                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

 WANDA SAVAGE,

                         Plaintiff,

                         v.                           Case No. 15-cv-00791 (CRC)

 ALEX AZAR, Secretary, U.S. Department
 of Health and Human Services,

                         Defendant.

                                       OPINION AND ORDER

        Plaintiff Wanda Savage brought this lawsuit claiming that, during her tenure at the U.S.

Department of Health and Human Services, the Department took a host of discriminatory and

retaliatory actions against her based on her race, sex, and disability status; that it retaliated

against her for filing a complaint with the Equal Employment Opportunity Commission

(“EEOC”); and that it failed to reasonably accommodate her disability. This Court in March

2018 granted summary judgment in favor of the Department on several of these claims. But it

denied summary judgment on Savage’s claims that (1) the Department’s refusal to transfer her

out of her position was unlawful discrimination on the basis of race or sex in violation of Title

VII; and (2) that the Department’s refusal to transfer her, its selection of another employee for an

open supervisory position, its grant of lower performance evaluations, and its subsequent transfer

of Savage out of the division were unlawful retaliation in violation of Title VII or the

Rehabilitation Act.

        Trial on those claims is set to begin next week. Pending before the Court are two pretrial

motions filed by the Department. One is a motion to dismiss (or, in the alternative, for judgment

on the pleadings) contending that Savage did not properly exhaust her administrative remedies
before filing suit. The other is a motion in limine seeking to exclude the testimony of William

Porter, another employee at the Department whose tenure overlapped with Savage’s and who

claims that he was the subject of a similar unlawful employment action. The Court will address

these motions in turn and, in the end, will deny both.

        1. Motion to dismiss or for judgment on the pleadings. Just days before the Court’s

pretrial conference—four years after this suit was filed and over a year after discovery closed—

the Department filed a motion contending that several of Savage’s claims must be dismissed

because she failed to properly exhaust her administrative remedies. Specifically, the Department

argues that she did not timely present her grievances to one of the Department’s Equal

Employment Opportunity (“EEO”) counselors. See 29 C.F.R. § 1614.105(a)(1) (“An aggrieved

person must initiate contact with a Counselor within 45 days of the date of the matter alleged to

be discriminatory or, in the case of personnel action, within 45 days of the effective date of the

action.”).

        A plaintiff’s failure to exhaust her administrative remedies is an affirmative defense to an

action under Title VII. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

Because exhausting one’s administrative remedies is not a jurisdictional prerequisite to suit,

however, a defendant’s failure to raise the defense can result in waiver. See id.; see also Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). In the Court’s view, the Department has

waived the defense by not raising it on summary judgment and instead by raising it on the eve of

trial. That is enough to warrant denial of the Department’s motion.

        But wait, says the Department: Rule 12 expressly provides that the defense of “[f]ailure

to state a claim upon which can be granted” can be raised by a motion for judgment on the

pleadings or at trial, Fed. R. Civ. P. 12(h)(2), even if the defendant failed to raise it at an earlier



                                                    2
opportunity, Fed. R. Civ. P. 12(g)(2). And courts treat the failure to exhaust administrative

remedies as a species of failure to state a claim. See, e.g., Laughlin v. Holder, 923 F.Supp.2d

204, 208 (D.D.C. 2013). So, the Department contends, the Court is forbidden from treating the

defense as waived.

       The problem for the Department is that while failure to exhaust can be a ground for

dismissal for failure to state a claim—and thus properly raised on a motion under Rule 12(c)—

that is true only when the defendant does not rely on materials outside the record. This can occur

when, for example, the plaintiff’s failure to exhaust is apparent on the face of her complaint. See

Jones v. Mukasey, 565 F. Supp. 2d 68, 74 (D.D.C. 2008). If, on the other hand, a motion for

judgment on the pleadings presents “matters outside the pleadings, the motion must be treated as

one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).

       The Department relies on factual material outside the pleadings here. Its arguments

regarding exhaustion depend on an affidavit from a Department EEO specialist stating that

Savage did not contact the EEO office within 45 days of several allegedly unlawful actions, as

would be required to properly exhaust her administrative remedies under Title VII with respect

to those claims. Def.’s Mot. Dismiss or for Judgment on Pleadings Ex. A. So while Rule 12(h)

does allow a defendant to move to dismiss for failure to state a claim on the eve of trial, the

Department’s reliance on factual material outside the pleadings brings its defense of failure to

exhaust outside the ambit of failure to state a claim and, consequently, outside the ambit of Rule

12. That Rule’s more permissive waiver provisions are inapplicable.

       Instead, what the Department has filed is in effect a long-overdue, successive motion for

summary judgment. See Fed. R. Civ. P. 56(b) (“Unless a different time is set by local rule or the

court orders otherwise, a party may file a motion for summary judgment at any time until 30



