                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
________________________________
                                   )
JASON MOUNT,                       )
                                   )
                    Plaintiff,     )
                                   )
             v.                    )    Civil Action No. 12-CV-1276(KBJ)
                                   )
JEH JOHNSON,                       )
Secretary, Department of           )
                   1
Homeland Security,                 )
                                   )
                    Defendant.     )
                                   )
________________________________ )

                                  MEMORANDUM OPINION

       This employment discrimination case turns on a question of law regarding

whether alleged acts of retaliation that occur subsequent to the plaintiff’s filing of an

administrative Equal Employment Opportunity (“EEO”) charge need to be exhausted

separately. Plaintiff Jason Mount (“Plaintiff” or “Mount”) filed the instant complaint

on August 27, 2013, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, alleging that his employer, the Department of Homeland Security (“DHS” or

“Defendant”), wrongfully refused to select him for 43 different positions that he applied

for within the agency. (See Complaint, ECF No. 1.) Mount maintains that this

extensive series of non-selections was motivated by discriminatory and retaliatory

animus; specifically, Mount alleges that he was not promoted to any of the posts due to

discrimination based on his gender and race (id. ¶¶ 123-143 (Counts I and II)), and that

agency officials also refused to select him because he had previously filed an EEO

1
 Mount filed this action against Janet A. Napolitano in her capacity as Secretary of the Department of
Homeland Security. Jeh Johnson is substituted as defendant pursuant to Fed. R. Civ. P. 25(d).
charge claiming gender and race discrimination on the basis of his supervisor’s

treatment of him (id. ¶¶ 144-151 (Count III)).

       Before this Court at present is Defendant’s motion to dismiss the complaint in

part, or in the alternative, motion for partial summary judgment. (Def.’s Partial Mot. to

Dismiss or in the Alternative for Partial Summ. J., (“Def.’s Mot.”), ECF No. 7.)

Offering additional documentation regarding the scope of Mount’s EEO charge,

Defendant argues that only one of the 43 alleged non-selection events listed in Mount’s

complaint was raised in the context of Mount’s EEO complaint; therefore, the rest of

the alleged instances of discrimination/retaliation must be dismissed from the complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust

administrative remedies. (Id. at 1.) 2 Because this Court agrees with Defendant that the

applicable legal standards regarding administrative exhaustion were not satisfied under

the circumstances presented here, the Court concludes that there is no genuine issue of

material fact regarding Mount’s failure to satisfy Title VII’s exhaustion requirement

with respect to all but one of his non-selection retaliation allegations. Therefore,

Defendant’s motion to dismiss the complaint in part, or in the alternative, motion for

partial summary judgment, is GRANTED. As explained below, Counts I and II of the

complaint are dismissed in their entirety, and the only surviving non-selection event for

the purpose of Count III is Mount’s contention that the agency retaliated against him in

the spring of 2011, when officials did not select him for a posted agency position in Los

Angeles. A separate order consistent with this opinion will follow.




2
   Page numbers throughout this opinion refer to the page numbers generated by the Court’s electronic
filing system.

                                                  2
I.     FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

       For the purpose of the pending motion, the essential facts of this matter are not

in dispute. (See Def.’s Reply, ECF No. 9, at 7.) Mount was hired in 2001 to serve as

an employee of the U.S. Customs Service, which is the predecessor agency to U.S.

Immigration and Customs Enforcement (“ICE”), a division of the U.S. Department of

Homeland Security’s Investigations (“HSI”) unit. (Compl. ¶¶ 1, 13.) 3 By 2009, Mount

had been promoted to the position of Branch Chief/Supervisor Special Agent at ICE

headquarters in Washington, DC. (Id. ¶ 14.)

       In November of 2010, Mount filed an administrative EEO complaint alleging

gender discrimination because his then-supervisor, Sharon Peyus, had decided to have

Mount work from a cubicle instead of an office, while giving offices to his female

coworkers. (Id. ¶¶ 15, 22; Ex. 6 to Def.’s Mot., Report of Investigation (“ROI”), ECF

No. 7-6, at 7, 22-24, 27-31.) Mount contends that, as a result of this EEO charge, Peyus

and other agency officials embarked on a series of retaliatory actions (mostly in the

form of non-selections) beginning in January of 2011, and continuing until April of

2012. Notably, as explained below, only some of these alleged retaliatory actions were

raised within the context of Mount’s EEO complaint.

       First, in March of 2011, four months after the filing of his discrimination

complaint, Mount notified the agency that he believed Peyus had taken certain actions



3
  When Mount was first hired, the agency was known as the “United States Customs Service.” (Compl.
¶ 13.) In 2003, the agency’s name was changed to United States Immigration and Customs
Enforcement (“ICE”), which is part of the Department of Homeland Security. See Contreras v. Ridge,
305 F. Supp. 2d 126, 128 n.1 (D.D.C. 2004). The Homeland Security Investigations (“HSI”) unit is a
subdivision of ICE; as its name suggests, HSI is responsible for investigating “illegal movement of
people and goods into, within and out of the United States.” See http://www.ice.gov/about/offices/
homeland-security-investigations/ (last visited Apr. 9, 2014). HSI maintains offices all over the
country and abroad. Id.

                                                 3
in response to his having brought administrative charges, and he wanted this alleged

retaliation to be included in his EEO complaint. (ROI at 7.) Specifically, Mount

maintained that (1) the parties’ failure to settle the initial claims at mediation

constituted retaliation, and (2) Peyus had withheld training opportunities when she

cancelled Mount’s attendance at a leadership training program and did not permit him

to apply to an ICE fellowship program, and he requested a formal amendment to the

original EEO complaint to include these two new allegations. (Id.) Shortly after that

amendment and also in March of 2011, Mount filed a second EEO complaint, this time

alleging that he was discriminated against on the basis of his race when he was not

selected for an Assistant Special Agent-in-Charge (“ASAC”) position in Las Vegas,

Nevada. (ROI at 13 (“I believe I was not considered for the [Las Vegas] position based

on my race.”); Ex. 7 to Def.’s Mot., Report of Investigation (“Second ROI”), ECF No.

