                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 DION POOLE, et al.,

         Plaintiffs,
                   v.                                       Civil Action No. 16-494 (JEB)
 UNITED STATES GOVERNMENT
 PUBLISHING OFFICE, et al.,

         Defendants.


                                  MEMORANDUM OPINION

       Pro se Plaintiffs are current and former employees of the United States Government

Printing Office. They allege in this Title VII suit that, after filing race-based pay-discrimination

complaints with the Equal Opportunity Office, their supervisors retaliated against them and

subjected them to a hostile work environment. The Court previously dismissed their Amended

Complaint for failing to set out their retaliation and hostile-work-environment counts with

sufficient specificity, but did so without prejudice so as to give them a chance to cure those

defects. Now that Plaintiffs have taken that opportunity and filed a Second Amended Complaint,

Defendants GPO and Public Printer Davita Vance-Cooks renew their Motion to Dismiss on

several grounds, most notably that Plaintiffs failed to exhaust their administrative remedies.

Largely agreeing on this points, the Court will grant Defendants’ Motion.

I.     Background

       As it must at this stage, the Court treats all of the facts in Plaintiffs’ operative Complaint

as true. Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). It also

considers the additional facts set forth in their Opposition, the documents attached to the


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pleadings, and matters of which it may take judicial notice. See Brown v. Whole Foods Mkt.

Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015); Equal Emp’t Opportunity Comm’n v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); Pernice v. Bovim, No. 15-541, 2015

WL 5063378, at *3 (D.D.C. Aug. 26, 2015) (explaining courts may consider documents attached

by defendant to motion to dismiss “if they are integral to its claim, they are referred to in the

complaint, and their authenticity is undisputed”).

       Plaintiffs are fifteen current or recent African-American employees of the GPO and the

estate of a sixteenth such individual who died during the course of this litigation. See ECF No.

48 (Second Amended Complaint) at 2. They work or worked in the GPO’s Digital Print Center,

the staff of which is “exclusively African-American.” Id. at 6. In July 2008, they contacted the

GPO’s Equal Opportunity Office and subsequently filed several EEO complaints in which they

alleged that “they were paid less than Caucasian employees of the GPO doing the same work

because of their race.” Id. at 5; see ECF No. 51-2 (EEOC Appeal Decision, Oct. 6, 2014) at 2.

More specifically, the problem was that DPC employees were classified for pay-scale purposes

as printing-plant workers — a lower-paid non-craft position — rather than journeymen

bookbinders — a higher-paid craft position — even though their responsibilities, training, and

expertise had evolved alongside advancements in technology such that “they performed the same

work as higher-paid workers, more efficiently.” SAC at 6-7. “[T]he GPO refused to establish

performance standards and update [its] antiqu[ated] job descriptions,” which Plaintiffs contend

was based on race. Id. at 7-8.

       Shortly after Plaintiffs filed their pay-discrimination EEO complaints, they began to

experience what they argue was retaliatory harassment at work. Id. at 8-10. Around October

2008, four Plaintiffs heard Robert Tapella, the former Public Printer — i.e., the head of the GPO



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— describe the group as “my slaves” while conducting a VIP tour of the DPC. Id. at 8-9. He

further stated that they had become the “poor stepchild” of the GPO and referred to them as “the

blacks” or “that black group.” Id. at 9. Then, in April 2009, two printers — a Xerox iGen3 color

printer and a Canon OCE 800 high-speed printer — were “taken from [Plaintiffs’] section and

transferred to higher salaried employees in another department.” Id. The GPO’s Director of

Labor Relations explained at the time that the iGen3 was transferred as “a necessary step in the

Agency’s plan to respond to customer demand for a wide variety of color products” and an effort

“to consolidate nearly all of the production of color products in one area,” id. at 94 (Letter from

Michael Frazier, GPO Labor Relations Director, to Arthur Anderson, GCC/IBT Local 713-S

President, Apr. 6, 2009), but Plaintiffs allege that removing the equipment was “a strategic move

in response to the claim that their job descriptions did not adequately describe the work they do”

and “was intended to weaken their disparate pay argument.” Id. at 9.

