United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
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.
Wilson, an African-American woman in her fifties, began
working at the SEC in 2008 as an SK-17 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.
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.
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.
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.
Standard of Review
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
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).
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.
The Discrete Acts Underlying Wilson's Claims
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” ...