7-7, at 13-14.) Mount had apparently applied to the Las Vegas ASAC position on

October 15, 2010, and had learned that he was not selected for the position on

December 30, 2010. (Second ROI at 3; Ex. 3 to Def.’s Mot., Decl. of Dinisha Brown

(“Brown Decl.”), ECF No. 7-3, at 2.) Claude Arnold, who was the Special Agent-in-

Charge of the Los Angeles HSI office, made the selection for that Las Vegas ASAC

position, which a three-member evaluation panel and HSI’s National Director for

Operations approved. (ROI at 54-57; Arnold Aff. ¶¶ 5, 13, 17-35, 28-31.) Mount, who

is Caucasian (Compl. ¶ 135), asserted in his second EEO complaint that the agency had

chosen an African-American man for the position instead of him solely because of race.

(ROI at 12-13.)




                                              4
        Mount then asked the agency to consolidate his two separate administrative

complaints. (See Second ROI at 13-14.) By letter of April 7, 2011, the agency notified

Mount that it had consolidated the complaints such that, with the exception of his

allegations regarding the purportedly retaliatory failure to settle at mediation, the

consolidated administrative complaint addressed all of Mount’s claims up to that point

in time (i.e., his claims that Peyus had discrimination against him on the basis of gender

and had retaliated against him for bringing that EEO charge, and that Arnold had

discriminated against him on the basis of race when he failed to select him for the Las

Vegas ASAC position). (Id. at 14; ROI at 22-24.) An EEO contractor was assigned to

investigate the claims in the consolidated complaint, and that investigator contacted

Mount on May 27, 2011. (Second ROI at 17-18.) An investigation of Mount’s

consolidated EEO complaint took place from May 31, 2011, through August 10, 2011.

(ROI at 4.)

        On August 29, 2011, after the investigation of the claims in Mount’s

consolidated complaint had ended, Mount requested an amendment to his consolidated

EEO complaint. (Second ROI at 13-14.) Mount had applied for a Special Agent-in-

Charge position in HSI’s office in Los Angeles, California on March 21, 2011, and had

learned that he had not been selected on July 14, 2011. (Id.; Brown Decl. at 2.) 4 The

same person who had not selected Mount for the Las Vegas position (Claude Arnold)

also made the selection determination regarding the Los Angeles post. (Second ROI at

19-20.) Mount maintained that the only reason Arnold did not select him for the Los


4
  In the complaint, Mount alleged that he was not selected for the Los Angeles position in February
2011 (Compl. ¶ 23), but it is clear from the record that this non-selection occurred on July 14, 2011.
(See Brown Decl. at 2; Ex. 5 to Def.’s Mot., Decl. of Janet White (“White Decl.”), ECF No. 7-5, ¶¶ 5-
8.)

                                                   5
Angeles position was the fact that Mount had previously filed an administrative

complaint against Arnold; therefore, Mount requested that his consolidated EEO

complaint be amended in order to include an additional charge of retaliation based on

the Los Angeles non-selection. By letter dated November 14, 2011, the agency granted

his request. (Second ROI at 13-14.) Notably, the agency’s grant letter specifically

addressed the agency’s policy regarding such amendments:

           While a complaint is pending, a Complainant may raise a new incident
           of alleged discrimination that is not a part of the existing claim but
           may be like or related to the pending claim. If the new claim is like or
           related to claim(s) raised in the pending complaint, the pending
           complaint may be amended to include the newly-raised allegation and
           there is no requirement to seek counseling on the new claim. EEOC
           Management Directive 110, Chapter 5; III B. Your client’s complaint
           is hereby amended to include this issue.

(Id. at 14.)

       Having amended Mount’s EEO complaint to include a retaliation allegation

stemming from the denial of the Los Angeles ASAC position, the agency then appointed

a new EEO investigator to inquire into this new charge. (Second ROI at 1.) The new

investigation commenced on May 17, 2012, and the record establishes that the

investigator contacted Mount’s attorney to seek information regarding the entirety of

the newly-amended administrative complaint—not just the added Los Angeles ASAC

non-selection event. (Id. at 1, 15-16.) Mount’s lawyer rebuffed the investigator’s

expansive inquiry, explaining that most of “the issues have already been covered by the

original [investigation,]” so “[t]he only issue you should be investigating is the LA

job[.]” (Id. at 16 (emphasis added)); see also id. at 15 (in an email to the investigator,

Mount’s attorney reiterates that “the only relevant issue that was not investigated in the

already completed [Report of Investigation]” is the Los Angeles position, so it is “the

                                             6
only issue that you have a right to compel cooperation from Mr. Mount and it is the

only issue we’ve addressed”).) In addition, consistent with Mount’s attorney’s

statements, the declaration that Mount submitted in response to the investigator’s

inquiries provided information about the Los Angeles position only. (Id. at 19-20.)

The EEO investigation into Mount’s additional charge of retaliation as a result of his

non-selection for the Los Angeles ASAC position concluded on July 19, 2012. (Id. at

1.)

        Mount filed the instant lawsuit on July 21, 2012. According to the complaint,

from January 19, 2011, to April 25, 2012—a period of time that spans the agency’s

months of investigation regarding the charges in the consolidated and amended

administrative complaint—Mount applied for and was not selected for more than 40

other vacancies within the agency in a wide variety of geographic locations. (See
                       5
Compl. ¶¶ 24-117.)         The complaint states that Mount “initiated this request because he

has not received fair consideration as a result of retaliation for his EEO activities and

discrimination for any of the forty-three lateral [ ] positions he has applied for since

October 15, 2010” (Id. ¶ 121 (emphasis in original)), and it claims that the listed series

of non-selections constituted gender (Count I) and race (Count II) discrimination, and

also retaliation (Count III) in violation of Title VII. (Id. ¶¶ 123-151.)

        Significantly, Mount’s initial EEO charges (i.e., Peyus’s alleged discriminatory

refusal to give him an office and her alleged retaliatory denial of his requests for


5
  For example, Mount applied to and was not selected for the following positions: Assistant Special
Agent-in-Charge of various HSI offices (Compl. ¶¶ 24 (Miami, Florida), 95 (Long Beach, California));
Deputy Special Agent-in-Charge positions in HSI offices around the country (see, e.g., id. ¶¶ 89
(Tampa, Florida), 101 (Miami, Florida)); Resident Agent-in-Charge of HSI’s Providence, Rhode Island
office (id. ¶ 39); Deputy Assistant Director of HSI’s Washington, D.C.-based Office of Intelligence (id.
¶ 33); Unit Chief in HSI’s Washington, D.C. office (id. ¶ 25); and ICE attaché positions abroad (id. ¶¶
42, 52).

