                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


DEBRA CLARK GORDON,                 :
                                    :
                  Plaintiff,        :
                                    :
            v.                      :                 Civil Action No. 09-1262 (RBW)
                                    :
OFFICE OF THE ARCHITECT OF THE :
CAPITOL,                            :
                                    :
                  Defendant.        :
____________________________________:


                                  MEMORANDUM OPINION

       On July 8, 2009, the plaintiff, Debra Clark Gordon, commenced this action against her

employer, the Office of the Architect of the Capitol, alleging discriminatory and retaliatory

employment practices in violation of 2 U.S.C. § 1311(a)(1) and 2 U.S.C. § 1317(a) of the

Congressional Accountability Act (“CAA”). Complaint (“Compl.”) ¶ 1. Currently before this

Court is the Defendant’s Motion to Dismiss, or in the Alternative, for Summary Judgment

(“Def.’s Mot.”), arguing that the “[p]laintiff has failed to exhaust her administrative remedies

with respect to her claims [therefore] this Court lacks jurisdiction to address those claims.”

Def.’s Mot. at 1. Alternatively, the defendant moves for summary judgment stating “that there is

no genuine issue of material fact and [it] is entitled to a judgment as a matter of law.” Id. After

carefully considering the defendant’s motion to dismiss, all relevant memoranda of law, and the
exhibits attached thereto,1 the Court concludes, for the following reasons, that it must grant in

part and deny in part the defendant’s motion.

                                                 I. Background

        The evidence viewed in the light most favorable to the plaintiff is the following. The

plaintiff is an African American female, Compl. ¶ 25, who since January 2005 has been

employed by the defendant, working in the Superintendent’s Office of the Senate Office

Buildings as an Administrative Support Assistant at the GS-08 Step 6 level, id. ¶ 7. On

November 16, 2007, the defendant advertised that it was seeking applications for a GS-03128-9

Supervisory Secretary position in Vacancy Announcement SOB 2008-104. Defendant’s

Statement of Material Facts Not in Dispute (“Def.’s Facts”) ¶¶ 3, 6. Due to an omission in the

initial announcement, the availability of the position was advertised again on two occasions,

once in Vacancy Announcement SOB 2008-014R1A on November 23, 2007, and again in

Vacancy Announcement SOB 2008-014R2A on December 17, 2007. Compl. ¶¶ 10-11; Def.’s

Facts ¶ 6. The plaintiff applied for the position based on the initial announcement and re-applied

again in response to the final announcement, and she was ultimately interviewed for the position.

Compl. ¶¶ 8, 14-15.

        Before the vacancy was announced, the “[p]laintiff was assigned and . . . [had]

perform[ed] the higher graded duties of the vacant position on a regular basis,” and according to



1
  In addition to the Complaint and the Defendant’s Motion to Dismiss, or In the Alternative, for Summary Judgment
and the memorandum submitted in support of the defendant’s motion, the Court considered the following documents
in reaching its decision: (1) the Defendant’s Statement of Material Facts Not In Dispute (“Def.’s Facts”); (2) the
Plaintiff’s Opposition to Defendant’s Statement of Material Facts (“Pl.’s Facts”); (3) the Plaintiff’s Opposition to
Defendant’s Motion to Dismiss, or In the Alternative for Summary Judgment (“Pl’s Opp, ’n”); and (4) the
Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion to Dismiss, or in Alternative, for Summary
Judgment (“Def.’s Reply”).

                                                         2
the plaintiff was therefore “highly qualified” for the Supervisory Secretary position. Id. ¶¶ 15-

16. However, Robin Morey, Superintendent of the Senate Office Buildings and the selecting

official for the position, chose Christine Camera, a Caucasian female, for the position. Def.’s

Facts ¶¶ 9-10; Compl. ¶ 18. On January 24, 2008, Mr. Morey notified the defendant’s Human

Resources Office of his decision using AVUE, a digitalized human resources software package.

