                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA


ARTHUR GILBERT,                               )
                                              )
                     Plaintiff,               )
                                              )
                     v.                       )          Case No. 05-cv-2128 (RJL)
                                              )
JANET NAPOLITANO,                             )
                                              )
                     Defendant.               )

                                        ~-
                              MEMORANDUM OPINION
                               (July / ~ , 2013) [Dkt. #85]

      Plaintiff Arthur Gilbert ("plaintiff' or "Gilbert") is suing Janet Napolitano in her

official capacity as Secretary of Homeland Security. A former employee of U.S. Customs

and Border Protection ("CBP" or "Customs"), Gilbert alleges that CBP discriminated and

retaliated against him by denying his applications for a promotion in favor of younger

white candidates. See Third Am. Compl. ("TAC") [Dkt. #57]. Before the Court is

Defendant's Renewed Motion for Summary Judgment as to Claims Stemming from

Selection of John Milne ("Def.' s Renewed Mot.") [Dkt. #85]. Upon consideration of the

parties' pleadings, relevant law, and the entire record therein, the motion is GRANTED.

                                     BACKGROUND

       For detailed recitations of the facts underlying all of plaintiffs claims, see Gilbert

v. Napolitano, 670 F.3d 258, 259-60 (D.C. Cir. 2012), and Gilbert v. Napolitano, 760 F.



                                              1
Supp. 2d 21, 23-25 (D.D.C. 2011). Seeing no reason to retread the same background

information a third time, I will focus on the one remaining claim now at issue.

       Plaintiff alleges that CBP discriminated against him based on his age and race, and

retaliated against him for past Equal Employment Opportunity ("EEO") activity, when it

chose John Milne ("Milne") over him from the list of best-qualified applicants ("the best-

qualified list") for promotion to a GS-14 position (''the Milne promotion"). TAC    ~~   109-

14; 280-92. On January 12, 2011, I granted defendant's motion for summary judgment

on these claims because plaintiff failed to exhaust his administrative remedies. See Final

Judgment [Dkt. #74]; Gilbert, 760 F. Supp. 2d at 29-30. Our Circuit Court, however,

reversed that decision, holding that Customs forfeited the failure-to-exhaust defense by

failing to raise it in its answer to the complaint. See Mandate ofUSCA [Dkt. #78];

Gilbert, 670 F.3d at 260-61. The Court noted, however, that "defendant may seek leave

to amend its answer on remand." !d. at 261 (citing Harris v. Sec y, US. Dep 't of

Veterans Affairs, 126 F.3d 339, 345 (D.C. Cir. 1997)). And so it did!

       Upon its return to this Court, CBP heeded our Circuit Court's advice and amended

its answer to include an exhaustion defense. See Am. Answer to TAC at 1 [Dkt. #84].

Defendant now renews its motion for summary judgment on plaintiffs claims arising

from the Milne promotion. See Def.'s Renewed Mot. at 1; Mem. in Supp. ofDef.'s

Renewed Mot. for Summ. J. ("Def.'s Mem.") at 10-12 [Dkt. #85]. Plaintiff, naturally,

opposes the motion. See Pl.'s Mem. in Opp, to Def.'s Mot. for Partial Summ. J. ("Pl.'s


                                             2
Mem.") [Dkt. #87]. Unfortunately for Gilbert, the Court again finds that his failure to

exhaust his administrative remedies entitles defendant to summary judgment.

                                   LEGAL STANDARD

       The Court grants a motion for summary judgment 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). Although the burden is on the movant to show

that there is no dispute of fact, the non-moving party also bears the "burden of producing

in tum evidence that would support a jury verdict." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986). The non-moving party "may not rest upon mere allegation or

denials of his pleading, but must set forth specific facts showing that there is a genuine

issue for trial." !d.

       To the extent the non-moving party will bear the burden of proving facts at trial,

those facts must be supported by competent evidence, see Celotex Corp. v. Catrett, 4 77

U.S. 317,324 (1986), and the absence of such evidence can form the basis for summary

judgment, see id. at 322-23. Finally, "if the evidence presented by the opposing party is

'merely colorable' or 'not significantly probative,' summary judgment may be granted,"

Burke v. Gould, 286 F .3d 513, 520 (D.C. Cir. 2002) (quoting Anderson, 4 77 U.S. at 249-

50), because the "possibility that a jury might speculate in the plaintiffs favor ... is

simply insufficient to defeat summary judgment," Montgomery v. Chao, 546 F.3d 703,

708 (D.C. Cir. 2008); see also Anderson, 477 U.S. at 252 ("The mere existence of a


                                              3
scintilla of evidence in support of the plaintiffs position will be insufficient; there must

be evidence on which the jury could reasonably find for the plaintiff.").

