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Nichols v. Young

United States District Court, District of Columbia

March 24, 2017

MIKE YOUNG, [1] Acting Secretary, United States Department of Agriculture, Defendant.


          RANDOLPH D. MOSS United States District Judge

         Proceeding pro se, Plaintiff Barbara Nichols brings this action against her former employer, the United States Department of Agriculture (“USDA”), for alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Age Discrimination in Employment Act, 29 U.S.C. § 633a et seq. (“ADEA”). The Court previously dismissed Nichols's complaint for failure to state a claim, but simultaneously granted Nichols leave to file an amended complaint to address the deficiencies identified in the Court's decision. Nichols has now filed an amended complaint, Dkt. 23, and the USDA has moved for summary judgment or, in the alternative, for judgment on the pleadings, Dkt. 37. Because Nichols has failed to rectify the deficiencies in her original complaint, and because her amended complaint does not state a claim, the Court will grant the USDA's motion for judgment on the pleadings and will dismiss the complaint, this time with prejudice.

         I. BACKGROUND

         The Court has previously set forth the factual and procedural history of the case, see Nichols v. Vilsack, 13-cv-1502, 2015 WL 9581799, at *1-4 (D.D.C. Dec. 30, 2015) (“Nichols I”), and, accordingly, need only address recent developments.

         Although Nichols's original complaint contained few non-conclusory allegations, because Nichols is proceeding pro se, the Court reviewed her administrative complaints in an effort to discern her specific allegations. Nichols I, 2015 WL 9581799 at *1-2. From those materials, the Court discerned the following allegations: Nichols is an African-American woman, who was fifty-three years old when she began her employment at the USDA in 2007. Id. at *2. Problems began almost immediately after Nichols started work at the USDA. Id. Among other things, she was assigned a large caseload, which included a backlog of cases that a younger, Caucasian employee had failed to process; she was not provided any training or guidance; and, when she sought guidance, she was told not to ask work-related questions of other employees and not to send email messages with questions. Id. In addition, according to Nichols's initial complaint and administrative complaints, she was subjected to a “no tolerance” policy with respect to her work, while others-including the younger, Caucasian employee who had created the backlog that greeted Nichols when she started work-were held to less stringent standards and, indeed, received “multiple, favorable career opportunities.” Id. (quoting Dkt. 1 at 3 (Compl. ¶ 9)). Nichols further alleged, moreover, that when she complained, the USDA harassed her and, more generally, that the USDA applied a “double standard” under which it “quickly redress[ed] any issue” involving her performance, id. (quoting Dkt. 1 at 2-3 (Compl. ¶¶ 7, 11)), but “failed to timely resolve recurring complaints of inappropriate behavior and sexual harassment” involving a Caucasian, male employee, id. (quoting Dkt. 1 at 3 (Compl. ¶ 11)).

         The USDA moved to dismiss Nichols's original complaint, arguing that she failed to timely exhaust her administrative remedies with respect to some, but not all, of her claims and that, in any event, her original complaint failed to state a claim. Id. at *1. With respect to the first of these arguments-Nichols's failure to timely exhaust her administrative remedies-the Court concluded that the defense was non-jurisdictional and that the USDA had not, and could not, carry its burden of proving non-exhaustion at the motion-to-dismiss stage of the proceeding. Id. at *4-8. The Court, accordingly, denied that portion of the USDA's motion without prejudice to the USDA's right to reassert the defense with an appropriate factual record. Id. at *7. The Court agreed with the USDA, however, that Nichols's complaint, even as clarified based on the attached administrative complaint, failed to state a claim. Id. at *9-14. Of particular relevance here, the Court held that Nichols's disparate treatment claims failed “to satisfy the adverse employment action requirement” necessary to state a claim under Title VII or the ADEA, id. at *10-11, and that her hostile work environment claims failed to raise “the type of severe or pervasive harassment necessary to state a claim, ” id. at *12.

         The Court did, however, permit Nichols to “file an amended complaint that “addresse[d] the deficiencies” it had raised, id. at *14, and on January 27, 2016, Nichols filed an amended complaint that reasserted her race, sex, and age discrimination claims under Title VII and the ADEA, Dkt. 23. Nichols expanded her complaint from six to thirteen pages, and, although her amended complaint eliminated most of the exhibits that she had appended to her first complaint, [2] it includes numerous citations to her first complaint, Dkt. 1, her opposition to the USDA's prior motion to dismiss, Dkt. 14, and the exhibits attached to both pleadings. On April 8, 2016, the USDA moved to dismiss or transfer the amended complaint for improper venue, Dkt. 28, and the Court denied that motion on May 2, 2016, Dkt. 34. Shortly thereafter, the USDA answered the amended complaint. Dkt. 35.

         On June 7, 2016, the USDA filed the pending motion for summary judgment or, in the alternative, for judgment on the pleadings. Dkt 37. With the benefit of a factual record, the USDA now renews its exhaustion defense, id. at 11-18, and, echoing its earlier motion to dismiss, it further argues that the amended complaint fails to remedy the pleading deficiencies that the Court identified in Nichols's original complaint, id. at 4, 18-24. The Court advised Nichols of the need to file “a memorandum and supporting evidence in response” to the USDA's motion. See Dkt. 39 at 1 (citing Neal v. Kelly, 963 F.2d 453, 456-57 (D.C. Cir. 1992) and Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988)). On June 30, 2016, Nichols filed her opposition, along with seventy pages of exhibits, Dkt. 40, and the USDA subsequently filed a reply, Dkt. 41.


         As in its original motion to dismiss, the USDA argues that Nichols's amended complaint must be dismissed for two, independent reasons: because Nichols failed to exhaust Title VII and ADEA administrative remedies in a timely manner and because she fails to allege the essential elements of each of her claims. The Court, accordingly, once again faces the threshold question whether it must-or should-decide the exhaustion issue before addressing the sufficiency of Nichols's allegations. As explained in the Court's prior decision, the Court is not required to decide the exhaustion issue first; failure to exhaust administrative remedies under Title VII and the ADEA does not raise a jurisdictional hurdle, but rather constitutes an affirmative defense. Nichols I, 2015 WL 9581799 at *5 (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). Moreover, because the Court premised its prior decision on the sufficiency of Nichols's allegations, and because it provided her with an opportunity to attempt to cure the deficiencies it identified, it makes sense to begin (and, for the reasons given below, to conclude) the Court's analysis by addressing the sufficiency of the amended complaint.

         In doing so, the Court will start with the claims that Nichols raised in her original complaint, which she has attempted to bolster in her amended complaint, and then turns to her arguably new claim of constructive discharge.[3]

         A. Adequacy of Nichols's Allegations

         Because the Court previously address the sufficiency of Nichols's original complaint, there is no need to start from scratch or to repeat the Court's prior analysis. The relevant question is simply whether the amended complaint rectifies the problems the Court has previously identified or has added new claims that meet the governing pleading standards. Moreover, it makes no difference that the Court's earlier opinion relied on Rule 12(b)(6), while the USDA's present motion arises under Rule 12(c). The standard of review under both rules is identical, see, e.g., Vanderhorst v. Blue Cross Blue Shield Ass'n, 99 F.Supp.3d 46, 48-49 (D.D.C. 2015); the sole difference is that a Rule 12(b)(6) motion is the proper vehicle for challenging the legal sufficiency of a complaint before the defendant has answered, and a Rule 12(c) motion is the proper vehicle to raise such a challenge after the defendant has answered. Under both rules, the Court must decide whether the complaint contains “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         1. Dispar ...

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