The opinion of the court was delivered by: Richard W. Roberts United States District Judge
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.
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 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 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.
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.*fn1
"[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).
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 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 non-movant." 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). ...