                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA

 JACQUELINE WILSON,

                            Plaintiff,

                            v.                    Case No. 16-cv-00133 (CRC)

 JAY CLAYTON,1 Chair of the Securities
 and Exchange Commission,

                            Defendant.

                                 MEMORANDUM OPINION AND ORDER

        Securities and Exchange Commission (“SEC”) employee Jacqueline Wilson has sued the

agency on various claims of discrimination and retaliation. The SEC moves to dismiss most of

Wilson’s claims for failure to timely exhaust her administrative remedies. For reasons discussed

below, the Court will treat the motion as one for partial summary judgment and will grant it in

part and deny it in part.

  I.    Background

        Jacqueline Wilson, an African-American woman in her fifties, began working at the SEC

in 2008 as an SK-172 Supervisory Auditor in the Office of Inspector General (“OIG”). Compl.

¶¶ 4, 6, 35. In 2013, Carl Hoeker was appointed as the SEC’s Inspector General and began

serving as Wilson’s supervisor. Def.’s Mot. to Dismiss (“Mot. to Dismiss”), Ex. A at 3. In

November 2013, Wilson contacted an agency equal employment opportunity (“EEO”) counselor




        Wilson’s complaint names former SEC Chair Mary Jo White as the Defendant. The
        1

Court has substituted the current Chair, Jay Clayton, pursuant to Federal Rule of Civil Procedure
25(d).
        2
         The SEC uses an “SK” pay schedule rather than the “GS” schedule used elsewhere in
the federal civil service.
to complain that Hoeker and another supervisor were subjecting her to a hostile work

environment on the basis of age, race, sex, and in retaliation for giving testimony in an unrelated

agency investigation. Mot. to Dismiss, Ex. E at 1-2. At the conclusion of the counseling

process, Wilson was notified of her right to file a formal EEO complaint with the agency, Def.’s

Reply (“Reply”), Ex. D at 20, but she declined to do so. Instead, she requested a transfer and

was temporarily detailed from OIG to the agency’s Office of Human Resources (“OHR”). Id. at

19. After several extensions of her detail, Wilson was permanently transferred to OHR in

November 2014. Id.

       Wilson again contacted an agency EEO counselor the following month. Mot. to Dismiss,

Ex. D at 19. This time, however, Wilson proceeded to timely file a formal complaint on

February 23, 2015, checking boxes on the complaint form for “Promotion/Non Selection,”

“Assignments/Duties,” “Reassignment,” “Transfer,” and “Evaluation/Appraisal.” Pl.’s

Opposition Mot. to Dismiss (“Opp.”), Ex. 1 at 3. Although Wilson had requested the detail to

OHR and appears to have agreed to at least one of its extensions, her formal complaint alleged

that the permanent transfer to OHR was involuntary and that she was assigned a “less equivalent

position.” Id. at 5. She further claimed that Hoeker pushed her out of OIG by creating a new

SK-17 position nearly identical to Wilson’s and filling it with a younger, white woman, Rebecca

Sharek. Id. In a supporting affidavit, Wilson also maintained that Sharek was paid significantly

more than her while occupying the same position at OIG. Mot. to Dismiss, Ex. A at 7-8.

       Upon receiving Wilson’s formal complaint, the SEC’s Office for Equal Employment

Opportunity accepted the following claim for investigation: “Whether the SEC discriminated

against Wilson . . . when on November 16, 2014, [she] was involuntarily transferred from OIG to

OHR.” Reply, Ex. D at 3. The EEO office issued a Final Agency Decision on October 29, 2016.


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Mot. to Dismiss, Ex. D. The decision concluded that Wilson failed to prove by a preponderance

of the evidence that the alleged adverse employment action—her permanent reassignment to

OHR—was the result of unlawful employment discrimination. Id. at 18.

       Ninety days after receiving a right-to-sue notice following the agency’s investigation,

Wilson filed suit in this Court. Her complaint contains three counts: (1) race and sex

discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2)

retaliation, also in violation of Title VII; and (3) age discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”). The SEC has filed a partial motion to dismiss

for failure to exhaust administrative remedies with respect to all of the discrete acts of

discrimination that Wilson contends support the three counts, except her permanent reassignment

to OHR.