                                                   7
training) do not appear in the instant complaint, nor does the complaint specifically

reference the Las Vegas non-selection incident. Instead, the complaint opens with the

general assertion that Mount “was involved in protected EEO activity on November 30,

2010[,]” and it then marches through a series of subsequent opportunities for vacant

positions, beginning in early January of 2011, that Mount purportedly applied for but

allegedly was denied due to discriminatory and retaliatory animus. (See, e.g., id. ¶¶ 16-

118.)

        For the great majority of the non-selection allegations, the complaint alleges

generally that “HSI management” repeatedly “passed [him] over” for positions “in

retaliation for his EEO activity.” (See, e.g., id. ¶¶ 23, 24, 27, 29, 31, 40, 43, 46, 50, 53,

56, 58, 59, 64, 69, 71, 73, 75, 79, 81, 87, 90, 92, 94, 96, 98, 100, 102, 104, 106, 108,

110, 112, 114, 116, 118.) For just a handful of the claims, Mount provides more

information. For example, Mount alleges that he applied to a Deputy Assistant Director

position in the Washington, D.C.-based HSI Office of Intelligence in June 2011, and

that HSI Assistant Director James Chaparro informed him that he had not chosen Mount

for the position. (Id. ¶¶ 33-34.) The complaint’s allegations regarding the vast

majority of the non-selection events do not include any information about the selecting

officer. Moreover, there is no dispute that the only non-selection event in the instant

complaint that Mount also specifically raised with the EEO was the July 14, 2011, non-

selection for the Los Angeles ASAC position, and as noted, Mount’s specific EEO

charge was that the Los Angeles non-selection incident had occurred in retaliation for

prior EEO activity.




                                              8
         On March 4, 2013, Defendant filed the present motion to dismiss the complaint

in part, or in the alternative, motion for partial summary judgment, arguing that the only

non-selection event in the complaint that was adequately exhausted was Mount’s

allegation that he was “passed over for an ASAC position in Los Angeles” in February

of 2011 (Compl. ¶ 23), and that, consequently, Mount’s remaining non-selection

allegations should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

(See Def.’s Mot. at 1.) This Court heard oral argument on Defendant’s motion on

August 27, 2013.


   II.      LEGAL STANDARD

            A. Motion To Dismiss Under Rule 12(b)(6) For Failure To Exhaust
               Administrative Remedies

         “Before filing suit, a federal employee who believes that her agency has

discriminated against her in violation of Title VII must first seek administrative

adjudication of her claim.” Payne v. Salazar, 619 F.3d 56, 58 (D.C. Cir. 2010) (citation

omitted), rev’d on other grounds by 619 F.3d 56 (D.C. Cir. 2010); see 42 U.S.C.

§1000e-16(c). The exhaustion requirements under Title VII, which are explained infra

in Part III.A, are mandatory but not jurisdictional. See Douglas v. Donovan, 559 F.3d

549, 556 n.4 (D.C. Cir. 2009). Instead, these exhaustion requirements are akin to a

statute of limitations, and failure to exhaust is raised as an affirmative defense. See

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Koch v. Walter, 935 F.

Supp. 2d 164, 170 (D.D.C. 2013). Accordingly, the defendant “bears the burden of

proving by a preponderance of the evidence that the plaintiff has failed to exhaust his

administrative remedies.” Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 276 (D.D.C.

2011) (citing Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)). Moreover,

                                             9
motions to dismiss Title VII claims for failure to exhaust administrative remedies are

analyzed under Federal Rule of Civil Procedure 12(b)(6). See Porter v. Sebelius, 944 F.

Supp. 2d 65, 68 (D.D.C. 2013) (citing Rosier v. Holder, 833 F. Supp. 2d 1, 5 (D.D.C.

2011)); see, e.g., Peters v. District of Columbia, 873 F. Supp. 2d 158, 178-79 (D.D.C.

2012); Noisette v. Geithner, 693 F. Supp. 2d 60, 65 (D.D.C. 2010) (citation omitted).

       “A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]” Browning

v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       In deciding whether to dismiss a complaint for failure to state a claim, the court

“must treat the complaint’s factual allegations—including mixed questions of law and

fact—as true and draw all reasonable inferences therefrom in the plaintiff’s favor.”

Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 13 (D.D.C. 2010) (citing Holy Land

Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003)). Moreover,

when deciding a Rule 12(b)(6) motion, a court generally does not consider matters

beyond the pleadings. Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117,

119-20 (D.D.C. 2011). This means that the court may consider “the facts alleged in the

complaint, documents attached as exhibits or incorporated by reference in the

complaint, or documents upon which the plaintiff’s complaint necessarily relies even if

the document is produced not by the plaintiff in the complaint but by the defendant in a

motion to dismiss[.]” Id. at 119 (internal quotation marks and citations omitted);

Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (same). However, if the



                                            10
court considers documents outside this narrow orbit—i.e., if it considers documents

other than those attached to or specifically referenced in the complaint or those upon

which the complaint necessarily relies—the court must convert the motion from one

that is made under Rule 12(b)(6) to a motion for summary judgment under Rule 56. See

Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as

one for summary judgment under Rule 56.”).


          B. Conversion To Summary Judgment

       In this case, the complaint does not contain any attachments; however, both

parties have attached a number of documents to their briefs regarding the instant motion

to dismiss. Defendant has submitted the following: (1) a statement of material facts

not in genuine dispute (ECF No. 7-1); (2) the agency’s Report of Investigation (“ROI”)

regarding Mount’s initial EEO case, which includes Mount’s first administrative

complaint and documents the agency prepared during their investigation (ECF No. 7-6);

and (3) the contractor’s ROI of Mount’s consolidated administrative complaint ,

including Moutn’s second EEO complaint (ECF No. 7-7). Defendant has also submitted

declarations of ICE employees Claude Arnold (ECF No. 7-2), Dinisha Brown (ECF No.

7-3), Katherine Pull (ECF No. 7-4), and Janet White (ECF No. 7-5). For his part,

Mount has submitted the following additional documents in conjunction with his

opposition to Defendant’s motion: (1) a statement of genuine issues (ECF No. 8-1); (2)

a Rule 56(d) affidavit of Plaintiff’s counsel, in which counsel states that discovery is

needed to identify the individuals involved in the selections (ECF No. 8-3); and (3)




                                            11
excerpts from the same ROIs that are attached to Defendant’s motion (ECF Nos. 8-4, 8-

5).

