The opinion of the court was delivered by: ROYCE LAMBERTH, District Judge
This employment discrimination case comes before the Court on a
Motion  for Partial Dismissal filed on behalf of defendant
Michael Chertoff, Secretary, Department of Homeland Security.
Plaintiff brought suit alleging age discrimination in violation
of the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 621, et seq.; as well as race discrimination, including hostile
work environment, in violation of Title VII of the Civil Rights
act of 1964, 42 U.S.C. § 2000e-5, et seq. Defendant argues that
all alleged incidents which did not occur within the 45 day
period prior to the filing of the Equal Employment Opportunity
Commission ("EEOC") complaint are not actionable under Rule
12(b)(1) for failure to exhaust administrative remedies.
Defendant also avers that plaintiff failed to plead a sufficient
hostile work environment claim and therefore it must be dismissed
pursuant to Rule 12(b)(6). Upon consideration of defendant's
motion, the opposition thereto, the reply, as well as the
relevant law, the Court dismisses all claims of race and age
discrimination except for those claims predicated on the
suspension, for failure to exhaust administrative remedies.
Furthermore, the claim for retaliation is dismissed for failure to state a claim for which
relief can be granted. However, the Court will not dismiss the
hostile work environment claim.
Plaintiff Henry Williams is a 49 year old, African-American
male who has been employed as an officer in the United States
Secret Service Dignitary Protective Division. Compl. ¶ 5.
Plaintiff avers that on March 3, 2002, Sgt. Anthony Angerome
demeaned plaintiff over the official radio system and accosted
him on a public street corner. Id. ¶ 6. Plaintiff felt that
this confrontation was predicated on race and told Sgt. Angerome
that he was a racist. Id. ¶ 8. Thereafter, Cpt. Michael Carey
proposed that plaintiff be suspended for ten days. On May 21,
2002, plaintiff's supervisors ("management") confiscated
plaintiff's weapon and put him on limited duty, thereby
eliminating his opportunity to work overtime. Id. ¶ 15. On June
12th, 27th, and 28th, plaintiff completed a Fitness-for-Duty
Examination at management's direction. Id. ¶ 17. Upon
management's order, plaintiff also attended an anger management
class and met with an Employee Assistance Program ("EAP")
counselor. Id. On July 23, plaintiff returned to active duty.
Id. On November 14, 2002, management sustained the previously
proposed suspension. Id. ¶ 18. Thereafter, on November 20,
plaintiff first contacted an Equal Employment Opportunity ("EEO")
counselor and filed a formal complaint with the EEOC on March 26,
2003. Id. Def.'s Mot. Dismiss 3. This action was filed on
January 28, 2005.
I. Plaintiff Failed to Timely Exhaust Administrative
Defendant maintains that this Court lacks subject matter
jurisdiction to adjudicate the majority of plaintiff's claims and
moves to dismiss pursuant to Rule 12(b)(1). It is well settled that federal employees must exhaust their administrative remedies
prior to bringing suit under Title VII. See, e.g., Brown v.
GSA, 425 U.S. 820, 832 (1976). Failure to exhaust administrative
remedies deprives a district court of subject matter
jurisdiction. Artis v. Greenspan, 158 F.3d 1301, 1302 (D.C.
Defendant characterizes the failure to bring timely
administrative action as a jurisdictional bar to recovery. While
the administrative time requirements may not impose a barrier to
bringing suit, the party nonetheless must satisfy the
requirements set out by the EEOC. Stewart v. Ashcroft,
352 F.3d 422, 425 (D.C. Cir. 2003). The Code of Federal Regulations
requires that an aggrieved person who feels that he has been
discriminated against on the basis of race "must initiate contact
with a Counselor within 45 days of the date of the matter alleged
to be discriminatory." 29 C.F.R. § 1614.105(a)(1). Moreover,
while age discrimination is not explicitly addressed in §
1614.105, an aggrieved person who opts to assert his rights
through administrative channels, is bound by the relevant
administrative regulations such as the statute of limitations.
Price v. Greenspan, 374 F.Supp. 2d 177, 186 (D.D.C. 2005)
Most of plaintiff's claims for age and race discrimination fail
because plaintiff failed to initiate contact with an EEO
counselor within 45 days of the alleged discrimination. To be
actionable, the alleged discrimination must have occurred after
October 5, 2002. Almost all the alleged discriminatory incidents,
however, occurred prior to that date. The confrontation between
plaintiff and Sgt. Angerome occurred on March 3, 2002. Plaintiff
was on limited duty between May 21 and July 23. During that time
period, plaintiff also attended the anger management classes and
took the Fitness-for-Duty Examinations. The only allegedly
discriminatory action that took place within the prescribed time
period was the suspension. Plaintiff failed to bring his claims regarding the alleged age
and race discrimination to the EEO Counselor in a timely manner.
As timely exhaustion of administrative remedies is a prerequisite
to claims under ADEA and Title VII, plaintiff's individual claims
for events occurring before October 5, 2002 are barred.
II. Failure to State a Claim for which Relief could be
Defendant also moves to dismiss the hostile work environment
and retaliation claims for failure to state a claim upon which
relief may be granted pursuant to Rule 12(b)(6). Rule 8(a)(2)
requires only that a complaint include a "short and plain
statement of the claim showing that the pleader is entitled to
relief." In an employment discrimination case, the "plaintiff
need not set forth the elements of a prima facie case at the
initial pleading stage." Sparrow v. United Airlines, Inc,
216 F.3d 1111, 1111 (D.C. Cir. 2000). The Court will not grant a
motion to dismiss for failure to state a claim "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, at this stage
of the proceedings, the Court accepts as true all of the
complaint's factual allegations, and draws all reasonable
inferences in favor of plaintiff. Hishon v. King & Spalding,
467 U.S. 69, 73 (1984). However, the movant is entitled to
judgment if there are no allegations in the complaint which, even
if proven would provide a basis for recovery. Haynesworth v.
Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987).
To the extent that plaintiff has attempted to plead a claim for
unlawful retaliation, that claim is dismissed. For a retaliation
claim, plaintiff must establish that (1) he engaged in a
statutorily protected activity; (2) the employer took adverse
personnel action; and (3) a causal connection existed between the two. Rochon v. Ashcroft,
319 F.Supp. 2d 23, 30 (D.D.C. 2004) (Lamberth, J.). To show adverse
personnel action, plaintiff must demonstrate that there was a
tangible change in the duties, conditions, or terms of
employment, which constituted a material employment disadvantage.
Id. (citing Stewart v. Evans, 275 F.3d 1126, 1134-35 (D.C.
Plaintiff alleges that the retaliation occurred in the form of
superiors berating him for not issuing a sufficient number of
tickets despite an informal policy to the contrary. Compl. ¶ 23.
Plaintiff also alleges management told other employees that he
had cursed at his supervisors and could be terminated or
reprimanded. Id. These allegations are insufficient to
establish retaliation because they do not constitute an adverse
personnel action. Plaintiff has not demonstrated that management
acted in a way that materially disadvantaged his employment. To
show a material disadvantage, plaintiff would have to demonstrate
a significant change in his employment status such as termination
of employment, failure to promote, "reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits." Walker v. Washington Metro.