                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ANDRE NOISETTE,               )
                              )
     Plaintiff,               )
                              )
     v.                       )     Civil Action No. 11-1594 (RWR)
                              )
JACOB LEW,                    )
                              )
     Defendant.               )
______________________________)

                  MEMORANDUM OPINION AND ORDER

     Plaintiff Andre Noisette, an African-American man, brings

this action against the Secretary1 of the United States

Department of the Treasury (“Treasury”) alleging racial

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.

Treasury moves to dismiss the complaint under Federal Rule of

Civil Procedure 12(b)(6), or alternatively, for summary judgment

under Federal Rule of Civil Procedure 56, for failure to exhaust

administrative remedies.   Because Noisette exhausted his

administrative remedies before filing this civil action,

Treasury’s motion will be denied.

                            BACKGROUND

     The facts of this case are set forth in Noisette v.

Geithner, 693 F. Supp. 2d 60 (D.D.C. 2010).   Briefly, Noisette


     1
       Jacob Lew is substituted as the defendant under Federal
Rule of Civil Procedure 25(d).
                                 -2-

was a management official in the Criminal Investigation Division

(“CID”) of Treasury’s Internal Revenue Service.   Id. at 62.

Noisette alleges that he engaged in protected equal employment

opportunity (“EEO”) activity and was later retaliated against by

not being selected for a vacant supervisory position.    Id. at 62-

63.   In December 2007, Noisette filed a formal discrimination

complaint with the Treasury’s EEO office.   Id. at 63.   In

September 2008, Treasury issued a Final Agency Decision (“FAD”)

on Noisette’s formal administrative complaint, and, on

October 29, 2008, Noisette appealed the FAD to the Equal

Employment Opportunity Commission’s (“EEOC’s”) Office of Federal

Operations (“OFO”).   Id.   “[B]efore the OFO ruled on his appeal,

Noisette filed a request to withdraw it.    On January 15, 2009,

OFO granted Noisette’s request, but not before Noisette filed [a

civil] action on December 29, 2008.”   Id. (internal citations

omitted).   Treasury, in turn, moved to dismiss the complaint.

Id.

      Treasury’s motion was granted because Noisette had failed to

exhaust his administrative remedies.   A complainant “may bring a

civil action in a United States District Court ‘[w]ithin 90 days

of receipt of the Commission’s final decision on an appeal’ or

‘[a]fter 180 days from the date of the filing of an appeal . . .

if there has been no final decision by the Commission.’”      Id. at

67 (alterations in original) (quoting 29 C.F.R. § 1614.407(c),
                                  -3-

(d)).    Noisette, however, had filed his civil complaint 23 days

after he filed his FAD appeal and “did not wait to receive a

final decision on his appeal from OFO or wait 180 days from the

date he filed his appeal to bring [that] action.”    Id. at 68.

The court explained that “Noisette [would] be allowed to file a

new complaint after the OFO . . . attempted to resolve his charge

for the full 180 days[,]” id. at 69, but that he would have to

“wait 180 days from the filing of his appeal or file his

complaint anew within 90 days from when the OFO issues a final

decision.”    Id. at 69 n.2.

        Noisette’s counsel promptly sent a letter to the OFO

“request[ing] that [Noisette’s] appeal to the Office of Federal

Operations be reinstated so that OFO can ‘conduct[] a de novo

review’ of the Final Agency Decision issued by the Department of

the Treasury.”    Def.’s Mot. to Dismiss or, Alternatively, for

Summ. J. (“Def.’s Mot.”), Ex. 5 (Letter from Robert C. Seldon,

Robert C. Seldon & Associates, P.C., to Director, Office of

Federal Operations, U.S. Equal Employment Opportunity Commission

(Mar. 22, 2010)) (third alteration in original) (quoting

Noisette, 693 F. Supp. 2d at 69 n.2).     Although the OFO received

the letter, the OFO “did not respond substantively” to Noisette.

Mem. of P. & A. in Opp’n to Def.’s Mot. to Dismiss or, in the

Alternative, for Summ. J. (“Pl.’s Opp’n”), Pl.’s Stmt. of Genuine

Issues ¶ 19; see also Def.’s Mot., Mem. of P. & A. in Supp. of
                                -4-

Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J.

(“Def.’s Mem.”) at 3 (“The Commission never responded to or

otherwise acted on Plaintiff’s letter.”).   Noisette waited over

180 days after requesting that his appeal be reinstated, and then

filed this civil action.   Treasury now moves to dismiss

Noisette’s complaint arguing that Noisette failed to exhaust his

administrative remedies because the OFO “‘has [not] attempted to

resolve [Noisette’s] charge for [a] full 180 days.’”     Def.’s Mem.

at 1-2 (quoting Noisette, 693 F. Supp. 2d at 69).

                            DISCUSSION

     “Title VII ‘[c]omplainants must timely exhaust the[ir]

administrative remedies before bringing their claims to court.’”

Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (alterations

in original) (quoting Bowden v. United States, 106 F.3d 433, 437

(D.C. Cir. 1997)).   However, Title VII’s “time-filing

requirements are not jurisdictional prerequisites to suit[.]”

Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir.

1985); accord Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

393 (1982).   If a plaintiff does not timely exhaust his

administrative remedies before filing a Title VII action, his

claim is subject to dismissal under Rule 12(b)(6) for failure to

state a claim upon which relief can be granted.   Noisette, 693 F.

Supp. 2d at 65.