Def.’s Facts ¶¶ 5, 11. At the time of her selection, Ms. Camera was a GS Step 1 Time and

Attendance Clerk and had only been employed by the defendant for approximately five months.

Compl. ¶ 19.

         On January 30, 2008, Mr. Morey, in a private conversation with the plaintiff, informed

her of his decision not to select her for the position. Id. at ¶ 17. On the following day, the

plaintiff met with Edwin Lopez, an Equal Opportunity Office specialist in the defendant’s Office

of Employment Opportunity and Conciliation Programs (“Office of Employment Opportunity”),

and “discussed her opposition to the selection of [Ms.] Camarata [sic]” for the Supervisory

Secretary position.2 Id. at ¶ 21. Subsequent to the meeting, the plaintiff informed Mr. Lopez of

her decision to file a complaint concerning her non-selection with the Office of Compliance,

Defendant’s Statement of Material Facts Not in Dispute (“Def.’s Facts”) ¶ 14; Plaintiff’s

Opposition to Defendant’s Statement of Material Facts (“Pl.’s Facts”) ¶ 14, the administrative

body created by the CAA to entertain employment related complaints of congressional

employees, 2 U.S.C. §§ 1301(12), 1402(a). During that same meeting, Mr. Lopez reminded the

plaintiff of the 180 day limit she had to file a request for counseling with the Office of


2
 While Lopez claims that the plaintiff did not allege discrimination during this conversation, Def.’s Mot., Exhibit
(“Ex.”) 4 (Declaration of Edwin Lopez) ¶ 3, the plaintiff posits that her reference to Camera’s race implicitly raised
“‘color’ as a basis of discrimination” in the selection process, Plaintiff’s Opposition to Defendant’s Statement of
Material Facts (“Pl.’s Facts”) ¶ 13.

                                                           3
Compliance as required by the CAA. Def.’s Facts ¶ 14; Pl.’s Facts ¶ 14. However, the Plaintiff

asserts that Lopez did not inform her of the date when the 180 day time period commenced.

Pl.’s Facts ¶ 14. Further, the plaintiff maintains that she was not informed that the effective date

of Ms. Camera’s selection was January 24, 2008, until receiving the defendant’s motion to

dismiss. Plaintiff’s Opposition to Defendant’s Motion to Dismiss, or in the Alternative, for

Summary Judgment with supporting Memorandum of Points and Authorities (“Pl.’s Opp’n”),

Ex. 2 (Declaration of Debra Clark Gordon) ¶ 11.

       On July 28, 2008, the plaintiff requested counseling with the Office of Compliance,

“alleging that she was not selected for a promotion because of [her] race, and was subsequently

constructively demoted, and denied training and other promotional opportunities in retaliation

[for her opposition to] alleged race discrimination.” Def.’s Mot., Ex. 2 (Notice of Invocation of

Mediation). At the conclusion of the counseling period, the plaintiff continued to pursue her

administrative remedies with the Office of Compliance by submitting a request for mediation.

Id. The plaintiff commenced this action when a resolution of her complaints could not be

resolved through the mediation process. Compl. ¶ 5.

       In her Complaint, the plaintiff asserts three claims arising from her non-selection for the

Supervisory Secretary position: (1) “Discrimination based on [her] African American race and

color;” (2) “Retaliation in violation of 2 U.S.C. 1317(a) based on [her] opposition to matters

made unlawful by the CAA and participation in federally protected activities under the CAA;”

and (3) “Retaliation based on [her] participation in federal[ly] protected activities in violation of

section 207(a): creation of a hostile work environment.” Compl. at 5-7. In response, the




                                                  4
defendant filed the motion to dismiss the complaint for lack of subject matter jurisdiction, or in

the alternative, for summary judgment that is the subject of this memorandum opinion.

                                      II. Standards of Review

        As noted above, the defendant seeks dismissal pursuant to Federal Rule of Civil

Procedure 12(b)(1), or in the alternative, summary judgment under Rule 56.

