The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Bernadine Johnson brings this action against the Secretary of the Department of Veterans Affairs ("Secretary" or "agency") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-5(f)(3), based on alleged sexual harassment by a fellow employee at the agency. Currently before the Court is the Secretary's motion to dismiss or, in the alternative, for summary judgment, on the ground that Johnson failed to exhaust her administrative remedies.*fn1 For the reasons discussed below, the motion will be treated as a motion for summary judgment, and the motion will be denied.
Since about 1997, Johnson has been employed as a resource manager at the Substance Abuse Rehabilitation Program ("SARP") in the agency's Veterans Affairs Medical Center. Def.'s Mot., Ex. A, Tab B-1 ¶¶ 2, 31. Johnson alleges that as recently as July 18, 2005, Isaiah Pearson, a Chief Counselor/Chief Rehabilitation Technician in SARP, engaged in sexual misconduct towards her including sexual banter, physical contacts with private parts of her body, and accusations that she was having sex with a former co-worker. Id. ¶¶ 4-6, 8, 14, 26, 31. Johnson contends that although she complained several times to her supervisor, Karen Clark-Stone, regarding Pearson's sexual misconduct, nothing was done in response to these complaints. Johnson Decl. ¶ 2.
On the morning of August 9, 2005, Johnson visited the Agency Equal Employment Opportunity ("EEO") office and spoke with EEO office employee Mary George and Agency EEO Manager David King regarding Pearson's sexual misconduct. Def.'s Mot., Ex. A, Tab B-4 at 9, Tab B-5 at 2. The parties' accounts of this meeting differ markedly. According to George and King, George provided Johnson with pamphlets and brochures detailing the EEO complaint process, including the contact information for the Office of Resolution Management ("ORM"). Def.'s Mot., Ex. C at 207, 258. These pamphlets stated that the EEO complaint process should be initiated through the ORM. See id. at 258, Exs. A-1, A-2. King recalls that Johnson made only a vague complaint about sexual harassment. Def.'s Mot., Ex. A, Tab B-5 at 2. In response, he explained to Johnson the process for filing an EEO complaint, and gave her a brochure that included the ORM's contact information. Def.'s Mot., Ex. A, Tab B-5 at 4. George recalls that Johnson stated several times during this meeting that she did not want to file a complaint. Def.'s Mot., Ex. A, Tab B-4 at 4.
According to Johnson, however, she provided King with a detailed account of the sexual harassment by Pearson and was explicit in her desire to pursue a sexual harassment complaint: "I just told him [King] I wanted it to stop and I came here to file a complaint, and I talked to Ms. George and she sent me to talk to him." Def.'s Mot., Ex. C at 306. In response, King told her he would conduct an investigation and get back to her. Id.; see also Johnson Decl. ¶¶ 5-6. Johnson denies that she received any documents from either George or King that referenced the ORM.
Johnson Decl. ¶ 7. She asserts that she believed George was an EEO counselor, and that when she asked George if she was in the right place to file a complaint, George responded that she was. See Def.'s Mot., Ex. C, at 303-04. Johnson denies making any statement to George or King indicating that she did not wish to pursue a complaint, noting that at all times during that meeting and thereafter, she intended to pursue any remedies available to her regarding Pearson's sexual misconduct. Johnson Decl. ¶¶ 12-13.
Indeed, Johnson returned to the EEO office the next day and spoke with George again.
Id. ¶ 8. According to George, Johnson once again did not indicate that she wanted to file an EEO complaint. Def.'s Mot., Ex. C at 258. In contrast, however, Johnson says that it was George who did not want her to file a complaint, as indicated by George's alleged statement to her that "the Agency did not want her complaint to go further because there were already too many complaints pending in the Agency." Johnson Decl. ¶ 9. To that end, George arranged for Johnson to meet with Dr. Richard Rosse, the Chief of Psychiatry in the Mental Health Service, and Nathaniel Banks, a program analyst. See id.; Def.'s Mot., Ex. A, Tab B-2 at 11. As a result of the meeting, Johnson was offered some accommodation -- the exact terms of which are in dispute -- but which were, in any event, considered inadequate by Johnson. See Def.'s Mot., Ex. A, Tab B-2, at 7-8;*fn2 Pl.'s Resp. to Def.'s Statement of Material Facts at 8-9.
On or about August 30, 2005, Johnson retained counsel, Michael Hoare, to represent her in connection with her sexual harassment claim. Pl.'s Opp'n, Ex. 5. Correspondence between Hoare and the agency followed, which resulted in Hoare eventually being informed by the agency that EEO complaints must be filed through the ORM.*fn3 Id. Ex. 3, 4, and 5.
On September 26, 2005, Johnson contacted the ORM to report Pearson's sexual misconduct. Def.'s Mot., Ex. A, Tab A-1 at 1. She was advised that she was over the 45-day period to contact a counselor, and was asked why she waited to do so. Id. Tab A-3 at 2. Johnson responded that she had reported the incident to King, and had never been informed that she should contact the ORM. Id. She said that she became aware of the ORM after she retained an attorney. Id. On August 8, 2006, Johnson submitted a hearing request form to the Equal Employment Opportunity Commission ("EEOC"). Def.'s Mot., Ex. A at 3. On November 14, 2007, the EEOC held an administrative hearing on the agency's motion to dismiss Johnson's claims as untimely. Based on this hearing, the administrative judge dismissed Johnson's EEO complaint. Def.'s Mot., Ex. D at 5. Johnson now seeks de novo review of her sexual harassment claim before this Court, as she is entitled to do under Title VII. See Scott v. Johanns, 409 F.3d 466, 469 (D.C. Cir. 2005).
This motion will be treated as a motion for summary judgment. The Secretary asserts that his motion is a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). See Def.'s Mot. at 1. However, "strictly speaking . . . the requirement that a charge be timely filed with the EEOC is not jurisdictional . . .," and thus the Court will treat the motion as seeking dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Simpkins v. Wash. Metro. Area Transit Auth., No. 96-7188, 1997 WL 702349, at *2 (D.C. Cir. 1997). When, as here, on a Rule 12(b)(6) motion "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." Fed. R. Civ. P. 12(d).
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and ...