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Sierra v. Hayden

United States District Court, District of Columbia

June 1, 2017

MARTHA LUCIA SIERRA, Plaintiff,
v.
CARLA HAYDEN, [1] in her official capacity as Librarian of Congress, Defendant. Re Document No. 4

         Granting Defendant's Partial Motion to Dismiss

          MEMORANDUM OPINION

          RUDOLPH CONTRERAS United States District Judge.

         I. INTRODUCTION

         Defendant Carla Hayden, in her official capacity as Librarian of Congress, moves to dismiss certain claims of discriminatory and retaliatory non-promotion by Plaintiff Martha Lucia Sierra, a Library of Congress employee, that were not timely raised to the Library of Congress's Equal Employment Opportunity Complaints Office. Ms. Sierra argues that, although she did not bring her claims within the prescribed time, the delay was justified for a variety of reasons. First, she argues that she adhered to the purpose and spirit of the regulations, because she gave the Library of Congress notice of her claims and an opportunity to investigate them. Second, she argues that, by investigating and ruling on certain claims, the Library of Congress has waived its ability to argue that Ms. Sierra did not timely raise her claims. Third, with respect to claims administratively raised after filing the complaint in this case, Ms. Sierra argues that they are part of an ongoing pattern of discrimination and retaliation that continues to this day.

         Ms. Sierra's arguments come up short. Adhering to the “purpose” of required regulations cannot excuse failure to exhaust in accordance with the regulations' text. And, although in certain circumstances a defendant can waive its exhaustion defense by raising it in court after disregarding it in the administrative context, Ms. Sierra fails to show that the Library of Congress ignored the timing deficiencies of her administrative complaint. In fact, the Library's decision on her complaint, which Ms. Sierra attaches as an exhibit in her opposition, shows just the opposite. Finally, Ms. Sierra's theory of ongoing discrimination has previously been rejected by the Supreme Court, and thus does not excuse her failure to administratively raise certain claims until after filing the instant lawsuit. Taken together, the Court dismisses claims related to the allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012 and from 2014 to 2016.

         II. REGULATORY BACKGROUND

         Under Title VII of the Civil Rights Act of 1964, “[a]ll personnel actions affecting employees or applicants for employment . . . [in] the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16. However, before one can file a Title VII lawsuit in a federal district court, she must seek relief from the agency that allegedly discriminated against her. Brown v. GSA, 425 U.S. 820, 832 (1976). The administrative procedure that one must follow to seek relief from the Library of Congress (“LOC”) is different from most federal agencies. See 29 C.F.R. § 1614.103(d)(3). Title VII charges the Librarian of Congress with exercising Equal Employment Opportunity Commission (“EEOC”) authority with respect to the LOC. See 42 U.S.C. § 2000e-16(b). The Librarian of Congress has done so in the form of LOC regulations, see LCR 2010-3.1 § 1, several of which Defendant reproduces as an exhibit. See ECF No. 4-3.[2]

         Under the LOC's regulations, “[a] staff member . . . who believes that []she has been, or is being, discriminated against . . . shall notify and consult with a Counselor not later than 20 workdays after the date of the alleged discriminatory matter.” LCR 2010-3.1 § 4(A). This time limit may be extended through a formal request, but, with few exceptions, otherwise must be complied with before a plaintiff may file a federal lawsuit. See Id. § 4(B); see also Nichols v. Billington, 402 F.Supp.2d 48, 69 (D.D.C. 2005), aff'd, 2006 WL 3018044 (D.C. Cir. Mar. 7, 2006). Counselors work in the LOC's Equal Employment Opportunity Complaints Office (“EEOCO”), which is headed by the EEOCO Chief and largely run by the EEOCO Assistant Chief. See LCR 2010-3.1 § 3. The EEOCO Chief operates under the general guidance of the associate Librarian for Management. Id. at § 3(A). The EEOCO is charged with providing impartial counseling, and library staff are instructed to permit employees to contact counselors. See Id. §§ 2(A), 3(A).

         III. FACTUAL BACKGROUND

         Because Defendant moves to dismiss solely on failure-to-exhaust grounds, see generally Def.'s Partial Mot. Dismiss (“Def.'s Mot. Dismiss”), ECF No. 4, the Court's description of the facts of the case is largely confined to the timing of Plaintiff's administrative complaints vis a vis the alleged discrimination. Martha Lucia Sierra has been an employee of the LOC for over twenty years. Compl. ¶ 7, ECF No. 1. She alleges that she has been discriminated and retaliated against because of her race, sex, and national origin. Compl. ¶ 1. Ms. Sierra specifically alleges that her supervisors, Karen Lloyd and Dianne Houghton, discriminatorily refused to promote her several times from 2008 through 2015, retaliatorily refused to promote her after she filed an administrative complaint, and engaged in other discriminatory actions. See Compl. ¶¶ 12, 25- 28. Ms. Sierra alleges that she was publicly mocked by Ms. Lloyd, starting as early as 2009, because English was not her first language. See Compl. ¶¶ 16, 19. Ms. Lloyd also allegedly called Ms. Sierra a “traitor” in 2010, because Ms. Sierra helped the American Embassy in Mexico with its library program. Compl. ¶ 25(c). Although it is not clear when the specific instances of non-promotion occurred during the course of the alleged timeframe of discrimination, according to the complaint, “[i]n 2008 and continuing through 2015, Ms. Lloyd refused to approve a detail assignment for Ms. Sierra . . . [which] has adversely [affected] her professional development.” Compl. ¶ 25(a). The Complaint does not set out, in detail, the timing of discrete instances of discrimination and retaliation that allegedly occurred before she filed her first administrative complaint. See generally Compl.

