                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 RODNEY ARMSTEAD,

    Plaintiff,

           v.                                             Civil Action No. 12-1110 (CKK)
 SALLY JEWELL,

    Defendant.


                                  MEMORANDUM OPINION
                                     (August 5, 2013)

       Plaintiff Rodney Armstead filed suit against Sally Jewell1 in her official capacity as the

Secretary of the Interior, alleging he was not selected for a position as an Engineering Equipment

Operator for the National Park Service on account of his race, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.            Presently before the Court is the

Defendant’s [13] Motion to Dismiss or, Alternatively, for Summary Judgment. The Defendant

alleges the Plaintiff failed to initiate counseling with an equal employment opportunity counselor

within forty-five days of when he reasonably suspected that he had been the victim of

discrimination, and thus failed to exhaust his administrative remedies. Upon consideration of the

pleadings,2 the relevant legal authorities, and the summary judgment record, the Court agrees

that the Plaintiff failed to exhaust his administrative remedies before filing suit. Accordingly, the

Defendant is entitled to summary judgment.




       1
         Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Sally Jewell
for Kenneth Salazar as the proper defendant in this action.
       2
           Def.’s Mot., ECF No. [13]; Pl.’s Opp’n, ECF No. [15]; Def.’s Reply, ECF Nos. [17].
                                      I. BACKGROUND

       For purposes of this motion, the Defendant, and thus the Court, presumes as true the well-

pleaded factual allegations in the Complaint. The Plaintiff, an African-American male, is an

employee of the National Park Service, part of the Department of the Interior. Compl., ECF No.

[1], ¶ 1. The Plaintiff was initially hired as a maintenance worker for the National Park Service

in May 2008, a position which the Plaintiff continued to occupy as of the filing of the Complaint.

Id. at ¶ 12. On August 14, 2008, the Plaintiff applied for one of two advertised vacancies for

Engineering Equipment Operators. Id. at ¶¶ 13-14. Six of the ten individuals that applied for the

vacancies, including the Plaintiff, received interviews and underwent field assessments. Id. at

¶ 15. James Burrell, and African-American male, and Stephen O’Connor, a Caucasian male,

were selected to fill the vacancies. Id. at ¶ 20. The Defendant learned on or about October 8,

2008, both that he was not selected and that Mr. Burrell and Mr. O’Connor had been selected.

Def.’s Stmt. ¶ 3; Pl.’s Ex. D (Ltr. S. Robinson to R. Armstead).3

       Mr. O’Connor commenced working as an Engineering Equipment Operator in early

2009. Def.’s Stmt. ¶ 4. “Immediately after Mr. O’Connor begin [sic] in the position, it became

apparent that he did not know how to operate heavy equipment.” Def.’s Ex. A (EEO Report of

Investig.) at 29 (Pl.’s Compl. of Discrimination). “A few months after the selections were made,

Plaintiff observed O’Connor flip an asphalt roller.” Id. Compl. ¶ 29; see also EEO Report of

Investig. at 64 (“I started asking questions when I saw him flip the asphalt roller and I was told

that before this he was operating a snow plow and damaged a guard rail on a road in the park.”).

       3
          The EEO Report of Investigation indicates that the Plaintiff was informed that he was
not selected and that Mr. Burrell and Mr. O’Connor were selected for the vacancies on
November7, 2008. Def.’s Ex. A (EEO Report of Investig.) at 29. However, the parties agree
that the Plaintiff was actually informed on October 9, 2008, Pl.’s Resp. Stmt. ¶ 3, therefore the
Court utilizes the date agreed upon by the parties.
                                                 2
At some point Mr. O’Connor also struck and damaged building in the maintenance yard while

operating heavy machinery. Compl. ¶ 30. “It was then that [the Plaintiff] began to question how

Mr. O’Connor got the job and if he was even qualified. [The Plaintiff] filed a Freedom of

Information Act request to get the answers.” EEO Report of Investig. at 19 (Pl.’s Compl. of

Discrimination). The Plaintiff submitted a Freedom of Information Act request to the National

Park Service on May 13, 2010, seeking all records regarding the Engineering Equipment

Operator vacancies. Def.’s Ex. B (5/13/2010 FOIA Request); Pl.’s Ex. C (Armstead Aff.) ¶¶ 1,

4. The National Park Service produced a number of documents in response to the request, but

the Plaintiff indicates that with respect to Mr. O’Connor, the Plaintiff only received copies of Mr.

O’Connor resume and driver’s license. Armstead Aff. ¶ 5. The Plaintiff appealed the agency’s

response to his FOIA request on November 1, 2010, but the Plaintiff does not indicate what, if

any, response he received to his appeal. Pl.’s Ex. G at 2-3.

