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Jacqueline T. Gordon v. Janet Napolitano

May 9, 2011

JACQUELINE T. GORDON, PLAINTIFF,
v.
JANET NAPOLITANO, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION AND ORDER

Defendant Janet Napolitano seeks the dismissal of -- or, alternatively, summary judgment on -- Plaintiff Jacqueline Gordon's 2009 employment discrimination lawsuit. Plaintiff argues that dismissal is inappropriate because she has properly exhausted administrative remedies, and summary judgment is premature before she has had a chance to conduct discovery. The Court, for the most part, agrees.*fn1

I.Factual and Procedural Background

This suit arises out of an employment dispute between the parties. Plaintiff was at all relevant times employed by the Federal Emergency Management Agency (FEMA), a componentof the Department of Homeland Security, headed by Defendant. Plaintiff continues to work at FEMA today.

Plaintiff filed a complaint with the Equal Employment Opportunity Commission in September 2004, alleging discrimination based on gender, race, color, and age, as well as reprisal. She now alleges that this original EEOC complaint triggered retaliatory conduct and the creation of a hostile work environment. This led to her second contact with the EEOC, in January 2007, and her subsequent complaint before that administrative body in May 2007. The matter was resolved in Defendant's favor, and Plaintiff received a Notice of Right to Sue. Plaintiff then brought this action in November 2009, setting forth two counts: retaliation and hostile work environment.

Defendant now seeks to dismiss the suit under Rule 12(b)(6), as failing to state a claim upon which relief can be granted, or, alternatively, on summary judgment under Rule 56.

II.Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails to "state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in the plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "a complaint must contain sufficient factual matter, [if] accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id.

A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c). Where the Court must consider "matters outside the pleadings" to reach its conclusion, a motion to dismiss "must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d); see also Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).

III.Analysis

A. Failure to Exhaust Administrative Remedies

Defendant seeks to dismiss the Amended Complaint in whole, or at least in part, on the ground that Plaintiff has not exhausted the appropriate administrative remedies. Mot. at 10. Defendant is correct that exhaustion is a prerequisite to bringing an action under Title VII. See Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) ("'Because timely exhaustion of administrative remedies is a prerequisite to a Title VII action against the federal government,' a court may not consider a discrimination claim that has not been exhausted in this manner absent a basis for equitable tolling.") (quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003)). In this case, federal law mandates that Plaintiff report alleged discriminatory actions to the EEOC within 45 days. Id. ("An employee of the federal government who believes that she has been the subject of unlawful discrimination must 'initiate contact' with an EEO Counselor in her agency 'within 45 days of the date of the matter alleged to be discriminatory.'") (quoting 29 CFR § 1614.105(a)(1)).

The Supreme Court, however, has distinguished between discrete and ongoing discriminatory acts for the purpose of this exhaustion requirement. On the one hand, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the [45]-day time period after the discrete discriminatory act occurred." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). On the other hand, ongoing discriminatory acts, such as those of hostile work environment, "are different in kind from discrete acts [because t]heir very nature involves repeated conduct." ...


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