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Redding v. Mattis

United States District Court, District of Columbia

August 29, 2018

FELECIA REDDING, Plaintiff,
v.
JIM MATTIS, Secretary, United States Department of Defense, Defendant.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.

         Plaintiff Felecia Redding works in human resources at the Defense Intelligence Agency (“DIA”), located within the Department of Defense. ECF No. 11 (“Am. Compl.”) ¶ 7. Her operative complaint brings two counts against Defendant, each alleging a different type of unlawful conduct: Count I alleges unlawful race and age discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. Am. Compl. ¶¶ 61-63. Count II alleges unlawful retaliation in violation of Title VII. Id. ¶¶ 64-67. The instant Opinion and Order concerns Defendant's motion to dismiss Count II or, alternatively, for partial summary judgment on Count II. ECF No. 12.[1] For the reasons explained below, the Court will grant the motion.

         I. Redding's Complaint

         The Court will briefly summarize Redding's operative complaint, discussing particular facts in greater detail as required below. Redding is an African-American woman who, during the relevant time period, was at least 52 years old. Am. Compl. ¶¶ 5, 10. She alleges that, in May 2013, DIA passed her up for a promotion in favor of a less-qualified Asian-American woman who was under 40 years old. See Id. ¶¶ 14-44. This act, which in Redding's view was discriminatory, forms the basis for Count I of her complaint. Id. ¶¶ 61-63.

         On June 12, 2013, Redding raised claims of discrimination with a counselor in DIA's Equal Employment Opportunity (“EEO”) office. Id. ¶ 45. On June 21, 2013, the Division Chief overseeing Redding's department allegedly said that “people have been here too long, ” and that “there are going to be some changes and then they will want to go to EEO. I do not care if they go to EEO.” Id. ¶¶ 12, 46. On August 21, 2013, the Division Chief again said that “people have been here too long.” Id. ¶ 47. Redding claims that these “threatening comments about EEO participation” amounted to retaliation for her initiating EEO counseling. Id. ¶ 66. On August 27, 2013, Redding filed a formal EEO charge. Id. ¶ 49. Redding claims that, starting in April 2014, she suffered further acts of retaliation, including a transfer to another office, removal of her supervisory responsibilities such that she now has the same duties as lower-ranked employees, and elimination from consideration for further promotions. See Id. ¶¶ 50-60. All of these alleged acts of retaliation form the basis for Count II of her complaint. See Id. ¶ 66.

         II. Analysis

         Defendant argues that Redding failed to exhaust Count II to the extent it rests on alleged acts of retaliation that occurred after the filing of her EEO charge. See Def's Br. at 5-10. Defendant also argues that the only remaining conduct at issue in Count II-the Division Chiefs verbal comments-do not suffice to make out a retaliation claim. Id. at 4-5. The Court agrees with Defendant and will dismiss Count II without prejudice.

         A. Redding's Asserted Exhaustion of Her Retaliation Claims

         Redding does not the dispute the facts regarding exhaustion set forth in Defendant's statement of material facts. See Pl.'s Resp. SoMF ¶ 1. On June 12, 2013, Redding sought EEO counseling. Def.'s SoMF ¶ 1. On August 27, 2013, Redding filed a formal EEO charge. Id. ¶ 3. The charge included a claim of retaliation based on the Division Chief's comments on June 21 and August 21, 2013. See Id. DIA determined that Redding's retaliation claims were not actionable and declined to investigate them. Id. ¶ 4. DIA's investigation into her remaining claims was completed on January 31, 2014. Id. ¶ 5. Redding subsequently requested a hearing before an Equal Employment Opportunity Commission (“EEOC”) administrative judge. See Id. On December 4, 2015, Redding sought leave to amend her EEOC complaint to add certain acts of retaliation that began in December 2014. Id. ¶ 6. The EEOC administrative judge denied her motion for leave to amend. Id. ¶ 7. In May 2016, Redding voluntarily withdrew her request for an administrative hearing. Martinez Decl. ¶ 11 & Ex. 8.[2]

         Because Defendant's exhaustion defense is fit for resolution based on these undisputed facts, without the need for discovery, the Court will treat this part of Defendant's motion as one for summary judgment. See Mount v. Johnson, 36 F.Supp.3d 74, 81-82 (D.D.C. 2014). Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if 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). “Summary judgment is appropriately granted when, viewing the evidence in the light most favorable to the non-movants and drawing all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).

