                                   UNITED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF COLUMBIA

                                                    )
RONESHA BUTLER,                                     )
                                                    )
                           Plaintiff,               )
                                                    )
                v.                                  )                               11-cv-00574 (RCL)
                                                    )
MARY SCHAPIRO, 1      0F                            )
Chairman,                                           )
Securities and Exchange Commission,                 )
                                                    )
                           Defendant.               )
                                                    )


                                        MEMORANDUM OPINION

I.      INTRODUCTION

        Plaintiff Ronesha Butler (“Butler”) brings this action against Mary Schapiro, Chairman of

the Securities and Exchange Commission (“SEC” or “the defendant”), pursuant to the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Butler alleges discrimination and a

hostile work environment based on race, and she further alleges retaliation for engaging in

protected EEO activity. Presently before the Court is the defendant’s motion [5] to dismiss, or in

the alternative, motion for summary judgment. For the reasons explained below, the Court will

DENY the defendant’s motion.

II.     BACKGROUND            1F




        Butler, an African-American female, was hired by the SEC in 2003 as an attorney

advisor. Compl. ¶¶ 9-10. In 2004, Butler received a promotion to the position of Senior Counsel

in the SEC’s Office of Market Supervision (“OMS”), within the Division Trading and Markets.

1
 Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Schapiro, in her official capacity as Chairman of
The Securities and Exchange Commission, is automatically substituted as the named defendant.
Id. From her initial hiring in 2003 until 2008, OMS Assistant Director Nancy Burke-Sanow

(“Burke-Sanow”), a Caucasian female, supervised Butler. Id. ¶ 12.

       In March 2005, Butler took four months of maternity leave. Id. ¶ 15. Prior to taking this

leave, Burke-Sanow required Butler to fill out four months of daily leave requests. Id. ¶ 16.

Burke-Sanow failed, however, to have Butler submit the required extended leave form. Id. ¶ 18.

As a result, Butler received more compensation than she was entitled to during this time, and the

SEC required her to repay the unearned portion. Id. ¶ 19.

       In May 2006, Butler’s mother suffered cardiac arrest, and Burke-Sanow “reluctantly”

granted Butler’s leave request to attend to her mother. Id. ¶¶ 22-23. While on leave to care for

her mother, plaintiff alleges that Burke-Sanow informed other employees that Butler was on an

extended last-minute vacation. Id. ¶ 24.

       From 2005 to 2006, Butler assisted on a delisting project with fellow employee Susie

Cho. Id. ¶ 28. On April 20, 2006, Burke-Sanow approached Cho and made disparaging

comments about Butler. Id. ¶ 29. Burke-Sanow also questioned Cho about whether Butler

actually performed the tasks under the delisting projects that were reported. Id. ¶

       During her time at the SEC, Butler teleworked two days each month. Id. ¶ 33. On six

occasions between August 2005 and October 2006, Burke-Sanow questioned Butler about

whether Butler was actually working from home, or instead, caring for her daughter. Id. ¶ 35.

On August 14, 2006, Butler sent a work report to Burke-Sanow of the tasks she would complete

while teleworking from home that day. Id. ¶ 37. Burke-Sanow followed up with two employees

on the list to verify that Butler performed the tasks on her work report. Id. ¶ 38. Butler

eventually stopped teleworking. Id. ¶ 41.




                                                 2
         On May 30, 2006, Associate Directors Elizabeth King and David Shillman met with the

Assistant Directors, including Burke-Sanow, to discuss employee performance for the May 2005

to April 2006 time period. Def.’s Mot. at 5. During this meeting, the Assistant Directors gave

recommendations to King and Shillman regarding merit pay raises. Compl. ¶ 50. Butler

received an overall acceptable rating for the period at issue, but she did not receive a merit pay

increase in 2006. Id. ¶ 51.

         In August 2006, Burke-Sanow called Deborah Balducchi, the SEC’s then Director of

Equal Employment Opportunity, to inquire into Butler’s current time commitment to the SEC’s

African-American Council. Id. ¶ 42.

         On October 10, 2006, Butler contacted an EEO Counselor to initiate the formal complaint

process for race discrimination and harassment based on race. Id. ¶ 63. During the discovery

period of Butler’s EEOC claims, Butler’s work assignments and feedback from Burke-Sanow

decreased. Id. ¶ 68. Butler was additionally removed from working on the OTCBB and Pink

Sheets Over-the-Counter Derivatives projects. Id. ¶ 71.

