United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE.
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. For the reasons explained below, the Court
will grant the motion.
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.
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.
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.
Redding's Asserted Exhaustion of Her Retaliation
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.
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.
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.
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.
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.
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. 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
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. 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).
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 ...