         According to the complaint, Ms. Sierra filed her first formal “Allegation of Discrimination” with the LOC on December 27, 2013, and then a formal complaint in the LOC's EEOC Office on April 9, 2014. Compl. ¶ 26. The parties attached these complaints to their filings. See ECF No. 4-4, 6-2 (“December 2013 LOC Compl.”);[3] ECF No. 6-3 (“April 2014 EEOC Compl.”). Ms. Sierra's December 27, 2013 LOC complaint alleges that she was harassed, mocked, and treated differently from other employees a month earlier on November 27, but also suggests that the problems had been ongoing. See December 2013 LOC Compl. at 1, 2.[4] Her April 2014 EEOC complaint also references November 27, 2013, but states that Ms. Lloyd “continually exhibited hostility toward [her]” since as early as 2008. See April 2014 EEOC Compl. at 1, 3. The LOC accepted Ms. Sierra's complaints and investigated them. Compl. ¶ 26.

         Since filing her first administrative complaint, Ms. Sierra has asked for a promotion each year but has not received one, allegedly in retaliation for filing administrative complaints. See Compl. ¶¶ 28-29. Three days after she filed this case in federal court on September 9, 2016, see Compl. at 14, she filed another LOC “Allegation of Discrimination.” See ECF No. 6-7 (“September 2016 LOC Compl.”). The 2016 complaint mentions only the allegedly retaliatory failures-to-promote that occurred in 2015 and on August 4, 2016-not the one in 2014. See September 2016 LOC Compl. at 2.

         IV. LEGAL STANDARD

         The rules for Rule 12(b)(6) motions apply to motions to dismiss for failure to exhaust administrative remedies under Title VII. 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 a failure to exhaust at the motion-to-dismiss stage by using the pleadings and undisputed documents in the record. See Bowden, 106 F.3d at 437.

         V. ANALYSIS

         Defendant moves to dismiss only Ms. Sierra's claims of allegedly discriminatory and retaliatory non-promotions that occurred from 2008 to 2012, and from 2014 to 2016, on the grounds that Ms. Sierra failed to exhaust her administrative remedies. See Def.'s Mot. Dismiss at 6. With respect to the former category of non-promotions, Ms. Sierra contends that she adhered to the purpose of the LOC's administrative procedure, and that even if she did not, Defendant has waived her failure-to-exhaust defense, because the LOC accepted, investigated, and decided her complaint. See Pl.'s Opp'n Def.'s Mot. Dismiss (“Pl.'s Opp'n”) at 7-11, ECF No. 6. With respect to the non-promotions from 2014 to 2016, Ms. Sierra contends that those specific instances of retaliation or discrimination were part of an ongoing pattern of discrimination that the LOC was on notice of from her previous complaint. See Pl.'s Opp'n at 6- 7. Plaintiff also argues that any reliance on the administrative record requires the Court to convert Defendant's motion to dismiss into one for summary judgment. See Pl.'s Opp'n at 13.

         Plaintiff's arguments come up short. Adherence to the spirit of regulations is insufficient when it comes to timely exhaustion of administrative remedies. And, although agencies can waive the exhaustion defense when they decide a case on the merits without mentioning timeliness, that was not the case here. With respect to the alleged non-promotions between 2014 and 2016, Plaintiff relies on a case that is no longer good law in this circuit. Although it is true that the D.C. Circuit used to allow plaintiffs to raise claims related to those that were timely exhausted, the Supreme Court rejected such an approach in National Railroad Passenger Corp. v. Morgan. Finally, the Court need not convert Defendant's motion into one for summary judgment, because it may take judicial notice of the only administrative documents needed to rule on this motion. Thus, the Court grants Defendant's partial motion to dismiss, dismissing Plaintiff's complaint insofar as it seeks recovery for discrete non-promotions occurring from 2008 to 2012 and from 2014 to 2016.[5]

         A. Conversion into a Motion for Summary Judgment

         Plaintiff argues that the Court cannot look to the administrative record to resolve Defendant's motion, because to do so would require converting this motion into one for summary judgment. See Pl.'s Opp'n at 13.[6] Because the Court need only look to documents to which it can take judicial notice or that ...


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