The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Iben Gantt brings this action against defendant Ray Mabus, Secretary of the Navy, for discriminatory and retaliatory employment practices under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Now before the Court is the Secretary's motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the record and for the reasons stated below, the Court will grant defendant's motion for summary judgment.
Gantt was hired in 2003 by the Naval Research Laboratory ("NRL") as a security guard. Compl. ¶ 5 [Docket Entry 1]. Subsequently, he received security clearance, which was then rescinded due to concerns with Gantt's financial situation. Id. ¶ 6. Although he remained at NRL despite having his clearance revoked, in 2005 Gantt was involuntarily transferred to the Navy Yard because he did not have the required security clearance. Id. ¶ 8. Gantt claims that he was eligible to be reconsidered for a Secret security clearance in April 2005, and such clearance was granted in 2006. Id. ¶ 9. The Department of the Navy contacted Gantt in January 2009 and offered him one of two open positions at NRL. Id. ¶ 11. Gantt expressed concern that he would not be selected because of his prior history with NRL. Id. According to Gantt, the selection agent had assured him that there would be no problem and that the NRL security manager, Barton Bodt, had approved the appointment. Id. Gantt would be required to obtain a Top Secret security clearance for the new position. Id. ¶ 12. At the time, Gantt had only a Secret clearance. Id. ¶ 13. NRL later refused to sponsor Gantt's application for the required clearance, claiming that he had lied on the application for the background investigation. Id. ¶ 19. Hence, the new job and accompanying promotion were rescinded. Id. ¶ 16.
Gantt, who is black, alleges that NRL's refusal to sponsor his application for a Top Secret clearance was discriminatory, and contends that a white officer had been selected for the promotion and position, and was given the opportunity to apply for a Top Secret security clearance. Id. ¶¶ 15-16. Gantt also claims that the denial of a promotion and refusal to hire was in retaliation for his participation in a co-worker's complaint before the Equal Employment Opportunity Commission ("EEOC"). Id. ¶¶ 10, 21.
On June 22, 2009, Gantt filed a Formal Complaint of Employment Discrimination alleging discrimination and retaliation based on the rescission of his promotion and position. Mem. P. & A. Supp. Def.'s Mot. Dismiss or for Summ. J. at 1 [Docket Entry 3] ("Def.'s Mot. Summ. J."). On July 17, 2009, the Secretary dismissed Gantt's complaint, having concluded that it involved security clearance determinations that could not be reviewed through the EEOC complaint process. See Dismissal of Formal Complaint for Discrimination, Def.'s Mot. Summ. J., Ex. 2. On the same day, the Secretary faxed a copy of the Final Agency Decision ("FAD") to Gantt's listed representative, attorney Clarissa Edwards.*fn1 Id. Gantt received a copy of the FAD by certified mail on July 21, 2009. Gantt Aff. ¶ 7. The FAD stated that Gantt could appeal to the EEOC within thirty days of receipt of the decision or could file a civil action within ninety days of receipt of the decision. Gantt filed a Notice of Appeal with the EEOC on August 20, 2009, thirty-four days after Gantt's attorney received the FAD. Def.'s Mot. Summ. J. at 2.
On April 28, 2011, the EEOC dismissed the appeal as untimely, noting that Gantt failed to provide an adequate justification for extending the time limit for filing his appeal. Def.'s Mot. Summ. J., Ex. 7. Gantt then filed this action alleging that the Secretary engaged in discriminatory and retaliatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. The Secretary has now filed a motion to dismiss or for summary judgment, on the basis that Gantt has failed to exhaust his administrative remedies. He also argues that equitable tolling of the appeals deadline is unwarranted. Gantt opposes this motion, arguing that dismissal of the appeal below was improper because the appeal was in fact timely filed and, in any event, that the faxed FAD was improperly received by his attorney because it was illegible.
Because the parties have presented -- and the Court has considered -- matters outside the pleadings, the Court will analyze the Secretary's motion as one for summary judgment. See Fed. R. Civ. P. 12(d). Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show 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(a). Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party may successfully support its motion by identifying those portions of "the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of motion only), admissions, interrogatory answers, or other materials," which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 323.
In determining whether there exists a genuine dispute of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson, 477 U.S. at 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. The party opposing a motion for summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. Moreover, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment, then, is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
A federal employee bringing a lawsuit under Title VII of the Civil Rights Act is generally required to exhaust his administrative remedies. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see also Hines v. Bair, 594 F. Supp. 2d 17, 22 (D.D.C. 2009) ("Before filing a Title VII suit [against a federal agency], a federal employee must timely pursue [his] administrative remedies, following the requirements set forth in 29 C.F.R. § 1614."). Failure to do so will ordinarily bar a judicial remedy. The exhaustion requirement provides the EEOC the opportunity to investigate and "serves the important purpose of giving the charged party notice of the claim and 'narrow[ing] the issue for prompt adjudication and decision.'" Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.1995) (quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 472 n.325 (D.C. Cir.1976)).
Gantt had two appeal choices following the receipt of a FAD. Within thirty days of receipt, he could have appealed the decision to the EEOC Office of Federal Operations. If a complainant is represented by an attorney, the thirty day time period is measured from the attorney's receipt of the FAD. See 29 C.F.R. § 1614.402(a). "If the complainant is represented by an attorney of record, then the [thirty] day time period . . . shall be calculated from the receipt of the required document by the attorney." 29 C.F.R. § 1614.402(b). Alternatively, a complainant can file a civil action within ninety days of receipt of the FAD. See 29 C.F.R. § 1614.407(a). "If a plaintiff misses both deadlines, his complaint is time-barred and subject to dismissal." Miller v. Rosenker, 578 F. Supp. 2d 67, 70 (D.D.C. 2008). More than ninety days elapsed in this case ...