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Vasser v. McDonald

United States District Court, District of Columbia

December 29, 2016

ROBERT MCDONALD, Secretary, United States Department of Veterans Affairs, Defendant.




         Vivian Vasser alleges that she was unlawfully discriminated and retaliated against when the Department of Veterans Affairs failed to promote her ten different times over the course of three years. Although the details of each alleged failure-to-promote are unique, Defendant's motion hinges on just one attribute of Ms. Vasser's claims: their timing. Defendant argues that Ms. Vasser did not administratively exhaust her claims because she failed to raise some of them to an Equal Employment Opportunity Counselor within the prescribed time. Because Ms. Vasser indeed failed to timely raise many of the claims that she brings in this case, the Court must dismiss them. The Court further dismisses Ms. Vasser's age-discrimination claims brought pursuant to the Age Discrimination in Employment Act and her retaliation claims for non-selections occurring prior to her participation in any protected activities, because she has conceded that she did not exhaust either category of claims.


         A. Plaintiff's Second Amended Complaint

         Plaintiff Vivian Vasser brings this action against Defendant Robert McDonald in his official capacity as Secretary of the United States Department of Veterans Affairs (“VA”), alleging that the VA unlawfully discriminated against her on the basis of race, sex, and age in connection with her employment. See 2d Am. Compl. (“Compl.”) ¶¶ 1, 4-5, ECF No. 19. She specifically contends that her supervisors willfully refused to promote her to higher positions ten different times, in violation of Title VII of the Civil Rights Act (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Id. ¶¶ 17-19, 30-48. She also contends that the VA retaliated against her by not promoting her the same ten times. Id. ¶¶ 59-60.

         Of the ten alleged instances of unlawful failure to promote, the first five occurred in 2007 and 2008.[1] See Id. ¶¶ 17-18; see also Pl.'s Opp'n to Def.'s Renewed Partial Mot. Dismiss (“Pl.'s Opp'n to Mot. Dismiss”) at 4-6, ECF No. 31. In the first four cases, less-experienced candidates who were not black females were selected for the positions. See Compl. ¶ 17. In the fifth, Ms. Vasser alleges that after she was told by the interviewer that he would “recommend her selection” and that she should “begin looking for a residence, ” the VA informed her that the position was “cancelled.” Id. ¶ 18; see also Pl.'s Opp'n to Mot. Dismiss at 6-7. After she was told of the cancellation in January 2009, the VA again announced that it was hiring for the position. Compl. ¶ 18. Ms. Vasser applied again for this position in May 2009. See Id. ¶ 21.

         The sixth alleged failure to promote was for Ms. Vasser's May 2009 re-application.[2] See Id. ¶ 21; see also Pl.'s Opp'n to Mot. Dismiss at 7-8. Ms. Vasser alleges that in July 2009 a less-qualified white male was hired for the position. See Compl. ¶ 22. Then, in November 2009, Ms. Vasser “filed a formal complaint of discrimination for [that] non-selection.” See Id. ¶¶ 21-29; see also Pl.'s Opp'n to Mot. Dismiss at 7-8. The seventh alleged failure-to-promote[3] occurred “[i]n late 2010 to early 2011, ” after which a fellow applicant filed a separate lawsuit. See Compl. ¶ 30. “To this day, that vacancy has not been filled despite the presence of at least two qualified candidates, ” Ms. Vasser and the fellow applicant, who is “another African[-]American woman.” Id.; see also Pl.'s Opp'n to Mot. Dismiss at 9 (noting that as of September 23, 2015- the day the Opposition was filed-the position had still not been filled). Ms. Vasser does not specifically contend that she contacted an Equal Employment Opportunity (“EEO”) counselor or otherwise engaged the EEO process in connection with this alleged non-promotion.

         The final three instances of alleged discrimination occurred from 2010 to 2011. See Compl. ¶¶ 35-39, 47-48; see also Pl.'s Opp'n to Mot. Dismiss at 9-11. The VA does not contend that Plaintiff failed to exhaust her administrative remedies for these three claims. See P. & A. Supp. Def.'s Partial Mot. Dismiss (“Mot. Dismiss”) at 11-12, ECF No. 21-1. Plaintiff's Second Amended Complaint states that she “filed a charges [sic] of discrimination for these non-selection [sic] on the basis of race, gender[, ] and in retaliation for filing her previous . . . complaints against” her supervisor, and that because it has been more than 180 days since she filed her “complaints of discrimination, ” she has “exhausted her administrative remedies for each of the non-selections since 2007.” Compl. ¶ 59.

