United States District Court, District of Columbia
MACK L. CHARLES, Plaintiff,
JOHN O. BRENNAN, Director of the Central Intelligence Agency,  Defendant.
MEMORANDUM OPINION [DKT. # 16]
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
Former Central Intelligence Agency Non-Official Cover ("NOC") Operations Officer Mack L. Charles ("plaintiff) brought this suit alleging managers working under CIA Director John O. Brennan ("defendant") violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a, by creating a hostile work environment by retaliating against him because he complained of age discrimination. See generally Am. Compl. [Dkt. #15]. Plaintiff initially brought this action pro se. See Compl. [Dkt. #1], After a motion to dismiss was filed, plaintiff obtained counsel and filed an amended complaint. See Am. Compl. Currently before the Court is defendant's Motion to Dismiss Plaintiffs Amended Complaint [Dkt. #16]. Upon consideration of the pleadings, record, and relevant law, I find that plaintiffs claims are time-barred. Therefore, defendant's motion is GRANTED, and all claims are dismissed.
Plaintiff worked at the CIA as a Non-Official Cover ("NOC") Operations Officer from 1996 until his termination in 2010. Am. Compl. ¶¶ 19, 93. He received high commendations and served without incident with his superiors until the following events that gave rise to this case. Am. Compl. ¶¶ 19-47. In February 2008, Charles began dating Nina, a fellow NOC. Am. Compl. ¶ 48. He was 47 and she was 26, Am. Compl. ¶ 48, but their relationship did not violate any CIA rule or policy, Am. Compl. 149. In March 2009, plaintiffs and Nina's superior, Eric P., spoke to Nina regarding her relationship with plaintiff for the first time, asking if she knew plaintiff had been married and divorced previously, and stating he had a daughter her age and "kn[e]w what's right for [Nina]." Am. Compl. ¶¶ 50-51. Charles and Nina became engaged in April 2009, after which Eric P. and Imelda, another superior, "continued to interfere with their relationship" by, among other things, proffering geographically distant assignments to them. Am. Compl. ¶ 53. Perceiving discrimination based on his age, plaintiff emailed his managers on May 8, 2009, "warning that they were violating his EEO rights and demanding they cease all such efforts." Am. Compl. ¶ 54. Three days later, his managers "initiated a 'security scrub' of his entire employment record to search for derogatory information, " which continued through July 2009. Am. Compl. ¶¶ 55, 58-59. Plaintiff alleges this security scrub marked the beginning of a "series of conspiratorial actions - constituting one continuing violation - in relation for Charles' expression of his intent to defend his rights under EEO laws and regulations." Am. Compl. ¶ 56.
On June 10, 2009, plaintiff filed an EEO complaint alleging age discrimination. Am. Compl. ¶ 57. On August 5, 2009, in a request containing false and misleading statements regarding the plaintiff, his managers requested that a Personal Evaluation Board ("PEB") be convened to evaluate plaintiffs conduct. Am. Compl. ¶¶ 61-66. The PEB met on October 28, 2009 and declined to take action against plaintiff. Am. Compl. ¶¶ 72-73. Thereafter, in a continued effort to have him fired, plaintiffs superior Imelda obtained a false memorandum from "Chester" who had once supervised plaintiff. Am. Compl. ¶¶ 74-75. The PEB reconvened on May 5, 2010 and, based on the allegedly false memorandum, recommended that plaintiff be fired. Am. Compl. ¶¶ 89-92. Plaintiff appealed the PEB's recommendation but was fired in December 2010. Am. Compl. ¶ 93.
On September 16, 2009-after the PEB request, but before it convened-Plaintiff saw the false and misleading allegations in the request materials, then filed an EEO complaint alleging retaliation. Am. Compl. ¶¶ 67-68. The case was decided against him, plaintiff asked for reconsideration, and then, by letter dated August 28, 2014, the EEOC informed him that his request for reconsideration was denied. Am. Compl. Ex. 2, EEOC's Notice of Right to Sue Letter [Dkt. #15-2]. The letter stated "you have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision." Id. at 2. Though plaintiff does not specify the date he received the letter, he concedes he failed to meet the 90-day deadline. Am. Compl. ¶ 122. Plaintiff alleges this ruling against him, combined with notice the same day that he could not publish a satirical novel he wrote about the CIA,  as well as the realization he may never reconnect with Nina, caused him to fall into a "deep depression" that "rendered him incapable of handling his affairs in such a way as to be able to prepare his initial Complaint within the 90-day period specified in the EEOC's Notice of Right to Sue letter." Am. Compl. ¶¶ 121-22. Plaintiff began to take antidepressant medication in November 2014. Am. Compl. ¶ 127.