       On or about May 3, 2011, Mr. Burrell relayed to the Plaintiff a conversation between Mr.

Burrell and Oscar Goodman, one of the selecting officials for the Engineering Equipment

Operator positions. Compl. ¶ 31. Mr. Goodman reportedly indicated that Cindy Cox, the

approving official for the selection process, informed Mr. Goodman that she wanted two

Caucasians hired to fill the vacancies. Id. at ¶ 32. Mr. Goodman allegedly threatened to resign

unless Mr. Burrell was selected for one of the vacancies. Id. at ¶ 33. Mr. Burrell also told the

Plaintiff that Mr. O’Connor had purportedly told another applicant for the Engineering

Equipment Operator vacancies that he (Mr. O’Connor) informed the selection panel that he was

not qualified for the position. Id. at ¶ 34. The Plaintiff contacted an Equal Employment Official

for first time on June 1, 2011, filed a formal complaint of discrimination on July 12, 2011, and

ultimately filed suit on July 6, 2012. Compl. ¶¶ 38-39.

                                                 3
                                    II. LEGAL STANDARD

       The Defendant moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) or

12(b)(6), or in the alternative, for summary judgment, on the grounds the Plaintiff failed to

exhaust his administrative remedies before filing suit. The United States Court of Appeals for

the District of Columbia Circuit has clarified that “Title VII’s exhaustion requirements are not

jurisdictional,” therefore Rule 12(b)(1) is in applicable. Artis v. Bernanke, 630 F.3d 1031, 1034

n.4 (D.C. Cir. 2011). Furthermore, Rule 12(d) provides “[i]f, on a motion under Rule 12(b)(6) or

12(c), matters outside the pleadings are presented to and not excluded by the court, the motion

must be treated as one for summary judgment under Rule 56.” In deciding a Rule 12(b)(6)

motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits

or incorporated by reference in the complaint,” or “documents upon which the plaintiff’s

complaint necessarily relies even if the document is produced not by [the parties].” Ward v. D.C.

Dep't of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (citations omitted). Here,

both parties rely substantially on documents that are not incorporated by reference into the

Complaint, or which the Complaint necessarily relies, such as the Report of Investigation

compiled by the Equal Employment Opportunity Investigator for the Department of the Interior.

Therefore, the Court shall treat Defendant’s motion to dismiss as a motion for summary

judgment. Colbert v. Potter, 471 F.3d 158, 167-68 (D.C. Cir. 2006).

       “The court shall grant summary judgment if 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). “If a party fails to properly support an assertion of fact or fails to properly

address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the

fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). When considering a motion

                                                 4
for summary judgment, the court may not make credibility determinations or weigh the evidence;

the evidence must be analyzed in the light most favorable to the nonmoving party, with all

justifiable inferences drawn in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,

(1986). “If material facts are at issue, or, though undisputed, are susceptible to divergent

inferences, summary judgment is not available.” Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009) (citation omitted).

                                       III. DISCUSSION

         “An aggrieved person must initiate contact with a[n] 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). If counseling does not resolve the

issue, the individual may file a formal discrimination complaint. Id. § 1614.105(d). The agency

must conduct “an impartial and appropriate investigation of the complaint,” after which the

complainant may demand a hearing and decision from an administrative judge.                      Id.

§§ 1614.106(e)(2), 1614.108(f). The complainant may file suit within 90 days of receipt of the

agency’s final action on the complaint, or after the complaint has been pending for at least 180

days. Id. § 1614.407(a), (d). “Complainants must timely exhaust these administrative remedies

before bringing their claims to court.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.

1997).

         By regulation, the 45-day time limit may be tolled in certain circumstances, including if

the individual “was not notified of the time limits and was not otherwise aware of them,” or

“despite due diligence,” the individual “was prevented by circumstances beyond his or her

control from contacting the counselor within the time limits.” Id. § 1614.105(a)(2).           The

Plaintiff argues in this case that a third exception applies in this case, namely that the Plaintiff

                                                 5
“did not know and reasonably should not have been known that the discriminatory matter or

personnel action occurred.”4 Id. Under this provision, “the 45–day clock is tolled until the

aggrieved employee has a ‘reasonable suspicion’ that []he has been the victim of discrimination.”

Saunders v. Mills, 842 F. Supp. 2d 284, 291 (D.D.C. 2012). The Plaintiff cannot wait until “he

has direct proof of the allegedly discriminatory actions”; rather, he must contact an EEO

counselor “even if he is not in possession of the supportive facts necessary to prosecute a

discrimination charge.” Johnson v. Gonzales, 479 F.Supp.2d 55, 59 (D.D.C. 2007) (citation

omitted).

