United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE
Annie Jouanny works as a receptionist at Defendant Embassy of
France in the United States. She filed this action in January
2016, alleging that her employer retaliated against her for
filing an age discrimination charge with the Equal Employment
Opportunity Commission ("EEOC"). Plaintiffs
retaliation claim, however, suffers from an obvious problem:
Plaintiff did not raise the alleged retaliation with the EEOC
before she filed this action. In an effort to cure
that defect, Plaintiff amended her administrative complaint
more than 13 months after filing suit to advance a
retaliation claim, and the very next day the EEOC issued her
a right-to-sue letter. Plaintiff did not, however,
immediately move to amend her Complaint in this case to add
an administratively exhausted retaliation claim. Instead, she
waited another six months before asking for leave to amend.
the court are two motions. The first is Defendant's
motion for judgment on the pleadings, which seeks to dismiss
the retaliation claim in Plaintiff's original Complaint
on the ground that the claim is not administratively
exhausted. The second is Plaintiff's motion for leave to
amend her original Complaint, in which she seeks to add an
administratively exhausted retaliation claim.
fully considered the parties' positions, the court
concludes that Plaintiffs original retaliation claim must be
dismissed because it is not administratively unexhausted, and
that granting her leave to amend her Complaint to add a
properly exhausted retaliation claim would be futile because
such a claim is untimely. The court therefore grants
Defendant's motion for judgment on the pleadings and
denies Plaintiff's motion to amend her Complaint.
original Complaint, filed on January 27, 2016, advanced two
claims under the Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. §§ 623(a)(1), 631(a):
(1) age discrimination in connection with Defendant's
threatened termination of Plaintiff's employment; and (2)
retaliation based on Plaintiff engaging in activity protected
under the ADEA. Compl., ECFNo. 1. In a Memorandum Opinion
issued June 5, 2017, the court dismissed Plaintiff's
disparate treatment claim for failure to state a claim, but
permitted her retaliation claim to proceed. Jouanny v.
Embassy of France in the United States (Jouanny I), No.
16-00135, 2017 WL 2455023 (D.D.C. June 5, 2017). Because that
decision summarizes Plaintiff's Complaint and the
procedural history of this matter at that point, the court
sets forth here only the procedural history and factual
allegations necessary to resolve the present motions.
filed her first administrative complaint on October 25, 2014,
asserting age discrimination by her employer; that complaint
did not, however, advance a claim of retaliation or allege
facts that would support such a claim ("Original EEO
Complaint"). Pl's Status Report, ECF No. 23, Ex. 1,
ECF No. 23-1 [hereinafter Original EEO Compl.]. Over two
years later, and 13 months after she initiated this
action, on March 8, 2017, Plaintiff amended her Original EEO
Complaint to add a retaliation claim and to assert facts
supporting that claim ("Amended EEO Compliant").
Id., Ex. 3, ECF No. 23-3 [hereinafter Am. EEO
Compl.]. Apparently, Plaintiff was moved to amend her
Original EEO Complaint only after the court had ordered her
to "submit evidence demonstrating that she exhausted
her administrative remedies with respect to ADEA retaliation
claim." Minute Order, Mar. 3, 2017.
the court dismissed Plaintiff's discrimination claim in
Jouanny I, Defendant filed a "Motion to Dismiss
Retaliation Claim for Failure to Exhaust Administrative
Remedies." Def.'s Mot. to Dismiss, ECF No. 27
[hereinafter Def.'s Mot.]. As the title of that motion
implies, Defendant seeks dismissal of the retaliation claim
on the ground that Plaintiff did not include it in her
Original EEO Complaint and therefore failed to exhaust
administrative remedies as to that claim. See Id. at
2-3; Original EEO Compl. Additionally, Defendant contends
that Plaintiffs Amended EEO Complaint came far too late and,
as such, cannot save her original retaliation claim from
dismissal. Def.'s Mot. at 3.
Defendant's "Motion to Dismiss, " Plaintiff
moved to amend her Complaint. Pl's Mot. for Leave to File
Am. Compl., ECF No. 31 [hereinafter Pl's Mot. for
Leave]. The allegations in the proposed Amended
Complaint mirror those contained in Plaintiff's Amended
EEO Complaint, filed six months earlier. Compare
Pl's Mot. for Leave, Proposed Am. Compl., ECF No. 31-1
[hereinafter Am. Compl.], ¶¶ 38-53, with
Am. EEO Compl., ¶¶ 21-32. The Amended Complaint
avers that, after Plaintiff filed her Original EEO Complaint
on October 25, 2014, her supervisors over the course of years
repeatedly retaliated against her for engaging in protected
activity under the ADEA. See Am. Compl. ¶¶
25, 38-53. Specifically, Plaintiff alleges that in November
2014, Defendant passed her over for a "better and more
favorable" administrative position in favor of a
younger, less tenured employee. Id. ¶ 39. She
also contends that, from November 2014 to July 2016,
Defendant made her working conditions unbearable with the aim
of getting her to quit. Id. ¶¶ 41, 47.
Defendant did so by saddling her with a heavier work load,
denying her multiple requests for assistance, relocating her
to a back room that separated her from coworkers and the
public, and affording her less generous break times than
newly hired contract workers. Id. ¶¶
41-53. Plaintiff thus maintains that Defendant retaliated
against her for two years on an ongoing and continuous basis.
See Id. ¶¶ 51-53.
court now turns to the parties' pending motions.
court begins with Defendant's motion for judgment on the
pleadings and resolves it easily. The ADEA requires employees
to exhaust administrative remedies before initiating suit in
federal court by filing a charge of discrimination with the
Equal Employment Opportunity Commission ("EEOC").
29 U.S.C. § 626(d)(1); Washington v. Washington
Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir.
1998). A lawsuit that follows the EEO charge is limited in
scope to claims that are "like or reasonably
related" to the allegations in the charge and growing
out of such allegations. See Park v. Howard Univ.,
71 F.3d 904, 907 (D.C. Cir. 1995). "At a minimum, "
the claim "must arise from 'the administrative
investigation that can reasonably be expected to follow the
charge of discrimination.'" Id. (citation
omitted). And, although the exhaustion requirement is not
meant to place a "heavy technical burden" on an
employee, the requirement of "some specificity" in
the charge is not a "mere technicality."
Id. (internal quotation marks and citation omitted).
In short, "[a] vague or circumscribed EEOC charge will
not satisfy the exhaustion requirement for claims it does not
fairly embrace." Marshall v. Fed. Express
Corp., 130F.3d 1095, 1098 (D.C. Cir. 1997).
straightforward application of these principles makes clear
that Plaintiff failed to exhaust administrative remedies as
to her retaliation claim before filing this action.
Plaintiffs Original EEO Complaint raised only a claim of age
discrimination arising out of her threatened termination. Am.
EEO Compl. In the section of the complaint form designated
"Discrimination Based On, " Plaintiff marked the
box for "Age, " but not the box for
"Retaliation." Id. Moreover, the ...