         Butler filed the instant action on March 21, 2011 alleging harassment and discrimination

on the basis of race, and retaliation. The defendant subsequently filed a motion to dismiss, or in

the alternative, motion for summary judgment. This motion is now ripe for determination by the

Court.

III.     ANALYSIS

         A.         Standard of Review for a Motion to Dismiss

         A motion to dismiss is appropriate when a complaint fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). To overcome this hurdle, a complaint must

contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in




                                                  3
order to give the defendant fair notice of what the . . . claim is[,] and the grounds upon which it

rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). The

Court must “accept as true all of the factual allegations contained in the complaint,” Atherton v.

District of Columbia, 567 F.3d 672, 681 (D.C. Cir. 2009), and grant a plaintiff “the benefit of all

inferences that can be derived from the facts alleged,” Kowal v. MCI Commc'ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). However, the Court may not “accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the complaint.” Id. In other words,

“only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1950 (2009); see also Atherton, 567 F.3d at 681.

       B.          Retaliation Claim

       The defendant moves to dismiss Butler’s retaliation claim on the grounds that she failed

to exhaust her administrative remedies. Def.’s Mot. at 10. Specifically, the defendant asserts

that on January 25, 2010, Butler received a right to file a formal complaint with the EEOC on her

retaliation claim, and she failed to do so within the 15-day allotted period. Id. at 11. Butler

argues in response that the failure to timely file an administrative complaint should be excused

because the delay in filing was unintentional. Pl.’s Opp’n at 17. Butler further argues that the

facts asserted in her retaliation claim are “like or related” to her properly filed administrative

claims of discrimination and harassment, and therefore, she should be allowed to proceed with

this claim. Id. at 17-18.

       An employee must file an EEOC complaint within 15 days of receiving notice of his or

her right to do so. See 29 C.F.R. § 1614.106(b). The failure to file a timely complaint within the

15-day period constitutes a failure to exhaust administrative remedies, and is grounds for

dismissal of the case by the agency, subject to equitable tolling. See Wilkins v. Daley, 49 F.




                                                  4
Supp. 2d 1, 2 (D.D.C. 1999) (citing Saltz v. Lehman, 672 F.2d 207, 208-09 (D.C. Cir. 1982)); 29

C.F.R. 1614.604(c) (“the time limits in this part are subject to waiver, estoppel and equitable

tolling”). If the employee files a formal administrative complaint and is not satisfied with the

agency's resolution of that complaint, he or she may either appeal to the Equal Employment

Opportunity Commission or file a civil action in federal court. See Johnson v. Peterson, 996

F.2d 397, 399 (D.C. Cir. 1993). Again, there is a specified time period within which the

employee must take these steps. See 29 C.F.R. § 1614.110.

       The Court's power to equitably toll these filing periods may be exercised “only in

extraordinary and carefully circumscribed instances.” Mondy v. Sec'y of the Army, 845 F.2d

1051, 1057 (D.C. Cir. 1988); see also Smith-Haynie v. District of Columbia, 155 F.3d 575, 580

(D.C. Cir. 1998). In order to gain the benefit of equitable tolling, the plaintiff “bears the burden

of pleading and proving facts supporting equitable avoidance of the defense.” Bowden v. United

States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Bayer v. United States Dep't of the Treasury,

956 F.2d 330, 333 (D.C. Cir. 1992) and Jarrell v. United States Postal Service, 753 F.2d 1088,

1091-92 (D.C. Cir. 1985)). In addition, a plaintiff must establish that he or she “acted diligently

to preserve [the] claim.” Wilkins v. Daley, 49 F. Supp. 2d at 2.

       Butler does not deny that she failed to timely file an administrative complaint for her

Title VII retaliation claim. Instead, she argues that her attorney’s paralegal attempted to file this

complaint on time, and it was accidentally delivered to a different government office. Pl.’s

Opp’n Ex. 22. Upon discovery of this mistake, Butler’s attorney promptly filed the complaint

with the correct office the next day. See id. Ex. 23. The properly filed complaint did not fall

within the 15-day period. Upon careful consideration of the filings of the parties, and

particularly of the undisputed facts proffered by plaintiff with respect to the unintentional filing




                                                  5
at the wrong agency, the Court finds that the 15-day period is equitably tolled from the time

Butler attempted to file her complaint to the EEOC Office on February 4, 2010 until the next

reasonable opportunity she had to file his complaint, the day after she discovered the error. See

Baker v. Henderson, 150 F. Supp. 2d 17, 21-22 (D.D.C. 2001) (time period equitably tolled

where plaintiff, in exercising due diligence, acted “swiftly” to file the complaint as soon as she

discovered error on the part of the clerk's office). Therefore, the defendant’s motion to dismiss

the plaintiff’s retaliation claim based upon failure to exhaust her administrative remedies is

denied.

