not

notified of the time limits and was not otherwise aware of them

. . . or for other reasons considered sufficient by the

agency.”). The equitable power to toll a limitation period will

be exercised in “carefully circumscribed instances.” Smith-

Haynie v. District of Columbia, 155 F.3d 575, 579-80 (D.C. Cir.

1998) (quotation omitted). “[E]quitable principles favor tolling

where, for example, a defendant engaged in affirmative

misconduct, or misled a plaintiff about the running of a

limitations period.” Washington v. Wash. Metro. Area Transit

Auth, 160 F.3d 750, 752-53 (D.C. Cir. 1998) (quotations and

bracket omitted); see also White v. Geithner, 602 F. Supp. 2d 35,

38 (D.D.C. 2009) (stating that a court exercises its equitable -11-

power to toll Title VII’s limitation periods where a plaintiff

comes “forward with specific proof of an employer’s affirmative

acts or misleading statements” that prevented the plaintiff from

filing an EEO complaint within the limitation period).

I. NON-PROMOTION

Hairston’s complaint alleges that the GPO unlawfully

discriminated against him based on his race in violation of Title

VII by repeatedly denying him the promotion to Second Offset

Pressperson. It alleges two discrete acts of discrimination: one

act that occurred on September 6, 2006, the date that the GPO

first purportedly cancelled Hairston’s promotion to the Second

Offset Press Person Position, and one act that occurred on March

19, 2007, when Davis was hired for the second posting of the

Second Offset Press Person position, an act that Hairston alleges

he learned of on June 14, 2007. (Compl. ¶¶ 47-49.) Each

instance of an employer’s failure to promote is a discrete act

that constitutes an individually actionable “unlawful employment

practice.” Morgan, 536 U.S. at 114. Although Hairston subsumes

both non-promotions under a single count of the complaint

alleging that the GPO’s discrimination is on-going and continuous

(Compl. ¶ 49), “discrete discriminatory acts are not actionable

if time barred, even when they are related to acts alleged in

timely filed charges,” unless equitable principles of tolling

apply. Morgan, 536 U.S. at 113-14. Thus, Hairston can maintain -12-

his discrimination count if he timely filed his EEO complaint and

exhausted administrative remedies for either of the non-

promotions, or if the circumstances surrounding either non-

promotion warrants equitable tolling. See Morgan, 536 U.S. at

113-14; Battle, 121 F. Supp. 2d at 6-7 (recognizing the “general

rule” that “parties ‘must exhaust prescribed administrative

remedies before seeking relief from federal courts’”) (quoting

McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992)).

The GPO argued that the first cause of action should be

dismissed as untimely because Hairston failed to timely exhaust

his administrative remedies regarding either of the underlying

non-promotions. (Def.’s Mem. at 8-9.) The GPO alleged that

Hairston failed to seek timely EEO counseling after the

September 6, 2006 cancellation of the first posting (Def.’s Mem.

at 8), and that the circumstances of Hairston’s complaint do not

warrant an equitable extension of the administrative time limits.

(Def.’s Mem. at 10.) Hairston responded that his contact with

the EEO after the cancellation of the first posting satisfied

Title VII’s requirements, and in the alternative, that his “lack

of knowledge of facts critical to his discrimination complaint,”

taken together with EEO Counselor Brown’s advice that he delay

any complaint, warrant tolling the statute of limitations.

(Pl.’s Opp’n at 10.) -13-

On October 5, 2006, Hairston met with an EEO counselor

regarding the first posting, twenty-nine days after the GPO

cancelled the first posting on September 6, 2006. (Compl. ¶¶ 18,

25.) Thus, Hairston “initiate[d] contact” with the EEO within 45

days “of the matter alleged” sufficient to satisfy the first

Title VII deadline. 29 C.F.R. § 1614.105(a)(1). On October 27,

2006, Hairston received and signed a notice informing him that

his complaint had not been resolved and that he could file a

formal complaint of discrimination within 15 calendar days of

receiving the notice. (Def.’s Reply Ex. E.) However, Hairston

failed to file a formal complaint within the 15 days allotted by

EEO regulations. (Pl.’s Surreply at 1; Def.’s Reply at 7.)

Instead, Hairston took no further action regarding the first

posting until he initiated the present action. Thus, Hairston

did not meet the deadline for filing a formal complaint of

discrimination regarding that posting. See 29 C.F.R.

§ 1614.106(b). As such, the GPO met its initial burden of

proving that Hairston did not exhaust his administrative remedies

regarding the revocation of the first posting within the time-

frame required by Title VII.

Hairston argued, though, that the deadline for filing a

formal complaint regarding his non-promotion for the first

posting should be tolled because Brown allegedly told him in

October 2006 that he needed additional proof beyond his mere non- -14-

promotion in order to file a claim, and that Hairston relied on

that advice when he did not file a claim within the 15 days

required by statute. (First Decl. ¶¶ 9-10.) While Hairston’s

original declaration does not specify which EEO counselors he met

with on which days, it is clear that Hairston contacted the EEO

on September 28, 2006, October 5, 2006, and October 27, 2006.