 II.   Standard of Review

       The SEC has moved to dismiss under Rule 12(b)(6). However, where, as here, “matters

outside the pleadings are presented to and not excluded by the court, the motion must be treated

as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d); see also Center for Auto

Safety v. Nat’l Highway Transp. Safety Admin., 452 F.3d 798, 805 (D.C. Cir. 2006). Such

treatment is appropriate if the parties are “given a reasonable opportunity to present all the

material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Wilson has been accorded a

reasonable opportunity to respond to and present evidence: the exhibits to Defendant’s motion

were available to Wilson, and Wilson’s opposition included its own set of supporting exhibits.

       Summary judgment is appropriately 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). When deciding a motion for summary judgment, the Court must


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“‘examine the facts in the record and all reasonable inferences derived therefrom in a light most

favorable to’ the nonmoving party.” Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (citation

omitted).

 III. Analysis

       Each of the three counts of Wilson’s complaint—race and sex discrimination under Title

VII, retaliation under Title VII, and age discrimination under the ADEA—is supported by the

same six discrete acts of alleged discriminatory and/or retaliatory treatment: (1) that Wilson

experienced workplace harassment during her tenure at OIG, (2) that the agency selected Ms.

Sharek over her for the position of Deputy Inspector of Audits in OIG, (3) that she received a

poor performance evaluation in January 2014, (4) that the agency extended her detail to OHR,

(5) that she was permanently reassigned to OHR, and (6) that she was paid less than colleagues

who were younger, white, and male. See Compl. ¶¶ 6-36. Wilson argues that even if a claim

based on one or more of these discrete acts is time barred, they all comprise a continuing “hostile

work environment” claim that is not time barred. Opp. 4-6. Finally, Wilson contends that claims

based on each of these discrete acts are timely because they are “reasonably related” to at least

one exhausted claim. Id. at 7.

       A. The Discrete Acts Underlying Wilson’s Claims

       Federal law protects employees from discrimination on the basis of their race, sex, and

age. See 42 U.S.C. § 2000e-2 (race and sex); 29 U.S.C. § 633a (age). However, if a federal

employee wishes to bring suit against her employer alleging a violation of her rights, she must

first “navigate a maze of administrative processes” to timely exhaust each discrete act alleged.

Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017).




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       First, an aggrieved party must consult with the agency’s EEO Counselor within 45 days

of the allegedly discriminatory incident. 29 C.F.R. § 1614.105(a). At this initial session, the

EEO Counselor informs the employee of her rights and responsibilities. Id. § 1614.105(b)(1). If

the informal counseling process proves unsuccessful, the EEO Counselor must inform the

employee of her right to file a complaint with the agency. Id. § 1614.105(d). The employee

must file her formal agency complaint within 15 days of receiving such notice. Id. §

1614.106(b). The agency then has 180 days to complete an investigation of the complaint. Id. §

1614.108(e). Upon receiving a final agency decision, the employee may either appeal to the

Equal Employment Opportunity Commission (“EEOC”) within 30 days or file suit in federal

court within 90 days. Id. §§ 1614.402(a), 1614.407(a). If an aggrieved party fails to comply

with this timeline, the discrete discriminatory act is “not actionable.” Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113, 122 (2002).

       Wilson’s complaint includes allegations concerning events that occurred prior to January

2014, when she still worked at OIG, and events that took place in connection with her detail and

eventual transfer to OHR. Although Wilson complained to an EEO counselor in November 2013

about her treatment while working at OIG, she did not subsequently file a formal agency

complaint and thus abandoned those claims. See 29 C.F.R § 1614.106(b). The remaining

question before the Court is which claims were timely exhausted by Ms. Wilson’s second foray

into the administrative process, which she initiated by again contacting an EEO counselor in

December 2014 after her permanent transfer to OHR.

               1. Workplace Harassment in OIG

       Wilson alleges numerous incidents of workplace harassment while working at OIG from

February 2013 (when Mr. Hoeker became her supervisor) until January 2014 (when she was


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detailed to OHR). Compl. ¶¶ 9-30. As noted above, however, Wilson chose not to file a formal

complaint after raising these same allegations with an EEO counselor in November 2013. And

Wilson’s second contact with an EEO counselor was not until December 2014, well past the 45-

day deadline for initiating the informal counseling process with respect to any conduct that

occurred during her time at OIG. See 29 C.F.R. § 1614.105(a). Additionally, Wilson did not

check the box for “harassment” on her formal complaint, nor did the agency accept that issue for

investigation. Mot. to Dismiss, Ex. D; Opp. Ex. 1 at 3. Wilson therefore failed to exhaust her

workplace harassment claim.