       In addition, “[w]hen employees left the section, they were not replaced for months.” Id.

“At one point, only two thirds of the approved jobs were filled.” Id. As a result, one operator

may have had “to operate two or three machines simultaneously.” Id. Plaintiffs also were not

paid overtime and thus were “not compensated for the additional work pressure.” Id. Finally,

“[n]ominations for awards were ignored,” “[t]he salary scale for Graphic Processor Operator was

lowered without explanation,” and “[r]outine equipment servicing was stopped.” Id. at 9-10.

       Plaintiffs filed multiple EEO complaints alleging that they were subjected to “a hostile

work environment with respect to issues related to their working conditions.” EEOC Appeal at

2. They complained, inter alia, that GPO management failed to timely fill vacant positions, thus

allowing the DPC to remain understaffed for two years and causing employees to be

overworked; did not properly assign or offer overtime; did not “address[] safety concerns related



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to . . . inoperable equipment”; and did not provide “adequate equipment.” ECF No. 1

(Complaint) at 5 (Letter from Juanita Flores, EEO Assistant Director, to Kerrie Riggs & Cathy

Harris, Plaintiffs’ Counsel, Nov. 2, 2009) (listing “specific acts of harassment identified” in

Plaintiffs’ EEO complaints).

       The Equal Employment Opportunity Commission accepted Plaintiffs’ race-based pay-

discrimination and hostile-work-environment claims for investigation in November 2009. See

ECF No. 51-1 (EEOC Dismissal of Complaint, May 20, 2013) at 1 & n.4. In October 2010,

Plaintiffs, acting through counsel (they did not proceed pro se through the administrative

process), expressly withdrew their hostile-work-environment claim, leaving only the

discriminatory-pay claim before the Commission. See ECF No. 35-2, Exh. 4 (Letter from Kerrie

Riggs to Gladys Collazo, EEOC Supervisory Administrative Judge, Oct. 7, 2010) (Withdrawal

Letter); EEOC Dismissal at 1 n.4; EEOC Appeal at 2. In May 2013, after undertaking a formal

investigation, the Administrative Judge assigned to the matter concluded that the remaining pay

claim was actually a collateral attack on the collective-bargaining process. As Plaintiffs were

unable to obtain higher wages via this route, the AJ dismissed the complaint for failure to state a

claim. See EEOC Dismissal at 6-7. Plaintiffs appealed the pay-discrimination decision, and the

Commission affirmed. See EEOC Appeal at 5. It then denied Plaintiffs’ request for

reconsideration. See ECF No. 51-3 (EEOC Reconsideration Denial, Mar. 23, 2015) at 3.

       Now acting pro se, Plaintiffs responded by filing this action on June 15, 2015, in the

United States District Court for the Eastern District of Virginia, which transferred it to this Court

on September 29, 2015. See Complaint; ECF No. 14 at 3. After Plaintiffs filed an Amended

Complaint, see ECF No. 25, Defendants GPO and Davita Vance-Cooks, the current Public

Printer, moved to dismiss. See ECF No. 35. Although Defendants offered multiple arguments



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for dismissal, the Court focused on whether Plaintiffs had adequately stated retaliation and

hostile-work-environment counts. See Poole v. United States Gov’t Publ’g Office (Poole I), 219

F. Supp. 3d 80, 83 (D.D.C. 2016). It ultimately concluded that they had not, dismissed the

Amended Complaint without prejudice, and permitted them to file a Second Amended

Complaint that more clearly articulated their relevant factual allegations. Id. at 85.

        Plaintiffs so filed and therein stated two causes of action under Title VII of the Civil

Rights Act of 1964: retaliation and hostile work environment. See SAC at 10. In their

Opposition, they make clear that the latter claim is alleged as a form of retaliation, rather than,

say, a form of race discrimination. See ECF No. 55 (Opposition) at 5. Plaintiffs seek damages

for emotional injuries and injunctive relief directing Defendants to write new job descriptions

and performance standards that “accurately reflect[]” Plaintiffs’ work “as the basis for a review

with the union of their pay grade” and to cease “their racial slurs and retaliation.” SAC at 11.

