The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Margaret Rand has sued the Secretary of the Treasury ("Secretary") in his official capacity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a. The Secretary now moves to dismiss or, in the alternative, for summary judgment, arguing that Rand failed to file a complaint within forty-five days of the alleged discriminatory event. For the reasons stated below, the Secretary's motion for summary judgment will be granted.
At all times relevant to the case, Rand worked as a GS-13 "management analyst" in the Office of Strategic Planning and Evaluation at the Department of the Treasury. (Am. Compl. ¶¶ 2, 7.) In her administrative complaint, Rand alleged that she was "always being given more work than others similarly situated, yet always being paid at one full grade level lower than all of those employees." (Def.'s Mot. to Dismiss, Ex. 1 ("EEO Complaint"), at 4.) She alleges that from 1998-2002, her "male and substantially younger co-workers" held GS-14 level positions despite performing "equal work requiring skill, responsibility and effort under similar working conditions." (Am. Compl.¶ 7.)
In a declaration attached to her opposition, Rand states that in September 1999 she asked her supervisor, John Murphy, what she "could do to advance to the grade 14 level." (Pl.'s Opp'n, Decl. of Pl. ("Pl.'s Decl.") ¶ 4.) Murphy informed her that she "would need to take on some bureau assignments." (Id.) Rand alleges that she "often held discussions" with her supervisor about her GS-13 status and that she suffered from "not having respect of my colleagues" because she was a "lower-level employee." (EEO Complaint at 4-5.) Rand acknowledges that her colleagues were "paid at the grade 14 level," but argues nonetheless that the agency "had no legitimate, non-discriminatory reason" for paying her less. (Am. Compl. ¶ 7.) Rand states that in "late 2000," her team leader supported her "promotion" to grade 14, but her request was denied by Murphy. (Pl.'s Decl. ¶ 6.) Although Murphy allegedly agreed to a desk audit to determine whether she "was working at the grade 14 level" (Am. Compl. ¶ 5),*fn1 Rand never received the results of the audit.*fn2 (Pl.'s Decl. ¶ 6.) Murphy retired in January 2002. (Def.'s Mot., Ex. 2 ¶ 6.)
Rand alleges that after the agency failed to conduct the "desk audit," she filed a "timely administrative complaint" with the Office of Equal Employment Opportunity ("EEO"). (Am. Compl. ¶ 5.) In her initial interview with an EEO counselor, Rand stated that the "matter" causing her complaint was that she had "requested a desk audit but did not receive the results, therefore she did not receive a promotion." (Def.'s Mot., Ex. 4 at 2.) Rand requested "remedial action": namely, a "retroactive promotion," and back pay "in conjunction" with the promotion. (Id. at 3.) Rand's subsequent EEO complaint alleged that the discriminatory action taken against her was the "failure to pay" the "same salary as others in the office for doing the exact same level and difficulty of work." (EEO Compl. at 3.) She was of the view that her supervisor "never saw to it that [she] got the 'accretion of duties' promotion" she deserved. (Id.) Within ninety days of receiving a final decision from the EEO, Rand filed suit, and the Secretary has now moved to dismiss or, alternatively, for summary judgment.
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face,'" such that a court may "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In ruling on a 12(b)(6) motion, a court may consider facts alleged in the complaint, documents attached to or incorporated in the complaint, matters of which courts may take judicial notice, and documents appended to a motion to dismiss whose authenticity is not disputed, if they are referred to in the complaint and integral to a claim. U.S. ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 24-25 (D.D.C. 2010). However, since the Court has considered matters outside the pleadings (including those submitted by plaintiff) to resolve the Secretary's motion, it will treat defendant's motion as one for summary judgment under Rule 56.
Summary judgment is appropriate only if the "pleadings, depositions, answers to interrogatories, admissions, and affidavits filed pursuant to discovery show that, first, 'there is no genuine issue as to any material fact' and, second, 'the moving party is entitled to a judgment as a matter of law.'" Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) and Fed. R. Civ. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "An issue is 'genuine' if the 'evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Holcomb, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In determining whether a genuine issue of material fact exists, the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in her favor. Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C. Cir. 2009) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006)). Plaintiff's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 322; Fed. R. Civ. P. 56.
Title VII makes it unlawful for "an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" 42 U.S.C. § 2000e-2. The ADEA similarly makes it "unlawful for an employer" to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). There are "two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee's race, color, religion, sex, or national origin." Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008).
"[A] timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court." Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985)."[U]ntimely exhaustion of administrative remedies is an affirmative defense." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). Thus, if Rand failed to comply with the EEO's time limits, the Court will dismiss her claims unless she can "plead and prov[e] facts supporting equitable avoidance of the defense." Id.; see also, e.g., Hamilton v. Geithner, 743 F. Supp. 2d 1, 13 (D.D.C. 2010).
An employee of the federal government complaining of discrimination must "initiate contact" with an EEO counselor within forty-five days of the allegedly discriminatory action. 29 C.F.R. § 1614.105(a)(1). The forty-five day period begins to run when an employee has a "reasonable suspicion" of a discriminatory action. Adesalu, 606 F. Supp. 2d at 102."The applicable case law and regulation . . . do not allow a plaintiff to wait until [she] has direct proof of the allegedly discriminatory actions; rather, they require a plaintiff to file an EEO charge even if [she] is not in possession of the 'supportive facts' necessary to prosecute a ...