                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                              )
TOMAS A. ESPINOSA,                            )
                                              )
              Plaintiff,                      )
                                              )
      v.                                      )       Civil Action No. 14-482 (RDM)
                                              )
SHAUN DONOVAN,                                )
                                              )
                                              )
              Defendant.                      )
                                              )


                                 MEMORANDUM OPINION

       Plaintiff Tomas Espinosa, an employee of the U.S. Department of Housing and Urban

Development (“HUD”), brought this employment discrimination suit against the Secretary of

HUD in his official capacity, alleging violations of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. §§ 2000e et seq. Plaintiff, who is Hispanic and was born in the

Dominican Republic, alleges that the HUD discriminated against him based on race and national

origin by denying his requests for a lateral transfer to Boston and by failing to select him for a

position in Boston. HUD now moves to dismiss in part, or in the alternative, for partial summary

judgment. See Dkt. 4. For the reasons explained below, the motion is GRANTED in part and

DENIED in part. To the extent portions of the complaint are dismissed for failure to state a

claim, Plaintiff may file an amended complaint consistent with this Memorandum Opinion

within 20 days, and Defendant may respond to the complaint or amended complaint within 40

days of this Memorandum Opinion.
                                       I. BACKGROUND

       Plaintiff began working for HUD as an auditor in 2000. See Compl. ¶ 19. By 2012, he

had been promoted several times and was a supervisory auditor, grade level GS-14, in HUD’s

Office of Inspections and Evaluations in Washington, D.C. See Compl. ¶¶ 7, 19-21; see also

Final Agency Decision, Dkt. 1, Ex. 1 at 3 (“Admin. Decision”). He alleges that, in that role, he

supervised between six and eight employees. See Compl. ¶ 21.

       Although the complaint alleges a single count of discrimination in violation of Title VII,

see Compl. ¶¶ 58-65, that count rests on four possible agency actions, see id. Plaintiff thus

appears to assert four claims of discrimination, each based on one of the four actions. See id.

Two of his claims are based on his non-selection for a supervisory auditor position in Boston.

See Compl. ¶¶ 61, 62. The Boston position was advertised twice, first in February 2012 under

vacancy announcement 12-HUDIG-022, see Compl. ¶¶ 30, 31; Dkt. 4 at 14, ¶ 2, and again in

May 2012 under vacancy announcement 12-HUDIG-042, see Compl. ¶¶ 41, 42; Dkt. 4 at 14-15,

¶¶ 3, 4. Plaintiff filed an application in response to the first vacancy announcement; when that

announcement was cancelled in mid-May, he filed an application in response to the second

vacancy announcement, which was also cancelled. See Compl. ¶ 49; Dkt. 4 at 14-15, ¶¶ 2, 3, 4.

       The other two claims are based on HUD’s failure to grant Plaintiff’s requests for a lateral

transfer to Boston to fill the same position covered by the vacancy announcements. Plaintiff

requested a lateral reassignment in February 2012, but he was told instead to file an application

in response to the first vacancy announcement. See Compl. ¶¶ 32, 33; Dkt. 4 at 15 ¶ 5. In June

2012, Plaintiff contacted HUD’s Human Resources staff to express interest in a lateral transfer,

but did not receive a response. See Compl. ¶¶ 45, 46; Dkt. 4 at 15 ¶ 6. The parties do not appear

to dispute that both of these requests were effectively denied.



                                                 2
        Plaintiff alleges that he first contacted an Equal Employment Opportunity (“EEO”)

counselor about the four allegedly discriminatory actions on August 17, 2012. See Compl. ¶ 53;

Dkt. 4 at 15-16 ¶ 7. His amended administrative complaint alleged that HUD officials

discriminated against him by twice failing to select him for the Boston position and by failing to

grant his two requests for a lateral reassignment or transfer. See Admin. Decision 2-4. 1 On

December 24, 2013, HUD issued a final decision concluding that these actions were not

discriminatory. Admin. Decision 17. Within 90 days of receiving the final decision, Plaintiff

filed this action. See Compl. ¶¶ 15, 16, 17; see also 42 U.S.C. § 2000e-16(c); 29 C.F.R.

§ 1614.407(a).

                                     II. LEGAL STANDARD

        HUD has moved to dismiss in part under Rule 12(b)(6), or in the alternative, for partial

summary judgment under Rule 56.

