 SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION IN THE
                     OFFICIAL REPORTERS

                            IN THE UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


TERRY LAFAVORS,                                   )
                                                  )
               Plaintiff,                         )
                                                  )
       vs.                                        )        Civil Action No. 10-cv-1575 (RLW)
                                                  )
ERIC K. SHINSEKI                                  )
Secretary of Veterans Affairs,                    )
                                                  )
               Defendant.                         )
                                                  )


                                 MEMORANDUM OPINION 1


       Plaintiff Terry LaFavors, who is black, brings this action seeking to compel her employer,

the Veterans Administration (“VA”), to undertake an EEO investigation into her complaint of

discrimination; the VA dismissed her administrative complaint after finding that her first contact

with an EEO counselor was untimely.2 Presently before the Court are two motions: 1)


       1
           This is a summary opinion intended for the parties and those persons familiar with the
facts and arguments set forth in the pleadings; not intended for publication in the official
reporters.
       2
          LaFavors has not asserted any employment discrimination claims in her complaint.
Rather, she contends that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 2201, 2202
and 38 U.S.C. § 7422(d), none of which alone confer jurisdiction on this court. Additionally, in
the sole count found in her complaint, she asserts the following:

       By refusing to consider Plaintiff’s Complaint and appeal based on the pretext that it
       was filed untimely, the Agency deprived Plaintiff of substantive due process of law
       and equal protection of the law, violating her rights under the Fifth and Fourteenth
       Amendments to the United States Constitution. In doing so, the Agency acted
       beyond its established authority, and engaged in conduct that is arbitrary and

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“Defendant’s Motion to Dismiss or in the Alternative for Summary Judgment” (Doc. 7); and 2)

Plaintiff’s “Motion for Leave to File Amended Complaint.” (Doc. 10.) For the reasons explained

below, the Court finds that the VA’s motion is due to be granted, and LaFavors’ motion is due to

be denied. 3



                                     I. LEGAL STANDARDS

A.      Rule 12(b)(6) Motions to Dismiss & Motions for Summary Judgment

        “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). The Court must treat a Rule 12(b)(6) motion to dismiss as a Rule 56 motion for


        capricious, and an abuse of discretion by operation of law.

(Compl. ¶ 15.)

        The VA argues that de novo review of her substantive claims is the only relief available to
LaFavors in this forum, not an action to compel the EEOC to investigate her claims.
Accordingly, the VA contends the court should review her complaint under Title VII. The court
will treat the VA’s argument as conceded: LaFavors failed to respond to this argument in her
brief, but instead sought leave to amend her complaint to assert Title VII and Section 1981
claims. See Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997)
(“Where the district court relies on the absence of a response as a basis for treating the motion as
conceded, we honor its enforcement of the rule.”); (Doc. 10-1, Attachment to Mot. for Leave to
File Amended Compl. at p. 1, ¶¶ 22-31).
        3
         LaFavors filed her motion to amend without including “an original of the proposed
pleading as amended,” see LcvR 15.1, and without providing any explanation regarding how it
might cure the defects in her original complaint. However, the court has reviewed the proposed
complaint and, while it contains Title VII and Section 1981 claims, the factual allegations are the
same as those spelled out in her pleadings. As such, the motion to amend will be denied.


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summary judgment if “matters outside the pleadings are presented to and not excluded by the

court.” Fed. R. Civ. P. 12(d).

       The party seeking summary judgment bears the initial burden of demonstrating no

genuine issues of material fact exist. See Fed. R. Civ. P. 56. When determining whether genuine

issues of material fact exist, the Court must draw all justifiable inferences from the evidence in

favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), cited in

Cruz-Packer v. Dist. of Columbia, 539 F. Supp. 2d 181, 189 (D.D.C. 2008). However the

nonmovant cannot simply rest on her pleadings; rather “the nonmoving party [must] go beyond

the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted).



