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Moseley v. King

United States District Court, District of Columbia

July 14, 2016

NICOLE MOSELEY, Plaintiff,
v.
JOHN B. KING, JR., [1] Secretary, U.S. Department of Education, et al., Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE

         In this action, plaintiff Nicole Moseley alleges that John B. King, Jr., in his official capacity as Secretary of the Department of Education (“DOE”), violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). Plaintiff claims that she was subjected to sexual harassment and a hostile work environment, and that defendant retaliated against her for participating in an investigation into the alleged harassment. Defendant has moved to dismiss the complaint, or in the alternative, for summary judgment. Def.’s Mot. to Dismiss or in the Alt. Mot. for Summ. J. [Dkt. # 11] (“Def.’s Mot.”); Def.’s Mem. in Supp. of Def.’s Mot. [Dkt. # 11] (“Def.’s Mem.”). He argues that plaintiff was not a DOE employee and therefore lacks standing to bring this suit.[2] Def.’s Mem. at 5. Defendant also contends that even if plaintiff had standing, neither of her claims were administratively exhausted, nor were they timely filed in district court. Id. at 11, 13. Assuming without deciding that plaintiff was a joint employee of both DOE and one of its contractors, the Court concludes that neither of the counts in plaintiff’s complaint were timely exhausted, and so the complaint will be dismissed.

         BACKGROUND

         I. Facts

         The following facts are not in dispute. Nucore Vision, Inc. (“Nucore”), a DOE contractor, hired plaintiff as a Visitors Request Specialist at a DOE location in Washington, D.C. in February 2010. Am. Compl. [Dkt. # 10] ¶ 5. Plaintiff’s immediate supervisor was Christopher Strambler, an employee of the DOE. Id. ¶ 6. According to plaintiff, Strambler began making sexually suggestive comments and proposing to take her on dates soon after she started working at the DOE location. Id. ¶ 9. In March 2010, plaintiff complained to Nucore about the alleged harassment. Id. ¶ 12. Nucore and plaintiff had a formal meeting in July 2010, during which plaintiff reiterated her complaints about Strambler. Id. ¶ 13.

         Between May and August 2010, a number of positions in the ID Office at the Department of Education became available. Am. Compl. ¶ 16. These positions were considered to be promotions from plaintiff’s position as a Visitors Request Specialist. Id. ¶ 17. Plaintiff was ultimately not selected for a promotion. Id. ¶ 21.

         Beginning in June 2011, the Office of the Inspector General at the DOE investigated Strambler’s conduct. It issued a report dated August 9, 2011, which substantiated the allegations made by plaintiff and others concerning Strambler. Ex. N to Def.’s Mot. [Dkt # 11-14] (“OIG Report”). The final incident of harassment described in the report took place on June 2, 2011: on that date, Strambler offered plaintiff money to pay for her son’s education, and told her that he wanted to get to know “Nicki” better. Id. at 5; see also Am. Compl. ¶ 22 (describing plaintiff’s involvement in the OIG investigation).

         On August 5, 2011, plaintiff was fired. Am. Compl. ¶ 24; Ex. E to Def.’s Mot. [Dkt. # 7-5] (termination letter). She alleges she first contacted an EEO Counselor on August 12, 2011, seven days after her discharge. Am. Compl. ¶ 26. Plaintiff filed a formal charge of harassment with the DOE on September 17, 2012, which was dismissed on the grounds that she was not a federal employee. Id. ¶¶ 29, 30. Plaintiff timely appealed the agency’s decision, and on June 5, 2015, the EEOC determined that plaintiff was a joint employee of both the DOE and Nucore Vision. Id. ¶ 32. The EEOC decision notified plaintiff of her right to file a civil action in federal district court “within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission.” Ex. 2 to Pl.’s Opp. to Def.’s Mot. [Dkt. # 13-2] (“EEOC Decision”) at 7.[3]

         II. Procedural History

         Plaintiff filed this lawsuit against DOE and Nucore on October 6, 2015. Compl. [Dkt. # 1]. On November 11, 2015, plaintiff consented to dismiss all claims against Nucore, and the Court granted the consent motion to dismiss with prejudice. Def. Nucore’s Mot. to Dismiss [Dkt # 4]; Min. Order (Nov. 17, 2015). Plaintiff filed an amended complaint against DOE on January 20, 2016. Am. Compl. The amended complaint asserts two counts: in Count I, plaintiff alleges that DOE violated Title VII by subjecting her to quid pro quo sexual harassment and a hostile work environment, id. ¶¶ 37-43; and in Count II, plaintiff alleges that DOE retaliated against her by terminating her employment after she complained about the harassment. Id. ¶¶ 44-51.

         Defendant then moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) on the ground that plaintiff was not a DOE employee and he also moved to dismiss under Rule 12(b)(6), or in the alternative, for summary judgment. Def.’s Mot. Plaintiff opposed the motion to dismiss and responded to the motion for summary judgment with a request for discovery pursuant to Federal Rule of Civil Procedure 56(d). Pl.’s Opp. to Def.’s Mot. [Dkt. # 13] (“Pl.’s Opp.”). Defendant replied in support of its motion on March 28, 2016. Def.’s Reply in Supp. of Def.’s Mot. [Dkt. # 15] (“Def.’s Reply”).

         STANDARD OF REVIEW

         I. Failure to State a Claim

         “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal ...


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