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Jouanny v. Embassy of France In United States

United States District Court, District of Columbia

November 21, 2017




         Plaintiff 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.

         Before 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.

         Having 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.


         Plaintiffs 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.[1] 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.

         Plaintiff 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.

         After 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.].[2] 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.

         Following 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].[3] 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.

         The court now turns to the parties' pending motions.


         The 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).

         A 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 ...

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