Defendants now renew their Motion to Dismiss.

II.     Legal Standard

        In evaluating Defendants’ Motion to Dismiss, the Court “must treat the complaint’s

factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be

derived from the facts alleged.’” Sparrow, 216 F.3d at 1113 (quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharm.,

Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however,

“a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts

set forth in the Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)

(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).




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        Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a

complaint fails to “state a claim upon which relief can be granted.” Although the notice-pleading

rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544

U.S. 336, 347 (2005), and “detailed factual allegations” are not necessary to withstand a Rule

12(b)(6) motion, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). A plaintiff must

put forth “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. Though a plaintiff may survive a 12(b)(6)

motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 556 (citing

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be

enough to raise a right to relief above the speculative level.” Id. at 555. Pro se pleadings are

held to “less stringent standards than formal pleadings drafted by lawyers,” but they “must

nonetheless plead factual matter that permits [the Court] to infer more than the mere possibility

of misconduct.” Brown, 789 F.3d at 150 (internal quotations and citations omitted).

III.    Analysis

        Defendants rely on three arguments to support their Motion to Dismiss. They first

contend that the Second Amended Complaint is fatally defective because Plaintiffs failed to

exhaust administrative remedies with respect to their retaliation and hostile-work-environment

claims. See ECF No. 51 (Motion) at 2. Second, they argue that Plaintiffs have not pled

sufficient factual allegations to permit a reasonable factfinder to conclude that Defendants

engaged in discrimination and retaliation in violation of Title VII. Id. And third, they assert that

three Plaintiffs — Derik Shannon, Joseph Warren, and Howard Gilberts — should be dismissed



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because they did not sign the Second Amended Complaint and thus failed to comply with

Federal Rule of Civil Procedure 11(a). Id. at 2-3. Because the Court largely agrees with the

first, it only briefly touches on the second and ignores the third. In explaining its reasoning, the

Court begins with the law of exhaustion and the parties’ positions, next examines the treatment

of continuing violations, and concludes with an application of the doctrines to the facts here.

       A. Exhaustion

       Title VII’s anti-discrimination provision makes it unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Its

anti-retaliation provision makes it unlawful for an employer “to discriminate against [an]

employee[] . . . because he has opposed any practice” made unlawful by Title VII or “has made a

charge, testified, assisted, or participated in” a Title VII proceeding.” Id. § 2000e-3(a). Such

retaliation can take the form of discrete acts or a hostile work environment, both of which are

alleged here. See, e.g., Baird v. Gotbaum, 662 F.3d 1246, 1248-51 (D.C. Cir. 2011).

       Prior to filing a Title VII lawsuit in federal court, individuals must timely exhaust the

administrative processes established by the EEOC. See 42 U.S.C. § 2000e-16(c); Niskey v.

Kelly, No. 14-5285, 2017 WL 2485304, at *3 (D.C. Cir. June 9, 2017); Payne v. Salazar, 619

F.3d 56, 65 (D.C. Cir. 2010). The purpose of these exhaustion requirements is “‘to give federal

agencies an opportunity to handle matters internally whenever possible,’ and to impose on

employing agencies ‘the opportunity as well as the responsibility to right any wrong that it might

have done.’” Niskey, 2017 WL 2485304, at *5 (quoting Brown v. Marsh, 777 F.2d 8, 14 (D.C.

Cir. 1985)).



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       Exhaustion is “an essential element” of Title VII. Fowlkes v. Ironworkers Local 40, 790

F.3d 378, 384 (2d Cir. 2015) (citation omitted). If an employee fails to exhaust these

administrative processes, a court may dismiss his action under Federal Rule of Civil Procedure

12(b)(6). Niskey, 2017 WL 2485304, at *5. These administrative-exhaustion requirements,

however, are not jurisdictional. Id.; see also Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C.