                                        ANALYSIS

       It is well-established that federal employees must exhaust administrative remedies

before bringing lawsuits in federal court under Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq., or the Age Discrimination in Employment Act (ADEA), 29

U.S.C. §§ 621 et seq. 1 See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (citing

Bowden, 106 F.3d at 437); Nguyen v. Mabus, 895 F. Supp. 2d 158, 171 (D.D.C. 2012)

(citing Harris v. Gonzales, 488 F .3d 442, 443 (D.C. Cir. 2007), and Washington v. Wash.

Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998)); see also 42 U.S.C. §

2000e-16(c) (Title VII); 29 U.S.C. § 633a(b)-(d) (ADEA). "This administrative

exhaustion requirement applies to all discrete acts of discrimination or retaliation."

Nurriddin v. Goldin, 382 F. Supp. 2d 79, 92 (D.D.C. 2005).

       Now that Customs has pleaded its exhaustion defense in an amended answer, the



1 The first step for "[a]ggrieved persons who believe they have been discriminated against
on the basis of race, color, religion, sex, national origin, age, disability, or genetic
information" is to "consult a[ n EEO] Counselor prior to filing a complaint in order to try
to informally resolve the matter." 29 C.P.R.§ 1614.105(a). That contact must be
initiated "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." !d. §
1614.105(a)(l). Only after a mandatory counseling period of30 to 90 days, see 29 C.P.R.
§ 1614.105(d)-(f), may the aggrieved person file an administrative complaint with the
Equal Opportunity Employment Commission ("EEOC"), see id. § 1614.106(a), (b). The
claimant may then file a civil action after the administrative process has run its course.


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Court again finds that CBP is entitled to judgment as a matter of law because Gilbert

failed to exhaust administrative remedies for his claims based on the Milne promotion.

Gilbert in fact concedes that "he did not separately bring a new non-promotion complaint

regarding the particular HQOF0/01-005KBS register" that resulted in Milne's promotion.

Pl.'s Mem. at 5. Nor did he file anything to amend or otherwise update his existing

complaint. See id. at 15 (after learning that Milne was promoted, "Gilbert did not submit

anything new at that time").

       Nevertheless, plaintiff contends that he should be permitted to litigate the Milne

promotion because: (1) it was included in his September 2001 EEO complaint, see Pl.'s

Mem. at 3-5; (2) it is "like or related to" the other claims included in his complaint, see

id. at 6-14; and (3) it would be inequitable to enforce the exhaustion requirement, see id.

at 14-17. For the following reasons, I find none of these arguments persuasive.

       A.     Gilbert Did Not Raise the Milne Promotion in His September 2001
              EEO Complaint.

       As an initial matter, it is impossible for Gilbert's September 10, 2001 complaint to

have included claims based on the Milne promotion because the best-qualified list for that

opening was not submitted until November 29, 2001, more than eleven weeks after the

complaint was filed, see Pl.'s Statement of Genuine Issues ("Pl.'s SGI") at 3 [Dkt. #88],

and Milne's promotion must have occurred on or after that date. 2 Absent the gift of



2It is unclear whether Milne was selected on November 29,2001, as plaintiff says in his
Statement of Genuine Issues, see Pl.'s SGI at 3, or after November 29, 2001, as he says in

                                              5
prophecy-which Gilbert undoubtedly would have referenced in the many lengthy

discussions about his skills and accomplishments found throughout this record, see, e.g.,

Pl.'s SGI, Ex. 22 (2013 Declaration of Arthur Gilbert); Pl.'s SGI at 8-15; Pl.'s Mem. at

22-25-plaintiff could not in mid-September have alleged discrimination premised on an

employment action that took place two months later. 3

       B.     Plaintiff's Claims Arising Out of the Milne Promotion Are Not "Like
              or Related to" the Claims in His Complaint.