       Because Mount’s complaint does not discuss or describe his EEO charge in any

respect, the ROIs from the agency and related documents that the parties have

submitted are not materials upon which the complaint “necessarily relies,” nor does the

complaint quote or refer to those materials. The Court’s consideration of these

additional materials thus implicates the conversion rule, and indeed, Mount appears to

agree with Defendant that conversion to summary judgment is appropriate. (See Pl.’s

Mem. in Opp’n to Def.’s Partial Mot. to Dismiss or in the Alternative Mot. for Partial

Summ. J. (Pl.’s Opp’n”), ECF No. 8, at 9 (“Defendant’s motion cannot be decided on a

Rule 12(b)(6) motion[.] . . . [T]his case must be decided under the Rule 56 standard.”

(citation omitted)).) At the same time, Mount contends in his Rule 56(d) affidavit that

summary judgment is premature at this stage of the litigation, because he wishes to take

discovery regarding certain non-selections in order to determine who made the

challenged hiring determinations. (Pl.’s Opp’n at 20; Rule 56(d) Aff. of Morris E.

Fischer, ECF No. 8-3.) Defendant maintains that no further discovery is needed

because the bulk of the case must either be dismissed, or summary judgment must be

entered in its favor, due to the exhaustion deficiency. (Def.’s Reply at 11-12.)

       Exercising the considerable discretion that district courts are afforded when

deciding whether or not to convert a motion to dismiss into a motion for summary

judgment, see Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006)

(citation omitted); see also Dial A Car, Inc. v. Transp., Inc., 82 F.3d 484, 493 (D.C.

Cir. 1996) (Silberman, J., concurring in part and dissenting in part), this Court



                                            12
concludes that conversion is appropriate here and will treat Defendant’s motion as a

motion for summary judgment under Rule 56 with respect to the exhaustion issue only.

See, e.g., Pintro v. Wheeler, No. 13-0231, 2014 WL 1315976, at *4 (D.D.C. Apr. 2,

2014) (converting defendant’s 12(b)(6) motion to dismiss to a motion for summary

judgment with respect to the plaintiff’s failure to exhaust administrative remedies).

This Court concludes that such treatment is “fair to both parties[,]” Tele-Commc’ns of

Key West, Inc. v. United States, 757 F.2d 1330, 1334 (D.C. Cir. 1985), because both

parties here have had an opportunity to address the conversion question, and also

because the Court’s consideration of summary judgment at this juncture relates only to

the documents and materials that have been submitted to address exhaustion and will

not preclude further discovery on the merits of any surviving claims. Moreover, the

submitted materials, and in particular, the ROIs, are the only record evidence that

establishes the particular charges Mount brought in the EEO context, which means, as a

practical matter, that the only way to assess adequately Defendant’s exhaustion

arguments is to consider them. Cf. Ryan-White v. Blank, 922 F. Supp. 2d 19, 22-23

(D.D.C. 2013) (noting that “[i]f extra-pleading evidence is comprehensive and will

enable a rational determination of a summary judgment motion, a district court will be

more likely to convert to summary judgment” (internal quotation marks and citation

omitted)). Consequently, this Court will not exclude the agency ROIs and the

additional materials the parties have submitted insofar as they relate to the exhaustion

issue; hence, Defendant’s motion will be treated as one for summary judgment under

Rule 56 rather than as a 12(b)(6) motion to dismiss.




                                            13
          C. Summary Judgment Standard

       Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and [thus] the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a); accord Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.

2011). “A fact is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.’” Steele v.

Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986)).

       When Rule 56 is invoked, the moving party has the initial burden of

demonstrating the absence of a genuine dispute as to any material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden,

to defeat the motion, the non-moving party must designate “specific facts showing that

there is a genuine issue for trial.” Id. at 324 (citation omitted). While the Court must

view this evidence in the light most favorable to the non-moving party and draw all

reasonable inferences in that party’s favor, see, e.g., Grosdidier v. Broad. Bd. of

Governors, Chairman, 709 F.3d 19, 23 (D.C. Cir. 2013), the non-moving party must

show more than “[t]he mere existence of a scintilla of evidence in support of” his or her

position—“there must be evidence on which the jury could reasonably find for [the non-

moving party].” Anderson, 477 U.S. at 252. Moreover, the non-moving party “may not

rest upon mere allegation or denials of his pleading but must present affirmative

evidence showing a genuine issue for trial.” Laningham v. U.S. Navy, 813 F.2d 1236,

1241 (D.C. Cir. 1987) (internal quotation marks and citation omitted).



                                            14
        The Court further notes that “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not

those of a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d

354, 358 (D.C. Cir. 2013) (citation omitted). Rather, the Court’s role in deciding a

summary judgment motion is not to “determine the truth of the matter, but instead

decide only whether there is a genuine issue for trial.” Id. (citation omitted).


    III.    DISCUSSION

            A. Title VII Exhaustion Requirements

        Defendant argues that it is entitled to entry of judgment in its favor with respect

to all of the alleged discriminatory and retaliatory non-selections in Mount’s complaint,

except for the non-selection for the Los Angeles ASAC position, because Mount failed

to exhaust administrative remedies with respect to all of the other alleged non-selection

events. (Def.’s Mot. at 1.) Title VII’s administrative exhaustion requirement is clearly

established: an employee must contact an EEO counselor to initiate informal

counseling within 45 days of learning of the allegedly discriminatory event or adverse

personnel action. 29 C.F.R. § 1614.105; see also Woodruff v. Peters, 482 F.3d 521, 527

(D.C. Cir. 2007); Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Thereafter,

the employee must file a formal administrative complaint within 180 days of the event.

19 C.F.R. § 1614.106(a)-(c); see also Hamilton v. Geithner, 666 F.3d 1244, 1250-51

(D.C. Cir. 2012). 6 The employee may amend the administrative complaint at any time

prior to the conclusion of the agency’s investigation, 29 C.F.R. § 1614.106(d); however,

after receiving notice of the agency’s final action, the employee must file his or her

6
  Although not at issue here, the time period is extended to 300 days if a parallel state agency was
investigating the claim along with the EEO office. See 19 C.F.R. § 1614.106(a)-(c).

                                                   15
civil action in federal court within 90 days. Id. § 1614.407; 42 U.S.C. § 42-2000e-

15(c); see also Colbert v. Potter, 471 F.3d 158, 160 (D.C. Cir. 2006).