     In the D.C. Circuit, it is clear that “because untimely
     exhaustion of administrative remedies is an affirmative
                                -5-

      defense, the defendant bears the burden of pleading and
      proving it. If the defendant meets its burden, the
      plaintiff then bears the burden of pleading and proving
      facts supporting equitable avoidance of the defense.”

Jones v. Ashcroft, 321 F. Supp. 2d 1, 12 (D.D.C. 2004) (quoting

Bowden, 106 F.3d at 437).

      A district court can dismiss a complaint under Rule 12(b)(6)

when the defendant shows that the plaintiff “fail[s] to state a

claim upon which relief can be granted[.]”   Fed. R. Civ. P.

12(b)(6).   However, “[w]hen ‘matters outside the pleadings are

presented to and not excluded by the court’ on a motion to

dismiss under Rule 12(b)(6), ‘the motion must be treated as one

for summary judgment.’”   Highland Renovation Corp. v. Hanover

Ins. Grp., 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R.

Civ. P. 12(d)).   Since both parties rely on materials outside the

pleadings,2 the motion to dismiss will be treated as a motion for

summary judgment.   Summary judgment may be granted when “the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66

(D.C. Cir. 2009).

      It is undisputed that Noisette promptly returned to the OFO

to pursue his administrative appeal as this court allowed him to

do.   But Treasury has not demonstrated that it is entitled to


      2
       See, e.g., Pl.’s Opp’n, Decl. of Robert C. Seldon, Esq.;
Def.’s Mot., Decl. of Mariam Harvey.
                                  -6-

judgment as a matter of law.    Treasury argues that Noisette has

not satisfied the 180-day waiting period because the OFO did not

affirmatively reinstate or otherwise attempt to resolve the

appeal.   Def.’s Mem. at 8.   Treasury attempts to distinguish

between Noisette’s request that the OFO reinstate his appeal and

an affirmative action of reinstatement by the OFO, asserting that

the “OFO must reinstate the appeal that Plaintiff previously

withdrew because the time to appeal the FAD . . . otherwise has

long since expired.”    Id.   As there has been no such affirmative

action by the OFO, rather, there has been only silence

“indicat[ing] that [the OFO] views [Noisette’s initial]

withdrawal of the appeal as an abandonment . . . of his claim[,]”

Treasury argues that the 180-day waiting period has not tolled

and Noisette has again failed to exhaust his administrative

remedies.   Id. at 9.

     Treasury does not identify any legal authority that Noisette

must demonstrate that the OFO actually considered his appeal to

exhaust his administrative remedies.    To the contrary, Hill v.

Washington Metropolitan Area Transit Authority, 231 F. Supp. 2d

286 (D.D.C. 2002), rejected a similar argument.     There, the

plaintiffs attempted to remedy a prematurely filed civil suit by

requesting that the EEOC renew consideration of their charges.

After waiting for the full 180-day period to run, the plaintiffs

refiled their civil suit.     Id. at 293-94.   Relying on Martini v.
                                -7-

Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir.

1999), Judge Walton rejected the defendants’ argument that the

180-day waiting period had not tolled because the EEOC did not

affirmatively consider the charges and held that the plaintiffs

were not required to do anything more than request that the EEOC

begin consideration of their charges anew.   Hill, 231 F. Supp. 2d

at 293-94; see also Jones, 321 F. Supp. 2d at 10-12 (relying on

Hill and Martini in analyzing an exhaustion claim where the

plaintiff previously filed an administrative appeal).     Similarly,

once Noisette requested that the OFO reinstate his appeal and

waited for the 180-day period to toll, he “did all that is

required by Title VII.”   Hill, 231 F. Supp. 2d at 294.

     Further, the D.C. Circuit has encouraged that “the

application of Title VII’s procedural requirements be ‘animated

by the broad humanitarian and remedial purposes underlying the

federal proscription of employment discrimination.’”    Williams v.

Wash. Metro. Area Transit Auth., 721 F.2d 1412, 1418 (D.C. Cir.

1983) (quoting Coles v. Penny, 531 F.2d 609, 616 (D.C. Cir.

1976)).   Moreover, allowing the OFO to indefinitely delay a

claimant’s complaint by refusing to affirmatively reinstate an

appeal would not comport with Congress’s purpose for enacting

timelines in Title VII.   For example, after a Title VII claim is

filed with the EEOC, “an aggrieved party may sue under Title VII

if the Commission dismisses the charge or if it neither sues the
                               -8-

respondent nor reaches an acceptable conciliation agreement

within 180 days after the filing of the charge.”   Martini, 178

F.3d at 1342 (citing 42 U.S.C. § 2000e-5(f)(1)).   “‘The 180-day

provision is designed to make sure that the person aggrieved does

not have to endure lengthy delays . . . [and it] allows the

person aggrieved to elect to pursue his or her own remedy under

this title in the courts where there is agency inaction[.]’”   Id.

at 1345 (quoting 118 Cong. Rec. 7168 (1972)).

     OFO’s inaction cannot be utilized as an affirmative defense

to prevent Noisette from advancing his claim.   Noisette has

satisfied the 180-day waiting period and thus has exhausted his

administrative remedies.

                      CONCLUSION AND ORDER

     Treasury has not shown that it is entitled to judgment as a

matter of law on Noisette’s complaint.   Accordingly, it is hereby

     ORDERED that the defendant’s motion [6] to dismiss or,

alternatively, for summary judgment, be, and hereby is, DENIED.

     SIGNED this 30th day of March, 2013.



                                            /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