       Furthermore, plaintiffs Milne-promotion claims are not "like or related to" the

other claims included in his EEO complaint. Our Circuit held in Payne v. Salazar that an

unfiled discrimination claim is "like or related to" a filed claim only if an investigation of

the unfiled claim would "arise from the administrative investigation that can reasonably

be expected to follow the charge of discrimination." 619 F.3d 56, 65 (D.C. Cir. 2010);

see also Weber v. Battista, 494 F .3d 179, 184 (D.C. Cir. 2007) (a "like or related" claim is



his Third Amended Complaint, see TAC ~ 283. The answer has no effect on my analysis.
3 Gilbert maintains that his September complaint included claims based on Milne's
November promotion because it alleged discrimination "throughout [the] year" 2001. See
Pl.'s Mem. at 4; see also Pl.'s SGI, Ex. 5 at 2 (plaintiffs EEO complaint). The Court
rejects the notion that a claimant can use sweeping temporal phrases to incorporate by
reference (and vague reference, at that) any discrimination that might occur in the future.
The exhaustion requirement is intended "to allow the agency an opportunity to resolve the
matter internally and avoid unnecessary burdening of the courts." Bush v. Engleman, 266
F. Supp. 2d 97, 101 (D.D.C. 2003) (internal quotation marks omitted). How can an
agency be expected to resolve matters internally if administrative complaints are
understood to spontaneously and unpredictably encompass new claims that arise in the
months after the complaint is filed? Obviously, it can't. A complaint filed in 2013 that
alleges discrimination "throughout the decade" does not state a claim-and certainly

                                              6
one that "could have reasonably been expected to grow out of [the] earlier complaint"

(internal quotation marks omitted)). Plaintiffs claims relating to the November Milne

promotion could not reasonably have been expected to arise or grow out of-and in fact,

did not arise or grow out of-the investigation of his September EEO complaint.

         Plaintiffs EEO complaint was dated September 12, 200 1 and it alleged the "most

recent discriminatory event occur[red]" on "070101/throughout year." Pl.'s SGI, Ex. 5 at

2. It did not identify a single discriminatory or retaliatory act after July of2001. See id.

It did not mention Milne, the November 29, 2001 best-qualified list, or the position to

which Milne was promoted. 4 See id. While it is, of course, possible that an EEO

investigator might choose to expand an investigation beyond the scope of the complaint

and ferret out any new acts of discrimination that may occur after the complaint was filed,

it is not in all cases reasonable to expect the investigator to do so. In Payne, for instance,

the court held that an investigation of an unfiled claim could not have arisen from an

ongoing investigation because the events underlying the unfiled claim occurred after the

investigation ended. 619 F.3d at 65.

         Likewise, it would have been entirely unreasonable to expect the investigator in

Gilbert's case to have investigated the events surrounding the November 29, 2001 best-

qualified list for one simple reason: he told Gilbert that he was not investigating it. As of


would not exhaust administrative remedies-for a wrongful termination in 2018.
4   This is unsurprising, given the sequence of events already discussed, supra.


                                               7
January 29, 2002-two whole months after the November list was submitted-plaintiff

had clear notice that the investigation had not in fact expanded to include claims relating

to the Milne promotion, see Pl.'s SGI, Ex. 2, and plaintiff took no action at that time.

       In an affidavit signed and sworn on that date, Gilbert answered a number of

questions posed by the EEO investigator, Lewis Munoz. See id. Most of the questions

fell under one of three headings, each covering an "Issue" raised in plaintiffs EEO

complaint. See id. at 2, 8, 11. Issue one focused on non-promotions "[ c]ommencing June

2000 to July 2001." !d. at 2. Issue two was plaintiffs reassignment to a new division

"[o]n July 1, 2001." !d. at 8. Issue three addressed working conditions "commencing

June 2000 to June 1, 2001." !d. at 11. The questions gave no indication that the

November best-qualified list or the Milne promotion had arisen during the investigation.

Quite to the contrary, the affidavit's framing of the issues made clear that the

investigation was focused on events that occurred between June 2000 and July 2001.

And, as discussed at greater length below, plaintiffs responses did not provide notice that

the investigation should expand to cover the Milne promotion. See id. It therefore would

have been unreasonable to expect that the November best-qualified list or the Milne

promotion were part of the investigation. 5


5 Gilbert points to three Milne-related documents found at pages 1140 to 1164 the
investigator's report as evidence that the Milne promotion was in fact investigated. See
Pl.'s Mem. at 12-13. A few documents in a large administrative record, however, are not
indicative of the true scope of an investigation. And in this case, undisputed documentary
evidence confirms that issues under investigation were limited to the "June 2000 to July

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       C.     Assuming the Milne Promotion Claims are "Like or Related," Plaintiff
              Still Failed to Exhaust His Administrative Remedies.

       In addition, even if the Milne-promotion claims are "like or related" to those in the

complaint, that would have allowed plaintiff to bypass certain steps in the administrative

process but would not allow him to forego administrative exhaustion entirely, which is

what plaintiff seeks to do in this case.