       “These procedural requirements governing [a] plaintiff’s right to bring a Title

VII claim in federal court are not trivial.” Rattigan v. Gonzales, 503 F. Supp. 2d 56, 68

(D.D.C. 2007). Rather, administrative exhaustion is meant to give the “agency notice

of a claim and [the] opportunity to handle it internally,” Guerrero v. Univ. of District of

Columbia, 251 F. Supp. 2d 13, 21 (D.D.C. 2003) (alteration in original), which

preserves the court’s time and resources, Hamilton, 666 F.3d at 1350-51.

       In National Railroad Passenger Corp. v. Morgan, the Supreme Court addressed

the administrative exhaustion requirement as it relates to multiple allegations of

discrimination. 536 U.S. 101, 114-15 (2002). Prior to Morgan, an administrative

complaint was construed to encompass all incidents that are “‘like or reasonably related

to’ the allegations contained in the charge,” regardless of whether the specific incidents

of discrimination had been specifically brought to the investigating agency’s attention.

Smith-Thompson v. District of Columbia, 657 F. Supp. 2d 123, 136 (D.D.C. 2009)

(quoting Park, 71 F.3d at 907). This is known as the “continuing violation” doctrine,

and before Morgan, courts relying on this doctrine permitted a plaintiff to bring suit and

recover for all related incidents, even those that were not specifically exhausted. See

Morgan, 536 U.S. at 115-17. The Morgan Court rejected the “continuing violation”

doctrine insofar as it related to discrete acts of discrimination or retaliation, holding

that a Title VII plaintiff must file an administrative charge for each incident, even when

the other claims are like or related to acts alleged in a timely-filed administrative




                                             16
complaint. Smith-Thompson, 657 U.S. at 136 (citing Morgan, 536 U.S. at 114-15). 7

Thus, as a general rule, a “Title VII plaintiff must timely exhaust administrative

remedies for each discrete act alleged[,]” even if the acts are related. Laughlin v.

Holder, 923 F. Supp. 2d 204, 209 (D.D.C. 2013) (emphasis added) (citing Morgan, 536

U.S. at 110, 115).

       Morgan dealt specifically with a factual scenario involving allegations of

discrete discriminatory acts that had occurred before the plaintiff filed an administrative

complaint, and the Supreme Court did not address exhaustion in the context of

discriminatory or retaliatory incidents that occurred after an administrative complaint is

filed. See 536 U.S. at 115-16. Prior to Morgan, “courts generally held that a plaintiff

was not required to separately exhaust her administrative remedies for retaliation claims

arising after the filing of an administrative complaint.” Smith-Thompson, 657 F. Supp.

2d at 136 (collecting cases). But now, in the wake of Morgan, there is considerable

uncertainty regarding how such claims should be treated; even district judges within

this jurisdiction are at odds regarding “the extent to which Morgan [also] requires

exhaustion of claims based on discrete discriminatory [or retaliatory] acts that occurred

after the filing of an EEO charge.” Rashad v. Wash. Metro. Area Transit Auth., 945 F.

Supp. 2d 152, 166 (D.D.C. 2013); see also Carson v. Sim, 778 F. Supp. 2d 85, 98




7
  A different standard applies for hostile work environment claims, which necessarily involves a
pattern of conduct over a period of time. The acts that give rise to a hostile work environment—a claim
that Mount has not made in the instant case—need not be exhausted separately because they are not
considered to be discrete events. See Nichols v. Truscott, 424 F. Supp. 2d 124, 133 n.9 (D.D.C. 2006)
(“[A] plaintiff who has properly exhausted [a single hostile work environment] claim may in federal
court support it with related conduct that was not part of her administrative claim[.]” (citation
omitted)); see also Nguyen v. Mabus, 895 F. Supp. 2d 158, 172 (D.D.C. 2012) (same). To this extent,
even after Morgan, the “continuing violation doctrine” is alive and well with respect to hostile work
environment claims.

                                                  17
(D.D.C. 2011) (noting the “unresolved discord” within this circuit); Hernandez v.

Gutierrez, 656 F. Supp. 2d 101, 104-05 (D.D.C. 2009) (same).

       In general, in the years since Morgan, judges in this district have traveled down

one of two paths when evaluating whether separate exhaustion is required for claims of

discrimination or retaliation that are based on events alleged to have occurred after the

filing of an administrative complaint. Many of the judges who have considered this

question have held that a plaintiff alleging discrete acts of discrimination or

retaliation—including those filed after an administrative complaint—must exhaust his

administrative remedies with respect to the later-occurring incidents even if they are

related to the claims in the administrative complaint. Rashad, 945 F. Supp. 2d at 166

(Morgan “changed [the] generous assumption” that no separate exhaustion was

required); Romero-Ostolazo v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005)

(“Although Morgan bars recovery for, on its facts, discrete acts occurring before the

statutory time period, Morgan has, on the whole, been understood to also bar discrete

acts occurring . . . after the filing of an administrative complaint, when a plaintiff does

not file a new complaint or amend the old complaint but instead presents these acts for

the first time in federal court.” (citations omitted)). This appears to be the majority

view. See, e.g., Rashad, 945 F. Supp. 2d at 166-67 (Collyer, J.) (“This Court is of the

opinion that discrete acts of discrimination and retaliation require discrete charges and

an opportunity for investigation before litigation.” (citing Morgan, 536 U.S. at 114));

Hunter v. District of Columbia, 797 F. Supp. 2d 86, 95 (D.D.C. 2011) (Berman Jackson,

J.) (noting that “[c]ourts in this district have applied Morgan in holding that a plaintiff

must exhaust his administrative remedies with respect to distinct acts that occurred after



                                             18
the filing of an administrative charge” (citation omitted)); accord Reshard v. Lahood,

No. 87-2794, 2010 WL 1379806, at *13 (D.D.C. Apr. 7, 2010) (Walton, J.), aff’d, 443

F. App’x 568 (D.C. Cir. 2011), cert. denied 132 S. Ct. 2442 (2012); Camp v. District of

Columbia, No. 04-234, 2006 WL 667956, at *7-8 (D.D.C. Mar. 14, 2006) (Kollar-

Kotelly, J.); Romero-Ostolazo, 370 F. Supp. 2d at 149 (Lamberth, J.); Keeley v. Small,

391 F. Supp. 2d 30, 40-41 (D.D.C. 2005) (Bates, J.); Coleman-Adebayo v. Leavitt, 326

F. Supp. 2d 132 (D.D.C. 2004) (Friedman, J.), amended in part on other grounds by 400

F. Supp. 2d 257 (D.D.C. 2005); Bowie v. Ashcroft, 283 F. Supp. 2d 25, 34 (D.D.C.

2003) (Facciola, M.J.). These cases tend to highlight Morgan’s “emphasis on strict

adherence to procedure and on the severability of discrete acts” of discrimination, and

also the Supreme Court’s “rejection of the various continuing violation doctrines of the

Circuit Courts[.]” Romero-Ostolazo, 370 F. Supp. 2d at 149. This approach also

underscores the recognized purposes of the exhaustion requirement, which are to

“ensure[] that only claims [that a] plaintiff has diligently pursued will survive” and to

“encourage[] internal, less costly resolution of Title VII claims.” Id. (internal quotation

marks and citations omitted).

