                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    PATRICIA STEVENS,

                 Plaintiff,

          v.
                                                          Civil Action No. 18-2930 (RDM)
    EMILY MURPHY, Administrator, General
    Services Administration, et al.,

                 Defendants.


                                  MEMORANDUM OPINION

         Plaintiff Patricia Stevens, an African-American woman in her mid-sixties 1 proceeding

pro se, alleges that Defendants Emily Murphy, the Administrator of the General Services

Administration (“GSA”) and three other employees of that agency, violated the Age

Discrimination in Employment Act of 1967 (“ADEA”), as amended 29 U.S.C. § 621 et seq., by

failing to promote her due to her age. See, e.g., Dkt. 1 at 2. All four Defendants argue that

Stevens failed to exhaust her administrative remedies as required by the ADEA and, accordingly,

move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), or in the alternative, for summary judgment

pursuant to Fed. R. Civ. P. 56. See Dkt. 11 at 1; Dkt. 11-1 at 7–8. Defendants Frank Tiller,

William Lewis, and Danita Byrd separately move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)

on the ground that only the agency head may be sued under the ADEA. See Dkt. 11 at 1; Dkt.

11-1 at 6. For the reasons that follow, the Court will GRANT Tiller, Lewis, and Byrd’s motion

to dismiss and will also GRANT Murphy’s motion for summary judgment.



1
  Stevens was fifty-eight years old “at the time she applied for the” position in question. Dkt. 1
at 18 (Compl. ¶ 37).
                                        I. BACKGROUND

       For purposes of evaluating Defendants’ motions, the following facts, taken primarily

from Stevens’ complaint, are accepted as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137,

1139 (D.C. Cir. 2011) (citing Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). At the

time of the events giving rise to this complaint, Stevens was employed by GSA as a

Telecommunications Specialist, which pays at the GS-13 level. Dkt. 1-1 at 21. On February 28,

2013, GSA placed on USAJOBS a job announcement that advertised an IT Specialist position,

which pays at the GS-14 level. See id. at 1. In March 2013, Stevens applied for the position.

See Dkt. 1 at 3. Stevens subsequently interviewed for the position, see Dkt. 1 at 10, 12 (Compl.

¶¶ 15, 20), but was not selected, see id. at 15 (Compl. ¶ 16). Two “young . . . Caucasian[]

males,” who Stevens describes as “unqualified,” were, instead, selected for the position. Id.

(Compl. ¶ 26).

       On October 7, 2013, Stevens filed an Equal Employment Opportunity (“EEO”) complaint

alleging “discriminat[ion] . . . by [GSA] on the basis of her race.” Dkt. 1-1 at 21. Stevens, after

reviewing a copy of the GSA report on its investigation, timely requested a hearing before an

Equal Employment Opportunity Commission (“EEOC”) Administrative Judge (“AJ”). Id. at 22.

The AJ decided in favor of GSA, and GSA issued a final order adopting the AJ’s decision. Id.

Stevens appealed to the EEOC, which affirmed GSA’s adoption of the AJ’s decision and

“conclude[d] that substantial evidence of record support[ed] the AJ’s determination.” Id.

       On December 13, 2018, Stevens filed suit in this Court alleging discrimination by GSA

on the basis of her age. See, e.g., Dkt. 1 at 1–2. Although Stevens’s complaint contains a stray

reference to “Title VII of the Civil Rights Act of 1996 [sic],” Dkt. 1 at 2, that is insufficient to

raise such a claim when the complaint is viewed as a whole, even construing it liberally, see



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Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (citing Haines v. Kerner, 404

U.S. 519, 520–21 (1972) (per curiam)) (“Courts must construe pro se filings liberally.”).

Stevens’s complaint does refer to the sex and race of both Stevens and the individuals who were

hired for the GS-15 position, Dkt. 1 at 1, but she mentions Title VII only once and

unequivocally alleges discrimination only on the basis of age, see, e.g., id. at 2, which is not a

protected class under Title VII, see 42 U.S.C. § 2000e–2(a).

        Defendants now move to dismiss or, in the alternative, for summary judgment. See Dkt.

11 at 1. On August 23, 2019, Stevens filed her response to Defendants’ motions. See Dkt. 14 at

1. In that response, Stevens does not dispute that her complaint raises only claims of age

discrimination under the ADEA nor does she refer to Title VII. See Dkt. 14.

                                          II. ANALYSIS

        Defendants Tiller, Lewis, and Byrd move to dismiss the claims against them on the

ground that they are not properly named as defendants. Dkt. 11-1 at 6. As they correctly point

out, the ADEA does not impose individual liability, and thus “the only proper defendant . . . is

the head of the department or agency being sued.” Lawson v. Sessions, 271 F.Supp. 3d 119, 124

n.1 (D.D.C. 2017). Plaintiff is therefore mistaken that these defendants “are accountable as

representatives of the agency for actions taken on Behalf of the agency towards the Plaintiff.”

Dkt. 14 at 5. Rather, because they were acting on the agency’s behalf, the agency, not the

individuals, are subject to suit under the ADEA. Because Plaintiff brings claims only under the

ADEA, her claims against Defendants Tiller, Lewis, and Byrd must be dismissed for failure to

state a claim.