Cir. 2011). “[A]n employee who missteps in the process may avoid dismissal if he qualifies for

equitable relief” — e.g., equitable tolling, estoppel, or waiver — “by demonstrating good cause

for the procedural failure.” Niskey, 2017 WL 2485304, at *5; see also Bowden v. United States,

106 F.3d 433, 437 (D.C. Cir. 1997). Because the failure to exhaust administrative remedies is an

affirmative defense, the defendant, rather than the plaintiff, “bears the burden of pleading and

proving it.” Bowden, 106 F.3d at 437. Only if and when the defendant meets that burden does

the plaintiff then “bear[] the burden of pleading and proving facts supporting equitable avoidance

of the defense.” Id.

       Here, Defendants maintain that Plaintiffs never brought a retaliation claim “at any point

during the EEO proceedings.” Mot. at 12. As proof, they attach the EEOC’s three decisions on

Plaintiffs’ complaints, none of which mentions — let alone decides — a retaliation claim of any

form. As to hostile work environment, Defendants point to the letter from Plaintiffs’ counsel

withdrawing that claim from the EEOC’s consideration. Id. at 11.

       In response, Plaintiffs do not argue that they presented allegations of discrete retaliatory

acts to the EEOC. They do, however, rejoin that “it is not possible to pin down” from “the

record currently before the [C]ourt” whether their EEO hostile-work-environment charges “were

related to race discrimination” or were “the consequence of retaliation.” Opp. at 6. In other

words, they imply that they did raise retaliatory hostile-work-environment allegations before the



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EEOC. Even if this dubious assertion were true, however, the record makes clear that no hostile-

work-environment claim proceeded through the administrative process.

       In withdrawing their hostile-work-environment claim from the agency’s consideration,

Plaintiffs’ counsel stated: “Please be advised that the Complainants . . . are withdrawing their

claim of a hostile work environment on the basis of race. Complainants are still pursuing their

remaining claim of disparate treatment and disparate impact on the basis of their race with

respect to their rate of pay.” Withdrawal Letter (emphasis added). Not only did that statement

explain that the hostile work environment complained of in the EEO charges was based solely on

race, but it also left no room for the possibility that Plaintiffs had additionally raised and

intended to exhaust a hostile-work-environment claim based on retaliation. On the contrary, it

made clear that, upon withdrawal of the race-based hostile-work-environment claim, the only

claim left before the EEOC was that for disparate treatment or disparate impact from pay

discrimination. The EEOC thus never decided any hostile-work-environment claim, whether

race-based or retaliatory, see EEOC Dismissal at 1 n.4; EEOC Decision at 2; it dealt solely with

pay discrimination. Plaintiffs, in sum, cannot be considered to have administratively exhausted

either a hostile-work-environment or retaliation claim. See, e.g., Noisette v. Geithner, 693 F.

Supp. 2d 60, 67-68 (D.D.C. 2010) (holding plaintiff failed to exhaust administrative remedies

where he withdrew his EEOC appeal, then filed lawsuit); Mackay v. U.S. Postal Serv., 607 F.

Supp. 271, 276 (E.D. Pa. 1985) (“Exhaustion of administrative relief before resorting to the

courts does not require mere initiation of prescribed administrative procedures; they must be

pursued to their conclusion.”).

       In an attempt to obtain a reprieve from their clear failure to exhaust either cause of action

asserted here, Plaintiffs argue that they had no obligation to do so because those claims were



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sufficiently related to the pay-discrimination claim they did exhaust. See Opp. at 6-8. The Court

cannot agree, and its reasons for so deciding require a bit of explanation.

