                                    UNITED STATES DISTRICT COURT
                                    FOR THE DISTRICT OF COLUMBIA




         JACQUELINE T. GORDON,

                 Plaintiff,


                          v.                                     Civil Action No. 09-2211 (JEB)


         JANET NAPOLITANO,

                 Defendant.




                               MEMORANDUM OPINION AND ORDER

         Defendant Janet Napolitano seeks the dismissal of – or, alternatively, summary judgment

on – Plaintiff Jacqueline Gordon’s 2009 employment discrimination lawsuit. Plaintiff argues

that dismissal is inappropriate because she has properly exhausted administrative remedies, and

summary judgment is premature before she has had a chance to conduct discovery. The Court,

for the most part, agrees.1

    I.       Factual and Procedural Background

         This suit arises out of an employment dispute between the parties. Plaintiff was at all

relevant times employed by the Federal Emergency Management Agency (FEMA), a component

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         In considering this Motion, the Court has reviewed Defendant’s Motion to Dismiss or, Alternatively, for
Summary Judgment, Plaintiff’s Opposition thereto and Memorandum in Support of its Motion for Rule 56(f) Relief,
and Defendant’s Reply.
of the Department of Homeland Security, headed by Defendant. Plaintiff continues to work at

FEMA today.

          Plaintiff filed a complaint with the Equal Employment Opportunity Commission in

September 2004, alleging discrimination based on gender, race, color, and age, as well as

reprisal. She now alleges that this original EEOC complaint triggered retaliatory conduct and the

creation of a hostile work environment. This led to her second contact with the EEOC, in

January 2007, and her subsequent complaint before that administrative body in May 2007. The

matter was resolved in Defendant’s favor, and Plaintiff received a Notice of Right to Sue.

Plaintiff then brought this action in November 2009, setting forth two counts: retaliation and

hostile work environment.

          Defendant now seeks to dismiss the suit under Rule 12(b)(6), as failing to state a claim

upon which relief can be granted, or, alternatively, on summary judgment under Rule 56.

    II.      Legal Standard

          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.” When the sufficiency of a

complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be

presumed true and should be liberally construed in the plaintiff’s favor. Leatherman v. Tarrant

Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). 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). Although “detailed factual allegations” are not necessary to withstand a Rule

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

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

its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff
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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 555 (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.

          A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the

complaint, see FED. R. CIV. P. 12(d), which includes statements adopted by reference as well as

copies of written instruments joined as exhibits. FED. R. CIV. P. 10(c). Where the Court must

consider “matters outside the pleadings” to reach its conclusion, a motion to dismiss “must be

treated as one for summary judgment under Rule 56.” FED. R. CIV. P. 12(d); see also Yates v.

District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003).

   III.      Analysis

             A. Failure to Exhaust Administrative Remedies

          Defendant seeks to dismiss the Amended Complaint in whole, or at least in part, on the

ground that Plaintiff has not exhausted the appropriate administrative remedies. Mot. at 10.

Defendant is correct that exhaustion is a prerequisite to bringing an action under Title VII. See

Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008) (“‘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.”) (quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003)).

In this case, federal law mandates that Plaintiff report alleged discriminatory actions to the

EEOC within 45 days. Id. (“An employee of the federal government who believes that she has

been the subject of unlawful discrimination must ‘initiate contact’ with an EEO Counselor in her
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agency ‘within 45 days of the date of the matter alleged to be discriminatory.’”) (quoting 29 CFR

§ 1614.105(a)(1)).

       The Supreme Court, however, has distinguished between discrete and ongoing

discriminatory acts for the purpose of this exhaustion requirement. On the one hand, “discrete

discriminatory acts are not actionable if time barred, even when they are related to acts alleged in

timely filed charges. Each discrete discriminatory act starts a new clock for filing charges

alleging that act. The charge, therefore, must be filed within the [45]-day time period after the

discrete discriminatory act occurred.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113 (2002). On the other hand, ongoing discriminatory acts, such as those of hostile work

environment, “are different in kind from discrete acts [because t]heir very nature involves

repeated conduct.” Id. at 115. In examining the exhaustion requirement, thus, the Court must

analyze Plaintiff’s claims to determine whether they fall into the category of discrete or ongoing

discriminatory acts.