       Our Circuit has held that, once a claimant has filed a complaint, he can forego

administrative counseling on any subsequent claims that are "like or related to" the claims

already in the complaint. See Weber, 494 F.3d at 183-84. Instead of going through that

first phase of administrative review, as required by 29 C.F.R. § 1614.105(a), the claimant

can simply amend his complaint pursuant to 29 C.F.R. § 1614.106(d) and bring the new

"like or related" claims directly to the investigator. Weber, 494 F.3d at 184-85.

       Gilbert did not do that, however. Unlike the plaintiff in Weber, plaintiff did not



2001" timeframe. See Def. 's Renewed Mot., Ex. 4 at -,r 5 (February 13, 2002 declaration
describing non-promotions as occurring "when: commencing June 2000 to July 2001 ");
Id., Ex. 5 at -,r 5 (December 12, 2002 declaration with same description of claims and
omitting Milne from list of selectees for promotions under investigation); Pl.'s SGI, Ex.
11 at 1 (summary of investigation, listing same issues and date limits as in plaintiffs
January 2012 affidavit).

       It would appear that the Milne documents ended up in the investigator's possession
because Milne was promoted under the same generic vacancy announcement number as
other promotions actually raised by plaintiff before the agency-e.g., the July 11, 2001
promotion of Mark Reefe, see TAC 83-87. The investigator requested the documents
relevant to that number on November 7, 2001, several weeks before the Milne promotion.
See Pl.'s SGI, Ex. 11 at 11. The document packages were not provided until a year later,
but there is no evidence that the investigator took any interest in documents that post-

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"sen[d] a memo to the EEO office indicating [his] wish to amend [his] charges." Pl.'s

Mem. at 7; see Weber, 494 F.3d at 181. Nor did plaintiff"file a motion with the

administrative judge to amend [his] complaint to include issues or claims like or related to

those raised in the complaint," as contemplated by 29 C.F.R. § 1614.106(d)-the

regulation that plaintiff notes was "emphasized" in the Weber decision. Pl.'s Mem. at 7.

Plaintiff points to just one document-his January 29, 2002 affidavit, Pl.'s SGI, Ex. 2-as

evidence that he raised the Milne promotion with the EEOC. See Pl.'s Mem. at 5, 8. But

on its face, the affidavit does not mention Milne's promotion or plaintiffs non-promotion

from the November 29, 2001 best-qualified list. It merely notes that "[o]n 112901list

was referred for additional selection to be made no later than 030102." Pl.'s SGI, Ex. 2 at

3. Such passing mention of the "112901" best-qualified list, without more, would not

notify the investigator that plaintiff was amending his complaint to include claims arising

from the Milne promotion. Nowhere else in the affidavit did plaintiff reference a new

claim, or even correct the investigator's clear understanding that the claims were based on

non-promotions between "June 2000 [and] July 2001." See supra. Gilbert thus did not

exhaust even those lesser administrative remedies required for "like or related" claims

that arise after a complaint is filed. 6



dated November 7, 2001.

6 Additionally, I read the Supreme Court's decision in National Railroad Passenger Corp.
v. Morgan, 536 U.S. 101 (2002), as effectively doing away with the "continuing violation
theory" that once allowed plaintiffs to bring completely unexhausted claims to federal

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       D.     There Is No Equitable Basis for Excusing Plaintiff's Failure to Exhaust.

       Finally, the Court is not moved by either of plaintiffs equitable arguments. First,

even assuming Investigator Munoz incorrectly advised plaintiff that he need not take any

steps to bring claims based on the Milne promotion, that would at most excuse plaintiffs

failure to pursue administrative relief within the proscribed time limits; it would not

excuse his total "fail[ure] to exhaust or even to begin his administrative remedies." Siegel

v. Kreps, 654 F.2d 773, 777 (D.C. Cir. 1981); see also id. at 778 n.14 ("Even if appellant

had established a justifiable reliance on ... erroneous advice, he would, at most, be

entitled to a waiver of the time limits for the initiation of a complaint with the

administrative agency rather than to the right to institute a civil action."). 7 And any

reliance on such advice would have been unreasonable, given that plaintiff had already