        A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. When

ruling on such a motion, the court “must accept the complaint’s allegations as true and draw all

reasonable inferences in favor of the non-moving party.” Gordon v. United States Capitol

Police, 778 F.3d 158, 163-64 (D.C. Cir. 2015). “To survive a motion to dismiss, a complaint

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

on its face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct




1
  Plaintiff also asserted that HUD management discriminated against him in November 2012 by
changing his job title, requiring him to report to a different supervisor, and failing to increase his
grade level to GS-15. See Admin. Decision 1, 4-5. The claims based on the November 2012
events were dismissed at the administrative level, see id. at 17, and Plaintiff does not assert a
claim based on those events in this litigation.
                                                   3
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 556, 570 (2007)) (citation omitted).

       Summary judgment is appropriate 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact is

material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about

a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Liberty

Lobby, 477 U.S. at 248). When considering a motion for summary judgment, the “evidence of

the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”

Liberty Lobby, 477 U.S. at 255.

                                         III. ANALYSIS

       HUD’s motion presents two defenses. First, it argues that the complaint fails to state a

claim based on the failure to grant a lateral transfer or reassignment, because such a failure,

without more, is not an adverse employment action for purposes of Title VII. Second, it argues

that Plaintiff failed to timely exhaust his administrative remedies with respect to three of the four

allegedly discriminatory actions. The Court will address these arguments in turn.


A. The Lateral Reassignment and Transfer Requests

       “Title VII provides that ‘[a]ll personnel actions affecting employees . . . in executive

agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or

national origin.’” Weber v. Battista, 494 F.3d 179, 182 (D.C. Cir. 2007) (quoting 42 U.S.C.

§ 2000e-16(a)). To allege a prima facie case of employment discrimination under Title VII

based on indirect evidence, “a plaintiff must show that he ‘is a member of a protected class,’ that

                                                  4
he ‘suffered an adverse employment action,’ and ‘that the unfavorable action gives rise to an

inference of discrimination.’” Youssef v. FBI, 687 F.3d 397, 401 (D.C. Cir. 2012) (quoting Stella

v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)).

       Not all unwelcome actions by an employer count as adverse employment actions. The

Court of Appeals has held that “an employee suffers an adverse employment action if he

experiences materially adverse consequences affecting the terms, conditions, or privileges of

employment or future employment opportunities such that a reasonable trier of fact could find

objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); see also

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (“A tangible employment action

constitutes a significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a significant

change in benefits.”). In contrast, “purely subjective injuries, such as dissatisfaction with a

reassignment, public humiliation, or loss of reputation, are not adverse actions.” Holcomb v.

Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (quoting Forkkio, 306 F.3d at 1130-31) (quotation

marks omitted).

       At least for present purposes, HUD does not dispute that the complaint states claims

based on Plaintiff’s alleged non-selections to fill the vacancies advertised in February and May

2012. It argues, however, that the complaint fails to state claims based on HUD’s alleged failure

to grant the Plaintiff a lateral transfer or reassignment. As HUD correctly observes, the denial of

a lateral transfer or reassignment is not, without more, an adverse employment action for

purposes of Title VII. See Brown v. Brody, 199 F.3d 446, 455-57 (D.C. Cir. 1999); Stewart v.

Ashcroft, 352 F.3d 422, 426-27 (D.C. Cir. 2003) (“[I]n Brown we recognized that while

generally lateral transfers, or the denial of them, could not be considered adverse employment



                                                  5
actions, there are circumstances where they could be.”). Rather, “a plaintiff who is made to

undertake or who is denied a lateral transfer—that is, one in which [he] suffers no diminution in

pay or benefits—does not suffer an actionable injury unless there are some other materially

adverse consequences affecting the terms, conditions, or privileges of [his] employment or [his]

future employment opportunities such that a reasonable trier of fact could conclude that the

plaintiff has suffered objectively tangible harm.” Brown, 199 F.3d at 457. Here, HUD argues

that Plaintiff has failed to allege any loss of pay or benefits or any other adverse employment

action, and that, accordingly, his lateral transfer claims should be dismissed. Dkt. 4 at 9-10.

