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Miller v. Rosenker

July 25, 2008


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Richard Miller brings this action against Defendant Mark V. Rosenker, in his official capacity as Chairman of the National Transportation Safety Board ("NTSB"), alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (Count I), and retaliation for Plaintiff's previous Equal Employment Opportunity ("EEO") complaints (Count II).

This matter is before the Court on Defendant's Second Motion to Dismiss, or, in the Alternative, for Summary Judgment [Dkt. No. 18]. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons stated below, Defendant's Second Motion to Dismiss [Dkt. No. 18] is granted.


Plaintiff filed a formal complaint of discrimination with the NTSB*fn2 on December 17, 2002 alleging that he was suffering retaliation for his previous EEO activity. Plaintiff's formal complaint was revised and re-submitted to the NTSB on March 20, 2003. In his revised formal complaint, Plaintiff alleged that he had been subjected to a continuous pattern of reprisal for his participation in previous EEO activity in January 2002.

The NTSB accepted ten claims of retaliation for investigation on May 23, 2003. On December 20, 2004, an Administrative Judge dismissed nine of those ten claims and, on February 8, 2005, an Administrative Judge granted the Agency's motion for summary judgment on the tenth claim. On March 16, 2005, the NTSB issued a Final Agency Decision dismissing Plaintiff's discrimination complaint and notifying him that an appeal to the Commission of this decision must by filed within 30 days of receipt of the Final Agency Decision. Plaintiff filed a Notice of Appeal which was postmarked April 23, 2005, and the Equal Employment Opportunity Commission's Office of Federal Operations dismissed the appeal as untimely on October 12, 2005.*fn3

Plaintiff filed this action on December 28, 2005.


To survive a motion to dismiss, a plaintiff need only plead "enough facts to state a claim to relief that is plausible on its face" and to "nudge[] [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp v. Twombly, U.S. ___, 127 S.Ct. 1955, 1974 (2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. At 1969.

Under the standard set out in Twombly, a "court deciding a motion to dismiss must not make any judgment about the probability of the plaintiff's success...must assume all the allegations in the complaint are true (even if doubtful in fact)...[and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Atkieselskabet AF 21. November 2001 v. Fame Jeans Inc., F.3d , 2008 WL 1932768, at *6 (D.C. Cir. Apr. 29, 2008) (internal quotation marks and citations omitted).


A. The Administrative Appeal Was Not Filed Within the Thirty Day Period Required by EEOC Regulations

Once Plaintiff received the Final Agency Decision denying his discrimination complaint, he had two options to appeal the decision under the applicable regulation: (1) to file a civil action in federal court within ninety days of the receipt of the decision; or (2) to timely file an administrative appeal with the EEOC and, if more than 180 days passed without a decision regarding his appeal, to then file a civil action in federal court. 29 C.F.R. § 1614.407. More than ninety days had elapsed between the plaintiff's receipt of the Final Agency Decision and his filing of his complaint in this Court. Therefore, for the Plaintiff to have timely filed his claim in federal court, his administrative appeal with the EEOC must have been timely filed.

In order to be timely filed, an administrative appeal to the Final Agency Decision must be postmarked within 30 days of receipt of the decision. 29 CFR § 1614.402. Both parties agree that Plaintiff's appeal was at least one day late.*fn4 Plaintiff's appeal to the EEOC was therefore untimely. Accordingly, in order for his ...

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