                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

SHIRLEY WILLIAMS-JONES,                        :
                                               :
                       Plaintiff,              :       Civil Action No.:       08-0884 (RMU)
                                               :
                       v.                      :       Re Document No.:       7
                                               :
RAY LAHOOD, in his official                    :
capacity as Secretary of Transportation,1      :
                                               :
                       Defendant.              :

                                    MEMORANDUM OPINION

                        DENYING THE DEFENDANT’S MOTION TO DISMISS

                                       I. INTRODUCTION

       This matter comes before the court on the defendant’s motion to dismiss for lack of

subject matter jurisdiction. The pro se plaintiff filed suit against the defendant, alleging that the

Federal Aviation Administration (“FAA”) violated Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000 et seq., the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. § 621, and the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. § 206(d). The

defendant moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction, asserting that the plaintiff failed to exhaust her administrative remedies by

contacting an EEO counselor more than forty-five days after the allegedly discriminatory act.

Concluding that a failure to exhaust administrative remedies by initiating untimely contact with

an EEO counselor is not a jurisdictional defect, the court construes the defendant’s motion as one

brought under Rule 12(b)(6) rather than Rule 12(b)(1). And because it is not clear from the face


1
       The court has substituted Secretary of Transportation Ray LaHood for the original named
       defendant, former Secretary of Transportation Mary Peters, pursuant to Federal Rule of Civil
       Procedure 25(d).
of the complaint that the plaintiff’s claim is time-barred, the court denies the defendant’s motion

to dismiss pursuant to Rule 12(b)(6).



                     II. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff is an African-American female over the age of 40 who is currently employed

by the FAA as a Program Manager. See generally Compl. She alleges that the FAA

discriminated against her on the basis of her race, sex and age and, after she filed an Equal

Employment Opportunity (“EEO”) complaint, retaliated against her by demoting her. Id. ¶¶ 1-

20. The plaintiff also contends that the FAA violated the EPA by paying white females in the

office more for performing similar work. Id. ¶¶ 13-14.

       In the spring of 2000, the FAA began a transition from its general schedule pay system to

a pay-for-performance pay system known as the “core compensation” system. Id. at 3. Between

March 26, 2000 and August 26, 2000, the plaintiff was converted from her GS-15 pay grade to

pay band J under the new system. Id. at 11. Three similarly situated white co-workers were

converted from pay grade GS-15 to pay band K and then, during the same time period, to pay

band L. Id. A fourth white co-worker was converted from an unknown pay level to GS-15 then,

less than a month later, to pay band K. Id. The plaintiff asserts that these changes in pay bands

were not accompanied by a change in location or position; rather, management simply changed

her coworkers’ pay bands to give them an unfair salary advantage. Id. ¶ 3.

       In 2003, the FAA announced that an activity analysis would be performed in order to

correct some inconsistencies in its pay structure. Id. at 5. The plaintiff alleges that she was

assured that the review would be fair and that pay bands for employees performing similar jobs


                                                  2
would be uniform. Id. at 3; Pl.’s Opp’n at 4. On November 17, 2003, the plaintiff became

concerned by rumors that her white coworkers had been promoted to several pay bands above

her. Pl.’s Opp’n at 5. The same day, the plaintiff contacted the personnel office about her

concerns. Id. She was told that the core compensation policy was being adhered to and that the

office could not reveal the pay bands of other employees. Id. As a result, the plaintiff contacted

the FAA’s Office of Civil Rights, requested an EEO counselor and filed an EEO complaint in

December 2003. Id. at 6.

       Upon learning of the EEO complaint, the plaintiff’s supervisor, Kathy Randall, told the

plaintiff that if she withdrew her complaint, “management officials might do something for her.”

Id. at 7. The plaintiff did not withdraw her complaint; on April 14, 2004, the Director of

Acquisition services, Dennis DeGatano, then reassigned the plaintiff to a position in which she

was supervised by a former peer and had diminished responsibilities and duties. Id. Later, in

November 2004, the plaintiff was passed over for a promotion in favor of a white coworker. Id.

at 8-9; Compl. at 15. The plaintiff alleges that these incidents constitute reprisal and retaliation

for filing the EEO complaint in December 2003. Id.

       An administrative judge ultimately dismissed the plaintiff’s EEO complaint as untimely

and denied her motion for reconsideration. See Pl.’s Opp’n, Ex. 3. The plaintiff filed suit in this

court on May 23, 2008, and the defendant now moves to dismiss for lack of subject matter

jurisdiction pursuant to Rule 12(b)(1).




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                                          III. ANALYSIS

            A. The Court Construes the Defendant’s Motion Under Rule 12(b)(6)

       The defendant argues that this court lacks subject matter jurisdiction over the plaintiff’s

claim because the plaintiff failed to timely exhaust her administrative remedies. Def.’s Mot. at 1.

The threshold question before the court, therefore, is whether the failure of a plaintiff to make

timely contact with an EEO counselor constitutes a jurisdictional defect barring the court’s

jurisdiction over the claim. The regulation at issue requires that a federal employee claiming

discrimination by an administrative agency “initiate contact with a Counselor within 45 days of

the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45

days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). But the regulation also

requires that the forty-five day contact requirement be equitably tolled when the individual shows

“that he or she did not know and reasonably should not have . . . known that the discriminatory

matter or personnel action occurred.” Id. § 1614.105(a)(2).

       The Supreme Court has stated “that 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.” Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 393 (1982); see also Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002) (reaffirming that the “time period for filing a charge is subject to equitable

doctrines such as tolling or estoppel”). The Circuit has explicitly recognized that, in the context

of Title VII, “the administrative time limits created by the EEOC erect no jurisdictional bars to

bringing suit.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); see also Stewart v.