       The type of “tangible employment action” that is actionable under Title VII typically

“inflicts direct economic harm” on the plaintiff. See Burlington Indus., 524 U.S. at 762-63. But

this is not invariably true. Most notably, “reassignment with significantly different

responsibilities,” even without any reduction in pay or benefits or other direct economic loss,

may constitute an adverse employment action, Forkkio, 306 F.3d at 1131, as may the loss or

diminution of supervisory or programmatic duties, Czekalski v. Peters, 475 F.3d 360, 364-65

(D.C. Cir. 2007); Stewart, 352 F.3d at 426. The question whether a reassignment—or denial of a

reassignment—rises to the level of an adverse employment action, moreover, is often highly fact

dependent. For this reason, the Court of Appeals has held that the issue “is generally a jury

question.” Czekalski, 475 F.3d at 365. There is also a “critical difference” in the standards

district courts should apply at the motion to dismiss and motion for summary judgment stages in

evaluating whether an alleged adverse employment action falls within the scope of Title VII.

Gordon, 778 F.3d at 163. At the motion to dismiss stage, “‘the circumstances of th[e] case’” are

often unknown “‘because no discovery has taken place.’” Id. at 163 (quoting Hunter v. District

of Columbia Child and Family Services Agency, 710 F. Supp. 2d 152 (D.D.C. 2010)).



                                                 6
       Yet, even at the motion to dismiss stage, a plaintiff must satisfy minimal standards for

alleging some material adverse employment action. “[D]etailed factual allegations” are not

required, Twombly, 550 U.S. at 555, but a plaintiff must at least “plead[ ] factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged,” Iqbal, 556 U.S. at 678. Here, the complaint fails to allege any facts that would support

an inference that the alleged lateral transfer denials constituted the type of adverse employment

action required to state a claim under Title VII. The complaint alleges that Plaintiff suffered

stress, anxiety, and related medical conditions, “financial stress from his failed attempts to move

to Boston,” “fear of reprisal and discrimination,” “embarrassment, low self-esteem, damage to

his personal and professional reputation, a loss of earnings, and considerable mental distress,”

see Compl. ¶¶ 57, 65. Most of these allegations, however, assert the kinds of injuries that the

Court of Appeals has held are insufficient as a matter of law. As the Court of Appeals has

explained, “mere idiosyncracies of personal preference,” “[p]urely subjective injuries, such as

dissatisfaction with a reassignment,” and “public humiliation or loss or reputation” will not

suffice. Forkkio, 306 F.3d at 1130-31 (quotation marks omitted); see also Holcomb, 433 F.3d at

902 (same).

       A loss of earnings can, of course, constitute an actionable injury, but an employer’s

failure to grant a “lateral” transfer or reassignment from one position to a similar position at the

same grade, see Compl. ¶¶ 20, 30, 42, would not normally reduce an employee’s earnings. Here,

the Plaintiff merely alleges loss of income with no elaboration or context. He does not allege

that the Boston position paid a higher salary or provided more generous benefits; that he lost

“future employment opportunities,” Forkkio, 306 F.3d at 1131; that he lost valuable training

opportunities; or any other factual basis for concluding that he lost earnings, benefits, financial



                                                  7
rewards, or any other source of income as a result of the conduct alleged in the complaint.

Although Plaintiff is not required to allege facts such as these in detail, Twombly, 550 U.S. at

555, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice,” Iqbal, 556 U.S. at 678. Because the complaint is devoid of any

factual content that would allow the Court to infer that the denials of Plaintiff’s requests for a

lateral transfer constituted “adverse employment actions” under the governing case law, it fails to

state a claim based on those denials. See Casey v. Mabus, 878 F. Supp. 2d 175, 184 (D.D.C.

2012) (dismissing discrimination claim because “allegations regarding denial of training are

simply insufficient to establish an adverse employment action” absent “some concrete factual

allegation that [plaintiff’s] training deficit imposed a tangible harm on the terms, conditions, or

privileges of her employment”); Jackson v. Acedo, 2009 U.S. Dist. LEXIS 75892, *14-15

(D.D.C. 2009) (dismissing discrimination claim because an allegation that plaintiff’s employer

denied her request for a schedule change was insufficient to support an inference that she

suffered an adverse employment action).

       In his opposition to HUD’s motion, Plaintiff argues that he was harmed by the denial of a

lateral transfer because the Boston position “involved greater supervisory duties, responsibilities,

and prestige, and would have certainly furthered his career.” Dkt. 5 at 12. An allegation that

Plaintiff was denied an opportunity for significantly greater supervisory duties or responsibilities

might well be sufficient to state a claim. But that is not what the complaint says. Indeed, the

complaint does not allege any significant advantages to the Boston position, other than location,

over the position Plaintiff already held at HUD’s headquarters. Cf. Pitts v. Howard Univ., 13 F.

