                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

DARLENE E. MOORE,                               :
                                                :
                       Plaintiff,               :       Civil Action No.:       10-0267 (RMU)
                                                :
                       v.                       :       Re Document No.:        6
                                                :
UNITED STATES OF AMERICA,                       :
                                                :
                       Defendant.               :

                                    MEMORANDUM OPINION

                       GRANTING THE DEFENDANT’S MOTION TO DISMISS

                                       I. INTRODUCTION

       This matter comes before the court on the defendant’s motion to dismiss. The pro se

plaintiff is employed at the United States Department of Veterans Affairs (“the VA”). She

alleges that her supervisor sexually harassed her in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. 1 Because the court concludes that the plaintiff

failed to exhaust her administrative remedies prior to commencing this action, the court grants

the defendant’s motion to dismiss.




1
       Because the plaintiff does not seek monetary damages, see Compl.; Pl’s Opp’n, the court’s
       jurisdiction must be based on a federal question. See 28 U.S.C. §§ 1331, 1332. Although the
       plaintiff does not specify the legal basis for her complaint, Title VII of the Civil Rights Act of
       1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. provides the only federal relief for sexual
       harassment. See Meritor Sav. Bank v. Vinson, 447 U.S. 57, 66-67 (1986). Accordingly, the court
       construes this complaint as being brought pursuant to Title VII.
                     II. FACTUAL & PROCEDURAL BACKGROUND

       The plaintiff is employed by the VA. Def.’s Mot. at 1. 2 On January 21, 2010, the

plaintiff filed a formal Equal Employment Opportunity (“EEO”) complaint with the VA,

asserting claims of sexual harassment, non-sexual harassment and hostile work environment.

Pl.’s Mot. for Prelim. Inj., Ex. 1 at 1; Def.’s Mot., Ex. 3 at 2. On January 27, 2010, she filed a

pro se complaint in the Superior Court for the District of Columbia against her supervisor,

Ogbeide Oniha, alleging that he sexually harassed her from June 2009 to October 2009. Compl.

at 1. Although the plaintiff has since been reassigned to another office, she alleges that Oniha

has attempted to follow her from the VA to the Metro stations and onto Metro trains. Pl.’s

Opp’n at 2. The plaintiff does not seek monetary damages, asking instead for an order

restraining Oniha’s contact with her. Id.

       On February 19, 2010, the government removed this action from the Superior Court to

this court, and the United States was substituted for Oniha as the defendant. See Notice of

Removal & Ex. B. On February 26, 2010, the defendant filed the instant motion to dismiss,

arguing that the plaintiff failed to exhaust her administrative remedies prior to filing suit. See

Def.’s Mot. at 8-9. The motion is now fully briefed, and the court turns to the applicable legal

standard and the parties’ arguments.




2
       The plaintiff’s complaint consists of only three sentences, none of which provides the factual
       context for her claim. See generally Compl. To the extent that the plaintiff does not dispute the
       facts as presented by the defendant, see generally Pl.’s Opp’n, the court accepts those facts as
       accurate.
                                                   2
                                         III. ANALYSIS

                        A. Legal Standard for Exhaustion of Remedies

       In actions brought under Title VII, a court has authority over only those claims that are

(1) contained in the plaintiff’s administrative complaint or claims “like or reasonably related to”

those claims in the administrative complaint and (2) claims for which the plaintiff exhausted

administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995); Caldwell v.

Serv. Master Corp., 966 F. Supp. 33, 49 (D.D.C. 1997). Once a formal administrative complaint

has been filed, the employee may file a civil action only after the agency issues a final decision

or 180 days lapses from the time of the filing, whichever happens first. See 42 U.S.C. § 2000e-

16(c); Winston v. Clough, 2010 WL 1875626, at *4 (D.D.C. May 11, 2010).

       It is the defendant’s burden to prove by a preponderance of the evidence that the plaintiff

failed to exhaust administrative remedies. Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)

(stating that “because untimely exhaustion of administrative remedies is an affirmative defense,

the defendant bears the burden of pleading and proving it”). Meager, conclusory allegations that

the plaintiff failed to exhaust his administrative remedies will not satisfy the defendant’s burden.

Id. at 12 (noting that a mere assertion of failure to exhaust administrative remedies without more

is “clearly inadequate under prevailing regulations to establish a failure to exhaust administrative

remedies”).

       Dismissal results when a plaintiff fails to exhaust administrative remedies. Rann v. Chao,

346 F.3d 192, 194-95 (D.C. Cir. 2003) (affirming the trial court’s dismissal of the plaintiff’s

ADEA claim for failure to exhaust administrative remedies); Gillet v. King, 931 F. Supp. 9, 12-

13 (D.D.C. 1996) (dismissing the plaintiff’s Title VII claim because he failed to exhaust his

administrative remedies).



                                                 3
              B. The Plaintiff Failed to Exhaust Her Administrative Remedies 3

       The defendant argues that the plaintiff did not exhaust her administrative remedies prior

to commencing suit, as evidenced by the fact that the 180-day time period had not yet run when

the plaintiff filed her complaint in the Superior Court. Def.’s Mot. at 8-9. The defendant notes

that no agency decision has yet been rendered and the plaintiff received a Notice of Acceptance

of the EEO Complaint 4 from the VA dated February 17, 2010. Def.’s Reply at 5-6, 9.

       The plaintiff has not proffered any evidence indicating that the agency has reached a

decision on her administrative complaint. See generally Compl.; Pl.’s Opp’n. As previously

noted, the plaintiff filed her complaint in the Superior Court on January 27, 2010, just six days

after she filed her EEO complaint. See Pl.’s Mot. for a Prelim. Inj., Ex. 1 at 1; Compl. Because

she filed her lawsuit less than 180 days after filing her EEO complaint and because the EEOC

has not yet rendered a final opinion, she has failed to exhaust her administrative remedies. See

42 U.S.C. § 2000e-16(c). Accordingly, the court dismisses the plaintiff’s complaint.




3
       Because the court dismisses the plaintiff’s complaint for failure to exhaust, it need not address the
       other arguments advanced by the defendant.
4
       A Notice of Acceptance confirms that the administrative body received the complaint and
       represents the beginning of the investigative process at the administrative level. See, e.g., Green
       v. Small, 2006 WL 148740, at *1 (D.D.C. Jan. 19, 2006).


                                                    4
                                         IV. CONCLUSION

       For the foregoing reasons, the court grants the defendant’s motion to dismiss. 5 An Order

consistent with this Memorandum Opinion is separately and contemporaneously issued this 23rd

day of June, 2010.




                                                                          RICARDO M. URBINA
                                                                         United States District Judge




5
       As noted previously, see supra n.1, the court construed the plaintiff’s complaint as being brought
       pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. This dismissal
       does not affect the plaintiff’s ability to seek a civil protection order against Oniha in the Superior
       Court for the District of Columbia.



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