United States District Court, D. Columbia.
For JASON MOUNT, Plaintiff: Kyle G. Ingram, LEAD ATTORNEY, PRO HAC VICE, Morris Eli Fischer, LEAD ATTORNEY, MORRIS E. FISCHER, LLC, Silver Spring, MD.
For JANET A. NAPOLITANO, in her official capacity as Secretary of Homeland Security, Defendant: Rhonda C. Fields, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
KETANJI BROWN JACKSON, United States District Judge.
This employment discrimination case turns on a question of law regarding whether alleged acts of retaliation that occur subsequent to the plaintiff's filing of an administrative Equal Employment Opportunity (" EEO" ) charge need to be exhausted separately. Plaintiff Jason Mount (" Plaintiff" or " Mount" ) filed the instant complaint on August 27, 2013, pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, alleging that his employer, the Department of Homeland Security (" DHS" or " Defendant" ), wrongfully refused to select him for 43 different positions that he applied for within the agency. ( See Complaint, ECF No. 1.) Mount maintains that this extensive series of non-selections was motivated by discriminatory and retaliatory animus; specifically, Mount alleges that he was not promoted to any of the posts due to discrimination based on his gender and race ( id. ¶ ¶ 123-143 (Counts I and II)), and that agency officials also refused to select him because he had previously filed an EEO charge claiming gender and race discrimination on the basis of his supervisor's treatment of him ( id. ¶ ¶ 144-151 (Count III)).
Before this Court at present is Defendant's motion to dismiss the complaint in part, or in the alternative, motion for partial summary judgment. (Def.'s Partial Mot. to Dismiss or in the Alternative for Partial Summ. J., (" Def.'s Mot." ), ECF No. 7.) Offering additional documentation regarding the scope of Mount's EEO charge, Defendant argues that only one of the 43 alleged non-selection events listed in Mount's complaint was raised in the context of Mount's EEO complaint; therefore, the rest of the alleged instances of discrimination/retaliation must be dismissed from the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative remedies. ( Id. at 1.) Because this Court agrees with Defendant that the applicable legal standards regarding administrative exhaustion were not satisfied under the circumstances presented here, the Court concludes that there is no genuine issue of material fact regarding Mount's failure to satisfy Title VII's exhaustion requirement with respect to all but one of his non-selection retaliation allegations. Therefore, Defendant's motion to dismiss the complaint in part, or in the alternative, motion for partial summary judgment, is GRANTED. As explained below, Counts I and II of the complaint are dismissed in their entirety, and the only surviving non-selection event for the purpose of Count III is Mount's contention that the agency retaliated against him in the spring of 2011, when officials did not select him for a posted agency position in Los Angeles. A separate order consistent with this opinion will follow.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
For the purpose of the pending motion, the essential facts of this matter are not in dispute. ( See Def.'s Reply, ECF No. 9, at 7.) Mount was hired in 2001 to serve as an employee of the U.S. Customs Service, which is the predecessor agency to U.S. Immigration and Customs Enforcement (" ICE" ), a division of the U.S. Department of Homeland Security's Investigations (" HSI" ) unit. (Compl. ¶ ¶ 1, 13.) By 2009, Mount had been promoted to the position of Branch Chief/Supervisor Special Agent
at ICE headquarters in Washington, DC. ( Id. ¶ 14.)
In November of 2010, Mount filed an administrative EEO complaint alleging gender discrimination because his then-supervisor, Sharon Peyus, had decided to have Mount work from a cubicle instead of an office, while giving offices to his female coworkers. ( Id. ¶ ¶ 15, 22; Ex. 6 to Def.'s Mot., Report of Investigation (" ROI" ), ECF No. 7-6, at 7, 22-24, 27-31.) Mount contends that, as a result of this EEO charge, Peyus and other agency officials embarked on a series of retaliatory actions (mostly in the form of non-selections) beginning in January of 2011, and continuing until April of 2012. Notably, as explained below, only some of these alleged retaliatory actions were raised within the context of Mount's EEO complaint.