Supp. 3d 14, 20 (D.D.C. 2014) (holding that allegations that a reassignment reduced the

plaintiff’s direct reports “by over 80%, . . . accompanied by diminished responsibilities,” sufficed



                                                  8
to defeat the defendant’s motion to dismiss). To the contrary, to the extent that any inferences

might be drawn from the scant factual allegations actually contained in the complaint, it appears

that the Boston position involved fewer supervisory duties and responsibilities. Plaintiff alleges

that he supervised between six and eight subordinate auditors in D.C., see Compl. ¶ 21, while

there were only four subordinate auditors in Boston, see Compl. ¶ 47. If, in fact, the Boston

position “involved greater supervisory duties, responsibilities, and prestige,” as Plaintiff asserts

in his opposition brief, Dkt. 5 at 12, he needs to amend his complaint to include those

allegations. As currently pled, however, the complaint contains no such allegations.

       Plaintiff also invokes Stewart v. Ashcroft, 352 F.3d 422, 426-27 (D.C. Cir. 2003), which

held that the denial of a lateral transfer from one Senior Executive Service (“SES”) position to

another can constitute an adverse employment action. The minimal facts alleged here, however,

fall far short of those in Stewart. Stewart explained that lateral transfers are not normally

considered adverse employment actions, but “[w]hat sets this case outside the norm is the

structure of the SES,” see id., because SES positions have similar pay and benefits while

differing greatly in duties and potential for career advancement, see id. The plaintiff in Stewart

experienced an adverse employment action because he was denied a transfer to “his supervisor’s

job.” See id. at 427. As discussed above, Plaintiff alleges no facts supporting the inference that

the Boston position was superior to the position he already held. Nor does he allege any other

circumstances that might “set[ ] this case outside the norm.” See id. at 426-27. Indeed, the

closest the complaint comes to setting the Boston position apart from the position Plaintiff held

at HUD’s headquarters is the allegation that a HUD memorandum described the Boston position

as a “critical supervisory position[ ].” Compl. ¶ 25; see Dkt. 5 at 12. The allegation that HUD

used the word “critical” in one memorandum, however, provides an insufficient basis—standing



                                                  9
alone—to allege that Plaintiff suffered an adverse employment action. The complaint, for

example, never alleges that this was a meaningful distinction or that the responsibilities or duties

of the two positions were “significantly different,” Forkkio, 306 F.3d at 1131; compare

Czekalski, 475 F.3d at 364-65 (before reassignment plaintiff supervised several hundred

employees or contractors; after reassignment plaintiff supervised fewer than ten employees).

       Plaintiff argues that at some point after the agency denied him a lateral transfer, he lost

his supervisory responsibilities and “now supervises no staff at all.” See Dkt. 5 at 12; see also

Czekalski, 475 F.3d at 365 (“[w]ithdrawing an employee’s supervisory duties . . . constitutes an

adverse personnel action” (quotation marks omitted)). If the complaint alleged that the denial of

the requested transfer directly resulted in Plaintiff’s loss of supervisory responsibility, it would

likely suffice. But it contains no such allegation. To the contrary, as previously noted, it appears

to allege that the Boston position involved fewer supervisees. Moreover, Plaintiff himself asserts

that his supervisory duties were withdrawn as “a result of the Agency’s subsequent realignments

and reorganizations.” Dkt. 5 at 3 (emphases added). Again, if there is some direct connection

between the denial of Plaintiff’s transfer and his loss of supervisory responsibility, he needs to

allege the relevant facts in his complaint.

       Finally, Plaintiff argues that HUD waived any argument that its denials of his requests for

lateral transfer were not adverse employment actions, because with respect to “both of

[Plaintiff’s] requests” HUD’s administrative decision “stated that Plaintiff met his prima facie

claim with the exception of proving comparator evidence.” See Dkt. 5 at 9-10. Plaintiff’s

opposition elides the distinction between HUD’s affirmative defense of untimely exhaustion,

which can be waived, see Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997), and a

plaintiff’s burden of alleging a sufficient claim under Title VII. Plaintiff, moreover,



                                                  10
mischaracterizes the administrative decision, which did not concede that he alleged an adverse

employment action based on the denial of a lateral transfer or reassignment. To the contrary, it

merely stated that he “arguably satisfied the second element concerning an adverse employment

action, as [he was] not allowed to transfer to Boston,” Admin. Decision 14 (emphasis added), but

concluded that his discrimination claims failed for other reasons, id. at 14-16.