A.      Motion to Dismiss under Rule 12(b)(1)

        A motion to dismiss under Rule 12(b)(1) “presents a threshold challenge to the Court's

jurisdiction . . . [and] the Court is obligated to determine whether it has subject-matter

jurisdiction in the first instance.” Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C. 2009)

(internal citation and quotation marks omitted). When reviewing a motion to dismiss pursuant to

Rule 12(b)(1), the Court must accept as true all of the factual allegations contained in the

complaint. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 164 (1993). Under Rule 12(b)(1), “it is to be presumed that a cause lies outside [the federal

courts’] limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994), unless the plaintiff establishes by a preponderance of the evidence that the Court

possesses jurisdiction, see, e.g., Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 (D.D.C. 2006).

Therefore, the “plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”

Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001)

(internal citation and quotation marks omitted). Finally, in determining whether it has

jurisdiction over the case, the Court “may consider materials outside of the pleadings.” Jerome

Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).


                                                   5
B.      Motion for Summary Judgment

        Before granting a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56, this Court must find that “the pleadings, the discovery and disclosure materials on

file, and any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is one

that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,

477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, “the court must

draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000) (citations omitted). The moving party has the burden of demonstrating the

absence of a genuine issue of material fact, and that the non-moving party “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

        In responding to a summary judgment motion, the non-moving party “must do more than

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.

Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving

party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts

showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (internal

quotation and citation omitted) (second omission in original). Thus, “[i]f the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50

(citations omitted).


                                                   6
                                                   III. Analysis

A.       The Defendant’s Motion to Dismiss Pursuant to 12(b)(1)

         The defendant makes two arguments in support of its contention that this Court lacks

subject matter jurisdiction over the plaintiff’s claims. First, regarding the plaintiff’s allegations

of discrimination resulting from her non-selection for the Supervisory Secretary position, the

defendant argues that the plaintiff did not properly exhaust her administrative remedies under the

CAA before filing suit because her request for counseling was not made within the time period

required by the statute.3 Memorandum of Points and Authorities in Support of Defendant’s

Motion to Dismiss Counts I, II, and III of Plaintiff’s Complaint (“Def.’s Mem.”) at 1.4 Before

initiating a civil action alleging a violation of the CAA, an employee must first complete

counseling as prescribed by 2 U.S.C. § 1402, and mediation as prescribed by 2 U.S.C. § 1403. 2

U.S.C. § 1408 (2006). To commence this process, the employee must first submit a request for

counseling “not later than 180 days after the date of the alleged violation.” 2 U.S.C. § 1402

(2006). The defendant argues that for the purposes of Count I of the Complaint, the alleged

violation of the CAA was the decision to hire Ms. Camera, which occurred on January 24, 2008,

more than 180 days before the plaintiff requested counseling. Def.’s Mem. at 5. In opposition,

the plaintiff contends that she was never informed of the “effective date” of Ms. Camera’s

selection, and thus, her request for counseling was made within 180 days of the date on which

3
  The defendant also argues that the plaintiff did not allege color discrimination in her request for counseling, and
therefore, the Court lacks jurisdiction over this claim due to the plaintiff’s failure to exhaust her administrative
remedies. Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss Counts I, II, and III
of Plaintiff’s Complaint (“Def.’s Mem.”) at 5. However, this Court construes the plaintiff’s claims regarding racial
and color discrimination, this being a case in which the plaintiff is an African American alleging disparate treatment
in regards to a Caucasian coworker, as identical claims.

4
  Because the defendant failed to paginate its memorandum admitted in support of its motion, the Court has taken the
liberty of assigning page numbers to it based on the order in which the papers were submitted to the Court.

                                                          7
she was notified that she had not been selected for the position, which was January 30, 2008.

Pl.’s Opp’n at 14. The plaintiff relies upon three legal theories in support of her position that her

request for counseling was timely under these circumstances: (1) the Delaware State College v.

Ricks, 449 U.S. 250 (1980) “notification rule”; (2) the federal discovery rule; and (3) the

doctrine of equitable tolling. Pl.’s Opp’n at 2.

