United States District Court, District of Columbia
VIRNA L. SANTOS, Plaintiff,
LORETTA LYNCH, Defendant.
BERMAN JACKSON United States District Judge
Virna L. Santos has brought this action against defendant
Loretta Lynch, in her official capacity as Attorney General
of the United States, alleging that her former employer, the
Department of Justice, violated Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e-3(a), when it retaliated against
her and terminated her from her employment for engaging in
protected activity. Compl. [Dkt. # 1]. Defendant has moved to
dismiss this matter pursuant to Rule 12(b)(6), on the grounds
that plaintiff filed her civil action prematurely, prior to
the expiration of the 180-day waiting period imposed by 29
C.F.R § 1614.407(d). Def's Mot. to Dismiss [Dkt. #
17] ("Def.'s Mot."). Because the Court finds
that defendant is correct that plaintiff initiated this civil
action before exhausting her administrative remedies,
defendant's motion will be granted, and this case will be
dismissed without prejudice.
is an attorney and was formerly employed by the United States
Department of Justice, Criminal Division, Office of Overseas
Prosecutorial Development, Assistance and Training. Compl.
¶ 4. From March 2011 until December 2013, she was the
Regional Director of Latin America and the Caribbean, and
from December 2013 until September 2014, she was the Regional
Director of the Judicial Studies Institute. Id.
claims that she engaged in protected activity when she
reported alleged instances of misconduct by Kevin Sundwall, a
Senior Resident Legal Assistant ("RLA"), to the
Director and Deputy Director of her office, and when she
later objected to what she perceived to be retaliation by
those Directors against the employees who had complained to
plaintiff about Sundwall. Compl. ¶ 6. She reported both
issues to the Directors' supervisor, the Deputy Assistant
Attorney General. Id. Plaintiff states that she was
told in February 2013 that she had "exposed" her
office's "leadership to the front office" by
reporting the misconduct, and that "her continued tenure
would not be guaranteed" as a result. Id.
¶ 7. She also alleges that she complained that one of
her subordinates "touched her inappropriately" in
July 2013, and that she was demoted shortly thereafter.
Id. ¶ 8. Plaintiff claims that she was
eventually terminated "based on false grounds of a lack
of funding." Id. ¶ 9.
filed an administrative complaint with the Department of
Justice against her former office on August 25, 2014. Compl.
¶ 3; Compl. of Discrimination, Ex. A to Compl. [Dkt. #
1]. On December 15, 2015, the agency issued its final
decision in her case, and plaintiff received the final
decision, through counsel, on December 21, 2015.
Compl.¶3. Plaintiff appealed the final agency decision
to the Equal Employment Opportunity Commission
("EEOC") on January 11, 2016. PL's Opp. to
Def.'s Mot. [&] Related Req. for Interim Stay [Dkt. #
20] ("PL's Opp") at 1; see also Notice
of Appeal/Pet., Ex. 2 to Def.'s Mot. [Dkt. # 17-2].
that appeal was pending, plaintiff initiated this civil
action in the United States District Court for the Eastern
District of California on March 14, 2016. Compl. On May 27,
2016, the parties jointly stipulated to the transfer of the
case to this District, see Stipulation &
Proposed Order Re: Def.'s Mot. for Dismissal or Transfer
[Dkt. # 13], and the case was assigned to this Court on June
2, 2016. Order Granting Stipulation Re: Def's Mot. for
Dismissal or Transfer [Dkt. # 14]. On June 7, 2016, defendant
moved pursuant to Rule 12(b)(6) to dismiss plaintiffs claims
as untimely filed. Def.'s Mot.
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). A claim is
facially plausible when the pleaded factual content
"allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Id., citing Twombly, 550 U.S. at 556.
"The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id., quoting Twombly, 550
U.S. at 556. A pleading must offer more than "labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action, " id., quoting
Twombly, 550 U.S. at 555, and "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Id., citing Twombly, 550 U.S. at 555.
considering a motion to dismiss under Rule 12(b)(6), the
Court is bound to construe a complaint liberally in the
plaintiffs favor, and it should grant the plaintiff "the
benefit of all inferences that can be derived from the facts
alleged." Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court
need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint,
nor must the Court accept plaintiffs legal conclusions.
See id.; Browning v. Clinton, 292 F.3d 235, 242
(D.C. Cir. 2002). In ruling upon a motion to dismiss for
failure to state a claim, a court may ordinarily consider
only "the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the
complaint, and matters about which the Court may take
judicial notice." Gustave-Schmidt v.
Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing
EEOC v. St. Francis Xavier Parochial Sch.,
117F.3d 621, 624-25 (D.C. Cir. 1997).
has moved to dismiss this case in its entirety without
prejudice, on the grounds that plaintiff failed to comply
with the requirements imposed by 29 C.F.R. § 1614.407.
Def's Mot. Specifically, defendant maintains that because
plaintiff appealed the agency's December 2015 final
decision, she was required to wait to file a civil action in
federal court until after receiving the EEOC's final
decision on her appeal or 180 days after filing the appeal if
no final decision was rendered. Def's Mot. at 3, citing
29 C.F.R. § 1614.407(c)-(d). Because the Court agrees
that plaintiff failed to comply with those requirements, it
will grant defendant's motion.
Title VII, a plaintiff "must timely exhaust [her]
administrative remedies before bringing [her] claims to
court." Payne v. Salazar, 619 F.3d 56,
65 (D.C. Cir. 2010) (internal quotation marks and citations
omitted). While the time limits for filing imposed by Title
VII and the related EEOC regulations are "not a
jurisdictional prerequisite to suit in federal court"
and are therefore "subject to waiver, estoppel, and
equitable tolling, " they nevertheless operate
"like a statute of limitations" that can bar a
claim that is untimely filed. See Martini v. Fed.
Nat'l Mortg. Ass'n, 178 F.3d 1336, 1348 (D.C.
Cir. 1999); see also, e.g., Koch v. White, 967
F.Supp.2d 326, 332 (D.D.C. 2013) (observing that "[t]he
ninety-day time limit" in 29 C.F.R § 1614.407(c)
"functions like a statute of limitations"), quoting
Mack v. WP Co., 923 F.Supp.2d 294, 298 (D.D.C.
of that exhaustion process and pursuant to regulations
promulgated by the EEOC, "[a] complainant who has filed
an individual complaint... is authorized under [TJitle VII...
to file a civil action in an appropriate United States