         In paragraph 60 of her Second Amended Complaint, Plaintiff further alleges that she has been targeted and retaliated against since the filing of this action. See Compl. ¶ 60. She specifically alleges that because, in this lawsuit, she has asserted that her supervisor is “unqualified for the position, ” her supervisor has since “refused to grant leave . . ., subjected [Ms. Vasser] to hostile and abusive treatment[, ] and threatened to down-grade[] her performance evaluation in retaliation” against Ms. Vasser's participation in protected activity. Id.

         B. Related Administrative Materials

         In support of its Motion to Dismiss for failure to exhaust-which addresses only the first five and seventh alleged failures to promote-Defendant relies heavily on materials not included as part of the Second Amended Complaint. See Mot. Dismiss at 8-9 (arguing that the Court should take such materials into account at the motion-to-dismiss stage). Plaintiff argues that “[i]n relying on material outside of the pleadings, defendant has converted its motion to dismiss into a motion for summary judgment, ” and urges the Court not to consider any related administrative materials. Pl.'s Opp'n to Mot. Dismiss at 13-14.

         In support of its Motion to Dismiss with respect to the first five alleged unlawful failures to promote-which allegedly occurred from 2007 to 2008-the VA attaches 15 exhibits, all of which are administrative materials. Most importantly for this motion, Defendant cites to Plaintiff's EEO complaint, dated February 17, 2010, and a final decision by the Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication. See Final Agency Decision in Vasser v. Secretary, VA Case Nos. 200I-153A-2010100557 & 200I-0010- 2011104729 (“Final Agency Decision”), Mot. Dismiss Ex. 11 at 3, ECF No. 21-4;[4] Complaint of Employment Discrimination, No. 200I-153A-2010100557 (“February 2010 Administrative Compl.”), Mot. Dismiss. Ex. 13, ECF No. 21-5. Plaintiff's first administrative complaint alleged non-selection for the sixth non-promotion listed in the Complaint. See February 2010 Administrative Compl. at 21.[5] In a portion of the administrative complaint for complainants to list their “[c]laim(s), ” Ms. Vasser listed only the sixth alleged non-promotion, which she stated “occurre[d]” “10/30/09[, ] when [she] found out that some one [sic] else was selected.” See Id. at 20. She lists the previous five positions in her complaint as background information, and to establish that the VA had, “in the last [two-and-a-half] to three years . . . demonstrated a common practice” of discriminatory hiring practices. See Id. at 21-22.

         The VA's Final Agency Decision concurs with the findings of the VA's Office of Resolution Management, concluding that, because Ms. Vasser's February 2010 administrative complaint was in-part untimely given that she had not initiated the administrative process within 45 days, “it [was] the final decision of the Department to dismiss claim[s] . . . relating to the non-selections occurring . . . [on or before] January 9, 2009.” See Final Agency Decision at 3. The Final Agency Decision noted that Ms. Vasser did not deny failing to contact an EEO counselor within 45 days of her first-five alleged non-selections, and that the first time she mentioned them was in her February 2010 administrative complaint. See Id. at 2-3. Ms. Vasser, citing to an EEO counselor's report, see Pl.'s Opp'n to Mot. Dismiss Ex. B, ECF No. 31-2, contends that she actually first mentioned them during her initial interview “on November 10, 2009.” See Pl.'s Opp'n to Mot. Dismiss at 4-6 (adding, at the end of each description of the alleged non-promotions, that she “first raised th[e] issue[s]” with an EEO counselor on that date). Like in her formal complaint, Ms. Vasser mentioned the previous non-promotions as background supporting her belief that she had been discriminated against. See Pl.'s Opp'n to Mot. Dismiss Ex. B at 3. Ms. Vasser also contends that she was on active duty from May 2009 until July 2010. See Pl.'s Opp'n to Mot. Dismiss at 4-6; id. Ex. A.

         As for the seventh alleged failure to promote, which occurred in late 2010 or early 2011, Defendant makes general reference to Plaintiff's “two pending EEO complaints, ” reasoning that because neither of them contains allegations of this particular instance of non-selection, Plaintiff did not exhaust her available administrative remedies for it. See Mot. Dismiss at 11-12; see generally February 2010 Administrative Compl.; Complaint of Employment Discrimination, No. 200I-0010-201104729 (“December 2011 Administrative Compl.”), Mot. Dismiss. Ex. 9, ECF No. 21-4. In her December 2011 Complaint, Ms. Vasser raised five separate claims, none of which were for the seventh alleged failure-to-promote. See December 2011 Administrative Compl. at 21-23.[6] The only reference that Ms. Vasser made to this position was in her December 2011 complaint, when she said that she wanted the non-promotion to be “used as evidence and claims to support [her] current claims.” See Id. at 24; Compl. ¶ 30 (describing the position that Plaintiff referenced in the December 2011 complaint).