       B. Development of Law

       In 2002, the Supreme Court sought to clarify the application of Title VII’s timely filing

requirements to continuing violations — i.e., a series of related acts or a discriminatory policy or

system maintained over time — like the ones alleged here. The case of National Railroad

Passenger Corporation v. Morgan, 536 U.S. 101 (2002), concerned a plaintiff who brought race-

discrimination, retaliation, and hostile-work-environment claims based on events dating back

nearly four-and-a-half years before he filed a charge with the EEOC, even though Title VII

required him to file charges with the EEOC within 300 days of the discriminatory practice. Id. at

105-06. The question before the Supreme Court was “whether, and under what circumstances, a

Title VII plaintiff may file suit on events that fall outside [the] statutory time period.” Id. at 105.

       Morgan first held that discrete discriminatory or retaliatory acts were not actionable if not

timely filed, even if they were “related to acts alleged in timely filed charges.” Id. at 113. In

other words, “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that

act,” and a claimant must file an EEOC charge for each discrete act within the appropriate time

limit. Id. Turning next to hostile-work-environment claims, which it explained “are different in

kind from discrete acts” because “[t]heir very nature involves repeated conduct,

id. at 115, the Court held that for a “charge to be timely, the employee need only file a charge

within [the requisite number of] days of any act that is part of the hostile work environment.” Id.

at 118 (emphasis added).

       As the attentive reader surely noticed, Morgan dealt with timeliness rather than

exhaustion, and “with a factual scenario involving allegations of discrete discriminatory acts that



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had occurred before the plaintiff filed an administrative complaint.” Mount v. Johnson, 36 F.

Supp. 3d 74, 84 (D.D.C. 2014). It “did not address exhaustion in the context of discriminatory or

retaliatory incidents that occurred after an administrative complaint is filed,” id., which is the

issue here. Absent such guidance from the Supreme Court, lower courts have had to grapple

with how to apply Morgan to this scenario.

       Before Morgan, courts generally did not require federal employees to separately exhaust

their administrative remedies for claims that arose after the filing of an administrative complaint

if the unfiled claims were “‘like or reasonably related to’ [the] claims they did file with their

agencies.” Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (quoting Park v. Howard Univ.,

71 F.3d 904, 907 (D.C. Cir. 1995)); see also Mount, 36 F. Supp. at 84 (citing Smith-Thompson v.

Dist. of Columbia, 657 F. Supp. 2d 123, 136 (D.D.C. 2009) (collecting cases)). In Morgan’s

wake, all but one of the Courts of Appeals to have addressed the question of whether and to what

extent the Supreme Court’s decision displaced those earlier cases have maintained some form of

the “reasonably related” exhaustion exception. Compare Richter v. Advance Auto Parts, Inc.,

686 F.3d 847, 852 n.1 (8th Cir. 2012) (contemplating that plaintiff who timely filed

administrative charge alleging “ongoing retaliation” need not file new such charge “with respect

to each continuing incident of retaliation”); Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 594 (4th

Cir. 2012) (“[S]o long as ‘a plaintiff’s claims in her judicial complaint are reasonably related to

her EEOC charge and can be expected to follow from a reasonable administrative investigation,’

she ‘may advance such claims in her subsequent civil suit.’”) (quoting Smith v. First Union Nat’l

Bank, 202 F.3d 234, 247 (4th Cir. 2000)); Mathirampuzha v. Potter, 548 F.3d 70, 75 (2d Cir.

2008) (“Although the general rule is that a Title VII plaintiff may not pursue an unexhausted

claim, we will consider all claims to the extent they are reasonably related to those that the



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plaintiff did assert in a timely EEO charge.”) (citation omitted) with Martinez v. Potter, 347 F.3d

1208, 1210-11 (10th Cir. 2003) (holding Morgan’s rule “is equally applicable . . . to discrete

claims based on incidents occurring after the filing of Plaintiff’s EEOC complaint”).

        The D.C. Circuit has thus far declined to take a position on this question. See Payne, 619

F.3d at 65; Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007); Mount v. Johnson, 664 F.

