United States District Court, District of Columbia
MAURICE A. LANIER, Plaintiff,
SEAN STACKLEY, Acting Secretary of the Navy, Defendant.
BERMAN JACKSON United States District Judge
matter has come before the Court on Defendant's Motion to
Dismiss [ECF No. 6]. On March 28, 2017, the Court issued an
order [ECF No. 7] advising Plaintiff of his obligations under
the Federal Rules of Civil Procedure and the local civil
rules of this Court. Specifically, the Court notified
Plaintiff that, if he failed to file an opposition or other
response to Defendant's motion by April 27, 2017, the
Court would treat the pending dispositive motion as conceded.
See Local Civil Rule 7(b) (permitting court to
“treat . . . as conceded” a motion not met with a
timely opposing memorandum of points and authorities). To
date, Plaintiff has not filed an opposition to the pending
motion, requested more time to file an opposition, or advised
the Court of any change of address. Under these
circumstances, the Court ordinarily would grant
Defendant's motion. The United States Court of Appeals
for the District of Columbia Circuit recently has raised
concerns, however, about the application of Local Civil Rule
7(b) to grant an unopposed motion to dismiss. See Cohen
v. Bd. of Trs. of the Univ. of the District of Columbia,
819 F.3d 476, 482 (D.C. Cir. 2016). In light of this ruling,
the Court briefly addresses the merits of Defendant's
Gateway Inns & Suites at Joint Base Anacostia Bolling in
Washington, D.C., a component of the Commander, Navy
Installations Command (“CNIC”), Mem. of P. &
A. in Support of Def.'s Mot. to Dismiss at 1, employed
Plaintiff as a laundry attendant from April 1, 2016 until
August 19, 2016, Compl. at 1, when it “terminated [him]
during [his] probationary period . . . due to [his]
unacceptable attendance and conduct[, ]” id.
at 55. His termination caused two prospective
employers to rescind their offers of employment on September
1, 2016. Id. ¶ 28c.; see id. at 24-25.
believed that Defendant fired him because of his “race
[and] in retaliation for taking emergency time off taking
emergency time off, ” id. ¶ 13, from
August 8, 2016 to August 10, 2016, id. ¶ 10. He
also asserted that he had been “required to work in a
hostile work environment.” Id. at 1; see
id. ¶ 12. Plaintiff contacted an EEO Counselor on
October 26, 2016, see id. at 33-35, and filed a
formal discrimination complaint on or about December 5, 2016,
see id. at 44-46. Defendant notified Plaintiff that
his contact with the EEO counselor was untimely:
[A]n aggrieved person must initiate contact with a EEO
counselor within 45 calendar days of the date of the
effective action. You contacted the CNIC NAF EEO Service
Center on 26 October 2016. The latest incident of your claim
thought to be discriminatory is 1 September 2016; this date
is 23 days beyond the 45 calendar days (which would have been
03 October 2016). If there are any mitigating circumstances
that prevented you from filing your complaint within the
filing requirement, please submit the reason(s) in writing[.]
Id. at 73 (emphasis in original).
explained that he had not been “notified of any EEO
complaint filing time limits and [was] unaware of
them.” Id. at 78. Upon advice from “pro
bono legal counsel on October 26, 2016, ” Plaintiff
contacted the EEO counselor “and began the
process.” Id. This assertion appeared to
contradict Plaintiff's prior certification that he had
received and understood Defendant's EEO & Sexual
Harassment Policy Statement and EEO brochure, see
id. at 81, 87, including its notice that “[a]ny
employee who believes discrimination has occurred because of
race . . . has the right to file an EEO complaint, ”
and that “[c]ontact must be made within 45 calendar
days of the alleged discrimination, ” id. at
82. On review of Plaintiff's “formal complaint and
the associated documents, ” id. at 28, on
December 16, 2016, Defendant dismissed Plaintiff's
discrimination complaint “in its entirety pursuant to
29 C.F.R. [§] 1614.107(b), for untimely EEO contact,
” id. at 30.
brings this action under Title VII of the Civil Rights Act of
1964. See 42 U.S.C. § 2000e et seq.
Defendant moves to dismiss the complaint because Plaintiff
“did not follow the mandatory administrative procedures
for exhausting” his claims. Def.'s Mem. at 5.
aggrieved employee “who believe[s he has] been
discriminated against on the basis of race . . . must consult
a Counselor prior to filing a complaint in order to try to
informally resolve the matter.” 29 C.F.R. §
1614.105(a). He “must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45
days of the effective date of the action.” Id.
§ 1614.105(a)(1); see In re James, 444 F.3d
643, 644 (D.C. Cir. 2006) (describing the pre-complaint
process). The aggrieved employee's failure to initiate
contact within 45 days calls for dismissal of the claim.
See Greer v. Paulson, 505 F.3d 1306, 1316 (D.C. Cir.
shows that Plaintiff did not initiate contact with an EEO
Counselor until October 26, 2016, roughly 67 days after his
termination on August 19, 2016, and 23 days beyond the 45-day
deadline. See Compl. at 36. Plaintiff has not
responded to Defendant's motion, and his complaint does
not describe any circumstances under which equitable tolling
of the 45-day period is warranted. The Court concludes that
Plaintiff failed to exhaust his administrative remedies by
making timely contact with an EEO counselor.
Plaintiff's complaint does not state a hostile work
environment claim. “A hostile work environment
typically consists of several individual acts that ‘may
not be actionable on [their] own' but become actionable
due to their ‘cumulative effect.'” Baird
v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015) (quoting
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 115 (2002)). A successful claim requires that a
plaintiff show “his employer subjected him to
‘discriminatory intimidation, ridicule, and insult'
that is ‘sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working
environment.'” Baloch v. Kempthorne, 550
F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). For
purposes of this Memorandum, the Court presumes the truth of
Plaintiff's allegations that he had been assigned more
work than he deemed appropriate, see Compl. ¶
6, that he had been “interrogated . . . about money
being stolen from a hotel room, ” id. ¶
7, and that he had been among the “black
employees” accused of “always mak[ing]
excuses” when he “brought up concerns about
difficult work conditions and assignments, ”
id. ¶ 8. These events, even taken together, do
not amount to a hostile work environment. See Akosile v.
Armed Forces Ret. Home, 938 F.Supp.2d 76, 87 (D.D.C.
2013) (“Negative interactions with supervisors, even
when a supervisor yells and uses profanity, generally do not
meet [the hostile work environment] standard.” (citing
Baloch, 550 F.3d at 1201)); Newton v. Office of
the Architect of the Capitol, 840 F.Supp.2d 384, 398
(D.D.C. 2012) (holding that “complaints over
undesirable job responsibilities and . . . workload” do
not rise to the level of “severe and pervasive”
conduct necessary to support a hostile work environment
Court therefore grants Defendant's motion and dismisses
the complaint because it fails to state a claim upon which
relief can be granted. An Order is issued separately.