B.     Exhaustion of Administrative Remedies

       “Title VII plaintiffs are normally expected to exhaust administrative remedies and . . . the

plaintiff who fails to comply, to the letter, with administrative deadlines ‘ordinarily will be

denied a judicial audience.’” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir.1985) (citations

omitted). To satisfy the exhaustion requirement, federal employees “must initiate contact with

[an EEO] Counselor within 45 days 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). 4




       4
       There is nothing in the record which might indicate the date upon which the challenged
employment action became effective.

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If there is any doubt as to when “the matter alleged to be discriminatory occurred,” or when the

plaintiff became aware of the challenged employer action, the forty-five day period begins to run

when the aggrieved “knew, or should have known, about the alleged discriminatory action.” See

Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). “Because untimely exhaustion of

administrative remedies is an affirmative 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.” Bowen v. United States, 106 F.3d
                             5
433, 437 (D.C. Cir. 1997).



                                           II. ANALYSIS

       The VA argues LaFavors first contacted an EEO counselor more than 45 days after the

matter alleged to be discriminatory: the selection of a white male for a position as a Realty

Specialist. LaFavors applied for the position in August 2008 and was included on the “best

qualified” list of applicants. (Def.’s Ex. 2 at 1.) Several months later, in December, when she


       5
          LaFavors does not raise any equitable tolling arguments, nor is there any evidence that
equitable tolling is appropriate in this action. While LaFavors asserted on her EEO complaint
form that she was unaware of the 45 day limitations period, (see Def.’s Ex. 2 at 1), she has not
made any arguments or proffered any evidence which might provide a basis for equitably tolling
the limitations period. See Celotex Corp., 477 U.S. at 323 (requiring the non-movant to come
forward with “affidavits, . . . ‘depositions, answers to interrogatories, [or] admissions on file’” in
order to defeat a motion for summary judgment); 29 C.F.R. § 1614.105(a)(1) (“The agency or
the Commission shall extend the 45–day time limit . . . when the individual shows that he or she
was not notified of the time limits and was not otherwise aware of them, that he or she did not
know and reasonably should not have been known that the discriminatory matter or personnel
action occurred, that despite due diligence he or she was prevented by circumstances beyond his
or her control from contacting the counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.”)

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contacted Human Resources about the status of the position, she was told that no selection was

made for the August announcement. Instead, the position was re-announced between October 8

and 15. (Def.’s SOF # 3.) LaFavors was unaware of this turn of events because she was on

vacation at that time. Over the next few months, she made multiple inquiries about the selection

process and she ultimately made her first contact with an EEO counselor on February 18, 2009. 6

(Def.’s Ex. 2 at 1.)

        With respect to the date LaFavors first learned that the VA had hired someone for the

Realty Specialist position, the record establishes that on December 4, 2008, she inquired about

the status of her application and had the following email exchange with Linda Henderson in the

Human Resources Department:

        Henderson.               I am certain no one was selected for this position.

        LaFavors:                Someone who worked in another section of VA is now in that job.

        Henderson:               It was re-announced.

        LaFavors:                Did I have to re-apply since I was found qualified the first time. I
                                 never received that not [sic] either.7

        Henderson:               Yes, you had to reapply because it was a new position advertized
                                 [sic]. . . . .

(Def.’s Ex. 16) (emphasis added).



        6
          Although the VA claims LaFavors first contacted an EEO counselor two days later on
February 20, her formal EEO complaint form lists February 18, 2009 as the date of initial
contact. (Def.’s Ex. 2 at 1.)
        7
            Portions of this sentence were illegible.

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       A little over two months later, on February 26, 2009, LaFavors sent a memorandum to an

EEO counselor and complained:

       It wasn’t until the end of November that I found out that the successful candidate for
       the job was a white male who began calling, sending emails and coming to my office
       asking about how I did the job that I realized that he had been selected for the Realty
       Specialist job that I was qualified for in the first announcement.

(Def.’s Ex. 3)(emphasis added).

