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Hussain v. Gutierrez

December 1, 2008



Aisha Hussain, proceeding pro se, brings this action against Carlos M. Gutierrez, Secretary of the United States Department of Commerce (the "Department"), in his official capacity, alleging that while she was employed there, the Department discriminated against her on the basis of her gender, religion, national origin, and pregnancy; subjected her to a hostile work environment; and retaliated against her for engaging in protected equal employment opportunity activity, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Before the court is the Department's motion to dismiss and for summary judgment [#3]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the Department's motion must be granted.


In May 2001, Hussain, a female United States citizen of Indian origin and Islamic faith, accepted a position as an administrative assistant within the United States Foreign Commercial Service in the American Embassy in Riyadh, Saudi Arabia.The position description specified that Hussain would spend thirty percent of her time providing clerical support, thirty percent of her time handling phone calls, receiving visitors and arranging schedules and travel, and ten percent of her time preparing schedules for office drivers, among other responsibilities. Her contract extended through September 2001, was renewable annually thereafter, and specified that she could be terminated "at any time upon at least 15 days written notice . . . ." Def.'s Ex. 1 at 7. In September 2002, David Rundell became Hussain's supervisor and in October 2002, her contract was renewed for another year.

Soon after Rundell became her supervisor, Hussain became unhappy with her job and began asking for help in resolving "the physical and mental hardship that [she] was made to endure by Mr. Rundell." Compl. ¶ 18. With respect to her responsibilities, Hussain contends that Rundell required her to keep track of his wife's schedule and travel, insisted on using her as a dispatcher, rather than a supervisor of drivers, and constantly rewrote her job description. Id. ¶ 20. In terms of her work environment, Hussain asserts that Rundell often yelled at her, made her sit at a reception desk in an open entrance area, required her to oversee construction workers who made sexist remarks, referred to her as a clerk and a dispatcher and compared her to a maid, and would make remarks outside an office that she used for prayer, among other things. Id. Rundell, on the other hand, asserts that during the time he supervised Hussain, she constantly resisted performing the clerical responsibilities of her position, such as filing, scheduling drivers, and answering phone calls. Edward Burton, a commercial services officer who arrived in August 2003, also noted Hussain's resistance to performing her clerical duties.During 2003, at least two meetings were held between Rundell, Hussain and other embassy officials to discuss the contents of Hussain's job description, and her job description changed several times.

In April 2003, Hussain met with Debra Smoker-Ali, the human resources manager, and Margaret Scobey, deputy chief of mission, to discuss her grievances. During this meeting, Hussain alleged that she was being discriminated against on the basis of her sex, religion, and national origin. She contacted an equal employment opportunity counselor in September 2003. On October 8, 2003, Rundell gave Hussain a new contract; however, instead of extending her position for another year, this contract expired on October 31, 2003, at which point Hussain was terminated.

Hussain filed a formal complaint of discrimination with the Department's Office of Civil Rights in 2004 alleging that the Department harassed her on the basis of her sex, race, national origin and religion culminating in a hostile work environment. Following the investigation of the complaint, Hussain requested and received a hearing before an Administrative Law Judge of the Equal Employment Opportunity Commission.The Administrative Law Judge granted the Department's motion for summary judgment, finding that the Department had articulated a legitimate, non-discriminatory reason for its actions and that Hussain had failed to set forth any evidence demonstrating that the reason was pretextual. Later that year, the Equal Employment Opportunity Commission's Office of Federal Operations denied Hussain's appeal.


This case comes before the court on the Department's motion to dismiss Hussain's pregnancy discrimination claim and motion for summary judgment on Hussain's other claims. The Departmentargues that Hussain's pregnancy discrimination claim must be dismissed because she did not exhaust her administrative remedies. It further argues that there is no merit to Hussain's claims that she was discriminated against on the basis of her gender, religion, or national origin, subjected to a hostile work environment, or retaliated against, and therefore it is entitled to judgment as a matter of law. The court addresses each of these arguments in turn.