court in cases like this one. See, e.g., Nguyen, 895 F. Supp. 2d at 172 ("[S]ince the
Supreme Court's decision in Morgan, the continuing violation theory is restricted to
claims akin to hostile work environment claims because those violations-unlike a
discrete act such as firing or failing to promote an employee-cannot be said to occur on
any particular day." (internal quotation marks omitted)); Hernandez v. Gutierrez, 656 F.
Supp. 2d 101, 105 (D.D.C. 2009) ("Morgan ... bar[s] a plaintiff from proceeding with
non-exhausted claims of discrete acts regardless of whether the occurred after the filing
of an administrative complaint and regardless of whether they are sufficiently related to
exhausted claims." (second emphasis added)). Because plaintiff did not exhaust his
remedies with respect to the Milne-promotion, he cannot now litigate it in this Court.
7Plaintiff relies on Bowden, 106 F.3d at 438, and Jarrell v. United States, 753 F.2d 1088,
1091-92 (D.C. Cir. 1985), both ofwhich deal with the timeliness of an administrative
charge, not the requirement that one be filed at all. In fact, the same year as our Circuit
decided Jarrell, it also decided Ethnic Employees ofLibrary of Congress v. Boors tin,
wherein the Court approvingly cited Siegel for the proposition that there is a meaningful
difference between excusing a filing's untimeliness and excusing the filing requirement

                                              11
received notice that the investigation was, up to that point, limited to non-promotions

from "June 2000 to July 2001," not any subsequent non-promotions under the same

vacancy announcement numbers. See Pl.'s SGI, Ex. 2. 8

       Nor does this case present "the highly unusual circumstances" that led the court in

Brown v. Marsh to find that enforcing administrative exhaustion requirements would be

"unconscionable." 777 F.2d 8, 17-18 (D.C. Cir. 1985). In that case, the claimant had

"dealt extensively with EEO Counselors." !d. at 17. He "filed numerous complaints,"

which had "gone up and down the judicial and administrative hierarchy and then up and

down again." !d. The claimant was "living far from this forum" and "put to considerable

trouble and expense," and at least five different federal courts' "resources ... [were]

liberally expended in attempting to resolve various aspects of the dispute." !d. Moreover,


altogether. 751 F.2d 1405, 1413 (D.C. Cir. 1985).
8 Because the Court assumes, for the sake of argument, that Munoz actually gave plaintiff
bad advice, it is irrelevant that plaintiff is unable to depose the now-deceased investigator.
See Pl.'s Mem. at 16-17. In addition, Gilbert's assertion that his attorney would have
deposed Munoz if defendant had raised the exhaustion defense sooner is disingenuous at
best. Defendant first argued exhaustion in its Motion for Summary Judgment filed in
May 2010. See Mem. in Supp. ofDef.'s Mot. for Summ. J. at 38--40 [Dkt. #66].
Plaintiffs opposition, filed on July 7, 2010, makes no mention of his supposed discussion
with Investigator Munoz. See Pl.'s Mem. in Opp, to De f.'s Mot. for Summ. J. at 41--44
[Dkt. #69]. Mr. Munoz's obituary, meanwhile, is from a local newspaper's June 2011
archive and says that Mr. Munoz passed away on May 3. See Pl.'s SGI, Ex. 13
("www .newtownpress.com./ARCHIVES-2011/southjersey_obituaries. 0611.htm"
(emphasis added)). Plaintiffs inability to depose the investigator is thus a problem of his
own making. See also Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982) ("[A]ppellant
(plaintiff) had the burden of pleading and proving in the district court any equitable
reasons for his failure to meet the thirty-day requirement, and he did not do so.").


                                              12
the claimant's failure to exhaust administrative remedies was the ground for dismissing

the entire case, not one particular claim. Id. at 11-12.

       The procedural history of this case pales in comparison to Brown. Compare

Gilbert v. Napolitano, 670 F .3d at 259-60, with Brown, 777 F .2d at 9-11. Gilbert filed

only one EEO complaint, and there is no evidence that he ever had extensive dealings

with counselors. His case was litigated in only one jurisdiction, and it went "up ... the

judicial and administrative hierarchy" only once prior to our Circuit Court's remand last

year. Most importantly, dismissing plaintiffs Milne-promotion claims for failure to

exhaust administrative remedies would not put plaintiff out of court or mean that all of

the discovery and litigation to date was for naught, as was the case in Brown. Gilbert has

already had the opportunity to litigate all of his claims up to our Circuit Court. It is only

this one discrete instance of non-promotion-a small piece of plaintiffs overall case-

that will be dismissed on the ground that it was not administratively exhausted. In my

judgment, such an outcome is both conscionable and required by law. 9




9Because plaintiffs failure to exhaust administrative remedies is reason enough to grant
summary judgment, the Court need not reach the merits of these claims.




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                                  CONCLUSION

      For all the foregoing reasons, Defendant's Renewed Motion for Summary

Judgment as to Claims Stemming from Selection of John Milne [Dkt. #85] is hereby

GRANTED. An appropriate order shall accompany this Memorandum Opinion.
                                                     1

                                              ~I




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