       Second, in seeking dismissal of the plaintiff’s retaliation and hostile work environment

claims, the defendant states that these claims as pled in Counts II and III of her Complaint are

based on alleged retribution against her “[r]equest for Counseling and requesting and

participating in mediation in the instant matter.” Def.’s Mem. at 5 (quoting Compl. ¶¶ 31, 37).

The defendant argues that “[s]ince [the p]laintiff did not assert the retaliation or hostile work

environment claims during her initial counseling on July 28, 2008, she would need additional

counseling sessions for th[ose] two claims to comply with the CAA three-step process.” Id. at 8.

The plaintiff counters the defendant’s position, arguing that the retaliation claims are also based

on her initial opposition to the alleged discriminatory hiring decision and her meetings with

Lopez, which were included in her request for counseling. Compl. at ¶ 23. Specifically, the

plaintiff states that she “formally, requested counseling on July 28, 2008, alleging that she was

not selected for promotion because of race, and was subsequently constructively demoted, and

denied training and other promotional opportunities in retaliation for opposing alleged race

discrimination.” Pl.’s Facts ¶ 18. Lastly, the plaintiff fails to directly address the defendant’s

argument regarding the creation of a hostile work environment as alleged in Count III of the

Complaint.




                                                   8
         Under the CAA, congressional employees “shall be free from any discrimination based

on race [and] color.” 2 U.S.C. §§ 1301(3)(B), 1311(a)(1). District courts have jurisdiction over

civil actions brought under the CAA, but “only to seek redress for a violation for which the

employee has completed counseling and mediation.” 2 U.S.C. § 1408(a). And the CAA requires

that a request for counseling be made within 180 days of the alleged violation. 2 USC § 1402(a).

         As an initial matter, the Court agrees with the plaintiff that pursuant to either the

notification rule or the discovery rule the plaintiff timely requested counseling for her claim of

discrimination regarding her non-selection for the Supervisory Secretary position.5 Therefore,

the Court must deny the defendant’s motion to dismiss Count I of the Complaint. However, the

defendant is correct that this Court lacks jurisdiction to entertain a claim under the CAA for

which the plaintiff has not exhausted her available administrative remedies. And here, the

plaintiff did not seek counseling and mediation for the alleged retaliation based on her

participation in protected activities with the Office of Compliance. Therefore, this Court must

grant the defendant’s motion to dismiss Count II to the extent that it is based on allegations that

the defendant retaliated against the plaintiff for her participation in counseling and mediation.

However, to the extent that the plaintiff alleges retaliation for her initial opposition to her non-

selection, including the plaintiff’s interaction with Mr. Lopez and the Office of Employment

Opportunity, the defendant’s motion to dismiss Count II is denied. Similarly, the plaintiff failed

to assert that she had been subjected to a hostile work environment in her July 28, 2008 request

5
  As previously noted, the plaintiff also relies on the doctrine of equitable tolling in opposing the defendant’s
dismissal motion. However, the District of Columbia Circuit has held that for claims brought under the CAA, “the
three step process is jurisdictional and thus . . . equitable doctrines, such as vicarious exhaustion, do not apply to
excuse compliance.” Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699, 702 (D.C. Cir. 2009). Thus, the
doctrine of equitable tolling is not available to plaintiffs who have not exhausted their administrative remedies within
the time frame mandated by the CAA.


                                                           9
for counseling.6 However, the Court declines to further examine this issue and will instead grant

the defendant’s motion to dismiss Count III in its entirety, as the plaintiff has failed to raise any

objection to the defendant’s motion to dismiss this claim in her opposition. See Fed. R. Civ. P.

56(e)(2); Buggs v. Powell, 293 F. Supp. 2d 135, 141 (D.D.C. 2003) (citing FDIC v. Bender, 127

F.3d 58, 67-68 (D.C. Cir. 1997).