        The Plaintiff argues that he did not know and reasonably should not have known that his

non-selection was discriminatory until May 3, 2011, at which point he timely initiated

counseling. Pl.’s Opp’n at 8. Courts in this Circuit have routinely held that an employee

reasonably should suspect that there might be discriminatory reasons for his or her non-selection

(or non-promotion) upon learning that an individual of a different race (or gender, if applicable)

was selected (or promoted). E.g., Stewart v. Ashcroft, 352 F.3d 422, 425-26 (D.C. Cir. 2003);

LaFavors v. Shinseki, No. 10-1575, 2012 WL 640878, at *3 (D.D.C. Feb. 29, 2012); Taylor v.

Mabus, 685 F. Supp. 2d 94, 97 (D.D.C. 2010); Williams v. Munoz, 106 F. Supp. 2d 40, 43

(D.D.C. 2000); see also Miller v. Hersman, 594 F.3d 8, 12 (D.C. Cir. 2010); Mahoney v.

Donovan, 824 F. Supp. 2d 49, 60 (D.D.C. 2011) (holding plaintiff’s “knowledge of the two

incidents in question . . . [and that] he had engaged in protected activity . . . suffice[d] to give rise

to a reasonable suspicion of retaliation or trigger the duty to investigate”); Fortune v. Holder,

767 F. Supp. 2d 116, 121-22 (D.D.C. 2011). It is undisputed that the Plaintiff learned on or

        4
          An employee who demonstrates that one of the circumstances set forth in 29 C.F.R.
§ 1614.105(a)(2) applies “need not separately satisfy the common law standard for equitable
tolling.” Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007).
                                               6
about October 9, 2008, that he had not been selected for the Engineering Equipment Operator

position, and that an African-American male and a Caucasian male had been selected. Thus, the

Plaintiff reasonably should have suspected by no later than October 9, 2008, that his non-

selection was discriminatory.

       The Plaintiff suggests that the selection of Mr. Burrell along with Mr. O’Connor to fill

the Engineering Equipment Operator vacancies, “obscured the discriminatory character of the

selection process.” Pl.’s Opp’n at 13. Mr. Burell’s selection does negate the fact that the

Plaintiff knew as of October 9, 2008, that the Plaintiff had not been selected for one of the

vacancies, but Mr. O’Connor, who is Caucasian, had been selected. Moreover, the Plaintiff

suspected by no later than May 2010 that Mr. O’Connor was not qualified for the position.

Armstead Decl. ¶¶ 1, 4; EEO Report of Investig. at 19 (noting that after Mr. O’Connor allegedly

struck a building in the Maintenance Yard, the Plaintiff “began to question how Mr. O’Connor

got the job and if he was even qualified). In other words, in May 2010, the Plaintiff knew that he

had not been selected for Engineering Equipment Operator position, and the Plaintiff knew that a

Caucasian employee the Plaintiff believed not to be qualified for the position was selected

instead. “[T]o toll the 45–day limitation period under regulation 1614.105(a)(2), the plaintiff has

a responsibility, when possible, to further investigate a personnel action in order to determine

whether the action was discriminatory.” Miller, 594 F.3d at 12. Despite his suspicions in May

2010, the Plaintiff did not pursue the matter further. Nor did the Plaintiff contact an EEO

counselor until over a year later. The Plaintiff reasonably should have known that his non-

selection was discriminatory by no later than May 2010, making his June 2011 initial contact

with an EEO counselor untimely.



                                                7
                                      IV. CONCLUSION

       For the foregoing reasons, the Court finds the Plaintiff failed to exhaust his administrative

remedies before filing suit. The governing regulations require an employee to initiate contact

with an EEO counselor within 45 days of when the employee reasonably suspects that an adverse

employment action was discriminatory. In this case, the Plaintiff knew that he was not selected

for one of two Engineering Equipment Operator vacancies, and that a Caucasian male was

selected for one vacancy on or about October 9, 2008, at which point the Plaintiff should have

reasonably suspected that his non-selection was discriminatory.         Furthermore, by his own

admission the Plaintiff suspected the Caucasian male was not qualified for the position in May

2010. Nevertheless, the Plaintiff failed to initiate counseling until June 2011. The Plaintiff was

not entitled to wait until he had direct evidence of discrimination before contacting an EEO

counselor. The Plaintiff failed to initiate counseling within 45 days of when the Plaintiff

reasonably should have known his non-selection was discriminatory. Accordingly, the Plaintiff

failed to exhaust his administrative remedies, and the Defendant is entitled to summary

judgment.



                                                         /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     UNITED STATES DISTRICT JUDGE




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