                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ANN M. MOGENHAN,              )
                              )
               Plaintiff,     )
                              )
     v.                       )           Civil Action No. 06-2041 (GK)
                              )           Civil Action No. 08-0391 (GK)
                 1
Eric K. Shinseki, Secretary, )                 (Consolidated)
Dep’t of Veterans Affairs     )
                              )
               Defendants.    )
______________________________)

                              MEMORANDUM OPINION

      Plaintiff    Ann    Mogenhan    (“Plaintiff”)    brings    this      action

against Defendant Eric K. Shinseki, Secretary of Veterans Affairs

(“Defendant”), pursuant to Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.             She alleges that

she   was   subjected    to   discrimination    on   account    of   her    race,

disability, and gender, and retaliation on account of her prior

Equal     Employment    Opportunity   (“EEO”)   activity   (Count       I);   and

disparate treatment on account of gender and prior EEO activity

(Count II).

      This matter is now before the Court on Defendant’s Motion to

Dismiss those claims in Count I based on race and disability [Dkt.




      1
        Pursuant to Fed. R. Civ. P. 25(d), Secretary of Veterans
Affairs Eric K. Shinseki is automatically substituted as Defendant
for former Secretary of Veterans Affairs James B. Peake.
No. 34].2        Upon consideration of the Motion, Opposition, Reply, the

entire      record    herein,     and   for   the   reasons    set    forth   below,

Defendant’s Motion to Dismiss is granted.

I.   Background3

     On October 8, 2000, Plaintiff was hired as an Administrative

Officer in the Office of Financial Management and Accounting

Systems at the Veterans Health Administration in the Department of

Veterans Affairs (“the Agency”).                Her position required her to

handle       a    variety   of     issues,     including      “budget,   financial

management, human resources, procurement and contracting, property

management,         executive     correspondence,    health     and   safety,   and

security.”         Compl. ¶ 15.    During her service, she received several

awards, including Sustained Superior Performance Awards, Special

Contribution Awards, and Exemplary Performance Awards. Id. at ¶ 15

[sic].4

     Plaintiff applied for the One-VA SES Candidate Development

Program.         To be considered for admission to the program, Plaintiff


     2
         For ease of reference, unless otherwise specified, all
docket numbers refer to filings in the lead case, Civil Action No.
06-2041.
        3
       For purposes of ruling on a motion to dismiss, the factual
allegations of the Complaint must be presumed to be true and
liberally construed in favor of the Plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
Apr. 29, 2008). Therefore, the facts set forth herein are taken
from Plaintiff’s Complaint unless otherwise noted.
        4
              Plaintiff’s Complaint includes two paragraphs numbered
“15.”       See generally Compl.

                                         -2-
needed two of her supervisors, David Rutledge (“Rutledge”) and

Jimmy    Norris   (“Norris”),      to    complete       an   appraisal       of     her

performance.

      Plaintiff states that the appraisal submitted by Rutledge and

Norris   was   “mediocre”    and   that       they    knew   that    it   “did     not

accurately reflect her performance.”                 Id. ¶ 19.      On February 3,

2007, Plaintiff was informed that Norris would not sign a form

indicating that he supported her for the position.

      On February 26, 2007, Plaintiff received a letter informing

her that she had not been selected for the position.                      Plaintiff

states that her “non-selection was due in large part to the refusal

of Mr. Norris to sign” the form.          Id. ¶ 22.      Plaintiff also states

that other applicants were accepted “without the requirement that

their supervisors execute the form.”            Id. ¶ 23.

      Plaintiff filed three formal EEO complaints: the first on

December 20, 2001, the second on March 23, 2005, and the third on

December    19,    2005.         Plaintiff      consolidated         these        three

administrative complaints into a civil action that was filed on

November 29, 2006 in this Court (Civil Action No. 06-2041).                   In the

Amended Complaint, Plaintiff alleged that she was subjected to a

hostile work environment on the basis of her gender and her prior

EEO   activity    (Count   I);   that    she    was    subjected     to   disparate

treatment for the same reasons (Count II); and that she was

subjected to adverse personnel actions because of her race, gender,


                                        -3-
and prior EEO activity (Count III).        See 06-2041, Am. Compl. ¶¶ 34-

36.

      On February 28, 2007, Plaintiff contacted an EEO Counselor.

On March 26, 2007, she filed a formal EEO complaint alleging that

she was discriminated against on the basis of her gender and that

she was retaliated against on the basis of her prior EEO activity.

Id. ¶ 11.   This EEO complaint did not allege that she was subjected

to discrimination on account of her race and disability.             See

generally Defs.’ Mot., Ex. A.