         1.       The Plaintiff’s Discrimination Claim

         As noted earlier, under the CAA, “personnel actions affecting covered employees shall

be made free from any discrimination based on race, color, religion, sex, or national origin,

within the meaning of section 703 of the Civil Rights Act of 1964.” 2 U.S.C. § 1311(a). The

plaintiff contends that “[t]here was a causal connection between [her] African American race and

color and [the] Defendant’s non-selection of the Plaintiff” that violated her rights under §

1311(a). Compl. ¶ 26. The CAA provides an injured employee with the right to seek redress

against the government through a civil action, but limits this waiver of sovereign immunity to

violations for which the plaintiff has properly exhausted her administrative remedies with the

Office of Compliance. 2 U.S.C. § 1408. As previously noted, the employee must complete

counseling and mediation pursuant to § 1402 and § 1403 of the CAA before initiating a civil

action and must file the request for counseling within 180 days of the alleged violation. 2 U.S.C.

§ 1402, 1408. However, the exact date on which the limitation period for requesting counseling

begins to run under the CAA is not directly addressed by the statute.



6
  The Court notes that although a hostile work environment can be the result of retaliation, retaliation does not
always result in a hostile work environment, thus, the two claims are separate and a successful retaliation claim has
its own set of prerequisites. See Baird v. Snowbarger, ___ F. Supp. 2d ___, No. Civ. A. 09-1091 (ESH), 2010 WL
3999000, at *11-13 (D.D.C. Oct. 13, 2010) (discussing the difference between a retaliation claim and a hostile work
environment claim).

                                                         10
       The CAA acts as a limited waiver of sovereign immunity by making several federal

employment statutes applicable to the United States Congress and its associated agencies. 2

U.S.C. § 1302(a). Among the statutes that the CAA makes applicable to the legislative branch is

Title VII of the Civil Rights Act of 1964 (“Title VII”). Id. And the plaintiff’s discrimination

claim alleges a violation of § 1311(a) of the CAA, which incorporates Title VII, 2 U.S.C. § 1311,

but as the defendant correctly points out, “the CAA does not fully incorporate Title VII. [While

t]he CAA incorporates much of Title VII’s substantive law, . . . it establishes its own

comprehensive administrative regime – including jurisdictional provisions.” Blackmon-Malloy

v. U.S. Capitol Police Bd., 575 F.3d 699, 706 (D.C. Cir. 2009). Although not necessarily

binding precedent, courts when construing the CAA often consider as persuasive case law

interpreting Title VII. See Singh v. U.S. House of Representatives, 300 F. Supp. 2d 48, 53 n.5

(D.D.C. 2004) (noting that the House of Representatives’ Committee on Ways and Means

recognized “that the Office of Compliance Summary, created in conjunction with the CAA,

suggests that claims brought under Section 1311 of the CAA are subject to the requirements and

standards set forth in court decisions interpreting Title VII”).

       The Supreme Court has held, for the purposes of Title VII, that an adverse employment

action occurs and the filing period limitation of the statute begins to run on the date a person is

notified of an employment decision. Ricks, 449 U.S. at 258 (“[T]he only alleged discrimination

occurred—and the filing limitations periods therefore commenced—at the time the tenure

decision was made and communicated to the [employee].”); see Saunders v. District of

Columbia, No. Civ.A. 02-1803CKK, 2005 WL 3213984, at *6 (D.D.C. Oct. 25, 2005)

(“Therefore, the proper date on which the 300-day statute of limitations to file with the EEOC


                                                 11
began to run was July 25, 2000, the date of her notification.”); McCants v. Glickman, 180 F.

Supp. 2d 35, 40 (D.D.C. 2001) (The “time period began to run, then, when Mr. McCants learned

that he was not selected for the position”).The District of Columbia Circuit (“D.C. Circuit”) has

subsequently applied the holding in Ricks to other statutes incorporated into the CAA, including

the Rehabilitation Act: “Under Delaware State College v. Ricks, notice of final action fixes the

timing of an act of employment discrimination for statute of limitations purposes.” Crandall v.

Paralyzed Veterans of Am., 146 F.3d 894, 896 (D.C. Cir. 1998) (internal citation omitted). And

Courts in this Circuit have also taken this approach in interpreting the similarly worded statute of

limitations of the District of Columbia Human Rights Act (“DCHRA”). See Murphy v.

