United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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
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
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. ¶¶
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]
Failure to State a Claim
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 ...