       But there are other judges in this district who, under certain circumstances, have

not read Morgan to disallow unexhausted retaliation claims based on events that occur

after the filing of an administrative charge. See, e.g., Nguyen v. Mabus, 895 F. Supp.

2d 158, 183 (D.D.C. 2012) (Sullivan, J.); Pierson v. Wash. Metro. Transit Auth., 821 F.

Supp. 2d 360, 365-66 (D.D.C. 2011) (Urbina, J.); Thomas v. Vilsack, 718 F. Supp. 2d

106, 121 (D.D.C. 2010) (Kay, M.J.); Hazel v. Wash. Metro. Area Transit Auth., No. 02-

1375, 2006 WL 362693, at *8 (D.D.C. Dec. 4, 2006) (Roberts, J). This line of cases



                                            19
                 distinguishe[s] retaliation claims that arise after a plaintiff
                 has filed an administrative complaint [from those that arose
                 before the administrative complaint is filed], holding that
                 separate exhaustion is not required for those later acts of
                 retaliation that would have come within the scope of any
                 investigation that reasonably could have been expected to
                 result from the initial administrative charge[.]

Nguyen, 895 F. Supp. 2d at 183 (internal quotation marks omitted) (citing Hazel, 2006

WL 3623693, at *8). Cases that follow this reasoning—which appears to be the

minority view in this jurisdiction—typically hold that no separate exhaustion is

required if subsequent alleged retaliatory acts are “of a like kind to the retaliatory acts

alleged in the EEOC charge” such that they necessarily would have come within the

“scope of any investigation that reasonably could have been expected to result from

[the] initial charge of discrimination.” See Hazel, 2006 WL 3623693, at *5, 8 (citations

omitted). The rationale behind this viewpoint is that the administrative complaint puts

the agency on notice of the possibility of further retaliation; therefore, the agency

should be aware of any later-occurring incidents, and its investigation would be likely

to encompass such incidents. See id. (noting that a reasonable investigation “would

certainly have focused” on whether the retaliation alleged in the complaint “continue[d]

to exist at the time of the investigation” (citation omitted)). Thus, the “of a like kind”

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.

       Much like this doctrinal divide within the U.S. District Court for the District of

Columbia, the Courts of Appeals are also split over whether a plaintiff must raise



                                                20
subsequent, related retaliation claims in separate administrative complaints before

bringing them into federal court. Compare Martinez v. Potter, 347 F.3d 1208, 1210

(10th Cir. 2003) (complainant must file a new administrative complaint for all acts of

retaliation that arise subsequent to the filing of the initial administrative complaint)

with Wedow v. City of Kansas City, 442 F.3d 661, 673-74 (8th Cir. 2006) (no need to

exhaust separately acts of retaliation subsequent to the initial administrative complaint

if they would be discovered during a reasonable investigation into the initial allegation)

and Sydnor v. Fairfax Cnty., 681 F.3d 591, 594 (4th Cir. 2012) (no need for separate

exhaustion when “both the EEOC charge and the complaint included claims of

retaliation by the same actor”); see also Simmons-Myers v. Caesers Entm’t Corp., 515

F. App’x 269, 273 n.1 (5th Cir. 2013) (“We note that [the Fifth Circuit case waiving

separate exhaustion for subsequent claims of retaliation] may no longer be applicable

after the Supreme Court’s decision in Morgan[.]”). The D.C. Circuit has repeatedly

declined to weigh in on this matter, see, e.g., Payne, 619 F.3d at 65 (declining to decide

whether Morgan “did in fact overtake th[e] line of cases” that held that plaintiffs may

still bring unexhausted claims that are “like or reasonably related to” claims they did

file with their agencies); Weber v. Battista, 494 F.3d 179, 183-84 (D.C. Cir. 2007)

(recognizing the circuit split but concluding that “we need not adopt either of the

forgoing views” to resolve the matter before it), which means that, to resolve the instant

dispute, this Court seemingly must make its own determination regarding whether or

not Morgan requires separate exhaustion of acts of alleged retaliation that occur

subsequent to the filing of an administrative action. Alternatively, as explained below,

this Court may reasonably conclude that this Rubicon need not be crossed in the context



                                             21
of the instant case because Mount’s complaint misses the mark by any legal standard.

See, e.g., Coleman v. Johnson, No. 12-1352, 2014 WL 116150, at *7 (D.D.C. Jan. 14,

2014) (declining to decide whether the “like or reasonably related” standard is still

alive after Morgan because the plaintiff’s claims did not satisfy that standard).


          B. Mount Was Required To Exhaust Each Of The Non-Selection
             Retaliation Events He Alleges In His Complaint Under The
             Circumstances Presented Here

       As noted, the question for this Court is whether the series of allegedly

discriminatory or retaliatory non-selections that Mount lists in his complaint—which

occurred after he filed his first administrative action—needed to be exhausted

separately or whether it was sufficient for exhaustion purposes that Mount had

previously filed an EEO complaint that alleged, among other things, discrimination and

retaliation with respect to one non-selection event. Defendant would have this Court

conclude that, after Morgan, plaintiffs are required to exhaust separately all discrete

acts of discrimination or retaliation, including those that occur after a timely filed

administrative complaint. (Def.’s Mot. at 11.) Because it is undisputed here that

Mount did not file an EEO charge for any of the non-selections besides the Los Angeles

ASAC position, Defendant argues that the rest of the retaliatory non-selection claims in

the instant complaint must be dismissed as a matter of law. (Id. at 11, 18.) In response,

Mount asserts that his failure to exhaust does not warrant judgment for Defendant as to

any of the remaining non-selection allegations because the myriad non-selection

incidents arose after he filed an EEO complaint and are necessarily related to that

complaint such that they need not be exhausted separately. (Pl.’s Opp’n at 10.) In

other words, Mount asks the Court to find that Morgan does not apply to alleged acts of


                                             22
retaliatory non-selection that occur after an administrative complaint alleging similar

retaliation is filed. (See id.)