PricewaterhouseCoopers, LLP, 580 F. Supp. 2d 16, 25 (D.D.C. 2008) (holding that under the

DCHRA, the statute of limitations begins to run when the “plaintiff is given unequivocal notice

of the [adverse] decision, not on the effective date of the decision”) (internal citation and

quotation marks omitted). This has also been the rule adopted by several circuits in determining

the accrual date for a cause of action in employment discrimination suits brought under the

statutes incorporated by the CAA. See Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir.

2000) (in the Title VII context, “the limitations period begins to run on the date that the

employer gives definite notice of that decision to the employee”); Aronsen v. Zellerbach, 662

F.2d 584, 593 (9th Cir. 1980) (“We think the Court has indicated beyond doubt that in Title VII

and, analogously, ADEA [(Age Discrimination in Employment Act)] discrimination suits,

inquiry for purposes of determining when the limitations period begins to run must center on the

date when the employee has notice of the unlawful act; neither cessation of work nor official

termination noted on company personnel records is singularly relevant to this inquiry.”).


                                                 12
       Other circuits have applied the federal discovery rule in determining when a cause of

action accrues in employment discrimination cases. Under the discovery rule, a claim accrues,

and the applicable limitations period begins to run, on the date when the plaintiff discovers or

reasonably should have discovered that he has been injured. Cada v. Baxter Healthcare Corp.,

920 F.2d 446, 450 (7th Cir. 1990). Several circuits have applied the discovery rule to the time

limitations provisions of the laws incorporated by the CAA. See McWilliams v. Escambia Cnty.

Sch. Bd., 643 F.2d 326, 328 (5th Cir. 1981) (in Title VII cases, the “limitations period begins to

run from the time that the complainant knows or reasonably should know that the challenged act

has occurred”); see also Cada, 920 F.2d at 450 (finding that “[t]he discovery rule is implicit in

the holding of Ricks,” and noting in an ADEA case that “accrual is the date on which the statute

of limitations begins to run. It is not the date on which the wrong that injures the plaintiff

occurs, but the date—often the same, but sometimes later—on which the plaintiff discovers that

he has been injured”). The D.C. Circuit, applying the discovery rule in a contracts case,

observed that Cada stands for the proposition that the “discovery rule is to be applied in all

federal question cases in the absence of a contrary directive from Congress.” Connors v.

Hallmark, 935 F.2d 336, 342 (D.C. Cir. 1991) (internal quotation marks omitted). In most

employment discrimination cases, there will be little practical difference between the Ricks

notification rule and the federal discovery rule, as typically “[i]f the complainant knows or

reasonably should know that the challenged act has occurred, the employer necessarily has made

its decision and has communicated it or made it apparent to the complainant.” McWilliams, 643

F.2d at 328.




                                                 13
       Though never directly addressed, courts in this Circuit have often seemed to implicitly

adopt either the notification rule from Ricks or the federal discovery rule in determining the date

from which the statute of limitations begins to run under the CAA. See Brady v. Livingood, 456

F. Supp. 2d 1 (D.D.C. 2006) (Court used the date the plaintiff was informed of his demotion as

the date of the alleged violation); Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78 (D.D.C.

2000) (Court granted the defendant’s motion for summary judgment due to the untimeliness of

plaintiff’s request for counseling, using the date plaintiff was notified of his termination as the

date on which the limitations period began to run); see also Peterson v. Hantman, No. 02-2552,

2006 WL 1442662, at *2 (D.D.C. May 25, 2006) (in considering the timeliness of the plaintiff’s

request for counseling, the court sought to determine when he “knew or reasonably should have

known that he had not been selected for the WG-8 position”).

       Despite the case law discussed above, the defendant offers cases it contends supports its

argument that the time for requesting counseling had expired when the plaintiff made her

request; however, the cases cited by the defendant do not support the defendant’s interpretation

of when the start of the limitation period commences. The defendant relies on language in

Gibson v. Office of the Architect of the Capitol, No. 00-2424, 2002 WL 32713321 (D.D.C. Nov.

