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Rodney W. Payne, Jr v. Gary Locke

March 2, 2011


The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge


Rodney Payne brings this action against Gary Locke, Secretary of the United States Department of Commerce ("Secretary"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Payne alleges that gender discrimination motivated the decision of the Department of Commerce ("Department") not to hire him for a position in the Department's Office of Inspector General. Before the Court is the Secretary's motion to dismiss, or in the alternative, for summary judgment [#3]. Upon consideration of the motion, the opposition thereto, oral arguments made by counsel, and the record of this case, the Court concludes that the motion must be denied.


Payne, a man, applied for the position of Lead Information Technology Specialist within the Department's Office of Inspector General and was twice interviewed for the job in October 2006. Compl. ¶¶ 10--14. Payne was not offered the position, which was instead filled by a woman. Id. ¶¶ 13--17. Payne alleges that on November 8, 2007, Thomas Phan, the Deputy Assistant Inspector General, "admitted" that Payne was more qualified for this position than the woman who was hired and told him that gender bias had influenced the hiring decision. Id. ¶¶ 23--25.

Payne discussed his complaint with an equal employment opportunity ("EEO") counselor on December 17, 2007. Def.'s Mot. to Dismiss, Ex. A at 2--3. He filed a formal complaint with the Department on January 2, 2008. Compl. ¶ 3. On June 6, 2008, 156 days after Payne filed his complaint and after an investigation of the complaint had been completed, Payne requested a hearing before an administrative judge ("AJ"). Def.'s Mot. to Dismiss, Ex. M at 1.

On August 28, 2008, 239 days after Payne filed his complaint, the AJ assigned to Payne's case issued an order that, among other things, set forth a discovery schedule. Def.'s Mot. to Dismiss, Ex. E. The order required that discovery be completed by 70 days from the receipt of the order. Id. at 2. Accordingly, the parties exchanged discovery requests in September 2008, submitted responses, and in December 2008 the parties identified alleged deficiencies in each others' initial written discovery responses. Def.'s Mot. to Dismiss, Ex. F at 2, 16. On December 31, 2008, 364 days after the filing of Payne's complaint, the AJ issued an order staying discovery pending the outcome of a scheduled settlement conference. Def.'s Mot. to Dismiss, Ex. N at 1.

The settlement discussions were not successful, and on February 17, 2009, the AJ issued an order providing for discovery to close on April 3, 2009. Def.'s Mot. to Dismiss, Ex. F at 3. Soon thereafter, the parties engaged in a series of communications that the Secretary contends demonstrate that Payne ceased to cooperate in the discovery process and abandoned the administrative proceedings. Def.'s Mot. to Dismiss at 3. On February 27, 2009, counsel for the Secretary left a voicemail message and sent an email to Payne's attorney that indicated that the parties would need to address the pending discovery disputes if a settlement was not reached. Def.'s Mot. to Dismiss, Ex. F at 3. The Secretary's counsel also indicated that she wished to schedule depositions. Id. Payne's attorney responded the same day to say that he was declining the settlement offer and that he would determine Payne's availability for a deposition. Id. Five days later, on March 4, 2009, the Secretary's counsel sent notice to Payne's attorney for a deposition date and asked that Payne's attorney confirm that date. Id. The Secretary's counsel also asked that Payne cure her objections to his discovery responses. Id. at 3--4. After another six days, during which the Secretary's counsel did not receive a response, she filed a motion for sanctions with the AJ. See generally id. On March 11, 2009, a day after the Secretary's motion, Payne's attorney contacted the Secretary's counsel to request that Payne's deposition be postponed until the last week in March. Def.'s Mot. to Dismiss, Ex. G at 3. On March 16, 2009, the Secretary's counsel sent an email to Payne's attorney complaining about being unable to meaningfully depose Payne without first having received amended discovery responses. Id. After not receiving a response for three days, the Secretary submitted a renewed motion for sanctions. See generally id.

The following week was an eventful one. On March 24, 2009, the Secretary filed another notice of Payne's deposition, and, a day later, received an email from a law clerk for Payne's attorney requesting to schedule the deposition and indicating that she had not received the notice of the deposition. Def.'s Mot. to Dismiss, Ex. H at 3--4. (The Department suggests that Payne must have received the notice because the Department's attorney received a fascimile confirmation sheet. Id. at 4.) Counsel for the Secretary re-sent the notice of the deposition, but did not receive a response confirming the deposition date. Id. at 4. Two days later, during a March 26, 2009 telephone conference call with the AJ and counsel for both parties, Payne's attorney stated that Payne wished to withdraw his complaint in order to prosecute his claims in federal court. Id. That same day, the Secretary filed a third motion for sanctions with the AJ. See generally id. It is undisputed that Payne did not file oppositions to any of the three motions for sanctions.

Payne's complaint finished its journey through the administrative process with an order filed by the AJ on March 27, 2009 in which the AJ dismissed the case and remanded it to the agency for final disposition. Def.'s Mot. to Dismiss, Ex. K at 1. The Department issued a final agency decision ("FAD") on June 24, 2009.


The Secretary moves to dismiss this case under Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment. Because the Court relies upon materials outside of the pleadings, the Court treats the Secretary's motion as one for summary judgment. See Fed. R. Civ. P. 12(d) (providing that "[i]f, on a motion under Rule 12(b)(6) . . . 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"). Summary judgment is proper if it is shown that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Title VII requires that the federal government's personnel actions "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Federal employees and applicants for employment may enforce Title VII's ban on discrimination in federal court. Id. § 2000e-16(c). Before doing so, however, they are required to exhaust their remedies through the administrative process. Id. § 2000e-16(c); Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

In order to exhaust a discrimination claim, a federal employee or applicant for employment must consult with an agency EEO counselor before filing a written complaint with the agency alleged to be engaging in discrimination. See 29 C.F.R. § 1614.105(a). The agency then conducts an investigation of the allegations, see id. § 1614.106(e)(2), after which the employee or applicant has a choice: she may request that the agency make a final decision immediately, or she may elect to have a hearing before an administrative judge prior to the agency's final action. Id. § 1614.108(f), 1614.110(a). Employees and applicants may file suit in federal district court "[w]ithin 90 days of receipt of the final action . . . ," or 180 days after filing their complaint. Id. § 1614.407(a)--(b).

"Exhaustion under Title VII demands a 'good faith effort by the employee to cooperate with the agency and EEOC and to provide all relevant, available information.'" Mills v. Billington, 2006 WL 1371683, at *4 (D.D.C. 2006) (quoting Crawford v. Babbit, 186 F.3d 1322, 1326 (11th Cir. 1999)). Good faith may not be found where a complainant refuses to cooperate with the administrative process by, for example, withholding relevant information from an agency during an investigation. Id. Failure to cooperate can result in losing the right to sue in federal court. See, e.g., Wilson v. Pena,79 F.3d 154, 164--65 (D.C. Cir. 1996) (observing that "[i]f a complainant forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim, he may not file a judicial suit"); Smith v. Koplan, 362 F. ...

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