OPINION AND ORDER
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
Plaintiff
Wanda Savage brought this lawsuit claiming that, during her
tenure at the U.S. Department of Health and Human Services,
the Department took a host of discriminatory and retaliatory
actions against her based on her race, sex, and disability
status; that it retaliated against her for filing a complaint
with the Equal Employment Opportunity Commission
(“EEOC”); and that it failed to reasonably
accommodate her disability. This Court in March 2018 granted
summary judgment in favor of the Department on several of
these claims. But it denied summary judgment on Savage's
claims that (1) the Department's refusal to transfer her
out of her position was unlawful discrimination on the basis
of race or sex in violation of Title VII; and (2) that the
Department's refusal to transfer her, its selection of
another employee for an open supervisory position, its grant
of lower performance evaluations, and its subsequent transfer
of Savage out of the division were unlawful retaliation in
violation of Title VII or the Rehabilitat ion Act.
Trial
on those claims is set to begin next week. Pending before the
Court are two pretrial motions filed by the Department. One
is a motion to dismiss (or, in the alternative, for judgment
on the pleadings) contending that Savage did not properly
exhaust her administrative remedies before filing suit. The
other is a motion in limine seeking to exclude the testimony
of William Porter, another employee at the Department whose
tenure overlapped with Savage's and who claims that he
was the subject of a similar unlawful employment action. The
Court will address these motions in turn and, in the end,
will deny both.
1.
Motion to dismiss or for judgment on the
pleadings.
Just
days before the Court's pretrial conference-four years
after this suit was filed and over a year after discovery
closed- the Department filed a motion contending that several
of Savage's claims must be dismissed because she failed
to properly exhaust her administrative remedies.
Specifically, the Department argues that she did not timely
present her grievances to one of the Department's Equal
Employment Opportunity (“EEO”) counselors.
See 29 C.F.R. § 1614.105(a)(1) (“An
aggrieved person must initiate contact with a Counselor
within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45
days of the effective date of the action.”).
A
plaintiff's failure to exhaust her administrative
remedies is an affirmative defense to an action under Title
VII. See Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997). Because exhausting one's administrative
remedies is not a jurisdictional prerequisite to suit,
however, a defendant's failure to raise the defense can
result in waiver. See id.; see also Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In
the Court's view, the Department has waived the defense
by not raising it on summary judgment and instead by raising
it on the eve of trial. That is enough to warrant denial of
the Department's motion.
But
wait, says the Department: Rule 12 expressly provides that
the defense of “[f]ailure to state a claim upon which
can be granted” can be raised by a motion for judgment
on the pleadings or at trial, Fed.R.Civ.P. 12(h)(2), even if
the defendant failed to raise it at an earlier opportunity,
Fed.R.Civ.P. 12(g)(2). And courts treat the failure to
exhaust administrative remedies as a species of failure to
state a claim. See, e.g., Laughlin v.
Holder, 923 F.Supp.2d 204, 208 (D.D.C. 2013). So, the
Department contends, the Court is forbidden from treating the
defense as waived.
The
problem for the Department is that while failure to exhaust
can be a ground for dismissal for failure to state a
claim-and thus properly raised on a motion under Rule 12(c)-
that is true only when the defendant does not rely on
materials outside the record. This can occur when, for
example, the plaintiff's failure to exhaust is apparent
on the face of her complaint. See Jones v. Mukasey,
565 F.Supp.2d 68, 74 (D.D.C. 2008). If, on the other hand, a
motion for judgment on the pleadings presents “matters
outside the pleadings, the motion must be treated as one for
summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
The
Department relies on factual material outside the pleadings
here. Its arguments regarding exhaustion depend on an
affidavit from a Department EEO specialist stating that
Savage did not contact the EEO office within 45 days of
several allegedly unlawful actions, as would be required to
properly exhaust her administrative remedies under Title VII
with respect to those claims. Def.'s Mot. Dismiss or for
Judgment on Pleadings Ex. A. So while Rule 12(h) does allow a
defendant to move to dismiss for failure to state a claim on
the eve of trial, the Department's reliance on factual
material outside the pleadings brings its defense of failure
to exhaust outside the ambit of failure to state a claim and,
consequently, outside the ambit of Rule 12. That Rule's
more permissive waiver provisions are inapplicable.
Instead,
what the Department has filed is in effect a
long-overdue, successive motion for summary judgment.
See Fed.R.Civ.P. 56(b) (“Unless a different
time is set by local rule or the court orders otherwise, a
party may file a motion for summary judgment at any time
until 30 days after the close of all discovery.”). The
Department has offered no reason that would support allowing
the motion so late and, relatedly, would allow the court to
consider the defense of failure to exhaust preserved. The
Court will therefore deny the Department's motion. It
considers waived any defense that Savage failed to timely
exhaust her administrative remedies with respect to her
claims that survived summary judgment.[1]
2.
Motion in limine.
In
opposing summary judgment, Savage filed an affidavit from
William Porter, another former Department employee. The Court
relied on this affidavit in denying summary judgment with
respect to several of Savage's retaliation claims. At
summary judgment, the Court focused on a portion of his
affidavit describing the behavior of Savage's supervisor,
John (“Jay”) Petillo, toward Savage shortly after
she spoke with an investigator about Porter's own EEOC
complaint. See Pl.'s Opp'n Mot Summ. J. Ex.
8, ¶¶ 7, 10.
The
affidavit also contains testimony about Porter's own
treatment within the Department's Office of Financial
Planning & Analysis-the same office that Savage worked
in. Porter, also African-American, claims that he (like
Savage) was denied a transfer out of his division, while at
least one white employee (Brian Sparry) was granted such a
transfer. Id. ¶¶ 14, 29-30. Porter's
immediate supervisor, David Dolinsky, formally denied his
transfer request. But Porter's affidavit and other
materials in the record suggest that his higher-level
supervisor- Petillo-also had a hand in the decision.
See ECF No. 133-1, at 10-11 (email from Petillo
declining Porter's request to be reassigned out of the
building and to report directly to Petillo); id. at
12 (email from Dolinsky to Porter “concur[ring]”
in Petillo's decision).
Leading
up to trial, the government filed a motion in limine seeking
to exclude Porter's testimony from trial. In a minute
order dated June 21, 2018, the Court denied the
government's motion in limine insofar as it sought to
exclude all of his testimony. The Court reserved
judgment, however, on the aspect of the motion seeking to
exclude Porter's testimony about his treatment while at
the Department. As the Court explained, Porter's
testimony at trial will be limited “to (1) his direct
knowledge of Plaintiff's treatment by her
supervisors[2]; and (2) the Department's denial of
his transfer request, but only to the extent that evidence of
that denial is relevant to Plaintiff's claim and not
unduly prejudicial.” Minute Order (June 21, 2018).
Whether his testimony on the latter point is admissible
depends on the degree to which his experience was factually
analogous to the plaintiff's. Relevant factors include
“whether the alleged discriminatory behavior by the
employer is close in time to the events at issue in this
case; ...