First, in March of 2011, four months after the filing of his discrimination complaint, Mount notified the agency that he believed Peyus had taken certain actions in response to his having brought administrative charges, and he wanted this alleged retaliation to be included in his EEO complaint. (ROI at 7.) Specifically, Mount maintained that (1) the parties' failure to settle the initial claims at mediation constituted retaliation, and (2) Peyus had withheld training opportunities when she cancelled Mount's attendance at a leadership training program and did not permit him to apply to an ICE fellowship program, and he requested a formal amendment to the original EEO complaint to include these two new allegations. ( Id. ) Shortly after that amendment and also in March of 2011, Mount filed a second EEO complaint, this time alleging that he was discriminated against on the basis of his race when he was not selected for an Assistant Special Agent-in-Charge (" ASAC" ) position in Las Vegas, Nevada. (ROI at 13 (" I believe I was not considered for the [Las Vegas] position based on my race." ); Ex. 7 to Def.'s Mot., Report of Investigation (" Second ROI" ), ECF No. 7-7, at 13-14.) Mount had apparently applied to the Las Vegas ASAC position on October 15, 2010, and had learned that he was not selected for the position on December 30, 2010. (Second ROI at 3; Ex. 3 to Def.'s Mot., Decl. of Dinisha Brown (" Brown Decl." ), ECF No. 7-3, at 2.) Claude Arnold, who was the Special Agent-in-Charge of the Los Angeles HSI office, made the selection for that Las Vegas ASAC position, which a three-member evaluation panel and HSI's National Director for Operations approved. (ROI at 54-57; Arnold Aff. ¶ ¶ 5, 13, 17-35, 28-31.) Mount, who is Caucasian (Compl. ¶ 135), asserted in his second EEO complaint that the agency had chosen an African-American man for the position instead of him solely because of race. (ROI at 12-13.)
Mount then asked the agency to consolidate his two separate administrative complaints. ( See Second ROI at 13-14.) By letter of April 7, 2011, the agency notified Mount that it had consolidated the complaints such that, with the exception of his allegations regarding the purportedly retaliatory failure to settle at mediation, the consolidated administrative complaint addressed all of Mount's claims up to that point in time ( i.e., his claims that Peyus had discrimination against him on the basis of gender and had retaliated against him for bringing that EEO charge, and that Arnold had discriminated against him on the basis of race when he failed to select him for the Las Vegas ASAC position). ( Id. at 14; ROI at 22-24.) An EEO contractor was assigned to investigate the claims in the consolidated complaint, and that investigator contacted Mount on May 27, 2011. (Second ROI at 17-18.) An investigation of Mount's consolidated EEO complaint took place from May 31, 2011, through August 10, 2011. (ROI at 4.)
On August 29, 2011, after the investigation of the claims in Mount's consolidated complaint had ended, Mount requested an amendment to his consolidated EEO complaint. (Second ROI at 13-14.) Mount had applied for a Special Agent-in-Charge position in HSI's office in Los Angeles, California on March 21, 2011, and had learned that he had not been selected on July 14, 2011. ( Id.; Brown Decl. at 2.) The same person who had not selected Mount for the Las Vegas position (Claude Arnold) also made the selection determination regarding the Los Angeles post. (Second ROI at 19-20.) Mount maintained that the only reason Arnold did not select him for the Los Angeles position was the fact that Mount had previously filed an administrative complaint against Arnold; therefore, Mount requested that his consolidated EEO complaint be amended in order to include an additional charge of retaliation based on the Los Angeles non-selection. By letter dated November 14, 2011, the agency granted his request. (Second ROI at 13-14.) Notably, the agency's grant letter specifically addressed the agency's policy regarding such amendments:
While a complaint is pending, a Complainant may raise a new incident of alleged discrimination that is not a part of the existing claim but may be like or related to the pending claim. If the new claim is like or related to claim(s) raised in the pending complaint, the pending complaint may be amended to include the newly-raised allegation and there is no requirement to seek counseling on the new claim. EEOC Management Directive 110, Chapter 5; III B. Your client's complaint is hereby amended to include this issue.
( Id. at 14.)
