Walker v. Kendall

1

TONY WALKER, Plaintiff, v. FRANK KENDALL III, Secretary of the Air Force, Defendant.

Civil Action No. 22-0119 (BAH)

United States District Court, District of Columbia

November 8, 2022

MEMORANDUM OPINION

BERYL A. HOWELL, CHIEF JUDGE

Plaintiff Tony Walker has sued his former employer, the Secretary of the U.S. Department of the Air Force (“Air Force”), in his official capacity, alleging racial discrimination and retaliation for plaintiff's Equal Employment Opportunity (“EEO”)-protected activity, under Title VII of the Civil Rights Act of 1964 (“Title VII”). 42 U.S.C. § 2000e et seq.; see Compl. ¶¶ 4, 36, 45, ECF No. 1. Pending before the Court is defendant's Motion to Dismiss (“Def.'s Mot.”), ECF No. 9, on the grounds that plaintiff failed to exhaust his administrative remedies and has stated no plausible claim on which relief may be granted. For the reasons set forth below defendant's motion to dismiss is granted for failure to state a claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff an African American man, worked for the Air Force as a computer engineer at a GS-13 level in the Defense Cyber Crime Center from 2001 to 2016, when he was removed from his position. Compl. ¶¶ 15-16; id., Ex. 1, U.S. Equal Employment Opportunity Commission Decision (“EEOC Dec.”) at 5, ECF No. 1-1.^[1]Plaintiff alleges that between 2010 and 2014 he “expressed interest in being promoted to a GS-14” position, including by requesting, on March 8, 2010, “a promotion from a GS-13 to a GS-14” in in a written communication to the Executive Director of the Defense Cyber Crime Center. Id. ¶¶ 18-19. In response, plaintiffs supervisors and the Human Resources department informed him that no positions were available at that time, explained the process for promotion to a GS-14 position, and outlined steps for plaintiff to take to be considered for such a position. Id. ¶¶ 20-23. Plaintiff does not allege that he took these steps or further pursued a promotion. Indeed, he did not apply for any GS-14 positions throughout his tenure with the Air Force. EEOC Dec. at 6.

Nonetheless, he asserts that he “was discouraged [from] formally submit[ting] an application for promotion” in these interactions with his supervisors, and that “[s]imilarly situated co-workers” of different races were “not treated in the manner in which Plaintiff was.” Compl. ¶ 37. Specifically, in 2017, plaintiff allegedly learned that “less qualified Caucasian coworkers” had been promoted to GS-14 positions between 2010 and 2014 “using a direct hire process with no vacancy announcements in violation of Office of Personnel Management (OPM) rules for granting direct hiring authority.” Id. ¶ 32. Plaintiff contends that the agency's decision to promote these individuals rather than him to GS-14 positions occurred because of discrimination based on his race and retaliation based on his previous EEO-protected activities. Id. ¶¶ 36, 45.^[2] Plaintiff filed, on February 27, 2017, a formal administrative complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”), asserting eight claims against the Air Force for racial discrimination and retaliation, including, as relevant here, as to his nonpromotions to GS-14 between 2010 and 2014, while allegedly less qualified Caucasian coworkers were promoted instead. See EEOC Dec. at 1-2. Following an investigation into the claims, an administrative judge entered judgment in favor of the Air Force, finding no discrimination. Id. at 2. Plaintiff appealed to the EEOC Office of Federal Operations (“EEOC-OFO”), Compl. ¶ 9, which, in October 2021, affirmed the decision finding no discrimination, EEOC Dec. at 6, 8. EEOC-OFO found adequate support for the administrative judge's determination that Air Force “management officials articulated legitimate, non-discriminatory reasons” for plaintiff's non-promotions and that plaintiff had “simply provided no evidence to support his claim that his race or retaliatory animus played any role whatsoever.” EEOC Dec. at 6.

Within three months after issuance of the EEOC Decision, plaintiff initiated the instant suit, on January 18, 2022, focusing on the Air Force's alleged refusal to promote him to GS-14 between 2010 and 2014, Compl. at 1, in two claims alleging that the non-promotions were motivated by plaintiff's race, amounting to discrimination under Title VII, and retaliation for his previous participation in EEO-protected activity, in violation of Title VII, id. ¶¶ 34-50.