       Although the Court could resolve this matter by choosing sides in the debate

over the impact of Morgan, this Court declines to accept either party’s invitation to

decide the underlying legal issue because the Court concludes that resolution of that

dispute makes no difference in this case. Put bluntly, under the circumstances

presented here, Mount is in a ‘heads, you win; tails, I lose’ situation. There is no

dispute that Mount failed to exhaust each non-selection event separately; thus, the

unexhausted non-selection allegations must be dismissed from the complaint if Morgan

is interpreted to impose that legal requirement. On the other hand, if the legal rule is

that separate exhaustion is required only for those non-selection retaliation events that

were not “like or reasonably related” to Mount’s administrative action, those events

must be dismissed on exhaustion grounds as well because this Court discerns no such

“likeness” when it considers Mount’s specific EEO charge and the pertinent facts

regarding the non-selections at issue here.

       With respect to the first side of Mount’s losing coin, Mount concedes that the

administrative complaints he filed pertained only to the following issues: the allegation

of gender discrimination based on his supervisor’s decision to deny him an office; the

allegation of retaliation based on his supervisor’s denial of training opportunities; the

allegation of race discrimination based on the Las Vegas ASAC non-selection; and the

allegation of retaliation based on the Los Angeles ASAC non-selection. (See Pl.’s Facts

¶¶ 15-16.) Of the exhausted issues, the instant complaint includes only the last event

charged in the EEO complaint—retaliation based on the Los Angeles ASAC non-



                                              23
selection—and it also adds 42 subsequent non-selection events. Thus, the only non-

selection allegation that was exhausted separately was the alleged retaliatory non-

selection for the Los Angeles ASAC position, meaning that, even viewing the facts in

the light most favorable to Mount, he has failed to exhaust administrative remedies with

respect to the other discrete acts of retaliation and discrimination, if such separate

exhaustion is required. See Wedow, 442 F.3d at 673-75; Reshard, 2010 WL 1379806, at

*13; Camp, 2006 WL 667956, at *7-8; Romero-Ostolazo, 370 F. Supp. 2d at 149;

Coleman-Adebayo, 326 F. Supp. 2d at 132; Bowie, 283 F. Supp. 2d at 34.

       On the flip side of Mount’s losing situation is the fact that Title VII’s exhaustion

requirements would not be satisfied here even if this Court applied the minority legal

rule that permits subsequent claims of retaliation to be considered exhausted based on

the filing of a prior EEO complaint. The key to this Court’s conclusion in this regard is

its rejection of Mount’s contention that any and all subsequent retaliation claims are

necessarily and automatically “like or related” to a retaliation claim made in an EEO

complaint. (Pl.’s Opp’n at 18 (“[R]etaliation claims that are in response to an EEO

charge relate to that EEO charge and are therefore properly exhausted because they are

‘like or related’ to the original charge[.] All of Mount’s [ ] retaliation claims relate to

his EEO charge because they were in response to that charge and are therefore not

barred.”).) No court in this district has adopted an approach that is as sweeping as the

one Mount proposes. Instead, courts have required that the later-occurring incidents be

“of a like kind” to those in the administrative complaint, insofar as they involve the

same cause of action and similar facts such that the subsequent events would likely

have been discovered during the agency’s EEO investigation of the initial charge; and



                                             24
in some cases, courts also require that the plaintiff specifically allege that the

subsequent incidents were part of the same “ongoing” conduct. See, e.g., Hazel, 2006

WL 3623693, at *8.

       When this alternate legal standard is properly understood, it is clear that Mount’s

myriad non-selection retaliation claims cannot be deemed exhausted even under this

approach. As noted above, Mount’s first EEO complaint pertained to gender

discrimination based on Peyus’s refusal to give Mount an office and alleged retaliation

based on her refusal to allow Mount to participate in certain training programs. (ROI at

5-7 (initial EEO complaint regarding office denial); id. at 7-8 (amendment regarding

denial of training).) Even viewing the evidence in the light most favorable to Mount, as

summary judgment requires, the incidents reported in the EEO complaint and the

unexhausted non-selection allegations are not “of a like kind” as a matter of law,

because they involve entirely different causes of action. See Hazel, 2006 WL 3623693,

at *6 (noting that the subsequent acts of retaliation must match the retaliation alleged in

the EEOC charge); see also Koch, 935 F. Supp. 2d at 174 (noting that it “does not seem

reasonable to expect that [an] EEO Office would have examined” how certain actions

were retaliatory in their administrative investigation if the complaint only addressed

their “discriminatory nature”); Jones v. Bernanke, 685 F. Supp. 2d 31, 37 (D.D.C. 2010)

(same). Nor is there any reason to believe that the agency would have discovered the

later retaliatory non-selections during the course of an investigation into retaliation

allegations involving entirely different facts and individuals. See, e.g., Pierson, 821 F.

Supp. 2d at 366 (although both the exhausted claims and the subsequent claims alleged

retaliation, the agency’s investigation into a wrongful termination claim in the



                                             25
administrative complaint would not reasonably have resulted in inquiry into denial of

vacation benefits). The agency cannot reasonably have been expected to inquire into

Mount’s applications for scores of jobs across the country in the course of investigating

a particular supervisor’s decisions regarding offices and training programs. Thus,

Mount’s many retaliatory non-selections cannot be deemed exhausted by virtue of his

initial gender discrimination administrative complaint and amendment.

       To the extent that Mount’s exhaustion argument is based on his second EEO

complaint, which alleged that his non-selection for a Las Vegas ASAC position

constituted race discrimination (Second ROI at 8) and was eventually consolidated with

his initial EEO complaint, his argument fares no better. The connection between the

second administrative complaint and the unexhausted retaliation claims is certainly

closer: it involves a non-selection, as do the later retaliation claims; but in the

administrative complaint, Mount alleged that he was denied the selection due to race

discrimination, not retaliation. (See id.) The claims therefore allege different causes of

action, which is fatal to their classification as being “of a like kind.” See Jones, 685 F.

Supp. 2d at 37. Moreover, and in any event, given the timeframe of the agency’s

investigation of Mount’s race discrimination claim, Mount undoubtedly had an

obligation to mention other positions to which he had applied and not been selected for

during this same period, and the record establishes that, without such notice, the agency

would not reasonably have been aware of the fact that alleged discriminatory or
                                                             8
retaliatory non-selections were happening elsewhere.