19, 2002) as support for its apparent position that the proper date to identify in determining when

the statute of limitations begins to run under the CAA is the date of plaintiff’s non-selection for

the position, regardless of whether the plaintiff was aware of the decision. Defendant’s Reply to

Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Def.’s Opp’n”) at 3. However, the

language quoted by the defendant does not conflict with the plaintiff’s position here, as Judge

Kollar-Kotelly found that the limitation period commenced when the plaintiff was told of her


                                                 14
non-selection, which she also found was the date of the “alleged violation.” Gibson, 2002 WL

32713321, at *4 (quoting 2 U.S.C. 1042(a)) (emphasis in the original). The defendant also relies

on Britton v. Office of Compliance, 412 F.3d 1324, 1328 (Fed. Cir. 2005), but the court there

similarly used the date on which the plaintiff was informed of the denial of her Family Medical

Leave Act requests in determining the accrual of the cause of action.7 Therefore, the Court does

not agree with the defendant’s seeming interpretation that the CAA requires that a congressional

employee seek counseling within 180 days after an act of discrimination occurs, even if the

plaintiff is unaware of the conduct.

           Accordingly, this Court finds that under either the notification rule or the discovery rule,

the limitation period for the plaintiff’s discriminatory non-selection claim began to run on

January 30, 2008, when Morey informed the plaintiff that she had not been selected for the

Supervisory Secretary position. Therefore, the plaintiff’s July 28, 2008 request for counseling

was timely under § 1402(a), and this court has jurisdiction to consider it pursuant to § 1408.

Therefore, the defendant’s motion to dismiss Count I is denied.

           2.      The Plaintiff’s Retaliation Claims

           Under the CAA, an employer may not

                   intimidate, take reprisal against, or otherwise discriminate against, any
                   covered employee because the covered employee has opposed any
                   practice made unlawful by this chapter, or because the covered employee
                   has initiated proceedings, made a charge, or testified, assisted, or
                   participated in any manner in a hearing or other proceeding under this
                   chapter.

2 U.S.C. § 1317(a). However, as noted above, the CAA grants district courts

jurisdiction over civil actions brought by a covered employee “only to seek redress

7
    The Family Medical Leave Act is codified at 29 U.S.C. §§ 2601-2654 (2006).

                                                        15
for a violation for which the employee has completed counseling and mediation.” 2

U.S.C. § 1408(a). Failure to exhaust these administrative remedies for an alleged

violation before bringing suit leaves the court without jurisdiction over the civil

action. See Blackmon-Malloy, 575 F.3d. at 705. This Court has also held that the

completion of counseling and mediation for one set of violations does not give the

court jurisdiction over related claims of retaliation that occurred after counseling had

commenced; the administrative remedies must be exhausted for each claim. Halcomb

v. Office of the Senate Sergeant-At-Arms of the U.S. Senate, 209 F. Supp. 2d 175,

177-79 (D.D.C. 2002) (“Because the language of the CAA provision at issue in this

case clearly confers jurisdiction to this Court only if plaintiff has satisfied the

administrative prerequisites to filing suit, the Court holds that plaintiff's claim of

retaliation must be dismissed for failure to exhaust her administrative remedies.”).

In Count II of her Complaint, the plaintiff claims that after she formally requested

counseling on July 28, 2008, due to her non-selection for the Supervisory Secretary

position, she suffered a “reduction in duties and responsibility, heightened scrutiny,

and loss of status and deprivation of the necessary building blocks for advancement

in [her] employment [with the d]efendant.” Compl. ¶ 6; see also id. ¶ 7. The plaintiff

further alleges that these adverse employment actions were taken in retaliation for her

opposition to matters made unlawful by the CAA, as well as her participation in

federally protected activities under the CAA, specifically, her participation in

counseling and mediation. Id. ¶ 7. The plaintiff’s retaliation claim therefore includes

allegations that she had been retaliated against for expressing her initial opposition