         III. ANALYSIS

         The VA moves to dismiss on the grounds that Plaintiff did not exhaust her administrative remedies. See generally Mot. Dismiss. The VA first argues that Plaintiff did not engage the administrative process for the first five alleged non-promotions-which allegedly occurred in 2007 and 2008-until over a year after they occurred, when Plaintiff was required to contact an EEO counselor within 45 days of the discrimination or personnel action. See Id. at 9-11. The VA also argues that, to the extent Ms. Vasser raised additional claims for a hostile work environment in her Second Amended Complaint, those claims are wholly unexhausted. See Id. at 12. Next, Defendant moves to dismiss Plaintiff's claims under the ADEA, arguing that Plaintiff never raised them in either of her two administrative complaints. See Id. at 13-14. Finally, the VA argues that because Ms. Vasser did not engage in any protected activity until November 2009, she could not have been illegally retaliated against when she was allegedly not promoted the first six times, which all occurred prior to the time she first engaged in protected activity. See Id. at 14-15.

         Ms. Vasser claims that the VA's reliance on materials outside the Second Amended Complaint requires the Court to convert the Motion to Dismiss into a motion for summary judgment, requiring denial of the motion as prematurely filed. See Pl.'s Opp'n to Mot. Dismiss at 13-15. Even if the Court does consider such materials, Plaintiff argues, the Motion should still be denied with respect to the alleged discrimination claims because the “the timeliness provisions . . . are . . . subject to enlargement, waiver[, ] and equitable tolling, ” particularly in cases where there is an alleged pattern of unlawful behavior. See Id. at 16-17. And, she argues, the forty-five day limit is not triggered until all facts that support a charge of discrimination become apparent, and certain active duty military-service time is excluded from the calculation. See Id. at 17. Plaintiff further argues that she has plausibly alleged that Defendant has obscured the hiring processes in an effort to “thwart[] [her] efforts to seek redress, ” apparently through not notifying her of the non-selections and otherwise making the EEO process inaccessible. See id. at 18-19. As for the new hostile work environment claims, she argues that raising such claims for the first time before the Court is justified because these retaliatory hostile work environment claims are reasonably related to her exhausted non-selection claims. See Id. at 20. With respect to her ADEA and first six alleged instances of retaliation, Plaintiff consents to dismissal, implicitly conceding the VA's argument that these claims have not been administratively exhausted. See Id. at 20 n.2.

         The Court finds that it may take judicial notice of enough materials to resolve this motion without the need to convert it to one for summary judgment. Because Ms. Vasser did not timely exhaust her administrative remedies with respect to her first five claims of non-promotion and does not demonstrate that equitable tolling should apply, the Court will dismiss Ms. Vasser's Title VII discrimination claims for the first five alleged failures-to-promote. And, because Ms. Vasser did not raise the seventh alleged non-promotion at any point, the Court dismisses it as well. The Court further dismisses the new hostile work environment claim that Plaintiff raises for the first time in her Second Amended Complaint because it is neither exhausted nor related to any freestanding claim that has been exhausted. In light of Plaintiff's consent to dismiss her ADEA and first six retaliation claims, following this order Plaintiff is left with only her sixth, eighth, ninth, and tenth Title VII discrimination claims for non-selection and her seventh, [7]eighth, ninth, and tenth Title VII retaliation claims.

         A. Standard of Review

         Both parties agree that the rules for Rule 12(b)(6) motions to dismiss apply here.[8] See Mot. Dismiss at 7-8; Pl.'s Opp'n to Mot. Dismiss at 14. The parties are correct that the motion-to-dismiss standard governs motions to dismiss for failure to exhaust administrative remedies under Title VII and the ADEA. See Laughlin v. Holder, 923 F.Supp.2d 204, 208 (D.D.C. 2013). To survive such a motion a complaint must contain sufficient factual allegations that, if accepted as true, would state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge[] their claims across the line from conceivable to plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         “In evaluating a Rule 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, or documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the parties.” Busby v. Capital One, N.A., 932 F.Supp.2d 114, 133-34 (D.D.C. 2013) (internal citations and quotation marks omitted). “[A] document need not be mentioned by name to be considered ‘referred to' or ‘incorporated by reference' into the complaint.” Strumsky v. Wash. Post Co., 842 F.Supp.2d 215, 218 (D.D.C. 2012) (internal citation omitted). Of course, courts may also take “judicial notice of facts on the public record . . . to avoid unnecessary proceedings when an undisputed fact on the public record makes it clear that the plaintiff does not state a claim upon which relief could be granted.” See Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C. Cir. 1993) (Mikva, C.J., dissenting)).

         Failure to exhaust administrative remedies is an affirmative defense. See Mondy v. Sec'y of the Army, 845 F.2d 1051, 1058 n.3 (D.C. Cir. 1988) (MacKinnon, J., concurring) (citing Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.” (citing Brown, 777 F.2d at 13)). Defendants can meet their burden of pleading and proving ...

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