App’x 11 (D.C. Cir. 2016) (unpublished). Several district-court judges in this Circuit, however,

have weighed in. The majority of those to do so “have interpreted Morgan to require exhaustion

for all discrete acts of retaliation after an administrative charge is filed, ‘regardless of any

relationship that exists between those discrete claims and any others.’” Hicklin v. McDonald,

110 F. Supp. 3d 16, 19 (D.D.C. 2015) (quoting Rashad v. Wash. Metro Area Transit. Auth., 945

F. Supp. 2d 152, 165-66 (D.D.C. 2013) (collecting cases)). They reasoned that “requiring

exhaustion of each discrete claim most faithfully reflects Morgan and the purpose of the

exhaustion doctrine, namely, ‘to give the agency notice of a claim and the opportunity to handle

it internally so that only claims plaintiff has diligently pursued will survive.’” Id. (quoting

Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005)). A minority, however,

have continued to recognize an exception to the administrative-exhaustion requirement where

unexhausted discrimination and retaliation claims satisfy the “like or reasonably related” test. Id.

at 19-20 (collecting cases). Their explanation for doing so is that “‘the exhaustion doctrine was

not intended to become a massive procedural roadblock to access to the courts’ and ‘where the

ends of administrative exhaustion have been served by the pursuit of administrative remedies

with regard to the subsequent acts, separate initiation of administrative exhaustion for post-

complaint conduct is not required.’” Id. at 20 (quoting Velikonja v. Mueller, 315 F. Supp. 2d 66,

74 (D.D.C. 2004)).



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       This Court need not choose between the two interpretations here, as Plaintiffs’ claims fail

regardless of the approach used. First, they did not administratively exhaust hostile-work-

environment or retaliation charges, as required under the D.D.C.-majority approach. Second,

most of their current claims plainly are not “like or reasonably related to” the pay-discrimination

charge they administratively filed and fully pursued, as required under the D.D.C.-minority

approach. Those that come close are not pled at a sufficiently specific level to state a claim of

hostile work environment or retaliation. As the first conclusion is self-evident from the facts

regarding Plaintiffs’ EEO complaints discussed above — i.e., their failure to file an EEO

discrete-acts retaliation claim and their withdrawal of their EEO hostile-work-environment claim

— the Court need only discuss the second.

       C. Application

       For a Title VII claim “to be regarded as ‘reasonably related’ to a filed [EEOC]

charge . . . , it must ‘[a]t a minimum . . . arise from the administrative investigation that can

reasonably be expected to follow the charge of discrimination.’” Payne, 619 F.3d at 65 (quoting

Park, 71 F.3d at 907). In other words, the “analysis centers on whether the allegations that were

specifically put before the agency and the new allegations the plaintiff seeks to litigate constitute

the same cause of action and are factually similar such that they would be discovered during the

agency’s investigation.” Mount, 36 F. Supp. at 85-86. Although courts have cautioned that this

requirement “not be construed to place a heavy technical burden on ‘individuals untrained in

negotiating procedural labyrinths,’” they also must be careful not to “allow liberal interpretation

of an administrative charge to permit a litigant to bypass the Title VII administrative process.”

Park, 71 F.3d at 907 (quoting Loe v. Heckler, 768 F.2d 409, 417 (D.C. Cir. 1985)). Indeed, “the

goals behind the requirement of prior resort to administrative relief would be frustrated if the



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filing of a general charge with the EEOC would open up the possibility of judicial challenges to

any related conduct that took place in connection with the employment relationship.” Id. at 908

(quoting Rush v. McDonald’s Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)).