Ashcroft, 352 F.3d 422, 425-26 (D.C. Cir. 2003) (remarking that “this Court has noted that the


                                                  4
exhaustion of remedies is not jurisdictional, but more akin to a statute of limitations”).

Additionally, with respect to ADEA claims, this Circuit has noted that “the timeliness and

exhaustion requirements of [the ADEA] are subject to equitable defenses and are in that sense

non-jurisdictional.” Rann v. Chao, 346 F.3d 192, 194-95 (D.C. Cir. 2003).

       More recently, a court in this district has observed that “[c]ourts traditionally addressed

failures to exhaust as questions of subject matter jurisdiction, but recent Supreme Court and D.C.

Circuit decisions have suggested a different approach.” Marcelus v. Corr. Corp. of Am./ Corr.

Treatment Facility, 540 F. Supp. 2d 231, 234 n.4 (D.D.C. 2008). Buttressing the principle that

failure to timely exhaust administrative remedies is not jurisdictional, this Circuit has also

pointed out that “[b]ecause untimely exhaustion of administrative remedies is an affirmative

defense, the defendant bears the burden of pleading and proving it.” Bowden, 106 F.3d at 437;

see also McCants v. Glickman, 180 F. Supp. 2d 35 (D.D.C. 2001). The Circuit’s characterization

of untimely exhaustion as an affirmative defense further persuades the court not to interpret it as

a jurisdictional defect. Therefore, the court construes the defendant’s motion under Rule

12(b)(6) rather than 12(b)(1).2

            B. Legal Standard for a Motion to Dismiss Pursuant to Rule 12(b)(6)

       A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

2
       The defendant construes the distinction between a Rule 12(b)(1) motion to dismiss for lack of
       subject matter jurisdiction and a Rule 12(b)(6) motion to dismiss for failure to state a claim as
       “academic” in this case. Def.’s Mot. at 4 n.4. The defendant, however, is incorrect. See
       Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003) (holding that because subject
       matter jurisdiction focuses on the court’s power to hear the claim, the court must give the
       plaintiff’s factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would
       be required for a Rule 12(b)(6) motion for failure to state a claim). Thus, the defendant has
       chosen not to move – either primarily or in the alternative – to dismiss the case for failure to state
       a claim. See generally Def.’s Mot. Nonetheless, the most expeditious course of action is to treat
       the motion as one brought under Rule 12(b)(6).

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Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED . R. CIV . P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his

prima facie case in the complaint, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,

136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

       Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 (2007) (abrogating the oft-quoted language from Conley,

355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it appears

beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);

Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly, 550 U.S. at 555,

557. In resolving a Rule 12(b)(6) motion, 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. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir.


                                                  6
2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003);

Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need

not accept as true inferences unsupported by facts set out in the complaint or legal conclusions

cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004);

Browning, 292 F.3d at 242.

                     C. The Court Denies the Defendant’s Motion to Dismiss

       A defendant may raise the affirmative defense of statute of limitations via a Rule 12(b)(6)

motion when the facts that give rise to the defense are clear from the face of the complaint.

Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). Because statute of

limitations issues often depend on contested questions of fact, however, the court should hesitate

to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.

Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996). Rather, the court should grant a

motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v. Dep’t

of Justice, 753 F.2d 1092, 1115 (D.C. Cir. 1985). If “no reasonable person could disagree on the

date” on which the cause of action accrued, the court may dismiss a claim on statute of

limitations grounds. Smith v. Brown & Williamson Tobacco Corp., 3 F. Supp. 2d 1473, 1475

(D.D.C. 1998) (citing Kuwait Airways Corp. v. Am. Sec. Bank, N.A., 890 F.2d 456, 463 n.11

(D.C. Cir. 1989)).

       The defendant contends that the plaintiff’s complaint should be dismissed because,

despite the fact that she was required to contact an EEO counselor within forty-five days of the

allegedly discriminatory act pursuant to 29 C.F.R. § 1614.105(a)(1), Def.’s Mot. at 5, over three

years passed between the plaintiff’s conversion to pay band J in April 2000 and her initial contact


                                                 7
with an EEO counselor in November 2003, id. at 6.

       The plaintiff opposes the defendant’s motion, asserting she timely exhausted her

administrative remedies. Pl.’s Opp’n at 18. Although her submissions are somewhat unclear, the

court construes the plaintiff’s opposition as making two arguments against dismissal. First, the

plaintiff maintains that she was unaware of the alleged discriminatory pay differences until

immediately before she filed her EEO complaint in late 2003. Id. at 19-21. Second, the plaintiff

avers that she relied on the assurances from FAA management that the pay conversion had been

conducted fairly and in accordance with FAA policy; thus, she was “lulled into inaction by letters

from the Chief Operating Officer of the Air Transportation Organization.” Id. at 21. The court

construes these arguments as a request to equitably toll the EEOC’s filing deadline.

       The plaintiff will indeed be entitled to equitable tolling if she can produce evidence that

she “did not know and reasonably should not have . . . known that the [allegedly discriminatory

conduct had] occurred” until December 2003. 29 C.F.R. § 1614.105(a)(2). In other words, it is

not clear from the face of the complaint that the plaintiff’s claim is time-barred. Therefore, the

court denies the defendant’s motion to dismiss. See Firestone, 76 F.3d at 1209.



                                       IV. CONCLUSION

       For the foregoing reasons, the court denies the defendant’s motion to dismiss. An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 18th

day of September, 2009.



                                                      RICARDO M. URBINA
                                                     United States District Judge

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