       For the reasons stated above, the Court grants HUD’s motion in part, and dismisses the

claims based on the denial of Plaintiff’s lateral transfer and reassignment requests. 2 Plaintiff,

however, may attempt to address the deficiencies in his complaint by filing an amended

complaint within 20 days of this Memorandum Opinion.


B. Timely Exhaustion of Administrative Remedies

       HUD also argues that Plaintiff failed to timely exhaust his administrative remedies with

respect to three of the four allegedly discriminatory actions. See Dkt. 4 at 5-7. Because the

Court has concluded that Plaintiff’s lateral transfer claims must be dismissed under Rule

12(b)(6), it is unnecessary to address whether those claims were timely exhausted. Moreover,

because HUD does not dispute that Plaintiff timely exhausted his remedies with respect to his

second non-selection for the advertised position, it is also unnecessary to address whether that

claim was timely exhausted. See id. The only question before the Court, then, is whether the

claim based on the first non-selection was timely exhausted. As both parties cite to and rely on

additional documents not incorporated in the complaint, the Court will act on HUD’s alternative



2
  Plaintiff asks the Court either to resolve HUD’s motion under Rule 12(b)(6) or to defer
summary judgment pending discovery. See Dkt. 5 at 13 (citing Rule 56(d)). Because the Court
concludes that the complaint fails to state a claim based on the denials of the lateral transfer and
reassignment requests, there is no need to apply the summary judgment standard or to postpone
summary judgment while the parties engage in discovery.


                                                 11
motion for partial summary judgment under Rule 56. As explained below, the Court concludes

that HUD has failed to carry its burden of demonstrating that it is entitled to prevail on this

defense on summary judgment.

       A federal employee who believes that he or she has been subjected to unlawful

discrimination “must initiate contact with a[n EEO] 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.” 29 C.F.R. § 1614.105(a)(1). “‘Because timely exhaustion of

administrative remedies is a prerequisite to a Title VII action against the federal government,’ a

court may not consider a discrimination claim that has not been exhausted in this manner absent

a basis for equitable tolling.” Steele, 535 F.3d at 693 (quoting Stewart, 352 F.3d at 426). The

45-day time limit may be tolled if the employee “did not know and reasonably should not have

known that the discriminatory matter or personnel action occurred” until a later time. 29 C.F.R.

§ 1614.105(a)(2). “In such a case, the 45-day clock is tolled until the aggrieved employee has a

‘reasonable suspicion’ that she has been the victim of discrimination.” Saunders v. Mills, 842 F.

Supp. 2d 284, 290 (D.D.C. 2012). 3 “Failure to exhaust administrative remedies is considered an

affirmative defense. As such, the defendant bears the burden of pleading and proving it.”

Johnson v. Billington, 404 F. Supp. 2d 157, 162 (D.D.C. 2005) (quotation marks and citation

omitted). “If the defendant meets its burden,” however, “the plaintiff then bears the burden of

pleading and proving facts supporting equitable avoidance of the defense.” Bowden, 106 F.3d at

437.




3
  Common-law equitable tolling is also available for Title VII claims, but a plaintiff who
satisfies the regulatory requirements, see 29 C.F.R. § 1614.105(a)(2), need not satisfy the “more
demanding” common-law standard, see Harris v. Gonzalez, 488 F.3d 442, 444 (D.C. Cir. 2007).
                                                 12
       The undisputed facts establish that Plaintiff did not “initiate[ ] contact with an EEO

counselor” about his allegations of discriminatory treatment until August 17, 2012. Compl. ¶ 53,

see Dkt. 4 at 15-16 ¶ 7. Plaintiff, moreover, does not dispute that he learned in mid-May—well

over 45 days prior to August 17—that the Boston vacancy was being re-advertised and that he

would need to re-apply if he still wanted to be considered for that position, see Compl. ¶¶ 42, 43;

Dkt. 4 at 15 ¶ 4 & Ex. A. Based on these facts, HUD argues that “Plaintiff must have known”

almost three months before he initiated the EEO counseling process “that he did not receive the

position based on the [first] vacancy announcement,” Dkt. 4 at 5, and that, accordingly, Plaintiff

has failed to exhaust his administrative remedies in a timely manner.