                                                  16
concerning her non-selection for the Supervisory Secretary position on January 31,

2008, as well as for her participation in counseling and mediation. Def.’s Mot., Ex. 2

(Notice of Invocation of Mediation). Accordingly, the plaintiff has properly

exhausted her administrative remedies concerning her claim that when she met with

Mr. Lopez and members of the Office of Employment Opportunity she had already

been “constructively demoted, and denied training and other promotional

opportunities in retaliation for opposing alleged race discrimination.” Id. However,

the request to initiate counseling, by definition, could not have included allegations of

retaliation for the plaintiff’s actual participation in counseling and the mediation that

occurred thereafter. Thus, to bring a civil action for any retaliatory action that

allegedly occurred after her participation in the counseling or the mediation, the

plaintiff should have requested additional counseling and mediation to address any

such actions. See Halcomb, 209 F. Supp. 2d at 177. Therefore, the defendant’s

motion to dismiss Count II of the Complaint is granted to the extent that the claim is

based on alleged retaliation resulting from the plaintiff’s participation in counseling

and mediation, and denied as to the plaintiff’s allegations that she was constructively

demoted and denied training and promotional opportunities for registering her initial

informal objection to her non-selection on January 31, 2008.

In Count III of her Complaint, the plaintiff seeks redress for the defendant’s alleged

creation of a hostile work environment in retaliation for her opposition to activities

made unlawful by the CAA and her participation in federally protected activities.

Compl. at 7-8. However, the plaintiff did not allege that she was subjected to a


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hostile work environment in either her requests for counseling or mediation. Def.’s

Mot., Ex. 2 (Notice of Invocation of Mediation). Thus, the defendant’s motion to

dismiss must be granted as to Count III.

B.     The Defendant’s Motion for Summary Judgment

       The defendant alternatively moves for summary judgment “on the basis that

there is no genuine issue of material fact and [the d]efendant is entitled to judgment

as a matter of law.” Def.’s Mot. at 1. The defendant makes no further arguments in

support of this motion. In opposition, the plaintiff simply states that summary

judgment is not appropriate, citing “genuine issues of material facts respecting the

running of the statute of limitations.” Pl.’s Opp’n at 1. Whether any of the plaintiff’s

claims are subject to summary judgment is a determination that must be deferred. As

the parties acknowledged at the status hearing held in this matter on October 29,

2010, no discovery has yet been conducted. Considering whether summary judgment

is appropriate is therefore premature. Ciralsky v. CIA, 689 F. Supp. 2d 141, 147

(D.D.C. 2010) (“Essentially, 56(f) allows the Court to delay or deny a motion for

summary judgment as premature on the grounds that [some] discovery is necessary to

rule on th[e] motion.”). Accordingly, the defendant’s motion for summary judgment

is denied without prejudice.

                                    IV. Conclusion

       For the foregoing reasons, Count II of the plaintiff’s complaint is dismissed in

part and Count III of the plaintiff’s complaint is dismissed in its entirety. However,

these claims are dismissed without prejudice, as it is unclear from the complaint


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whether the plaintiff is alleging that the defendant continued to retaliate against her

for her participation in federally protected activities with the Office of Compliance,

or continued to subject her to an alleged hostile work environment after she engaged

in those activities. If any such alleged retaliatory violations continued following the

plaintiff’s participation in counseling and mediation, and occurred within the last 180

days, the plaintiff may properly file requests for further counseling and mediation

concerning any such alleged claims. And if the plaintiff timely exhausts her

administrative remedies with the Office of Compliance as required by the CAA, the

plaintiff may then amend her complaint to add these claims to her Complaint. See

Halcomb, 209 F. Supp. 2d at 179-80. Finally, the defendant’s motion for summary

judgment is denied without prejudice 8



                                                        REGGIE B. WALTON
                                                        United States District Judge




8
 This Memorandum Opinion accompanies the Order issued on September 30, 2010 and the Amended Order issued
on November 12, 2010.

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