                     1. Count I – Retaliation

       In paragraphs 10-17 of her Amended Complaint, Plaintiff alleges everything from the

receipt of a harassing note from a supervisor in late 2004 to a dispute with a contractor in

February 2007. Am. Comp. ¶¶ 10(a), 16(e). For the retaliation count, each of these “constitutes

a separate actionable unlawful employment practice,” Morgan at 114 (internal quotations

omitted), and should have been individually submitted to the EEOC. This is because each

incident was of a different kind from the others, was perpetrated over the course of several years,

see Jacqueline T. Gordon, EEOC Decision No. 570-2008-00238X at 8 n.6 (2009) (appended to

Plaintiff’s original Complaint and incorporated in Amended Complaint ¶ 1) [hereinafter “EEOC

Decision”], and involved different employees. Compare Jones v. Bernanke, 685 F. Supp. 2d 31,
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36-38 (D.D.C. 2010) (holding that latest negative employment action taken by employer need

not be dismissed as unexhausted because it was part of ongoing pattern of negative performance

reviews), with Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 (D.D.C. 2010) (finding that

exhaustion was required because removal of duties was not “of a like kind” with failure-to-

promote claim previously brought before EEOC), and Nurriddin v. Goldin, 382 F. Supp. 2d 79,

108 (D.D.C. 2005) (concluding that seven incidents over the course of five years “indicates less a

pervasive pattern of harassment, and more just isolated employment incidents occurring over a

long period of time”).

       Plaintiff does not put forth any argument in favor of her summary proposition that she

“properly pleaded her exhaustion of administrative remedies,” Opp. at 12, nor does she argue

that these are ongoing acts under Morgan. On the contrary, she seems to concede that at least

some of her retaliation claims are procedurally barred. See id. (“The allegedly ‘untimely

allegations’ that are contained within the First Amended Complaint were properly pleaded at the

very least in support of Ms. Gordon’s hostile work environment claims.”) (emphasis in original).

         Since Plaintiff first contacted an EEO Counselor about retaliation on January 25, 2007,

Am. Comp. ¶ 30, any discrete employment conduct occurring before December 11, 2006 – i.e.,

45 days earlier – would be deemed unexhausted and thus procedurally barred. Similarly, any

conduct that was not mentioned in her May 2007 EEOC complaint – which forms the basis of

this action – would also be unexhausted. See Johnson-Parks v. D.C. Chartered Health Plan, 713

F. Supp. 2d 39, 47 (D.D.C. 2010) (“Because the retaliation claim pled in the amended complaint

is not the one that was alleged in the underlying administrative charges, it is barred for failure to

exhaust.”).



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        Plaintiff submitted only five purportedly discriminatory acts to the EEOC in May 2007:

(1) her meeting with Patricia English on January 18, 2006; (2) her return from medical leave on

August 21, 2006; the overtime disputes from (3) October 16 and (4) December 19, 2006; and (5)

the February 6, 2007, confrontation with Eddy Cherris. See EEOC Decision at 2-3. These

claims are presented in the Amended Complaint at ¶¶13(d), 14-15, 16(b), (e), and 17. Of these,

only the last overtime dispute (¶ 16(b)) and the confrontation with the contractor (¶¶ 16(e) and

17) were within the 45-day window as required by federal law. As a result, all of the other

alleged incidents of retaliation have not been administratively exhausted and thus cannot

survive.2

        The Motion will therefore be granted in favor of Defendant on Count I as to the claims

raised in ¶¶ 10-15, 16(a), and (c)-(d). Though not admissible as actual acts of retaliation, these

procedurally barred events may nonetheless “constitute relevant background evidence” in this

proceeding since the Plaintiff did timely bring some alleged retaliation claims to the EEOC.

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977), cited in Morgan, 536 U.S. at 107.

                    2. Count II – Hostile Work Environment

        The Supreme Court has carved out an exception to this exhaustion requirement for hostile

work environment claims, which by “[t]heir very nature involve[] repeated conduct.” Morgan,

536 U.S. at 115. In hostile work environment litigation, “[i]t does not matter, for purposes of

[Title VII], that some of the component acts of the hostile work environment fall outside the

statutory time period. Provided that an act contributing to the claim occurs within the filing

period, the entire time period of the hostile environment may be considered by a court for the

        2
           Even though it survives, there is also a problem with the confrontation claim. The date of the
confrontation presented to the EEOC was February 18, 2007, EEOC Opp. ¶ 8, whereas the Amended Complaint lists
the date as February 6, 2007. Am. Comp. ¶ 16(e).
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purposes of determining liability.” Id. at 117. For Count II, therefore, the Court will not dismiss

for failure to exhaust any incidents listed by Plaintiff in her Amended Complaint.