      On February 21, 2008, the Agency’s Office of Employment

Discrimination     and   Complaint     Adjudication    (“OEDCA”)   denied

Plaintiff’s March 26, 2007 EEO Complaint, finding that Plaintiff

had not been subjected to discrimination on the basis of gender or

reprisal.    Id.     The OEDCA decision never referenced race or

disability discrimination, and it made no findings on these issues.

See id.

      On March 4, 2008, Plaintiff filed a second Complaint (Civil

Action No. 08-391).      The Complaint alleged that Plaintiff was

subjected to unlawful discrimination on the basis of her race,

disability, and gender, and retaliation on the basis of her prior

EEO activity (Count I), and disparate treatment on account of her

gender and her prior EEO activity (Count II).




                                     -4-
       On June 16, 2008, the Court consolidated the two cases5 and

specified that all future pleadings were to be filed in the lead

case, 06-2041.        Defendant filed this Motion to Dismiss on June 19,

2008.

II.    Standard of Review

       To survive a motion to dismiss, a plaintiff need only plead

“enough facts to state a claim to relief that is plausible on its

face” and to “nudge[] [his or her] claims across the line from

conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).           “[O]nce a claim has been stated adequately, it

may be supported by showing any set of facts consistent with the

allegations in the complaint.”               Id. at 579.

       Under the standard set out in Twombly, a “court deciding a

motion to dismiss must not make any judgment about the probability

of the plaintiff's success . . . must assume all the allegations in

the complaint are true (even if doubtful in fact) . . . [and] must

give the plaintiff the benefit of all reasonable inferences derived

from the facts alleged.”            Aktieselskabet AF 21.November 2001 v.

Fame       Jeans   Inc.,   525   F.3d   8,    17   (D.C.   Cir.   2008)   (internal

quotation marks and citations omitted).


       5
        Plaintiff did not request leave to file a Consolidated
Amended Complaint. In 06-2041, the Amended Complaint was filed on
January 17, 2007 [Dkt. No. 2]. In 08-391, the Complaint was filed
on March 4, 2008 [Dkt. No. 1]. The Motion, Opposition, and Reply
refer to the Complaint filed in 08-391.       Accordingly, unless
otherwise specified, hereinafter all references to the “Complaint”
are to the Complaint filed in 08-391.

                                         -5-
III. Analysis

     Defendant     argues     that   Plaintiff    failed      to   exhaust    her

administrative remedies with respect to the claims of race and

disability discrimination in Count I. Def.’s Mot. at 3. Defendant

argues that Plaintiff did not raise either of these claims in the

formal EEO complaint she filed with the Agency on March 26, 2007.

Id. at 4.

     In     response,   Plaintiff     argues     that   she    exhausted      her

administrative remedies because the race and disability claims were

“reasonably related” to the gender and retaliation claims that were

included in her administrative case.           Pl.’s Opp’n at 6.      Plaintiff

also argues that the “discriminatory actions” in the Complaint are

the same as the allegations she made in the administrative process,

even though she acknowledges that she “identified two additional

bases for the discrimination actions.”           Pl.’s Opp’n at 5 (emphasis

added).   Moreover, Plaintiff argues that Defendant “has been aware

of Plaintiff’s disability for many years,” that Defendant “would

not be prejudiced” by permitting the race and disability claims to

proceed, that dismissing these claims would be contrary to the

“interest    of   justice,”    and   that   Defendant      would    “suffer    no

prejudice” if the claims were not dismissed.            Pl.’s Opp’n at 3, 7,

8, 11.

     Title VII requires that a plaintiff exhaust her administrative

remedies prior to bringing a civil action in federal court.                  Park


                                      -6-
v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995).                      To

exhaust her administrative remedies, a plaintiff must file a claim

with the agency and “allow the agency time to act on the charge.”

Id.   A lawsuit in federal court is “limited in scope to claims that

are   ‘like   or   reasonably    related    to   the   allegations’”    in   the

administrative charge.        Id. (quoting Cheek v. Western and Southern

Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)).            The claims “must

arise from ‘the administrative investigation that can reasonably be

expected to follow the charge of discrimination.’”              Id. (quoting

Chisholm v. U.S. Postal Service, 665 F.2d 482, 491 (4th Cir.

1981)); see Hussain v. Gutierrez, 593 F. Supp. 2d 1, 5 (D.D.C.

2008) (“Specificity in a charge is not a mere technicality.”)

(internal quotation marks omitted).

