Timus v. Julie A. Su

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CARRIE TIMUS, Plaintiff, v. JULIE A. SU, Acting Secretary of Labor, Defendant.

Civil Action No. 23-1646 (JEB)

United States District Court, District of Columbia

March 27, 2024

MEMORANDUM OPINION

JAMES E. BOASBERG, CHIEF JUDGE.

A long-time employee of the Department of Labor, Plaintiff Carrie Timus grew disgruntled about her job after a litany of unfortunate events. Dismayed by the continuous misclassification of her position, a supervisor's use of racial epithets, and several unsuccessful attempts to apply for internal-detail positions, she filed a total of six Equal Employment Opportunity complaints between 2013 and 2019 alleging hostile work environment; discrimination on the basis of race, color, sex, disability, and age; and retaliation, all in violation of Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act. After all but the hostile-environment claim concerning the supervisor's use of racial epithets were administratively decided in favor of the Department, she filed suit in December 2022.

Plaintiff's journey to the courthouse, however, has hardly been smooth. As she neglected to timely provide proof of service, this Court dismissed her initial suit without prejudice on June 6 2023. Timus then refiled the instant action the next day. Asserting that this latest action is (more than) a day late and a dollar short, Defendant now moves to dismiss. Because Plaintiff's claims are indeed time-barred, the Court will grant Labor's Motion without reaching any of the merits questions.

I. Background

A. Factual Background

The Court, as it must at this juncture, draws the facts from the Complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Because a court can review, at the motion-to-dismiss stage, “documents upon which plaintiff's complaint necessarily relies[,] even if the document is produced . . . by defendant in a motion to dismiss,” Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (citations omitted), the Court also considers the Equal Employment Opportunity Commission decisions Labor has appended to its Motion to Dismiss, the authenticity of which is not challenged.

Timus, who is over 40 years old, is a dark-skinned Black woman with vision and mobility impairments who has served in the Department of Labor since 1976. See ECF No. 1 (Compl.), ¶¶ 1, 23. Her position of record since 1997 has been a Veterans Correspondence Specialist, GS-11 within the Office of the Assistant Secretary (OAS) in the Veterans Employment and Training Services (VETS). Id., ¶ 23.

In June 2009, Plaintiff took an extended leave under the Family Medical Leave Act for her daughter's high-risk pregnancy and her own illness. Id., ¶ 28. Upon returning, she was unofficially reassigned to the Office of Agency Management and Budget (OAMB), a different component of VETS, even though her official position remained listed under the OAS. Id., ¶ 32. During that same period, she was informed by an unidentified VETS colleague that she was “not welcome on the second floor,” where the leadership officers were located. Id., ¶ 34. The misclassification of Plaintiff's position persisted despite a restructuring within VETS between 2011 and 2013, which included reviewing and revising outdated position descriptions. Id., ¶¶ 38-39. Nor did her return to the OAS after taking a second FMLA leave in 2013 spell the end of her assignment troubles. Upon her homecoming, she was assigned to report to her former supervisor's executive assistant and forced into a secondary role on the controlled-correspondence process, a process she had previously run on her own. Id., ¶¶ 47-48.

The misclassification and the back-and-forth reassignments were not the only things that bothered Plaintiff. While working at the OAMB in an unofficial capacity, she was directly supervised by Rhonda Epps (whose race she has not specified) between December 2011 and October 2012, see id., ¶¶ 36, 40-42, and had to put up with the latter's use of racial slurs and offensive remarks. In June 2012, ahead of a job fair and in reference to the availability of other job opportunities, Epps told Timus and other Black employees that they did not “qualify for anything” and used the N-word to refer to the group. Id., ¶ 45. On another occasion, when Plaintiff inquired about opportunities in the Department, Epps responded that “don't nobody want you; I could not give you away if I wanted to.” Id., ¶ 55. The Department eventually launched a harassment investigation into Epps following a complaint filed by another OAMB employee and collected affidavits from VETS employees, including Plaintiff, that revealed Epps's repeated use of racial epithets in the workplace. Id., ¶¶ 51-53. She ultimately served a ten-day suspension as a result. Id., ¶ 54.