                 2. Non-Selection for Deputy Inspector Position

       Wilson checked off “non-selection” on her formal agency complaint, presumably in

reference to OIG’s decision in January 2014 to hire Rebecca Sharek as Deputy Inspector General

for Audit. See Compl. ¶ 29; Opp., Ex. 1. But because the decision to hire Ms. Sharek took place

almost a year before Wilson contacted an agency EEO counselor in December 2014, Compl. ¶

29, Mot. to Dismiss, Ex. D at 19, any claim based on the non selection is time barred. 29 C.F.R.

§ 1614.105(a).

       Nevertheless, even time-barred claims may be allowed to proceed if the agency decided

them on the merits. See Doak v. Johnson, 798 F.3d 1096, 1104–05 (D.C. Cir. 2015) (finding that

an agency can waive the deadline for contacting an EEO counselor if it accepts, investigates, and

decides a claim on the merits). Wilson contends that her non-selection claim was exhausted

because the agency “addressed” and “made legal conclusions” about it in its final agency

decision. Opp. at 8. But to the extent the decision did so, it was only in the context of deciding

whether Wilson had established a prima facie case of discrimination with respect to her

permanent reassignment claim, which again was the only claim accepted for investigation. Mot.


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to Dismiss, Ex. D at 9-10 (finding that Sharek’s relative pay did not establish the disparate-

treatment prong of prima facie discrimination because she and Wilson had different job

responsibilities). Nowhere does the final agency decision discuss, let alone resolve, Wilson’s

claim that the agency engaged in unlawful discrimination by hiring Sharek over her for the

Deputy Inspector position. Wilson’s non-selection claim must therefore be dismissed.

                 3. Performance Evaluation

          Wilson checked off “evaluation/appraisal” on her formal complaint, presumably in

reference to a negative performance evaluation she received in January 2014. Opp., Ex. 1 at 3;

Compl. ¶ 30. But because the performance evaluation is a discrete act that occurred more than

45 days before Wilson complained to an EEO counselor in December 2014, the claim is time

barred.

                 4. Detail Extensions

          Wilson’s complaint alleges that her detail to OHR “was extended three times.” Compl. ¶

33. However, the last extension occurred on October 19, 2014, more than 45 days before Wilson

contacted an EEO counselor on December 22, 2014. Mot. to Dismiss at 9; see 29 C.F.R. §

1614.105(a). The final agency decision mentions the detail extensions in the context of Wilson’s

permanent reassignment claim by noting that their voluntary nature tends to prove that the

permanent reassignment was not an adverse employment action. Mot. to Dismiss, Ex. D at 7.

But the decision does not analyze the detail extensions as a separate discrimination claim, nor

does it resolve that issue on the merits. The claim is therefore not exhausted.

                 5. Permanent Transfer

          Wilson’s permanent transfer to OHR occurred on November 16, 2014, less than 45 days

before she contacted an EEO counselor. Compl. ¶ 34. It is the main subject of her formal


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complaint and the agency accepted the claim for investigation. Opp., Ex. 1 at 5; Mot. to Dismiss,

Ex. D at 3. Neither party disputes that this claim was properly exhausted. Thus, it may proceed.

               6. Discriminatory Pay

       In her present complaint, Wilson alleges that she was paid less than similarly situated

white and male employees “over many years.” Compl. ¶¶ 36, 42, 48, 53. This claim is based on

two purported salary differences: (1) Wilson’s salary compared with white and male SK-17s

when she was working at OIG; and (2) Sharek’s higher OIG salary after Wilson had been

transferred to OHR.

       Like her other claims from her tenure at OIG, Wilson’s first salary-based claim is time

barred. Although each paycheck that results from a discriminatory compensation decision

“triggers a new filing period,” Hammel v. Marsh USA Inc., 206 F. Supp. 3d 219, 231 (D.D.C.

2016), Wilson had ceased working at OIG about a year before she made her second informal

complaint, and both her position and title had changed.3 Compl. ¶¶ 34-35. Therefore, any

paycheck resulting from a “discriminatory compensation decision” regarding Wilson’s OIG pay

would have been issued more than 45 days before Wilson’s second contact with an EEO

counselor in December 2014. Hammel, 206 F. Supp at 230.