Plaintiff "attempted, in early November 2014, to obtain the assistance of counsel" Mark Zaid, but "the CIA's Office of General Counsel ("OGC") told Charles [Zaid] had to sign a new secrecy agreement before Zaid could be cleared, " Am. Compl. ¶ 123, and told Zaid that Charles had to "sign a new secrecy agreement, " Am. Compl. ¶ 124. Plaintiff alleges he was "unable to go forward with the Complaint on his own" at that time, Am. Compl. ¶ 126, but after taking medication his depression subsided enough to enable him to prepare and file his initial complaint pro se on January 23, 2015. Am. Compl. ¶ 128. Since that time plaintiff obtained counsel and filed an amended complaint.
STANDARD OF REVIEW
The Court may dismiss a complaint for failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), the court must "liberally" construe the complaint "in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal citation and quotation marks omitted). However, in considering the pleadings, the Court is not required to "accept legal conclusions cast in the form of factual allegations, " or to rely on inferences "unsupported by the facts set out in the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Thus, to withstand dismissal, the allegations, when read in a light most favorable to the plaintiff, must "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Because plaintiff concedes he brought this action well past the 90-day statutory deadline, the Court must determine whether plaintiff alleges facts sufficient to show the type of extraordinary circumstances that warrant equitable tolling or equitable estoppel. Unfortunately for plaintiff, I find he has not.
The ADEA permits federal employees to choose one of two avenues to pursue an age discrimination claim. See, e.g., Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6 (1991). First, an employee may pursue his claim through the agency's administrative process "and then file a civil action in federal district court if he is not satisfied with his administrative remedies." Id. (citing 29 U.S.C. § 633a(b)-(c)). Alternatively, the employee may bypass the agency's administrative process and instead "present the merits of his claim to a federal court in the first instance." Stevens, 500 U.S. at 6 (citing 29 U.S.C. § 633a(d)). Failure to comply with either of the two designated procedures constitutes a failure to exhaust administrative remedies and bars a federal employee from bringing suit in federal court. See Rann v. Chao, 346 F.3d 192, 198-99 (D.C. Cir. 2003) (upholding the district court's dismissal for failure to exhaust where a federal employee failed to comply with the requirements of § 633a(d), so he could not "proceed to federal court by that route").
Under the agency-then-court option, a federal employee has 90 days after receiving a final decision from the EEOC to file a civil action. See Price v. Bernanke, 470 F.3d 384, 388-89 (D.C. Cir. 2006). "[S]trict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). Accordingly, "this Circuit requires strict adherence to the 90-day requirement, such that actions brought even one day after the deadline will be dismissed." Gill v. District of Columbia, 872 F.Supp.2d 30, 35 (D.D.C. 2012) (dismissing as untimely Title VII and ADEA claims filed two days after 90-day deadline); see Smith v. Dalton, 971 F.Supp. 1, 2-3 (D.D.C. 1997) (dismissing pro se plaintiffs Title VII and ADEA claims because suit was filed one day after 90-day deadline). Because the 90-day time period is not a jurisdictional bar, but rather a statute of limitations, it is subject to waiver, estoppel, and equitable tolling. Saltz v. Lehman, 672 F.2d 207, 208 (D.C. Cir. 1982).
Plaintiff concedes he missed the 90-day deadline set forth in the EEOC's decision denying plaintiffs retaliation claim dated August 28, 2014, Am. Compl. ¶ 122, so the only question is whether this is one of the "extraordinary and carefully circumscribed instances" in which the Court should exercise its equitable power to overcome plaintiffs untimeliness.Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). The party requesting that a statutory deadline be equitably tolled bears the burden of persuasion. See Saltz, 672 F.2d at 209. While stylized as an equitable tolling challenge, plaintiff appears to invoke both equitable tolling and the separate but related doctrine of equitable estoppel to excuse his tardy filing. "Equitable tolling permits a plaintiff to avoid the bar of the limitations period if despite all due diligence she is unable to obtain vital information bearing on the existence of her claim." Smith-Haynie v.District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998). Equitable estoppel, on the other hand, "prevents a defendant from ...