          C.     Hostile Working Environment Claim

          To begin, Butler’s hostile work environment alleges the following actions demonstrate

that she was subjected to discriminatory intimidation, ridicule, and insult: (1) Butler having to fill

out daily leave requests for four months of maternity leave; (2) Butler paying back part of her

salary because Burke-Sanow failed to provide Butler with the appropriate extended-leave

request; (3) Burke-Sanow making various racist comments; (4) Burke-Sanow reluctantly

approving Butler’s leave request to attend to her mother; (5) Burke-Sanow informing Butler’s

co-workers that Butler was on an extended last-minute vacation, when instead, Butler was caring

for her mother; (6) Burke-Sanow subjecting Butler’s work product to greater scrutiny than non-

African-American employees; (7) Burke-Sanow making repeated comments and demonstrating

that she thought Butler was lazy, dishonest, and incompetent; (8) Burke-Sanow questioning

Butler’s colleagues as to whether Butler actually completed her work; (9) Burke-Sanow

questioning Butler about whether she was not teleworking, and instead, caring for her daughter

while at home; (10) Burke-Sanow inquiring as to whether Butler spent too much time working

on the SEC’s African-American Council; (11) Burke-Sanow assigning Butler with administrative




                                                  6
tasks instead of actual work ; and (12) Burke-Sanow keeping a notebook where she recorded

negative opinions of Butler’s work.

       The defendant moves to dismiss Butler’s retaliation claim, arguing that even if everything

alleged in Butler’s complaint occurred, no reasonable person could consider such conduct meets

the standard required to establish a hostile work environment claim. Def.’s Mot. at 14.

       While Plaintiff is not required to plead a prima facie case of hostile work environment in

the Complaint, the alleged facts must be able to support such a claim. See Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000). To allege a prima facie case of hostile work

environment, Plaintiff “must demonstrate that: (1) she is a member of a protected class; (2) she

was subject to unwelcome harassment; (3) the harassment occurred because of her race or

disability; (4) the harassment affects a term, condition or privilege of employment; and (5) the

employer knew or should have known of the harassment, but failed to take any action to prevent

it.” Childs–Pierce v. Utility Workers Union of Am., 383 F. Supp. 2d 60, 77 (D.D.C. 2005), aff'd,

187 Fed. Appx. 1 (D.C. Cir. 2006).

       Not all forms of offensive or discriminatory conduct, however, give rise to a hostile work

environment claim. A workplace becomes “hostile” only “[w]hen the workplace is permeated

with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to

alter the conditions of the victim's employment and create an abusive working environment.”

Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). In determining whether a hostile work

environment exists, the Supreme Court has directed courts to examine the totality of the

circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.” Faragher v. Boca Raton, 524 U.S. 775, 787–




                                                  7
88 (1998) (quoting Harris, 510 U.S. at 23). “These standards for judging hostility are

sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ ” Id. at

788 (citations omitted). “Even a few isolated incidents of offensive conduct do not amount to

actionable harassment.” Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (citing Hopkins

v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.1996)); see also Nurriddin v. Bolden,

674 F. Supp. 2d 64, 94 (D.D.C. 2009) (dismissing a hostile work environment claim in part

because “the alleged events are temporally diffuse, spread out over a four-year period suggesting

a lack of pervasiveness”); Childs–Pierce, 383 F. Supp. 2d at 79 (dismissing a hostile work

environment claim that plaintiff “attempt[ed] to cobble together . . . from discrete acts of alleged

discrimination against her that are neither severe nor widespread.”).

       In making its argument for a motion to dismiss, the defendant mistakenly directs the

Court to examine a variety of cases where the plaintiff failed to provide enough evidence to

support a hostile work environment claim at the summary judgment stage. See Def.’s Mot. at 15.

However, the defendant clearly requests the Court dismiss Butler’s claim under the motion to

dismiss standard,stating that “[e]ven assuming that these allegations were true, no reasonable

person could consider such conduct, either individually or collectively, to be sufficient[.]” Id.at

13. Although each individual act Butler contends likely does not amount to a hostile working

environment, the Court must look at the totality of the circumstances in determining actionable

harassment. Faragher, 524 U.S. at 787-88. Additionally, the Court must grant the plaintiff the

benefit of drawing all factual inferences in her favor. Kowal, 16 F.3d at 1276. Taken as a whole,

the complaint alleges that over a one-year time period, Butler’s immediate supervisor repeatedly

made racist remarks and unwanted disparaging comments about Butler’s work product and

general demeanor. Additionally, the scrutiny directed towards Butler’s work performance and




                                                 8
honesty did not extend to any non-African-American employees. Assuming these allegations to

be true, the Court finds the conduct sufficient to withstand a motion to dismiss.