      Although this limitation “should not be construed to place a

heavy technical burden on individuals untrained in negotiating

procedural labyrinths,” the integrity of the administrative process

depends   upon     ensuring    that   a   “liberal     interpretation   of    an

administrative charge” does not allow a plaintiff “to bypass the

Title VII administrative process.”          Park, 71 F.3d at 907 (internal

quotation marks and citations omitted).

      A plaintiff fails to exhaust her administrative remedies when

the complaint she files in federal court includes a claim that was

not raised in the administrative complaint.             Id. at 907 (“Although

Park filed an administrative charge, it did not express or even


                                      -7-
hint at a national origin hostile work environment claim.”); Miller

v. Rosenker, 578 F. Supp. 2d 107, 112 (D.D.C. 2008); Marcelus v.

Corrections Corp. of Am./Corr. Treatment Facility, 540 F. Supp. 2d

231,    235    (D.D.C.   2008)     (“The    theories        of   discrimination      in

plaintiff’s lawsuit are limited to the theories contained in the

EEOC Charge he filed.”); see Rattigan v. Gonzales, 503 F. Supp. 2d

56, 69 (D.D.C. 2007) (“[E]ach incident of discrimination and each

retaliatory adverse employment decision constitutes a separate

actionable unlawful employment practice for which an administrative

charge must be filed.”) (quoting Nat’l R.R. Passenger Corp. v.

Morgan,    536   U.S.    101,    114   (2002))        (internal     quotation      marks

omitted); Lytes v. D.C. Water and Sewer Auth., 2006 WL 890005, at

*6 (D.D.C. Mar. 30, 2006) (“Because Mr. Lytes’s EEO charge did not

allege gender discrimination and because gender discrimination is

not like, or reasonably related to, his charge of discrimination

based     on   his    disability,      he       has     failed      to   exhaust    his

administrative remedies on his gender charge.”).

       In Miller, a plaintiff raised a retaliation claim in his

administrative       complaint,     but     did       not   raise    age   or   gender

discrimination claims.          Miller, 578 F. Supp. 2d at 112.            This Court

dismissed the age and gender discrimination claims, holding that

even though the claims “may be similar in that they all involve

harms suffered in the workplace, they are each distinct allegations

involving different types of discrimination. . . . [and] they must


                                          -8-
each be specifically alleged during the administrative process in

order to raise them in a subsequent complaint in federal court.”

Id.

      In this case, Plaintiff concedes that she raised neither her

race discrimination claim nor her disability discrimination claim

in the formal EEO complaint she filed on March 26, 2007.                        Pl.’s

Opp’n at 3 (“In this action, Plaintiff added two additional bases

for discrimination, disability (suffers from migraine headaches)

and race (white).”); see also Compl. ¶ 11 (“On March 26, 2007, she

filed her formal discrimination complaint based on gender (female)

and reprisal for prior EEO activity.”). In the absence of specific

allegations of race or disability discrimination in the formal EEO

complaint, the Agency concluded in its Final Agency Decision that

Plaintiff had not been subjected to discrimination on the basis of

sex or reprisal, but made no reference to discrimination based on

race or disability.        Def.’s Mot., Ex. A.

      Discrimination       claims   based      on    race   and   disability      are

distinct     from      discrimination     claims       based      on   gender     and

retaliation.6       Accordingly, an Agency’s investigation of a race or

disability claim would require it to pursue different facts and

issues     than   an    investigation     of     a    claim    based    on   gender

discrimination or retaliation.          Because Plaintiff failed to raise


      6
        It should be noted that disability claims are governed by
the Rehabilitation Act, 29 U.S.C. § 794, et seq., not by Title VII
of the Civil Rights Act of 1964.

                                        -9-
the   race    and    disability    discrimination        claims     during   the

administrative       process,    the    Agency     had   no    opportunity    to

investigate them.       Thus, as in Miller, Plaintiff was required to

specifically     allege    these       distinct    allegations      during   the

administrative process. To permit Plaintiff to proceed on her race

and disability claims when she had omitted both from her formal

administrative complaint would permit her “to bypass the Title VII

administrative process.”

      For    these    reasons,     Plaintiff      failed      to   exhaust   her

administrative remedies with respect to the race and disability

claims in Count I.

IV.   Conclusion

      For the reasons set forth above, Defendant’s Motion to Dismiss

is granted. The race and disability discrimination claims in Count

I are dismissed.

      An Order shall accompany this Memorandum Opinion.




                                               /s/
July 2, 2009                                  Gladys Kessler
                                              United States District Judge

Copies via ECF to all counsel of record




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