       Wilson’s second salary-based claim—that her OIG salary was below Sharek’s—was

properly exhausted. Wilson timely raised the salary discrepancy between herself and Sharek in

an affidavit submitted during the administrative process. See Mot. to Dismiss, Ex. A at 7-8.

Although she specifically raised the issue in connection with a claim under the Equal Pay Act—




       Wilson’s discriminatory pay claim does not appear to implicate her current OHR salary,
       3

which was retroactively raised in February 2015 to the date of her permanent reassignment in
November 2014. See Compl. ¶ 36.

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which the agency properly rejected because the Equal Pay Act only addresses salary differentials

between women and men—Wilson put the agency on adequate notice that she was challenging

her pay as compared to a younger, white woman. That was sufficient to meet the exhaustion

requirement. See Coleman v. Duke, 867 F.3d 204, 210 (D.C. Cir. 2017) (finding that plaintiff

had exhausted his timely retaliation claim even though the agency did not officially accept the

claim for investigation or discuss it on the merits because the agency had notice of the claim).

Therefore, Wilson’s claim that Sharek was paid more than her while working in a similar

position at OIG may proceed as a basis for the age and race discrimination claims set forth in the

complaint.

          B. Hostile Work Environment

          Wilson attempts to salvage her time-barred claims by arguing that they all form part of a

distinct continuing hostile work environment claim. Opp. at 2. Hostile work environment

claims allege a pattern of repeated discriminatory conduct that constitutes one single “unlawful

employment practice.” Morgan, 536 U.S. at 122. In determining whether a series of acts

constitutes a hostile work environment claim, courts consider whether the acts “involved the

same type of employment actions, occurred relatively frequently, and were perpetrated by the

same managers.” Id. at 120. Where a series of alleged acts comprise a hostile work environment

claim, that claim is not time barred “as long one act falls within” the statutory filing period. Id.

at 122.

          Despite this more lenient standard, Wilson still did not exhaust her hostile work

environment claim. Wilson included a hostile work environment claim in her November 2013

informal complaint to an agency EEO counselor, but she failed to pursue it by filing a formal

agency complaint. Mot. to Dismiss, Ex. E at 2. Therefore, the only way Wilson could have


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exhausted a hostile work environment claim is if she made her second informal EEO complaint

within 45 days of an incident that constitutes part of the claim. See Morgan, 536 U.S. at 122.

But by the time Wilson reinitiated the informal EEO process in December 2014, she had already

been working at OHR for almost a year under a different supervisor. See Compl. ¶ 29. And the

only incident that occurred within 45 days of the second EEO contact—the permanent

reassignment to OHR—is not so “similar in nature” to Wilson’s harassment allegations from her

time at OIG that together they form a single hostile work environment claim. Baird v. Gotbaum,

662 F.3d 1246, 1251 (D.C. Cir. 2011).

       C. “Reasonably Related” Exception

       Finally, Wilson argues that her time-barred claims should proceed because they fall under

the “reasonably related” exception to the agency exhaustion requirement, which allows a court to

hear claims that are “like or reasonably related to” claims that were timely exhausted. See

Pierson v. Wash. Metro Area Transit Auth., 821 F. Supp. 2d 360, 364 (D.D.C. 2011). While the

D.C. Circuit has questioned whether this exception still exists, see Mount v. Johnson, 664 F.

App’x 11 (D.C. Cir. 2016), that is irrelevant here: the exception only applies to claims of

discrimination or retaliation that occur after the filing of an administrative complaint. See

Mount v. Johnson, 36 F. Supp. 3d 74, 84 (D.D.C. 2014). Because all of Wilson’s time-barred

claims arose before her second contact with an EEO counselor in December 2014, this exception

cannot apply.4



       4
         For the sake of clarity, the Court notes that just because an unexhausted allegation
cannot form the basis of a Title VII or ADEA claim does not mean that the events giving rise to
the allegation cannot be considered as evidence of a different claim that was administratively
exhausted. In other words, at the summary judgment stage or at trial, Ms. Wilson can proffer
evidence related to her time-barred claims as support for her exhausted claims so long as that
evidence is both admissible and relevant to the exhausted claims.

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 IV. Conclusion

      For the foregoing reasons, it is hereby

      ORDERED that [11] Defendant’s Motion to Dismiss in Part is GRANTED in part and

DENIED in part.

      SO ORDERED.




                                                     CHRISTOPHER R. COOPER
                                                     United States District Judge

Date: September 28, 2017




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