       Plaintiff makes three arguments in response. First, he argues that HUD has waived the

defense of untimely exhaustion by reaching the merits of his discrimination claim at the

administrative level. See Dkt. 5 at 10-11. Second, he argues that equitable tolling should apply

because he did not suspect discrimination until early August. See 29 C.F.R. § 1614.105(a)(2);

see also Dkt. 5 at 5-6. Third, he argues that he did not realize that he had not been selected for

the first vacancy until August. See Dkt. 5 at 7-8.

       With respect to the waiver argument, the Court of Appeals has explained that “[a]lthough

agencies do not waive a defense of untimely exhaustion merely by accepting and investigating a

discrimination complaint, [the Court has] suggested that if [agencies] not only accept and

investigate a complaint, but also decide it on the merits—all without mentioning timeliness—

their failure to raise the issue in the administrative process may lead to waiver of the defense

when the complainant files suit.” Bowden, 106 F.3d at 438 (citations omitted). Accordingly,

courts in this district have found waiver where the agency offers “no legitimate reason why [it]




                                                 13
failed to raise exhaustion during the administrative process.” See Kriesch v. Johanns, 468 F.

Supp. 2d 183, 187 (D.D.C. 2007) (denying agency’s motion to dismiss).

       HUD, for its part, argues that no waiver should apply because Plaintiff incorrectly told

the EEO Counselor that he first learned of both of the non-selections in August. See Dkt. 6, Ex.

F at 3; see also Admin. Decision 1-2 (similar). According to the EEO Counselor’s Report,

Plaintiff “stated that he was subjected to discrimination . . . when on August 15, 2012, he learned

that he was not selected for the Supervisory Auditor position located in Boston, MA, advertised

under vacancy announcement numbers 12-HUDIG-022 and 12-HUDIG-042.” Dkt. 6, Ex. F at 3.

The administrative decision similarly treats both non-selections as giving rise to a single claim

arising on August 15. See Admin. Decision 1, 14. That decision, however, also indicates that

HUD was aware of the circumstances it relies on in its motion to dismiss, see Dkt. 4 at 5, i.e.,

that Plaintiff was notified in May that the first vacancy had been cancelled and that he needed to

reapply, see Admin. Decision 3. If HUD concluded that those circumstances supported a finding

of untimely exhaustion, it could have said so in the administrative decision. HUD did not do so,

and it offers no further explanation for why it failed to raise the issue. The Court, accordingly,

agrees with Plaintiff that “the agency now has no legitimate reason to complain about a judicial

decision on the merits,” see Bowden, 106 F.3d at 438-39, and has waived its untimely exhaustion

defense, see Nurriddin v. Bolden, 674 F. Supp. 2d 64, 86-88 (D.D.C. 2009); Kriesch, 468 F.

Supp. 2d at 187.

       The Court further concludes that even if HUD had not waived its untimeliness defense,

there is a material dispute of fact as to whether Plaintiff satisfies the requirements for tolling.

See 29 C.F.R. § 1614.105(a)(2). Plaintiff argues that he first suspected discrimination in August,

after learning that the second Boston vacancy had been cancelled and that similar positions in



                                                  14
Columbus and Kansas City had been filled by non-minority candidates. See Dkt. 5 at 6-7,

Compl. ¶¶ 51, 52. This information, he argues, “further alerted him to the fact that the

cancellations of the Boston [auditor] position were discriminatory acts” and “revealed the extent

to which the Agency would go to avoid his presence in Boston and raised Complainant’s

reasonable suspicion of discrimination.” Dkt. 5 at 6.

       HUD responds that the equitable tolling is unwarranted because Plaintiff “perceived

different treatment” several months earlier. Dkt. 6 at 7-9. Most notably, HUD points to

Plaintiff’s allegation that he was “surprised” that his February 2012 lateral reassignment request

was denied, because a similar request made by one of the auditors that he had supervised, who

was a white male, was approved in March 2012. See Compl. ¶¶ 27, 28, 29, 33; see also Dkt. 5,

Espinosa Decl. ¶ 7(e). More generally, HUD contends that Plaintiff concedes that “several

events . . . led him to believe that he had been discriminated against, includ[ing] emails,

comparable job announcements and hires between February 2012 and June 2012.” Dkt. 6 at 8.