Things still did not improve for Timus, who believes that the Department continued to discriminate and retaliate against her. For one, her position remained improperly classified, and she was reassigned again to an unspecified position in 2015. Id., ¶¶ 59, 62. She also had issues with her performance ratings between 2014 and 2016 and alleges that management failed to respond to her comments on one of the appraisals. Id., ¶¶ 58, 61, 63. Additionally, she received a notice of a five-day suspension in 2015, was denied administrative leave and the ability to telework in 2017, was not selected for three internal-detail positions in 2018, and was deemed ineligible to apply to a department vacancy reserved for GS-13 or higher-level employees in 2019. Id., ¶¶ 60, 64, 69-70, 73.

B. Procedural History

No slouch at reporting these incidents, Timus filed no fewer than six EEO complaints between 2013 and 2019, all alleging that she was subject to a hostile work environment and disparate treatment based on her race, color, sex, age, disability, and in reprisal for prior protected activity. See id., ¶¶ 10-13; see also ECF Nos. 14-1 (First EEOC Decision); 14-2 (First EEOC Decision on Request for Reconsideration); 14-3 (Second EEOC Decision); 14-4 (Second EEOC Decision on Request for Reconsideration); 14-5 (Third EEOC Decision); 14-6 (Third EEOC Decision on Request for Reconsideration); 14-7 (Fourth EEOC Decision); 14-8 (Fourth EEOC Decision on Request for Reconsideration).

Plaintiff filed her first two EEO complaints in September 2013 and September 2014. See Compl., ¶ 10; First EEOC Decision at 1-2. After consolidating the two and holding a hearing, an administrative law judge found for Timus on her claim about Epps's use of racially offensive language and awarded her damages, but found no discrimination on the other claims. See First EEOC Decision at 4. These findings were subsequently incorporated into the Department's final order and affirmed on appeal by the EEOC. Id. at 4, 9. The EEOC then denied Plaintiff's request for reconsideration and issued her a right-to-sue notice on September 29, 2022. See First EEOC Decision on Request for Reconsideration.

Plaintiff's next two complaints, filed in January 2015 and February 2017, were similarly joined for processing by an ALJ. See Compl., ¶ 11; Second EEOC Decision at 1-2. The ALJ concluded that Plaintiff had failed to establish discrimination, a finding adopted by the Department in its final order. See Second EEOC Decision at 3-4. The EEOC again affirmed the final order, id. at 5, denied Plaintiff's request for reconsideration, and issued her a right-to-sue notice on September 22, 2022. See Second EEOC Decision on Request for Reconsideration.

The same happened with Timus's September 2018 and July 2019 EEO complaints. See Compl., ¶¶ 12-13; Third EEOC Decision at 1-2; Fourth EEOC Decision at 1-2. In each case, the EEOC found in favor of the Department on all the claims brought, denied Plaintiff's requests for reconsideration, and issued her a right-to-sue notice on November 3, 2022, and September 29, 2022, respectively. See Third EEOC Decision on Request for Reconsideration; Fourth EEOC Decision on Request for Reconsideration.

Having exhausted her administrative remedies, Timus first filed suit in this Court on December 21, 2022. See Timus v. Walsh, No. 22-3784 (D.D.C.) (Timus I), ECF No. 1 (Initial Compl.). On March 27, 2023, this Court entered a Minute Order directing her to file proof of service on Defendant by April 10, 2023, and warning her that the case would otherwise be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). Id., Minute Order of Mar. 27, 2023. As Plaintiff did not comply with Rule 4(i)'s requirements regarding the effecting of service upon a federal defendant, this Court dismissed the case without prejudice on June 6. Id., Minute Order of June 6, 2023. Plaintiff then filed the instant case on June 7. See Compl.

Asserting that this new action was filed more than 90 days from the time when Plaintiff received each of the four right-to-sue notices, Defendant now moves for dismissal of the matter pursuant to Federal Rule of Civil Procedure 12(b)(6).

II. Legal Standards

Rule 12(b)(6) permits a court to dismiss any count of a complaint that fails “to state a claim upon which relief can be granted.” Although the pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 533 U.S. 336, 347 (2005), and “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, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

In evaluating a defendant's motion to dismiss, a court must “treat the complaint's factual...