                                                  3
days after the close of all discovery.”). The Department has offered no reason that would

support allowing the motion so late and, relatedly, would allow the court to consider the defense

of failure to exhaust preserved. The Court will therefore deny the Department’s motion. It

considers waived any defense that Savage failed to timely exhaust her administrative remedies

with respect to her claims that survived summary judgment. 1

       2. Motion in limine. In opposing summary judgment, Savage filed an affidavit from

William Porter, another former Department employee. The Court relied on this affidavit in

denying summary judgment with respect to several of Savage’s retaliation claims. At summary

judgment, the Court focused on a portion of his affidavit describing the behavior of Savage’s

supervisor, John (“Jay”) Petillo, toward Savage shortly after she spoke with an investigator about

Porter’s own EEOC complaint. See Pl.’s Opp’n Mot Summ. J. Ex. 8, ¶¶ 7, 10.

       The affidavit also contains testimony about Porter’s own treatment within the

Department’s Office of Financial Planning & Analysis—the same office that Savage worked in.

Porter, also African-American, claims that he (like Savage) was denied a transfer out of his

division, while at least one white employee (Brian Sparry) was granted such a transfer. Id. ¶¶ 14,

29–30. Porter’s immediate supervisor, David Dolinsky, formally denied his transfer request. But

Porter’s affidavit and other materials in the record suggest that his higher-level supervisor—

Petillo—also had a hand in the decision. See ECF No. 133-1, at 10–11 (email from Petillo

declining Porter’s request to be reassigned out of the building and to report directly to Petillo);

id. at 12 (email from Dolinsky to Porter “concur[ring]” in Petillo’s decision).




       1
         The Court need not reach Savage’s argument that the Department also waived the
defense by not explicitly raising it in its answer.

                                                  4
       Leading up to trial, the government filed a motion in limine seeking to exclude Porter’s

testimony from trial. In a minute order dated June 21, 2018, the Court denied the government’s

motion in limine insofar as it sought to exclude all of his testimony. The Court reserved

judgment, however, on the aspect of the motion seeking to exclude Porter’s testimony about his

treatment while at the Department. As the Court explained, Porter’s testimony at trial will be

limited “to (1) his direct knowledge of Plaintiff's treatment by her supervisors 2; and (2) the

Department's denial of his transfer request, but only to the extent that evidence of that denial is

relevant to Plaintiff's claim and not unduly prejudicial.” Minute Order (June 21, 2018). Whether

his testimony on the latter point is admissible depends on the degree to which his experience was

factually analogous to the plaintiff’s. Relevant factors include “whether the alleged

discriminatory behavior by the employer is close in time to the events at issue in this case;

whether the same decision-makers were involved; whether the witness and the plaintiff were

treated in a similar manner; and whether the witness and the plaintiff were otherwise similarly

situated.” See Barnett v. PA Consulting Group, Inc., 35 F. Supp. 3d 11, 22–23 (D.D.C. 2014).

       The Court instructed the parties to file supplemental pleadings on this issue. Largely for

the reasons stated in Savage’s supplemental pleading (ECF No. 141), the Court will allow Porter

to testify about his purported denial of a transfer out of his division. The record supports that the

two employees were denied transfers at most just over a year apart—a timespan that, while not

particularly close, does not itself defeat Porter’s testimony. Compare id. (citing Porter’s April 23,

2010 email request), with Memo. Op., ECF No. 108, at 3 (describing Petillo’s denial of Savage’s

informal request made in March 2009). And, again, while Petillo may have played a more




       2
        The Court clarifies that Porter’s testimony on this score will be limited to his personal
observations of Savage’s supervisors’ treatment of her in response to her EEO activity.

                                                  5
immediate role in denying Savage’s requested transfer than for Porter’s, the parties’ submissions

support that he was a decisionmaker in both cases. See ECF 133-1, at 2, ¶ 8–9 (Petillo affidavit).

       Porter’s testimony must be limited, however, to aspects of his alleged denial of transfer

that are reasonably attributable to Petillo. There is no evidence that Dolinsky played a role in

Savage’s transfer, so any testimony related to Dolinsky’s treatment of Porter (other than as

background) is simply irrelevant.

                                        *       *       *

       For those reasons, it is

       ORDERED that the Department’s motion to dismiss or, in the alternative, for judgment

on the pleadings (ECF No. 128) is DENIED. It is further

       ORDERED that the Department’s motion in limine (ECF No. 112) is DENIED.

       SO ORDERED.



                                                            _________________________
                                                            CHRISTOPHER R. COOPER
                                                            United States District Judge

Date: July 19, 2018




                                                6
