United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANT'S PARTIAL
MOTION TO DISMISS
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
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
Plaintiff's Second Amended Complaint
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.
ten alleged instances of unlawful failure to promote, the
first five occurred in 2007 and 2008. 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.
sixth alleged failure to promote was for Ms. Vasser's May
2009 re-application. 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 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.
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.
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.
Related Administrative Materials
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.
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; 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. 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.
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.
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. 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
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.
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.
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,
eighth, ninth, and tenth Title VII
Standard of Review
parties agree that the rules for Rule 12(b)(6) motions to
dismiss apply here. 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).
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)).
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 ...