United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge
before the Court is Defendant's  Motion to Dismiss or,
in the Alternative, for Partial Summary Judgment. Plaintiff,
proceeding pro se, brings claims against Defendant
Mabus in his official capacity as Secretary of the Navy for
gender and age discrimination pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq. and the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621 et seq.
Plaintiff's action is predicated on him allegedly being
denied, because of his gender and age, an “opportunity
to compete for a full-time position as a Custodial Worker . .
. .” Compl. at 2. That position was allegedly filled
“with a younger female with less training and
experience than [Plaintiff].” Id. The
complaint also appears to contain a putative claim under the
Health Insurance Portability and Accountability Act of 1996
(“H I P PA ”), which has not been challenged by
Defendant in the pending motion.
Court does not address the merits of Plaintiff's age and
gender discrimination claims, as they must be dismissed
pursuant to binding precedent of the Unites States Court of
Appeals for the District of Columbia Circuit (“D.C.
Circuit”). Plaintiff pursued an administrative appeal
with the Equal Employment Opportunity Commission
(“EEOC”), and was consequently required by
statute to wait 180 days before filing suit with this Court.
Plaintiff waited less than the 180 days, and because no
equitable factors weigh in favor of excusing this premature
filing, Plaintiff's age and gender discrimination claims
must be dismissed. Accordingly, upon consideration of the
pleadings,  the relevant legal authorities, and the
record for purposes of this motion, the Court GRANTS
Defendant's  Motion to Dismiss, and Plaintiff's
age and gender discrimination claims are DISMISSED WITHOUT
inter alia, moves to dismiss for “failure to
state a claim upon which relief can be granted”
pursuant to Federal Rule of Civil Procedure 12(b)(6).
“[A] complaint [does not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint
must contain sufficient factual allegations that, if accepted
as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
deciding a Rule 12(b)(6) motion, 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 plaintiff in the complaint but by the defendant in
a motion to dismiss.” Ward v. District of Columbia
Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119
(D.D.C. 2011) (internal quotation marks omitted). The court
may also consider documents in the public record of which the
court may take judicial notice. Abhe & Svoboda, Inc.
v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). In
particular, on a motion to dismiss, the Court “may look
to [the] record of another proceeding 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.” Covad Commc'ns
Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir.
2005) (internal quotation marks omitted).
for purposes of the pending motion, the Court takes judicial
notice of the Department of the Navy's Final Agency
Decision, ECF No. 6-2, at 158 (“FA D ”), and a
letter issued by the EEOC to Plaintiff stating the docket
number of his appeal, and the date it was filed, ECF No. 6-2,
at 167 (“EEOC Letter”). Grant v. Dep't of
Treasury, 194 F.Supp.3d 25, 28 n.2 (D.D.C. 2016)
(“Final Agency Decision . . . [is] official, public
document subject to judicial notice”); Peart v.
Latham & Watkins LLP, 985 F.Supp.2d 72, 81 (D.D.C.
2013) (finding it “appropriate to take judicial notice
of the facts contained in the . . . EEOC letters as they
‘can be accurately and readily determined' from a
public agency proceeding, the accuracy of which ‘cannot
reasonably be questioned'” (citing Fed.R.Evid.
201(b)(2))). Judicial notice is taken solely for purposes of
ascertaining the date the FAD was issued (August 11, 2016),
the claims addressed in the FAD, and the date Plaintiff filed
an appeal of the FAD with the EEOC (August 18, 2016).
noted, the Court may take judicial notice of the FAD and when
it was filed. Review of the FAD indicates that Plaintiff
sought administrative review of the age and gender
discrimination claims at issue in this action. ECF No. 6-2,
at 158. The Navy denied those claims in the FAD on August 11,
2016, and Plaintiff chose to pursue an appeal of the FAD with
the EEOC on August 18, 2016. Id. at 167. As a result
of this decision, Plaintiff was required by statute to
“wait 180 days, absent final action by the EEOC, before
filing a lawsuit in the federal district court . . . .”
Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir.
2010) (citing 42 U.S.C. § 2000e-16(c)). In
Murthy, the D.C. Circuit established that the
180-day waiting period found in section 2000e-16(c) is
mandatory; in other words, if a plaintiff chooses to pursue
an EEOC appeal, he must wait 180 days before filing
suit in federal court, unless the EEOC issues a decision
before the 180-day period expires.
the waiting period is not jurisdictional, and the Court may
consider whether equitable factors excuse the failure to
wait. See Martini v. Fed. Nat. Mortg. Ass'n, 178
F.3d 1336, 1348 (D.C. Cir. 1999) (finding that the analogous
“180-day waiting period [of section 2000e-5(b)] is not
jurisdictional”); Z i p e s v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982) (“filing
a timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling”). Here,
Plaintiff plainly failed to wait 180 days after filing his
appeal with the EEOC before bringing suit in federal
court-the case was filed on October 7, 2016, only 50 days
after Plaintiff lodged an appeal with the EEOC-and no
equitable factors excusing that failure are apparent from the
Complaint, the pleadings, or the record as a whole for
purposes of the pending motion. Accordingly, Plaintiff's
age and gender discrimination claims must be dismissed.
See Maybank v. Speer, No. CV 16-1681 (RDM), 2017 WL
1750253, at *2 (D.D.C. May 3, 2017) (dismissing
discrimination claims against the United States Army for
failure to wait 180 days after filing EEOC appeal).
foregoing reasons, the Court GRANTS Defendant's 
Motion to Dismiss. Plaintiff's age and gender