Defendant timely moved, on June 17, 2022, for dismissal of the complaint, under Federal Rule of Civil Procedure 12(b)(6), see Def.'s Mot., but plaintiff failed to file a timely response, prompting an Order to Show Cause why defendant's motion should not be granted as conceded on July 8, 2022, see Minute Order (7/8/2022). Plaintiff responded and, after seeking a further extension, eventually filed an opposition on August 12, 2022. See Pl.'s Resp. Order to Show Cause, ECF No. 10; Pl.'s Mot. for Ext. of Time, ECF No. 11; Pl.'s Opp'n Def.'s Mot. Dismiss (“Pl.'s Opp'n”), ECF No. 12. Shortly thereafter, plaintiff's counsel moved to withdraw, which motion was granted, see Minute Order (9/23/2022), and plaintiff is now proceeding pro se.

Plaintiff thereafter filed a motion for summary judgment, see Pl.'s Mot. Summ. J., ECF No. 18, for which briefing was stayed, at defendant's request, see Def.'s Mot. to Stay, ECF No. 19, pending adjudication of the previously filed motion to dismiss, see Minute Order (10/20/2022), since resolution of the latter could moot the former. Briefing on the pending motion to dismiss was completed on September 8, 2022. See Def.'s Reply Supp. Mot. Dismiss (“Def.'s Reply”), ECF No. 14. This motion is now ripe for resolution.

II. STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a] plaintiff need not make ‘detailed factual allegations,'” but the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” VoteVets Action Fund v. United States Dep't of Veterans Affairs, 992 F.3d 1097, 1104 (D.C. Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely consistent with' a defendant's liability” but that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007)); see also Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). Consequently, “a complaint survives a motion to dismiss even ‘[i]f there are two alternative explanations, one advanced by [the] defendant and the other advanced by the plaintiff, both of which are plausible.'” VoteVets Action Fund, 992 F.3d at 1104 (quoting Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015)) (alteration in the original).

In deciding a motion under Rule 12(b)(6), the court must consider the whole complaint, accepting all factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555; see also Atchley, v. AstraZeneca UK Ltd., 22 F.4th 204, 210 (D.C. Cir. 2022). Courts do not, however, “assume the truth of legal conclusions, nor do [they] ‘accept inferences that are unsupported by the facts set out in the complaint.'” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (alteration in original) (citation omitted) (quoting Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007)).

III. DISCUSSION

Defendant contends that dismissal of the complaint is warranted because plaintiff failed timely to exhaust his administrative remedies and, in any event, does not state viable claims of discrimination and retaliation. While defendant is correct that plaintiff failed to exhaust his administrative remedies, which would ordinarily warrant dismissal of his claims, defendant waived this defense by failing to bring up timeliness in the administrative proceedings. Regardless, plaintiff fails to plead allegations sufficient to render his discrimination and retaliation claims plausible, requiring dismissal of his complaint.

A. Exhaustion of Administrative Remedies

Defendant argues that, because plaintiff did not initiate his administrative proceedings until several years after the non-promotions at issue-long after his deadline to do so under EEOC regulations-he failed properly to exhaust his administrative remedies and thus cannot pursue the same claims in federal court. See Def.'s Mem. Supp. Mot. Dismiss (“Def.'s Mem.”) at 10, ECF 9-1.^[3]Plaintiff counters that, although the non-promotions occurred between 2010 and 2014, the 45-day period he had to initiate proceedings was tolled until 2017, when he learned that “less qualified Caucasian coworkers were promoted to GS-14” during those years. Compl. ¶ 32; see Pl.'s Opp'n at 5-6.

1. Exhaustion Requirement Generally

“Before a federal employee can file suit against a federal agency for violation of Title VII, the employee must run a gauntlet of agency procedures and deadlines to administratively exhaust his . . . claims.” Crawford v. Duke, 867 F.3d 103, 105 (D.C. Cir. 2017); see also 42 U.S.C. § 2000e-16(c). The exhaustion requirement “serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision,” Park v. Howard Univ., 71 F.3d 904 907 (D.C. Cir. 1995) (cleaned up), and it “ensure[s] that the federal courts are burdened only when reasonably necessary,” Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The EEOC has issued detailed procedures to govern the administrative resolution of employment discrimination claims against federal agencies under Title VII. See 42 U.S.C. § 2000e-16(b); ...