       D.      Standard of Review for Summary Judgment

       Summary judgment may be granted only where “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 Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material

fact is one that is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby,

477 U.S. 242, 248 (1986). A genuine issue exists where the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party,” as opposed to evidence that “is so one-

sided that one party must prevail as a matter of law.” Id. at 248. A court considering a motion

for summary judgment must draw all “justifiable inferences” from the evidence in favor of the

nonmovant. Id. at 255. But the nonmoving party's opposition must consist of more than mere

unsupported allegations or denials and must be supported by affidavits or other competent

evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.

P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the evidence is “merely

colorable” or “not significantly probative,” summary judgment may be granted. Anderson, 477

U.S. at 249–50.

       E.      Discrimination Claim

       The sole adverse employment action alleged in Butler’s race discrimination claim is the

SEC’s decision to award her a zero merit step increase for the 2005-2006 year. The defendant

moves for summary judgment, arguing that Butler has failed to rebut the defendant’s legitimate

non-discriminatory reason for not awarding her this increase. Def.’s Mot. at 22. Butler requests

the Court deny the defendant’s motion pursuant to Rule 56(d). Pl.’s Opp’n at 23. More




                                                  9
specifically, Butler argues that the defendant supports its motion with affidavits obtained from

individuals that Butler has yet to depose. Id.

        In general, summary judgment in Title VII cases should be avoided where discovery has

not taken place. See, e.g., Ikossi v. Dep't of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (citing

Hackley v. Roudebush, 520 F.2d 108, 149, 151 (D.C. Cir. 1975)). Parties requesting discovery

are generally required to submit motions under Rule 56(d) of the Federal Rules of Civil

Procedure. Rule 56(d) provides that a court may deny a motion for summary judgment, order

discovery, or “issue any other appropriate order” if the nonmoving party “shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition.”

Fed. R. Civ. P. 56(d).2 The affidavit or declaration “cannot be a generalized, speculative request

to conduct discovery but must demonstrate that further specified discovery will defeat a

summary judgment motion,” Estate of Parsons v. Palestinian Auth., 715 F. Supp. 2d 27, 35

(D.D.C. 2010) (quoting Maduforo v. Urban Serv. Sys. Corp., 2009 WL 2378743, at *1 (D.D.C.

July 31, 2009)), and “show what facts [the nonmoving party] intend[s] to discover that would

create a triable issue and why he could not produce them in opposition to the motion.” Byrd v.

EPA, 174 F.3d 239, 248 n. 8 (D.C. Cir. 1999). Even in the absence of an affidavit, courts may

nonetheless postpone summary judgment if additional filings in the case have “served as the

functional equivalent of an affidavit[,]” and informed the court that further discovery is needed.

First Chi. Int'l v. United Exch. Co., Ltd., 836 F.2d 1375, 1380 (D.C. Cir. 1988). In this regard,

“[c]onclusory allegations without any supporting facts are not sufficient to justify additional

discovery.” Am. Soc'y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum &

Bailey Circus, 502 F. Supp. 2d 103, 106 (D.D.C. 2007).


2
 Rule 56(d) was formerly codified as Rule 56(f). The new codification was made “without substantial
change.” Fed.R.Civ.P. 56(d) 2010 amend. cmt. (2010).


                                                  10
       Butler specifically identifies individuals she wishes to depose in order to prove the

defendant’s asserted reason for not awarding her a merit step increase is pretextual. Therefore,

because no discovery has taken place yet in this case, and additionally, because the D.C. Circuit

has rejected the notion that the district court can resolve a Title VII case based solely on the

administrative record at the summary judgment level, Hackley v. Roudebush, 520 F.2d 108, 149

(D.C. Cir. 1975), the Court denies the defendant’s motion for summary judgment.

IV.    CONCLUSION

       For the foregoing reasons, the Court DENIES the defendant’s motion [5] to dismiss, or in

the alternative, motion for summary judgment.

       A separate Order and Judgment consistent with these findings shall issue this date.

       Signed by Royce C. Lamberth, Chief Judge, on March 20, 2012.




                                                 11