       Fairly read, however, Plaintiff’s complaint and declaration paint a very different picture

from the one presented by HUD. Plaintiff does not concede that he suspected that he was the

victim of discrimination as early as March 2012, but rather that these “prior incidents” caused

him to question the justification that he was given in August 2012 for HUD’s decision not to fill

the Boston position. See Dkt. 5, Espinosa Decl. ¶ 7; Compl. ¶¶ 51, 52, 53. Thus, when he was

told in August 2012 that the Boston position would not be filled because there were not enough

auditors to justify a supervisory position, he questioned why his non-minority subordinate was

reassigned to a similar position “to only supervise 4 auditors,” or why “two white female

employees” were hired as “supervisors in different cities with less experience . . . to positions

with a similar number of auditors to Boston.” Dkt. 5, Espinosa Decl. ¶ 7. There is a



                                                 15
fundamental difference between a recent suspicion that is informed in part by past events, and a

past suspicion that is merely confirmed by recent events. Cf. Paredes v. Nagle, 1982 WL 319,

*4 (D.D.C. Jan. 17, 1982) (concluding that the clock started running no later than the date of a

statement that the employee felt “discriminated against”); Hyson v. Boorstin, 1982 WL 155452,

*2 (D.D.C. Dec. 23, 1982) (declining to apply equitable tolling where the employee “expected to

be discriminated against before the selection was made and [ ] once the selection was made those

suspicions were confirmed”). There is, at a minimum, a disputed issue of fact regarding which

scenario best reflects what happened here.

       The Court also cannot conclude on the present record that Plaintiff reasonably should

have suspected discrimination more than 45 days before contacting the EEO counselor.

Although an employee alleging a discriminatory non-selection “reasonably should suspect that

there might have been discriminatory reasons for his or her non-selection . . . upon learning that

an individual of a different race (or gender, if applicable) was selected,” Armstead v. Jewell, 958

F. Supp. 2d 242, 246 (D.D.C. 2013), here, no individual was selected for (or transferred to) the

Boston position. Plaintiff attests, moreover, that when he was told that the original vacancy

announcement was cancelled and the vacancy would be re-advertised, he was also “encouraged”

to re-apply and thus “believed that this was a routine administrative issue.” Dkt. 5, Espinosa

Decl. ¶ 2. Similarly, when he was told that he should file an application in response to the

vacancy announcement, rather than seeking a lateral transfer, Plaintiff had no reason to believe

that he would not, one way or the other, receive the same consideration for the Boston position,

see Compl. ¶ 25 (plan was to fill position with internal candidate). Although a plaintiff “cannot

wait until ‘he has direct proof of the allegedly discriminatory action,’” Armstead, 958 F. Supp.

2d at 246 (citation omitted), the regulations toll the 45-day time limit where the plaintiff “did not



                                                 16
know and reasonably should not have known that the discriminatory matter or personnel action

occurred,” 29 C.F.R. § 1614.105(a)(2). Drawing all reasonable inferences in Plaintiff’s favor, as

the Court is obligated to do, see Liberty Lobby, 477 U.S. at 248, the Court concludes that there is

at least a material dispute of fact whether Plaintiff reasonably should have suspected that the first

non-selection was discriminatory more than 45 days before he contacted the EEO counselor.

See, e.g., Hutchinson v. Holder, 668 F. Supp. 2d 201, 213-14 (D.D.C. 2009) (denying the

government’s motion to dismiss where there was a genuine issue of fact as to the date plaintiff

reasonably suspected discrimination). 4

       The Court, accordingly, DENIES HUD’s motion for partial summary judgment for

failure to timely exhaust administrative remedies.

                                          CONCLUSION

       For the foregoing reasons, the Court GRANTS the motion to dismiss the claims that are

based on the denial of a lateral transfer or reassignment, and DENIES the motion for partial

summary judgment based on untimely exhaustion. Plaintiff may file an amended complaint

consistent with this Memorandum Opinion within 20 days, and Defendant may respond to the

complaint or amended complaint within 40 days of this Memorandum Opinion.

       An appropriate Order accompanies this Memorandum Opinion.


                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
Date: July 13, 2015                                   United States District Judge




4
  Because the Court denies Defendant’s motion for the reasons stated, there is no need to address
Plaintiff’s argument that he did not realize that he had not been selected for the first vacancy
until August. See Dkt. 5 at 7-8.
                                                 17