           B. Substance of Claims

       Defendant also petitions this Court to grant her motion to dismiss or, alternatively, for

summary judgment based on her contention that Plaintiff has not sufficiently made out a claim

for retaliation or hostile work environment. It is not necessary to convert the Motion to Dismiss

into one for summary judgment in order for the Court to consider certain briefs submitted to the

EEOC and that agency’s decision. This is because these were incorporated through the Original

and Amended Complaints. See FED. R. CIV. P. 10(c).

                   1. Retaliation

       Defendant argues that Count I should be dismissed because Plaintiff has failed to

sufficiently plead that the retaliation is both linked to the initial EEOC complaint and sufficiently

actionable. Mot. at 11. Defendant first points to the “year and a half [that] elapsed” between

Plaintiff’s first EEOC complaint and the first alleged retaliation, id. at 13, as proof that the nexus

between the two is too remote. This is inconsistent with the information provided in the

Amended Complaint, however. Though few specific dates are to be found in that document,

Plaintiff does reference acts taking place in November and December 2004 – only two or three

months after her original EEOC complaint. Am. Comp. ¶¶ 11, 12. Though these specific claims

are procedurally barred as unexhausted, Plaintiff could use them to create a nexus between her

original EEOC complaint and the properly pleaded retaliation claims that have survived this

Motion. See United Air Lines, Inc., 431 U.S. at 558.

       Defendant next contends that “[o]bjectively, the majority of Plaintiff’s claims are not

enough to support a claim of retaliation.” Reply at 4. Plaintiff’s surviving retaliation claims are:
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(1) the overtime dispute of December 19, 2006, and (2) the February 6, 2007, confrontation with

Eddy Cherris. These claims are certainly thin and may well not survive a future summary

judgment motion. Nevertheless, to dismiss them or convert this into a motion for summary

judgment is premature at this time because Plaintiff has not had the benefit of any discovery to

bolster her claims. See McWay v. LaHood, 269 F.R.D. 35, 37-38 (D.D.C. 2010) (“[T]he D.C.

Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination,

the court should view [pre-discovery] summary-judgment motions . . . with special caution.”)

(citing Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other

grounds); see also Twombly, 555 U.S. at 589 (“[A]t the motion to dismiss stage, a judge assumes

that all the allegations in the complaint are true (even if doubtful in fact).”) (internal quotation

omitted). For these reasons, the Court declines to grant Defendant’s Motion to Dismiss what

remains of Plaintiff’s retaliation claim.

                    2. Hostile Work Environment

        Defendant also argues that Plaintiff cannot establish her hostile work environment claim

because the retaliatory actions were not “sufficiently severe or pervasive to constitute” such a

claim. Mot. at 16. In response, Plaintiff has filed a Rule 56(d) Motion requesting discovery

before the Court considers the propriety of Defendant’s summary judgment motion. In

determining whether an actionable hostile work environment claim has been set out, courts must

consider “all the circumstances,” including “the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee's work performance.” Harris v. Forklift

Systems, Inc., 510 U.S. 17, 23 (1993). Given Plaintiff’s multiple allegations, the preliminary

posture of the case, and the lack of any discovery, the Court believes it would be unduly hasty to
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award summary judgment at this juncture. See FED. R. CIV. P. 12(d) (“All parties must be given

a reasonable opportunity to present all the material that is pertinent to the motion.”).

     IV.      Conclusion

           The Court, accordingly, ORDERS that:

1.         Defendant’s Motion is GRANTED IN PART and DENIED IN PART;

2.         The claims set out in paragraphs 10-15, 16(a), and (c)-(d) are DISMISSED as they relate

           to Count I; and

3.         Defendant shall file her answer to the remaining claims on or before May 23, 2011.

                  SO ORDERED.

                                                              /s/ James E. Boasberg
                                                                JAMES E. BOASBERG
                                                              United States District Judge
           Date: May 9, 2011




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