(Compl. ¶ 25; First Decl. ¶ 8; Utz Decl. ¶¶ 3-4.) The GPO

contested Hairston’s claim of misinformation through the

declaration of Barbara Utz, who states that she met with Hairston

on October 5, 2006 and October 27, 2006, and that she “never made

any statement(s) for the purpose of discouraging [Hairston] from

pursuing his complaint.” (Utz Decl. ¶¶ 4-5.) However, while the

checklist from Hairston’s October 5, 2006 meeting bears Utz’s

signature (Pl.’s Opp’n Ex. B), Utz’s declaration does not refute

that Hairston met with Brown. Additionally, the GPO attached to

its motion a right to sue letter issued by Brown. (Def.’s Mem.

Ex. C.) Taken together, the evidence could support the inference

that Hairston met with Brown.

The GPO also insisted Hairston was not misled and the

deadlines for Hairston’s administrative process should not be

tolled since Hairston signed the notice of the right to file

within 15 days a formal complaint. (Def.’s Reply 6-7.) While

the notice demonstrates that Hairston was made aware of the 15-

day deadline to submit an administrative complaint, it does not -15-

contradict Hairston’s contention that he reasonably relied on

oral representations made by Brown that actively discouraged him

from filing a claim, and courts may equitably toll a limitations

period when a plaintiff is misled “by a government official’s

advice upon which” the plaintiff relied. Bowden, 106 F.3d at

438. Accepting Hairston’s allegations as true, see Trudeau, 456

F.3d at 193, Hairston has made a plausible assertion that he met

with Brown, an EEO counselor, who advised him against filing a

formal complaint. As such, Hairston has alleged sufficient facts

to create a triable issue of fact bearing on whether the deadline

for filing a complaint about his first non-promotion should be

equitably tolled. Summary judgment on that non-promotion, then,

is not available.

The GPO argued that Hairston’s allegation of discrimination

regarding his non-promotion for the second posting should also be

dismissed for failure to timely exhaust administrative remedies,

insisting that the 45-day time period for contacting an EEO

counselor began to run when Hairston learned that he was not

selected for the position in January 2007, not when Hairston

learned that Davis was selected for the position. (Def.’s Mem.

at 8.) The parties do not dispute that Hairston was notified of

his non-selection in January 2007, that Davis’s hiring became

effective March 19, 2007, or that Hairston contacted the EEO on

June 21, 2007. (Def.’s Mem. at ¶¶ 4-5; First Decl. ¶¶ 10, 13, -16-

14.) Rather, the parties dispute when the clock started on the

45-day deadline.

Section 1614.105(a)(1) makes it clear that employees have

45 days from the occurrence of “the matter alleged to be

discriminatory” to initiate contact with an EEO counselor. 29

C.F.R. § 1614.105(a)(1); see also Morgan, 536 U.S. at 109-110

(analyzing when an unlawful employment practice ‘occurs’ for

purposes of Title VII’s timing provisions and holding that “[a]

discrete retaliatory or discriminatory act ‘occurred’ on the day

that it ‘happened.’”). In Stewart v. Ashcroft, 352 F.3d 422

(D.C. Cir. 2003), the court of appeals held that an allegedly

discriminatory non-promotion occurs on the date that the selected

applicant assumes her or his new position. Id. at 425. In

Stewart, the plaintiff initiated EEO procedures on August 12,

1998, while the promoted employee assumed his new role on

February 3, 1998 — - well over 100 days earlier. Id. Because

the promotion became effective on February 3, 1998, the court of

appeals deemed the complaint untimely. Id.; see also Armstrong

v. Jackson, Civil Action No. 05-75 (JDB), 2006 WL 2024975 at *4

(D.D.C. July 17, 2006) (holding that the date of discrimination

is the date on which a decision not to hire a plaintiff becomes

effective).

Here, Davis’ hiring became effective March 19, 2007. (First

Decl. ¶ 13; Def.’s Mem. Ex. B.) As such, Hairston had until -17-

May 3, 2007 to file a timely complaint under § 1614.105(a)(1).

However, Hairston did not contact the EEO regarding the second

posting until June 21, 2007, some 94 days after the allegedly

discriminatory act happened, and he failed to meet the 45-day

deadline imposed by § 1614.105(a)(1).

Hairston argued that the time limit should be tolled under

§ 1614.105(a)(2) because he was unaware before June 14, 2007 that

“another individual had been selected for the job, let alone that

the individual was a Caucasian applicant from outside [the] GPO.”

(Pl.’s Opp’n at 5.) Under § 1614.105(a)(2), courts may treat

otherwise untimely complaints as timely if the employee “did not

know and reasonably should not have known that the discriminatory

matter or personnel action occurred.” This statutory language

recognizes that “[a]n overly technical approach [to Title VII

claims] would improperly impede the goal of making federal

employment free from proscribed discrimination.” Loe v. Heckler,

768 F.2d 409, 417 (D.C. Cir. 1985).

Here, Hairston’s allegations regarding the advice he relied

upon in not filing a timely complaint without more evidence of

discrimination could, if believed, justify under § 1614.105(a)(2)

a tolled deadline for making contact with the EEO counselor

regarding the second posting. Hairston could have reasonably

believed that Brown’s assertion that he needed more evidence of

discrimination aside from just his non-promotion meant that he -18-

needed to wait to assert any other grievance about any non-

promotion until he knew who had been hired for the position.