         The Supreme Court's 2002 decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), has led many courts to change how they analyze Title VII's requirement that a plaintiff first exhaust her administrative remedies before filing suit. In particular, since Morgan, district judges in this Circuit have split on how to apply this requirement where the plaintiff has alleged discrete acts of retaliation that occurred after the filing of the EEO charge, as Redding does here. See generally Poole v. U.S. Gov't Publ'g Office, 258 F.Supp.3d 193, 201-02 (D.D.C. 2017) (discussing split); Mount, 36 F.Supp.3d at 84-85 (similar). A majority of the judges who have addressed the issue have held that the plaintiff must separately exhaust each subsequent discrete act of retaliation. See Poole, 258 F.Supp.3d at 201; Mount, 36 F.Supp.3d at 84-85. A minority, however, have held that a plaintiff need not separately exhaust subsequent acts of retaliation that are “like or reasonably related to” the acts of retaliation described in the EEO charge. See Poole, 258 F.Supp.3d at 201-02; Mount, 36 F.Supp.3d at 85-86. Under this second approach, the analysis “centers on whether the allegations that were specifically put before the agency and the new allegations the plaintiff seeks to litigate constitute the same cause of action and are factually similar such that they would be discovered during the agency's investigation.” Mount, 36 F.Supp.3d at 85-86.

         The Court need not choose between these two approaches, because Redding's claims of retaliation (except those concerning the Division Chief's comments in June and August 2013) fail under either. Under the first, more demanding approach, it is clear that Redding did not exhaust these claims because she never raised them with the agency's EEO office. And she fares no better under the second approach, because, as set forth below, the subsequent acts of retaliation are not “like or reasonably related” to the claims that Redding did raise in the EEO charge.

         First, Redding has not exhausted her allegation that, in October 2016, DIA determined she was not eligible for promotion. See Am. Compl. ¶ 58. In Payne v. Salazar, 619 F.3d 56 (D.C. Cir. 2010), the D.C. Circuit concluded that the “like or reasonably related” test (assuming, without deciding, that it remained good law) “necessarily” did not encompass acts of retaliation occurring after end of the administrative investigation, because the investigation could not have uncovered them. See Id. at 65. Here, the administrative proceedings related to Redding's claims ended in May 2016. Martinez Decl. ¶ 11 & Ex. 8. Payne thus compels the conclusion that any claim related to the October 2016 decision about Redding's eligibility for promotion was not properly exhausted.

         Second, Redding has failed to exhaust her allegations that she suffered acts of retaliation starting in April 2014 and during the pendency of her hearing before the EEOC administrative judge.[3] These acts of retaliation were too different in kind from the earlier allegations in her EEO charge to be “like or reasonably related” to them. Her EEO charge claimed that DIA failed to promote her based on her race and age, and that the Division Chief's comments in 2013 amounted to retaliation. Def.'s SoMF ¶ 3. Redding's operative complaint in this Court alleges that she was reassigned to a new position in April 2014; that she was reassigned yet again in November 2014, at which time her title was changed from “Branch Chief” to “Supervisor”; and that since December 2014, she “has shared duties and workspace with co-workers” who have a lower paygrade. Am. Compl. ¶¶ 50-55. The qualitative differences between these later acts of retaliation and the acts alleged in the EEO charge (Redding's nonpromotion and the Division Chief's comments) preclude a finding that they were like or reasonably related to one another, under the test as applied in this Circuit. Cf. Poole, 258 F.Supp.3d at 203 (holding “disparaging statements” were not like or reasonably related to “pay-discrimination” alleged in EEO charge); Thomas v. Vilsack, 718 F.Supp.2d 106, 121-22 (D.D.C. 2010) (holding reduction of duties was not like or reasonably related to “failure to promote” alleged in EEO charge).

         And there is another, independent reason why these later acts of alleged retaliation are not “like or reasonably related” to those in Redding's EEO charge. DIA's investigation could not have been reasonably expected to uncover them, because of the temporal distance between them and the allegations in her EEO charge that were actually investigated. DIA dismissed the sole retaliation claim in her EEO charge, which was based on the Division Chief's comments in June and August 2013, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. See Def.'s SoMF ¶ 4. As will be explained below in Section B of this Opinion, DIA's decision was correct because the Division Chief's comments were not actionable as retaliation.[4] Thus, the investigation was properly limited to a discrete act of nonpromotion that occurred in May of 2013. As such, the investigation could not have reasonably been expected to uncover acts of retaliation that occurred starting in April 2014, almost a year later. Cf. Wedow v. City of Kansas City, 442 F.3d 661, 673 (8th Cir. 2006) (citing Shelton v. Boeing Co., 399 F.3d 909, 912-13 (8th Cir. 2005)) (explaining that investigation initiated four months after end of discrete period in which alleged acts of discrimination occurred could not have been reasonably expected to encompass subsequent acts).

         Thus, Redding has not exhausted her retaliation claim in Count II (except insofar as it arises from the Division Chief's comments in June and August 2013). Redding ...


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