A. Because Hussain Did Not Exhaust Her Administrative Remedies for Her Pregnancy Discrimination Claim, the Court Grants Summary Judgment on this Claim

Before filing a lawsuit under Title VII, a plaintiff must exhaust her administrative remedies, Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997), or else she is precluded from bringing suit in federal court, see Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). The Department contends that Hussain failed to exhaust her administrative remedies with respect to her claim of pregnancy discrimination and therefore this claim should be dismissed under FED. R. CIV. P. 12(b)(1) and 12(b)(6). The parties have submitted matters outside the pleadings that are not excluded by the court. Therefore, the court will treat the motion as one for summary judgment under FED. R. CIV. P. 56. Carroll v. England, 321 F. Supp. 2d 58, 67 n.4 (D.D.C. 2004); Polk v. Dist. of Columbia, 121 F. Supp. 2d 56, 60 (D.D.C. 2000).*fn1

The Department argues that Hussain did not raise an allegation of pregnancy discrimination at any point during the administrative process. Hussain rejoins that she did raise her pregnancy discrimination claim during the administrative process, pointing to: (1) an attachment to her October 31, 2003 email to Smoker-Ali, in which she stated, "it is clear gender discrimination because for no reason at all he decided not to renew my contract when I was 'seven months pregnant,'" Pl.'s Ex. Tab 10 at 11-12;*fn2 (2) her October 9, 2003 email to Barbara Troy, an official at the Department of Commerce, which stated, "I am in my 7th month of pregnancy; I am devastated by the unfair, unjust and discriminative treatment," id. at 23; (3) her letter accompanying her administrative complaint, which stated, "[w]hen I was told [that I was terminated] I was seven months pregnant," id. at 37; (4) her declaration prepared for her administrative hearing, which stated, "I learned from Mr. Doug Wallace, an officer in the Riyahdh office, that Mr. Rundell had been intending to terminate me during my maternity leave," id. at 65; and (5) her appeal to the Office of Federal Operations, which stated, "Mr. Rundell terminated my contract abruptly when I was 7 plus months pregnant," id. at 26.

The Department replies that the mere mention of her pregnancy in these documents is not sufficient to exhaust the administrative remedies available for Hussain's pregnancy discrimination claim. It argues that in her formal complaint and accompanying narrative, Hussain only mentions her pregnancy in the background section, but fails to make any further mention within the portion setting forth the facts supporting her allegation of discrimination. The Department further states that in response to Hussain's complaint, it sent Hussain's attorney a list of the conduct that formed the basis of the discrimination claim, which did not include any allegation of pregnancy discrimination. Although given the opportunity to point to any inaccuracies contained in the list, Hussain's attorney failed to raise the issue of pregnancy discrimination.

To satisfy the exhaustion requirement, the allegations in an administrative complaint must be sufficiently specific in order to "give federal agencies an opportunity to handle matters internally whenever possible." Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). A court may exercise jurisdiction only over those claims contained in a plaintiff's administrative complaint, or claims "like or reasonably related to" allegations in the administrative complaint, that were exhausted. Park, 71 F.3d at 907. Specificity in a charge is not a "mere technicality" and compliance with all procedures and deadlines is mandatory. Id. at 907.

Here, the only mention of pregnancy in Hussain's administrative complaint is her statement that she was seven months pregnant when she was terminated. Def.'s Ex. 13. Nowhere in the administrative complaint does she even hint that she was terminated because she was pregnant or otherwise discriminated against because of her pregnancy. See id. Moreover, she failed to bring this charge to the attention of the Department even after she was asked if the basis of its investigation, which did not include any investigation into pregnancy discrimination, was accurate. See Def.'s Exs. 14 & 15. Because the purpose of the exhaustion requirement is to vest the federal agencies with primary responsibility for maintaining nondiscrimination in employment, see Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983), and to permit employers to investigate claims of discrimination promptly, see Del. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980), it would be contrary to the purpose of the requirement to ...

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