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Wilson v. Clayton

United States District Court, District of Columbia

September 28, 2017

JAY CLAYTON, [1] Chair of the Securities and Exchange Commission, Defendant.



         Securities and Exchange Commission (“SEC”) employee Jacqueline Wilson has sued the agency on various claims of discrimination and retaliation. The SEC moves to dismiss most of Wilson's claims for failure to timely exhaust her administrative remedies. For reasons discussed below, the Court will treat the motion as one for partial summary judgment and will grant it in part and deny it in part.

         I. Background

         Jacqueline Wilson, an African-American woman in her fifties, began working at the SEC in 2008 as an SK-17[2] Supervisory Auditor in the Office of Inspector General (“OIG”). Compl. ¶¶ 4, 6, 35. In 2013, Carl Hoeker was appointed as the SEC's Inspector General and began serving as Wilson's supervisor. Def.'s Mot. to Dismiss (“Mot. to Dismiss”), Ex. A at 3. In November 2013, Wilson contacted an agency equal employment opportunity (“EEO”) counselor to complain that Hoeker and another supervisor were subjecting her to a hostile work environment on the basis of age, race, sex, and in retaliation for giving testimony in an unrelated agency investigation. Mot. to Dismiss, Ex. E at 1-2. At the conclusion of the counseling process, Wilson was notified of her right to file a formal EEO complaint with the agency, Def.'s Reply (“Reply”), Ex. D at 20, but she declined to do so. Instead, she requested a transfer and was temporarily detailed from OIG to the agency's Office of Human Resources (“OHR”). Id. at 19. After several extensions of her detail, Wilson was permanently transferred to OHR in November 2014. Id.

         Wilson again contacted an agency EEO counselor the following month. Mot. to Dismiss, Ex. D at 19. This time, however, Wilson proceeded to timely file a formal complaint on February 23, 2015, checking boxes on the complaint form for “Promotion/Non Selection, ” “Assignments/Duties, ” “Reassignment, ” “Transfer, ” and “Evaluation/Appraisal.” Pl.'s Opposition Mot. to Dismiss (“Opp.”), Ex. 1 at 3. Although Wilson had requested the detail to OHR and appears to have agreed to at least one of its extensions, her formal complaint alleged that the permanent transfer to OHR was involuntary and that she was assigned a “less equivalent position.” Id. at 5. She further claimed that Hoeker pushed her out of OIG by creating a new SK-17 position nearly identical to Wilson's and filling it with a younger, white woman, Rebecca Sharek. Id. In a supporting affidavit, Wilson also maintained that Sharek was paid significantly more than her while occupying the same position at OIG. Mot. to Dismiss, Ex. A at 7-8.

         Upon receiving Wilson's formal complaint, the SEC's Office for Equal Employment Opportunity accepted the following claim for investigation: “Whether the SEC discriminated against Wilson . . . when on November 16, 2014, [she] was involuntarily transferred from OIG to OHR.” Reply, Ex. D at 3. The EEO office issued a Final Agency Decision on October 29, 2016. Mot. to Dismiss, Ex. D. The decision concluded that Wilson failed to prove by a preponderance of the evidence that the alleged adverse employment action-her permanent reassignment to OHR-was the result of unlawful employment discrimination. Id. at 18.

         Ninety days after receiving a right-to-sue notice following the agency's investigation, Wilson filed suit in this Court. Her complaint contains three counts: (1) race and sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) retaliation, also in violation of Title VII; and (3) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). The SEC has filed a partial motion to dismiss for failure to exhaust administrative remedies with respect to all of the discrete acts of discrimination that Wilson contends support the three counts, except her permanent reassignment to OHR.

         II. Standard of Review

         The SEC has moved to dismiss under Rule 12(b)(6). However, where, as here, “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d); see also Center for Auto Safety v. Nat'l Highway Transp. Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Such treatment is appropriate if the parties are “given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Wilson has been accorded a reasonable opportunity to respond to and present evidence: the exhibits to Defendant's motion were available to Wilson, and Wilson's opposition included its own set of supporting exhibits.

         Summary judgment is appropriately granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When deciding a motion for summary judgment, the Court must “‘examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to' the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation omitted).

         III. Analysis

         Each of the three counts of Wilson's complaint-race and sex discrimination under Title VII, retaliation under Title VII, and age discrimination under the ADEA-is supported by the same six discrete acts of alleged discriminatory and/or retaliatory treatment: (1) that Wilson experienced workplace harassment during her tenure at OIG, (2) that the agency selected Ms. Sharek over her for the position of Deputy Inspector of Audits in OIG, (3) that she received a poor performance evaluation in January 2014, (4) that the agency extended her detail to OHR, (5) that she was permanently reassigned to OHR, and (6) that she was paid less than colleagues who were younger, white, and male. See Compl. ¶¶ 6-36. Wilson argues that even if a claim based on one or more of these discrete acts is time barred, they all comprise a continuing “hostile work environment” claim that is not time barred. Opp. 4-6. Finally, Wilson contends that claims based on each of these discrete acts are timely because they are “reasonably related” to at least one exhausted claim. Id. at 7.

         A. The Discrete Acts Underlying Wilson's Claims

         Federal law protects employees from discrimination on the basis of their race, sex, and age. See 42 U.S.C. § 2000e-2 (race and sex); 29 U.S.C. § 633a (age). However, if a federal employee wishes to bring suit against her employer alleging a violation of her rights, she must first “navigate a maze of administrative processes” ...

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