8
  Mount amended his EEO complaint to include the allegedly discriminatory non-selection for the Las
Vegas ASAC position on December 30, 2010, and the investigation into that claim took place from May
31, 2011, through August 10, 2011. (ROI at 4; Second ROI at 3.) In the complaint, Mount alleges that
he applied to and was not selected for over ten positions in other offices during that same period.

                                                26
       The last possible way in which Mount’s list of unexhausted non-selections could

be considered “like or related” to his pending EEO complaint is as a result of the final

amendment to the consolidated EEO complaint in which Mount alleged that his non-

selection for an ASAC position in Los Angeles in July of 2011 constituted retaliation.

The Court finds that the agency had notice of Mount’s belief that his employer’s

decision not to select him for the Los Angeles position constituted retaliation for his

earlier EEO activity as of November 14, 2011, when the agency approved Mount’s

requested amendment. (See Second ROI at 19-20.) But with respect to the more than

25 retaliatory non-selections that occurred after Mount amended the administrative

complaint to include the Los Angeles non-selection (see Compl. ¶¶ 49-118), the

particular undisputed facts of the instant matter preclude a finding that these claims

were “like or related” to the EEO charge because they likely would have come within

the “scope of any investigation that reasonably could have been expected to result from

[the] initial charge of discrimination.” See Hazel, 2006 WL 3623693, at *8. This is

because, even if a reasonable investigation would have uncovered the additional non-

selection events, Mount and his attorney unequivocally cut off that investigation,

expressly limiting its scope to the Los Angeles non-selection. (See, e.g., Second ROI at

16 (“The only issue you should be investigating is the LA job[.]”).) Indeed, far from

bringing other retaliatory non-selection events to the agency’s attention in the course of

its investigation, Mount did precisely the opposite—stating (through his lawyer) that

the “only relevant issue” is “the job in CA[,]” and “[a]s such, that is the only issue that

you have a right to compel cooperation from Mr. Mount and it is the only issue we’ve




                                             27
addressed.” (Id. at 15; see also id. at 19-20 (Mount’s declaration pertained only to the

Los Angeles position).)

       Having effectively shut down any agency investigation into other non-selections,

Mount cannot now be heard to contend that, if such an investigation would have

proceeded, the agency would have discovered the other retaliatory non-selection events

and thus the complaint’s claims with respect to those incidents should be deemed

exhausted. In other words, regardless of whether the litany of non-selections that

appear in Mount’s complaint are “like or related” to the one he brought to the agency as

a matter of fact, the record here establishes that Mount has waived any argument that

they are, for the very simple reason that he told the agency that no other incidents were

relevant (like or related) to the course of its investigation of the Los Angeles non-

selection event. When coupled with well-established principles of judicial estoppel,

Mount’s waiver is sufficient to dispose of his exhaustion argument, even if Morgan

permits “like or related” subsequent acts of retaliation to be deemed exhausted as a

matter of law. Cf. Moses v. Howard Univ., 567 F. Supp. 2d 62, 65 (D.D.C. 2008)

(“Judicial estoppel is an equitable doctrine that prevents parties from abusing the legal

system by taking a position in one legal proceeding that is inconsistent with a position

taken in a later proceeding.” (citing New Hampshire v. Maine, 532 U.S. 742, 749-50

(2001)); see also, e.g., Moses, 567 F. Supp. 2d at 65 (collecting cases in which

plaintiffs were barred from pursing certain employment discrimination allegations

because they failed to disclose them during bankruptcy proceedings).

       In short, there is no genuine dispute over the fact that Mount’s attorney limited

the scope of the agency’s investigation. It is also clear beyond cavil that it is not likely



                                             28
that the agency would have discovered the unexhausted non-selections during the

course of a reasonable investigation into the Los Angeles non-selection even, given that

Mount himself refused to raise or address any other non-selection incident during the

administrative process. On these facts, there is simply no basis to conclude that any of

the unexhausted retaliatory non-selection events should be deemed exhausted by virtue

of Morgan or any other applicable legal standard. 9


    IV.      CONCLUSION

          It is undisputed that Mount failed to exhaust separately any of the non-selection

allegations in his complaint other than the Los Angeles non-selection incident. There is

also no genuine dispute over the fact that Mount’s attorney limited the scope of the

agency’s investigation into the Los Angeles non-selection incident such that it is

unreasonable and unfair to assume that the agency would have discovered the other

non-selection events about which Mount now complains. Therefore, Defendant’s

motion to dismiss the complaint in part, or in the alternative, motion for partial

summary judgment is GRANTED. Counts I and II of the complaint are dismissed in

their entirety because there is no exhausted allegation of discrimination based on gender




9
   Because the Court finds that Mount’s actions foreclosed the possibility that the EEO investigation of
the Los Angeles ASAC non-selection would uncover the other non-selection incidents, the identity of
the selecting officer for each unexhausted non-selection is of no consequence. Put another way, even in
the unlikely event that the selecting officer was the same individual in all of the unexhausted instances
such that the agency might have otherwise discovered those events based on their relatedness, that fact
is not material here, because Mount limited the scope of that investigation. For this reason, the Court
need not address the plaintiff’s counsel’s Rule 56 affidavit seeking additional discovery into the
identity of the selecting officer. (See ECF No. 8-3.)


                                                   29
or sex in the complaint. 10 With respect to Count III, which alleges retaliation, Mount

can only bring suit based on the Los Angeles non-selection event, and as set forth in the

accompanying order, the remaining non-selections are no longer to be considered part

of this action because Mount failed to exhaust administrative remedies as to those

incidents.


Date: April 10, 2014                                   Ketanji Brown Jackson
                                                       KETANJI BROWN JACKSON
                                                       United States District Judge




10
   As explained previously, Mount’s administrative complaint regarding the Los Angeles ASAC non-
selection event alleged only retaliation, not discrimination based on gender or sex. (See Second ROI at
3 (noting that the accepted amendment to Mount’s administrative complaint pertained to whether the
agency “discriminated against [Mount] based on reprisal (prior EEO activity)” when it did not select
him for the Los Angeles position); id. at 14; see also Pl.’s Opp’n at 3 (“Mount alleged that he was
retaliated against on July 14, 2011, when he was not selected for the [ ] Los Angeles position[.]”).)

                                                  30
