                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA



SHAUNA I. WHITE,                               )
                                               )
       Plaintiff,                              )
                                               )
              v.                               ) Civil Case No. 08cv382 (RJL)
                                               )
TIMOTHY F. GEITHNER,                           )
                                               )
       Defendant.
                                               )~
                                 MEMORANDUM OPINION
                                  (March II , 2009) [# 9]

       The plaintiff, Shauna I. White, brings this action against her fonner employer,

Timothy F. Geithner, Secretary of the Treasury,l alleging discrimination on the basis of

race, sex, pregnancy, and retaliation in violation of Title VII of the Civil Rights Act of

1964,42 U.S.C. § 2000e-5, and the Pregnancy Discrimination Act of 1978,42 U.S.C. §

2000e(k). The Secretary filed a motion for partial dismissal alleging White failed to

exhaust her administrative remedies for her pregnancy-discrimination claim. The Court

agrees and GRANTS the Secretary's motion.

                                         BACKGROUND

        White was a human resources coordinator at the Office of the Comptroller of the

Currency at the Department of the Treasury from May 2000 until May 2007. (Compi. at


        lPursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to
an action in his official capacity ceases to hold office, the court will automatically substitute that
officer's successor. Accordingly, the Court substitutes Timothy F. Geithner for Henry M.
Paulson, Jr.
1-2.) She alleges that when she returned from maternity leave on October 3,2005, her

belongings had been packed up and she was stripped of both her responsibilities and her

work station. Eight days later, on October 11,2005, White met with the agency's EEO

representative, Laurie Cymbor (Cymbor), to discuss this tum of events. Cymbor

explained to White that if she felt she was being discriminated against, she could file an

informal EEO complaint within 45 days of the alleged discrimination or she could

participate in the agency's alternative dispute resolution program. White further alleges

that Cymbor explained that if she participated in the alternative dispute resolution

program, she could later file an EEO complaint. (PI. Opp. at 3.)

       Indeed, White's notes, taken the same day, do indicate White believed pursuing

mediation would not preclude her from later pursuing an EEO claim. (PI. Ex. 4 at ~ 9 & PI.

Ex. 3.) The notes do not, however, indicate Cymbor told White she could pursue

mediation and later pursue an EEO claim if she had not filed within the 45-day deadline.

Additionally, White offers a journal entry indicating that she understood that by

contacting EEO she was beginning a process of alleging discrimination that could result

in a lawsuit. (PI. Opp. at 10; PI. Ex. 4.)

       In any event, when White alternatively chose to participate in the agency's dispute

resolution program, she received a memorandum stating that she could also pursue "an

informal complaint or grievance, provided that [sheJ initiate an action within the

appropriate time/rame." (Def. Ex. 4 at 1 (emphasis added).) The mediation agreement


                                             2
also stated White must request EEO counseling within 45 calendar days of the alleged

discrimination. Indeed, White placed her initials next to this paragraph in the mediation

agreement. (Def. Ex. 6 at 3.) See 29 C.F.R. § I6I4.105(a)(l) (establishing the 45-day

deadline).

       After an unsuccessful mediation, White filed an informal EEO complaint on

December 16,2005, (see Def. Ex.II at 1), almost one month after the 45-day deadline to

file a complaint for discrimination based on the incidents of October 3, 2005. White filed

a formal EEO complaint of discrimination on March 7, 2006, in which she alleged

discrimination on multiple grounds, including pregnancy discrimination based on the

actions of October 3,2005. (Def. Ex. 6.) In a letter, the agency agreed to investigate

some of White's discrimination claims, but dismissed her pregnancy-based claim for a

failure to file within the deadline. 2 (Def. Ex. 7 at 1-2.) On March 3,2008, White filed

the instant suit in this Court alleging discrimination on the basis of race, disability, sex,

pregnancy, and retaliation. 3 (See CompI.)




        2The agency further explained in the letter that the alleged pregnancy discrimination
occurred on October 3, 2005, and that White elected to use the agency's mediation process
before initiating counseling on December 16,2005. (Def. Ex. 7 at 2.) The agency also explained
White was aware of the deadlines, as indicated by her signing of the agency's form stipulating
the specific time frames for initiating EEO counseling and filing an administrative grievance.
(ld.)

       3The agency's motion involves only White's pregnancy-discrimination claim. Therefore,
the Court does not address White's other claims. (Def.' s Mot. for Partial Summ. J. at 1.)