       Several discrimination and retaliation cases from this district help illuminate the

differences between those claims that warrant application of the exhaustion-requirement bar and

those that do not. See, e.g., Mount, 36 F. Supp. 3d at 88 (holding EEO complaint alleging non-

selection for position based on race discrimination was not sufficiently like allegations of non-

selection based on retaliation, as different causes of action cannot be considered “of a like

kind”); Nguyen v. Mabus, 895 F. Supp. 2d 158, 184 (D.D.C. 2012) (allegations plaintiff had

been excluded from “budget management deliberations/decisions” were “not substantially

similar” to claim defendant had cut funding for plaintiff’s programs but were “similar” to

allegation defendant excluded him from funding decisions); Pierson v. Washington Metro. Area

Transit Auth., 821 F. Supp. 2d 360, 366 (D.D.C. 2011) (holding EEOC charge concerning

WMATA employee’s termination for speaking out against sexual harassment was reasonably

related to allegation she was subsequently denied employment in other WMATA divisions but

not reasonably related to allegations WMATA harassed her regarding reimbursement for

overpaid vacation pay); Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 (D.D.C. 2010) (holding

plaintiff’s allegations in EEO complaint that “she was repeatedly denied promotions” were not

like unexhausted allegation that she was stripped of her Chief Information Officer duties);

Marcelus v. Corr. Corp. of Am./Corr. Treatment Facility, 540 F. Supp. 2d 231, 236 (D.D.C.

2008) (holding retaliation claim was not like or reasonably related to allegations in EEOC

charge, which focused only on age and national-origin discrimination and did not reference

plaintiff’s having complained about discrimination or filing incident reports); Hazel v.



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Washington Metro. Area Transit Auth., No. 02-1375, 2006 WL 3623693, at *8 (D.D.C. Dec. 4,

2006) (holding EEOC charges alleging ongoing retaliation and describing history of sexual and

racial harassment and discrimination, including retaliatory non-selection and termination

attempts, were reasonably related to unexhausted allegations of two subsequent retaliatory non-

selections and termination).

       In light of these analogous cases, most of Plaintiffs’ retaliation and hostile-work-

environment claims plainly do not satisfy the “like or reasonably related” test when compared to

the targeted pay-discrimination allegations set forth (and not withdrawn) in their EEO complaint.

Specifically, the allegations that Defendants made disparaging statements related to Plaintiffs’

race and “activism,” failed to timely fill open positions, ignored award nominations, and did not

routinely service equipment, see SAC at 8-10, are not sufficiently similar to, nor could they

reasonably be expected to arise from the administrative investigation of, the pay-discrimination

allegations, which focused on Defendants’ refusal to establish performance standards and update

outdated job descriptions, and thus to pay Plaintiffs a wage commensurate with their work. Id. at

5-8; see also EEOC Dismissal at 3-5; EEOC Appeal Decision at 2-4. These retaliation and

hostile-work-environment claims, accordingly, cannot survive even under the interpretation of

Morgan adopted by the minority of courts in this district.

       Allegations that Defendants removed two printers to limit Plaintiffs’ job responsibilities

and lowered the salary scale for Graphic Processor Operator, see SAC at 9-10, are arguably more

closely tied to the pay-discrimination allegations. But even if the Court were to consider them as

exceptions to the exhaustion requirement, they are not sufficiently pled to state a plausible claim

to relief. Iqbal, 556 U.S. at 678. The SAC does not explain, for example, how Plaintiffs used the

two Xerox and Canon printers or how their removal affected Plaintiffs’ work, nor does it specify



                                                15
                
how much the salary scale for Graphic Processor Operator was lowered, when it was lowered, or

which Plaintiffs were affected. These allegations thus are not enough to state a retaliation or

hostile-work-environment claim. See Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647,

651 (D.C. Cir. 2003) (requiring, for prima facie case of retaliation, that plaintiff show employer

took materially adverse action and causal connection between such action and statutorily

protected activity); Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (requiring, to

prevail on hostile-work-environment claim, that plaintiff show employer subjected him to

“‘discriminatory intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter

the conditions of the victim’s employment and create an abusive working environment’”)

(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

IV.    Conclusion

       For the foregoing reasons, the Court will grant Defendants’ Motion to Dismiss without

prejudice for failure to exhaust administrative remedies and to state claims upon which relief can

be granted. A contemporaneous Order so stating will issue this day.



                                                       /s/ James E. Boasberg
                                                       JAMES E. BOASBERG
                                                       United States District Judge

Date: July 7, 2017




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