        That then leaves Defendant Murphy’s motion to dismiss, or in the alternative, for

summary judgment on the ground that Stevens’s suit is barred because she failed to exhaust her



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administrative remedies as required by the ADEA. See Dkt. 11-1 at 7–8. Because exhaustion

under the ADEA is “properly viewed as [an] affirmative defense[], and thus ‘[a] defendant bears

the burden of pleading and proving’ the defense,” Achagzai v. Broad. Bd. of Governors, 170 F.

Supp. 3d 164, 174 (D.D.C. 2016) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997)); see also Menominee Indian Tribe of Wisc. v. United States, 614 F.3d 519, 527 (D.C.

Cir. 2010), the Court must consider the question of exhaustion on summary judgment rather than

on a motion to dismiss. Under the summary judgment standard, Murphy must show that “there

is no genuine dispute as to any material fact” and that she is “entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

       The ADEA spells out two routes to federal court. See Nichols v. Vilsack, No. 13-1502,

2015 WL 9581799 at *5 (D.D.C. Dec. 30, 2015). Under one, a plaintiff must first pursue

administrative remedy by (1) contacting an EEO Counselor within 45 days of the alleged

discrimination, 29 C.F.R. § 1614.105; see 29 U.S.C. § 633a, and (2) filing a complaint with the

agency that allegedly discriminated against the plaintiff, 29 C.F.R. § 1614.106(a); see 29 U.S.C.

§ 633a. If the plaintiff is unsatisfied with the administrative remedy, only then may the plaintiff

file a civil action with the appropriate U.S. District Court. 29 C.F.R. § 1614.407(b); see 29

U.S.C. § 633a. Under the other, more direct route, a plaintiff must only (1) file in federal court a

complaint within 180 days of the alleged discrimination and (2) provide notice to the EEOC at

least thirty days prior to filing the suit. See 29 U.S.C. § 633a(d); Rann v. Chao, 346 F.3d 192,

195 (D.C. Cir. 2003).

       Murphy contends first that Stevens “has conceded the issue of exhaustion” by not

responding to Murphy’s exhaustion argument in her opposition to Murphy’s motion for summary

judgment. Dkt. 16 at 1 (citing McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64,



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69 (D.D.C. 2012) (“It is well understood in this Circuit that when a plaintiff files an opposition to

a motion . . . addressing only certain arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded.” (omission in original))). At the

summary judgment stage, however, the Court must assure itself that the movant is entitled to

judgment as a matter of law based on the record before it. See Winston & Strawn LLP v.

McLean, 843 F.3d 503, 507 (D.C. Cir. 2016).

       Murphy has made the requisite showing here. She correctly notes that Stevens did not

exhaust her remedies under the first route to court provided by the ADEA because she “raised

racial discrimination allegations through the agency administrative process[] [but] never raised

any age discrimination claims.” Dkt. 11-1 at 7 (emphases in original). A plaintiff fails to

exhaust administrative remedies where she raises a claim of discrimination based on one

protected characteristic through the administrative process but bring a claim absed on a different

protected characteristic through a federal lawsuit. See Haynes v. D.C. Water & Sewer Auth., 924

F.3d 519, 526 (D.C. Cir. 2019) (holding that an ADEA plaintiff had failed to exhaust her

administrative remedies where her administrative complaint raised only disability discrimination

claims).

       The undisputed record shows such a discrepancy exists here. For example, a letter from

Lyn Bailey, an EEO Manager at GSA, see Dkt. 14-1 at 5, to Stevens acknowledged receipt of

Stevens’ EEO complaint and confirmed that Stevens alleged discrimination only on the basis of

race, id. at 2. Further, according to a declaration from Mary Gibert, Associate Administrator for

GSA’s Office of Civil Rights, Dkt. 11-2 at 2 (Decl. ¶ 1), her office “conducted a diligent,

thorough, and complete search” and that “[a]t no time did . . . Stevens include age as a basis of

discrimination in any complaint filed with my office,” id. at 3 (Decl. ¶ 5). Stevens identifies



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nothing in the record that indicates that she complained through the EEO process of age

discrimination in her non-promotion. See Dkt. 14. By contrast, Stevens’ complaint in this Court

alleges discrimination only on the basis of age, not race. See, e.g., Dkt. 1 at 2.

       Stevens also failed to exhaust her administrative remedies under the more direct route to

court provided by the ADEA, which requires only that a plaintiff provide notice to the EEOC

more than thirty days before filing suit, 29 U.S.C. § 633a(d). According to a declaration from

Dexter Brooks, Associate Director of EEOC’s Office of Federal Operations, Dkt. 11-3 at 2

(Decl. ¶ 1), after his staff “conducted a thorough search” of their files, the EEOC “located no

such notice,” Dkt. 11-3 at 3 (Decl. ¶ 4).

       Accordingly, Stevens failed to exhaust her administrative remedies with respect to her

claims of age discrimination under the ADEA, and Murphy is entitled to summary judgment.

                                            CONCLUSION

       For the foregoing reasons, the Court will DISMISS Plaintiff’s claims against Defendants

Tiller, Lewis, and Byrd, and will GRANT Defendant Murphy’s motion for summary judgment,

Dkt. 11.

       A separate order will issue.



                                                       /s/ Randolph D. Moss
                                                       RANDOLPH D. MOSS
                                                       United States District Judge


Date: February 28, 2020




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