       By April 9, 2009, however, LaFavors’ formal EEO complaint contained a different story.

(Def.’s Ex. 2.) In that document, LaFavors explained that on December 4 she inquired about the

hiring process for the Realty Specialist position because a white male had begun asking her

questions about how she did her job. (See id. at 1.) Then, by mid-December, she requested

information “as to how the job was filled and who filled it . . . .” (See id at 2.) After she

received no reply, she made further inquires on January 15 and January 26 “to verify that the

white male who was still asking questions about how to perform certain aspects of the job was

selected for the job.” (See id.) No one responded to LaFavors, but “[s]ometime in January the

selectee left his card on [her] desk with his new job title . . . .” (See id.) By February, LaFavors

claims she

       realized that Personnel was not going to provide any information regarding the
       cancellation, the re-announcement and the selection process. They knew that I only
       had 45 days from the time that I learned of the selection to file a complaint and it
       seems like they did all they could to prevent me from learning of their actions . . . .
       I didn’t know of the 45 day limit until the EEO Counselor kept asking about that
       apparent crucial administrative day [sic] to this process.

(See id.) On the same document, LaFavors lists December 4, 2008 & January 25, 2009 in the

box marked “date of occurrence.” (See id. at 1.) On a subsequent email, LaFavors indicated

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“[t]he date of occurrence was December 4, 2008.” (Def.’s Ex. 4.)

       Thus, documents authored or signed by LaFavors indicate: (1) she knew as early as late

November that “the successful candidate for the job was a white male who began calling, sending

emails and coming to [her] office,” and/or (2) that the “date of occurrence” was as early as

December 4 when she first contacted human resources about the position. (Def.’s Exs. 3, 2, 5,

16.) This undisputed documentary evidence establishes that LaFavors first contacted an EEO

counselor 80 days 8 or 76 days 6 after she “knew, or should have known, about the alleged

discriminatory action.” See Stewart, 352 F.3d at 425.

       In the face of this overwhelming evidence, LaFavors asserts in her brief (without citation

to the record and without attaching any sworn evidence) that she was not aware of “any factual

information” in late November or early December upon which to conclude that the white male

who had questioned her had been hired for the position. (Pl.’s Br. at 6.) Rather, she claims that

she merely had “subjective feeling[s]” that such was the case. (Id. at 13-14.) Indeed, she

contends it was possible that in late November or early December she could have concluded: 1)

the white male was not a Realty Specialist; 2) he had been hired at a lower grade level than the

position for which she applied; or 3) he was a temporary placement. Finally, LaFavors claims

she never received an answer to her inquiries about the position and nowhere in her brief does

she indicate when she claims to have actually discovered the white male had been hired for the



       8
           From November 30 through February 18 is eighty days.
       6
           From December 4 through February 18 is seventy-six days

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position.

       The Court rejects LaFavors’ argument because it is unsupported by competent evidence

and it contradicts the undisputed information contained in the documents she authored and/or

signed during the time of the events in question. These documents establish that she “knew or

should have known” no later than December 4 that a white male had been awarded the position.

As such, her contact with an EEO counselor 76 days later was untimely.



                                      III. CONCLUSION

       For the reasons set forth above, the Court finds that no genuine issues of material fact

exist with respect to whether LaFavors contacted an EEO counselor in a timely manner.

Accordingly, by separate order, the VA’s motion will be granted.



                                                                           Digitally signed by Judge Robert
                                                                           L. Wilkins
                                                                           DN: cn=Judge Robert L. Wilkins,
SO ORDERED.                                                                o=U.S. District Court,
February 29, 2012                                                          ou=Chambers of Honorable
                                                                           Robert L. Wilkins,
                                                                           email=RW@dc.uscourt.gov, c=US
                                                                           Date: 2012.02.29 16:56:49 -05'00'

                                                     ___________________________
                                                     Robert L. Wilkins
                                                     United States District Judge




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