Having amended Mount's EEO complaint to include a retaliation allegation stemming from the denial of the Los Angeles ASAC position, the agency then appointed a new EEO investigator to inquire into this new charge. (Second ROI at 1.) The new investigation commenced on May 17, 2012, and the record establishes that the investigator contacted Mount's attorney to seek information regarding the entirety of the newly-amended administrative complaint--not just the added Los Angeles ASAC non-selection event. ( Id. at 1, 15-16.) Mount's lawyer rebuffed the investigator's expansive inquiry, explaining that most of " the issues have already been covered by the original [investigation,]" so " [t]he only issue you should be investigating is the LA job [.]" ( Id. at 16 (emphasis added)); see also id. at 15 (in an email to the investigator, Mount's attorney reiterates that " the only relevant issue that was not investigated in the already completed [Report of Investigation]" is the Los Angeles position, so it is " the only issue that you have a right to compel cooperation from Mr. Mount and it is the only issue we've addressed" ).) In addition, consistent with Mount's attorney's statements, the declaration that Mount submitted in response to the investigator's inquiries provided information about the Los Angeles position only. ( Id. at 19-20.) The EEO investigation into Mount's additional charge of retaliation as a result of his non-selection for the Los Angeles ASAC position concluded on July 19, 2012. ( Id. at 1.)
Mount filed the instant lawsuit on July 21, 2012. According to the complaint,
from January 19, 2011, to April 25, 2012--a period of time that spans the agency's months of investigation regarding the charges in the consolidated and amended administrative complaint--Mount applied for and was not selected for more than 40 other vacancies within the agency in a wide variety of geographic locations. ( See Compl. ¶ ¶ 24-117.) The complaint states that Mount " initiated this request because he has not received fair consideration as a result of retaliation for his EEO activities and discrimination for any of the forty-three lateral [ ] positions he has applied for since October 15, 2010" ( Id. ¶ 121 (emphasis in original)), and it claims that the listed series of non-selections constituted gender (Count I) and race (Count II) discrimination, and also retaliation (Count III) in violation of Title VII. ( Id. ¶ ¶ 123-151.)
Significantly, Mount's initial EEO charges ( i.e., Peyus's alleged discriminatory refusal to give him an office and her alleged retaliatory denial of his requests for training) do not appear in the instant complaint, nor does the complaint specifically reference the Las Vegas non-selection incident. Instead, the complaint opens with the general assertion that Mount " was involved in protected EEO activity on November 30, 2010[,]" and it then marches through a series of subsequent opportunities for vacant positions, beginning in early January of 2011, that Mount purportedly applied for but allegedly was denied due to discriminatory and retaliatory animus. ( See, e.g., id. ¶ ¶ 16-118.)
For the great majority of the non-selection allegations, the complaint alleges generally that " HSI management" repeatedly " passed [him] over" for positions " in retaliation for his EEO activity." ( See, e.g., id. ¶ ¶ 23, 24, 27, 29, 31, 40, 43, 46, 50, 53, 56, 58, 59, 64, 69, 71, 73, 75, 79, 81, 87, 90, 92, 94, 96, 98, 100, 102, 104, 106, 108, 110, 112, 114, 116, 118.) For just a handful of the claims, Mount provides more information. For example, Mount alleges that he applied to a Deputy Assistant Director position in the Washington, D.C.-based HSI Office of Intelligence in June 2011, and that HSI Assistant Director James Chaparro informed him that he had not chosen Mount for the position. ( Id. ¶ ¶ 33-34.) The complaint's allegations regarding the vast majority of the non-selection events do not include any information about the selecting officer. Moreover, there is no dispute that the only non-selection event in the instant complaint that Mount also specifically raised with the EEO was the July 14, 2011, non-selection for the Los Angeles ASAC position, and as noted, Mount's specific EEO charge was that the Los Angeles non-selection incident had occurred in retaliation for prior EEO activity.
On March 4, 2013, Defendant filed the present motion to dismiss the complaint in part, or in the alternative, motion for partial summary judgment, arguing that the only non-selection event in the complaint that was adequately exhausted was Mount's allegation that he was " passed over for an ASAC position in Los Angeles" in February of 2011 (Compl. ¶ 23), and ...