                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 DENNIS NICHOLSON,
         Plaintiff,
         v.                                          Civil Action No. 16-2006 (CKK)
 RAYMOND EDWIN MABUS, JR.,
       Defendant.

                              MEMORANDUM OPINION
                                  (June 27, 2017)

       Presently before the Court is Defendant’s [6] Motion to Dismiss or, in the

Alternative, for Partial Summary Judgment. Plaintiff, proceeding pro se, brings claims

against Defendant Mabus in his official capacity as Secretary of the Navy for gender and

age discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq. and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.

Plaintiff’s action is predicated on him allegedly being denied, because of his gender and

age, an “opportunity to compete for a full-time position as a Custodial Worker . . . .” Compl.

at 2. That position was allegedly filled “with a younger female with less training and

experience than [Plaintiff].” Id. The complaint also appears to contain a putative claim

under the Health Insurance Portability and Accountability Act of 1996 (“HIPPA”), which

has not been challenged by Defendant in the pending motion.

       The Court does not address the merits of Plaintiff’s age and gender discrimination

claims, as they must be dismissed pursuant to binding precedent of the Unites States Court

of Appeals for the District of Columbia Circuit (“D.C. Circuit”). Plaintiff pursued an

administrative appeal with the Equal Employment Opportunity Commission (“EEOC”),

and was consequently required by statute to wait 180 days before filing suit with this Court.



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Because Plaintiff waited less than the 180 days, and because no equitable factors weigh in

favor of excusing this premature filing, Plaintiff’s age and gender discrimination claims

must be dismissed. Accordingly, upon consideration of the pleadings, 1 the relevant legal

authorities, and the record for purposes of this motion, the Court GRANTS Defendant’s

[6] Motion to Dismiss, and Plaintiff’s age and gender discrimination claims are

DISMISSED WITHOUT PREJUDICE.

                                   I. LEGAL STANDARD

          Defendant, inter alia, moves to dismiss for “failure to state a claim upon which

relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A] complaint

[does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual

allegations that, if accepted as true, “state a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678.

          In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the



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    The Court’s consideration has focused on the following documents:

      •   Complaint, ECF No. 1;
      •   Def.’s Mot. to Dismiss or, in the Alternative, for Partial Summ. J., ECF No. 6;
      •   Pl.’s Resp. to Mot. to Dismiss, ECF No. 9.

The Court has received and reviewed the additional evidence of administrative proceedings
submitted by Plaintiff, ECF No. 11, but these do not have bearing on the pending motion.
In addition, the Court notes that Defendant has not filed a reply memorandum. See Minute
Order, Feb. 15, 2017.

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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.” Ward v. District of Columbia Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117,

119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider

documents in the public record of which the court may take judicial notice. Abhe &

Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). In particular, on a motion to

dismiss, the Court “may look to [the] record of another proceeding to avoid unnecessary

proceedings when an undisputed fact on the public record makes it clear that the plaintiff

does not state a claim upon which relief could be granted.” Covad Commc’ns Co. v. Bell

Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005) (internal quotation marks omitted).

       Accordingly, for purposes of the pending motion, the Court takes judicial notice of

the Department of the Navy’s Final Agency Decision, ECF No. 6-2, at 158 (“FAD”), and

a letter issued by the EEOC to Plaintiff stating the docket number of his appeal, and the

date it was filed, ECF No. 6-2, at 167 (“EEOC Letter”). Grant v. Dep’t of Treasury, 194 F.

Supp. 3d 25, 28 n.2 (D.D.C. 2016) (“Final Agency Decision . . . [is] official, public

document[] subject to judicial notice”); Peart v. Latham & Watkins LLP, 985 F. Supp. 2d

72, 81 (D.D.C. 2013) (finding it “appropriate to take judicial notice of the facts contained

in the . . . EEOC letters as they ‘can be accurately and readily determined’ from a public

agency proceeding, the accuracy of which ‘cannot reasonably be questioned’” (citing Fed.

R. Evid. 201(b)(2))). Judicial notice is taken solely for purposes of ascertaining the date

the FAD was issued (August 11, 2016), the claims addressed in the FAD, and the date

Plaintiff filed an appeal of the FAD with the EEOC (August 18, 2016).



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                                     II. DISCUSSION

       As noted, the Court may take judicial notice of the FAD and when it was filed.

Review of the FAD indicates that Plaintiff sought administrative review of the age and

gender discrimination claims at issue in this action. ECF No. 6-2, at 158. The Navy denied

those claims in the FAD on August 11, 2016, and Plaintiff chose to pursue an appeal of the

FAD with the EEOC on August 18, 2016. Id. at 167. As a result of this decision, Plaintiff

was required by statute to “wait 180 days, absent final action by the EEOC, before filing a

lawsuit in the federal district court . . . .” Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir.

2010) (citing 42 U.S.C. § 2000e-16(c)). In Murthy, the D.C. Circuit established that the

180-day waiting period found in section 2000e-16(c) is mandatory; in other words, if a

plaintiff chooses to pursue an EEOC appeal, he must wait 180 days before filing suit in

federal court, unless the EEOC issues a decision before the 180-day period expires.

       Nonetheless, the waiting period is not jurisdictional, and the Court may consider

whether equitable factors excuse the failure to wait. See Martini v. Fed. Nat. Mortg. Ass’n,

178 F.3d 1336, 1348 (D.C. Cir. 1999) (finding that the analogous “180–day waiting period

[of section 2000e–5(b)] is not jurisdictional”); Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 393 (1982) (“filing a timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of

limitations, is subject to waiver, estoppel, and equitable tolling”). Here, Plaintiff plainly

failed to wait 180 days after filing his appeal with the EEOC before bringing suit in federal

court—the case was filed on October 7, 2016, only 50 days after Plaintiff lodged an appeal

with the EEOC—and no equitable factors excusing that failure are apparent from the

Complaint, the pleadings, or the record as a whole for purposes of the pending motion.



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Accordingly, Plaintiff’s age and gender discrimination claims must be dismissed. See

Maybank v. Speer, No. CV 16-1681 (RDM), 2017 WL 1750253, at *2 (D.D.C. May 3,

2017) (dismissing discrimination claims against the United States Army for failure to wait

180 days after filing EEOC appeal).

                                  III. CONCLUSION

       For the foregoing reasons, the Court GRANTS Defendant’s [6] Motion to Dismiss.

Plaintiff’s age and gender discrimination claims are DISMISSED WITHOUT

PREJUDICE.

       An appropriate Order accompanies this Memorandum Opinion.

Dated: June 27, 2017

                                                        /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    United States District Judge




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