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                                         ANALYSIS

       A plaintiff must have exhausted her administrative remedies, including the timely

filing of an EEO complaint, in order to survive a motion to dismiss. See Gillet v. King,

931 F. Supp. 9,12 (D.D.C. 1996) ("It is axiomatic that a plaintiff must exhaust his

administrative remedies prior to instituting a Title VII judicial action against a federal

agency."); Bowden v. United States, 106 F. 3d 433,437 (D.C. Cir. 1997) ("Complainants

must timely exhaust ... administrative remedies before bringing their claims to court.").

Although White admits she filed her informal EEO complaint papers more than 45 days

after the alleged discriminatory action, she alleges that equitable estoppel should apply to

toll the statute of limitations period because "alleged affirmative misconduct" by an

agency official misled her about the running of the limitations period. 4 How so?



        4White also offers a related argument. She asserts she filed her informal EEO complaint
through her meeting with Cymbor on October 11, 2005. (PI.'s Opp. at 7-8.) She notes that
beginning the EEO process does not require filing the paperwork of an informal complaint, but
only that the employee "(1) contact an agency official 'logically connected' with the EEO process
... and (2) demonstrate an intent to begin the EEO process." Klugel v. Small, 519 F. Supp. 2d
66, 71 (D.D.C. 2007). She asserts she demonstrated an intent to begin the process within the 45-
day time frame, during her meeting with Cymbor on October 11,2005.
        This argument also fails, however, as White understood during this meeting that the
mediation process was separate and distinct from the EEO process. As White herself explained
in her opposition, "[a]ccording to [White's] notes of the conversation, which she prepared the
same day, Ms. Cymbor advised her that she had two choices: file and informal EEO complaint
within 45 days, or participate in the Defendant's ADR program." (PI. 's Opp. at 3.) Indeed, she
goes on to explain that she understood she was choosing between the mediation and filing an
informal EEO complaint. (ld.) By her own admissions and arguments, White makes it clear she
knew the mediation process and the EEO process were different and she knew she was electing
to pursue mediation rather than the EEO process. Therefore, the uncontroverted evidence does
not support White's assertion that she intended to begin the EEO process during her meeting
with CymboL

                                               4
       Equitable estoppel-not surprisingly-is a "high" "hurdle" to clear. Smith-Haynie

v. District a/Columbia, 155 F.3d 575,579-80 (D.C. Cir. 1998). Indeed, only in

"extraordinary and carefully circumscribed instances" will the Court exercise its equitable

power to toll the statute of limitations. Id. (internal quotation omitted). To successfully

do so, "a plaintiff must come forward with specific proof of an employer's affirmative

acts or misleading statements that prevented her from filing an EEO complaint." Klugel

v. Small, 519 F. Supp. 2d 66,73 (D.D.C. 2007); see also Bowden, 106 F.3d at 438 (noting

the court has "excused parties who were misled about the running of a limitations period,

whether by an adversary's actions, by a government official's advice upon which they

reasonably relied, or by inaccurate or ineffective notice from a government agency

required to provide notice of the limitations period" (internal citations omitted); Jarrell v.

u.s. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1984) (noting equitable considerations,
such as the employee's reliance on assurance of an EEO officer that the officer was

remedying the adverse employment action, may excuse non-compliance with the filing

requirement). White has not done so here!

       To the contrary, the evidence does not establish White was misled about the

running of the statute of limitations. White has offered evidence sufficient to establish

only that Cymbor told her pursuing mediation does not foreclose a later EEO action.

Even assuming this, as the Court must, 5 White has failed to provide any evidence to


         5As the agency moves to dismiss for failure to exhaust, the Court construes the complaint
in the light most favorable to White and accepts all the complaint's factual allegations as true.

                                                5
establish her general assertion that Cymbor told her she could file an EEO complaint

outside the 45-day filing period. In light of the fact that the agency explicitly informed

White of the deadline in two separate documents, White needed to provide some evidence

that Cymbor contradicted the documents by telling her she could pursue an EEO

complaint regardless of whether she filed it within the 45-day filing period. See Hewitt v.

Rice, 560 F. Supp. 2d 61,65 (D.D.C. 2008) (declining to apply equitable tolling when the

plaintiff alleged his employer gave him 'misinformation,' because the evidence did not

bear this out). The plaintiff having failed to do so, the Court cannot now find the agency

misled her about the running of the limitations period, and equitable estoppel does not

apply.

                                      CONCLUSION

         For the foregoing reasons, the Court GRANTS the agency's motion for partial

dismissal. An order consistent with this Memorandum Opinion is attached hereto.



         SO ORDERED.



                                                  United States District Judge




Martinez v. United States, 587 F. Supp. 2d 245, 247 (DD.C. 2008).

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