United States District Court, District of Columbia
For ANDRE NOISETTE, Plaintiff: Molly E. Buie, Robert C. Seldon, LEAD ATTORNEYS, ROBERT C. SELDON & ASSOCIATES, P.C., Washington, DC.
For TIMOTHY F. GEITHNER, Secretary of the Treasury, Defendant: Marian L. Borum, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Andre Noisette, an African-American man, brings this action against the Secretary  of the United States Department of the Treasury (" Treasury" ) alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq. Treasury moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), or alternatively, for summary judgment under Federal Rule of Civil Procedure 56, for failure to exhaust administrative remedies. Because Noisette exhausted his administrative remedies before filing this civil action, Treasury's motion will be denied.
The facts of this case are set forth in Noisette v. Geithner, 693 F.Supp.2d 60 (D.D.C. 2010). Briefly, Noisette was a management official in the Criminal Investigation Division (" CID" ) of Treasury's Internal Revenue Service. Id. at 62. Noisette alleges that he engaged in protected equal employment opportunity (" EEO" ) activity and was later retaliated against by not being selected for a vacant supervisory position. Id. at 62-63. In December 2007, Noisette filed a formal discrimination complaint with the Treasury's EEO office. Id. at 63. In September 2008, Treasury issued a Final Agency Decision (" FAD" ) on Noisette's formal administrative complaint, and, on October 29, 2008, Noisette appealed the FAD to the Equal Employment Opportunity Commission's (" EEOC's" ) Office of Federal Operations (" OFO" ). Id. " [B]efore the OFO ruled on his appeal, Noisette filed a request to withdraw it. On January 15, 2009, OFO granted Noisette's request, but not before Noisette filed [a civil] action on December 29, 2008." Id. (internal citations omitted). Treasury, in turn, moved to dismiss the complaint. Id.
Treasury's motion was granted because Noisette had failed to exhaust his administrative remedies. A complainant " may bring a civil action in a United States District Court '[w]ithin 90 days of receipt of the Commission's final decision on an appeal' or '[a]fter 180 days from the date of the filing of an appeal . . . if there has been no final decision by the Commission.'" Id. at 67 (alterations in original) (quoting 29 C.F.R. § 1614.407(c), (d)). Noisette, however, had filed his civil complaint 23 days after he filed his FAD appeal and " did not wait to receive a final decision on his appeal from OFO or wait 180 days from the date he filed his appeal to bring [that] action." Id. at 68. The court explained that " Noisette [would] be allowed to file a new complaint after the OFO . . . attempted to resolve his charge for the full 180 days[,]" id. at 69, but that he would have to " wait 180 days from the filing of his appeal or file his complaint anew within 90 days from when the OFO issues a final decision." Id. at 69 n.2.
Noisette's counsel promptly sent a letter to the OFO " request[ing] that [Noisette's] appeal to the Office of Federal Operations be reinstated so that OFO can 'conduct a de novo review' of the Final Agency Decision issued by the Department of the Treasury." Def.'s Mot. to Dismiss or, Alternatively, for Summ. J. (" Def.'s Mot." ), Ex. 5 (Letter from Robert C. Seldon, Robert C. Seldon & Associates, P.C., to Director, Office of Federal Operations, U.S. Equal Employment Opportunity Commission (Mar. 22, 2010)) (third alteration in original) (quoting Noisette, 693 F.Supp.2d at 69 n.2). Although the OFO received the letter, the OFO " did not respond substantively" to Noisette. Mem. of P. & A. in Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (" Pl.'s Opp'n" ), Pl.'s Stmt. of Genuine Issues ¶ 19; see also Def.'s Mot., Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (" Def.'s Mem." ) at 3 (" The Commission never responded to or otherwise acted on Plaintiff's letter." ). Noisette waited over 180 days after requesting that his appeal be reinstated, and then filed this civil action. Treasury now moves to dismiss Noisette's complaint arguing that Noisette failed to exhaust his administrative remedies because the OFO " 'has [not] attempted to resolve [Noisette's] charge for [a] full 180 days.'" Def.'s Mem. at 1-2 (quoting Noisette, 693 F.Supp.2d at 69).
" Title VII '[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.'" Payne v. Salazar, 619 F.3d 56, 65, 393 U.S. App. D.C. 112 (D.C. Cir. 2010) (alterations in original) (quoting Bowden v. United States, 106 F.3d 433, 437, 323 U.S. App. D.C. 164 (D.C. Cir. 1997)). However, Title VII's " time-filing requirements are not jurisdictional prerequisites to suit[.]" Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091, 243 U.S. App. D.C. 350 (D.C. Cir. 1985); accord Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). If a plaintiff does not timely exhaust his administrative remedies before filing a Title VII action, his claim is subject to dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Noisette, 693 F.Supp.2d at 65.
In the D.C. Circuit, it is clear that " because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it. If the defendant meets its burden, the plaintiff then bears the burden of pleading and ...