Hairston works in a massive building with thousands of co-workers

(Pl.’s Opp’n at 2), and he did not know the Second Offset

Pressperson position had been filled when Davis assumed the role

on March 19, 2007. (First Decl. ¶ 13). Yet, Hairston quickly

contacted the EEO just one week after learning of Davis’

promotion. (Id. ¶ 14.) Here, too, Hairston raised a genuine

issue of material fact bearing on whether the deadline for

Hairston to have contacted the EEO should be tolled. The GPO’s

motion to dismiss Hairston’s first cause of action, then,

converted to a motion for summary judgment, was denied.

II. RETALIATION

Title VII “prohibit[s] the federal government from

retaliating against employees who complain of employment

discrimination.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.

2009) (citing Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir.

2008)). “It is well-established that a federal employee may

assert a Title VII claim in federal court only after a timely

complaint has been presented to the agency involved.” Nurriddin

v. Goldin, 382 F. Supp. 2d 79, 92 (D.D.C. 2005) (citations

omitted). There is some dispute in this circuit about whether a

federal employee needs to exhaust his administrative remedies

before filing a claim of retaliation. While the D.C. Circuit -19-

“has declined to weigh in on the issue,” Lewis v. Dist. of

Columbia, 535 F. Supp. 2d 1, 7 (D.D.C. 2008) (citing Weber v.

Battista, 494 F.3d 179, 183-84 (D.C. Cir. 2007)), one view is

that “Morgan has, on the whole, been understood to . . . bar

[unexhausted claims of retaliation based on] discrete acts

occurring after the time period, after the filing of an

administrative complaint, when a plaintiff does not file a new

complaint or amend the old complaint but instead presents these

acts for the first time in federal court.” Romero-Ostolaza v.

Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005); see also Adams v.

Mineta, Civil Action No. 04-856 (RBW), 2006 WL 367895, at *3-5

(D.D.C. February 16, 2006) (entering judgment in favor of the

defendant where a plaintiff failed to file an EEO complaint

regarding her claims of retaliation, and explicitly rejecting the

argument that “a claimant need not exhaust her administrative

remedies for a claim based on retaliation when that retaliation

claim arises after an administrative complaint has already been

filed”). A more recent view is that acts of alleged retaliation

occurring after an EEO charge is filed need not be separately

exhausted where they necessarily would have come within the

“scope of any investigation that reasonably could have been

expected to result from [the] initial [EEO] charge[.]” Hazel,

2006 WL 3623693, at *8 (internal quotation and citation omitted);

see also Lewis, 535 F. Supp. 2d at 7 (holding that a court cannot -20-

entertain claims arising from incidents omitted from an EEO

complaint unless those incidents were within the scope of the

investigation that would have followed the initial EEO charge);

Pierce v. Mansfield, 530 F. Supp. 2d 146, 154 n.8 (D.D.C. 2008)

(holding that a plaintiff “need not exhaust his administrative

remedies to bring a retaliation claim”); Turner v. Dist. of

Columbia, 383 F. Supp. 2d 157, 178 n.11 (D.D.C. 2005) (stating

that “[t]he proposition that exhaustion is unnecessary for

retaliation claims stems, in part, however, from the fear that

filing a separate charge will result in more retaliation, and

that a retaliation claim is necessarily related to the underlying

charge”).

Here, not only did Hairston make no attempt to contact the

EEO regarding his claim of retaliation, but his retaliation claim

would not have been within the scope of the investigation of

Hairston’s initial claims of discriminatory non-promotion. See

Lewis, 535 F. Supp. 2d at 7. The supervisor who purportedly

retaliated against Hairston was not alleged to have been involved

in the decision about promotion. The GPO did not receive notice

of Hairston’s distinct retaliation claim until Hairston filed

this action, which contravenes the purpose of Title VII’s

deadlines. See Morgan, 536 U.S. at 121 (calling “prompt notice

to the employer” the “particular purpose” of Title VII’s filing

requirements) (quoting Zipes, 455 U.S. at 398). Therefore, -21-

Hairston’s retaliation claim was dismissed for failure to exhaust

administrative remedies.

CONCLUSION

Material facts are in dispute regarding Hairston’s

timeliness in complaining about his non-promotions, but his

retaliation complaint was unexhausted. Therefore, the

defendant’s motion [5] to dismiss, treated in part as a motion

for summary judgment, has been GRANTED in part and DENIED in

part. Summary judgment has been denied as to Hairston’s first

cause of action, and Hairston’s second cause of action was

dismissed. Further, Hairston’s motion [9] to file a surreply was

GRANTED.

SIGNED this 21st day of October, 2009.

/s/ RICHARD W. ROBERTS United States District Judge