United States District Court, District of Columbia
Defendant's Partial Motion to Dismiss
RUDOLPH CONTRERAS United States District Judge.
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.
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
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.
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).
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
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.”); 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. 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.
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.
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
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 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.
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.
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.
Conversion into a Motion for Summary Judgment
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
Because the Court need only look to documents to which it can
take judicial notice or that ...