Webster v. Del Toro

49 F.4th 562

Katrina L. WEBSTER, Appellant

v.Carlos DEL TORO, Secretary of Navy, Appellee

No. 21-5040

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 2022

Decided September 20, 2022

Keith Klovers, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steffen N. Johnson and Kelsey J. Curtis, appointed by the court.

Christopher C. Hair, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys. Kenneth A. Adebonojo and Heather Graham-Oliver, Assistant U.S. Attorneys, entered appearances.

Before: Rogers, Katsas, and Walker, Circuit Judges.

Katsas, Circuit Judge:

An employee charged the Navy with discrimination and retaliation in violation of Title VII. The Navy investigated the charge and dismissed it as unproven. The Equal Employment Opportunity Commission agreed that the charge was unproven, but it identified in the administrative record a distinct retaliation claim that the employee herself had not charged. The question on appeal is whether the employee may pursue that claim in court without first exhausting it before the Navy. We hold that she may not.

I

A

Section 717 of the Civil Rights Act of 1964 prohibits federal employers from discriminating based on race and from retaliating against employees who have complained of discrimination. 42 U.S.C. § 2000e-16 ; see Rochon v. Gonzales , 438 F.3d 1211, 1219 (D.C. Cir. 2006). An aggrieved employee may file suit, but only after exhausting her claim administratively. Section 717(c) sets forth the exhaustion process: First, the employee must file with the employing agency an initial charge or complaint that describes the alleged violation. Once the agency takes final action on the complaint or 180 days pass, the employee may file suit in federal district court. Alternatively, she may appeal the agency's decision to the EEOC. If unsatisfied by the EEOC's final decision or 180 days pass, the employee has another opportunity to file suit.

B

Katrina Webster worked as a secretary for the Navy. In 2017, Webster filed a charge alleging that Richard Garland, a Navy contractor, had subjected her to a hostile work environment. According to Webster, Garland made comments describing her as trouble and telling co-workers to watch out or turn away when she approached. Webster also alleged that Garland, who provided IT support, once tried to remove a printer from her desk. The charge alleged that Webster's direct supervisor, Captain Patrick Croley, who headed the branch where Webster worked, permitted the harassment because of her race and her past EEO activity.

The Navy investigated Webster's charge. During the investigation, Webster provided a sworn statement naming Garland as the individual responsible for her harassment and backing away from the allegation that Croley had permitted it. Webster further stated her view that Garland knew of her prior EEO activity, and she suggested that Croley may have told him. Lieutenant Tarik Yameen, the deputy branch head under Croley, testified that he was unaware of Webster's EEO activity when she filed the complaint against Garland. Yameen further testified that he learned of that complaint from Webster's EEO counselor shortly after she filed it, and that he learned from Croley, around the same time, that Webster had filed other complaints.

In 2018, the Navy issued a final decision concluding that Webster failed to prove that Garland harassed her.

On appeal, the EEOC agreed with the Navy's conclusion, but it raised two distinct claims that Webster had not charged. First, the Commission concluded that Croley retaliated against Webster by disclosing her past EEO activity to Yameen. Second, the EEOC noted certain perceived deficiencies with the Navy's anti-harassment policy. The Commission thus remanded the case with instructions for the Navy to consider damages for Webster and to amend its policy.

Despite the remand, the EEOC deemed its own decision to be final. Its order contained a section titled "Complainant's Right To File A Civil Action," which stated in relevant part:

This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. ... Filing a civil action will terminate the administrative processing of your complaint.

J.A. 33 (cleaned up).

Webster, acting pro se , chose to sue. Charitably read, her complaint alleged that (1) Garland created a hostile work environment, (2) the Navy's anti-harassment policy was inadequate, (3) the Navy retaliated against Webster by failing to promote her before the Garland incident, and (4) Croley retaliated against Webster by disclosing her past EEO activity to Yameen. The district court dismissed the complaint for failure to state a claim. Webster v. Braithwaite , No. 1:20-cv-0610, 2020 WL 7340058 (D.D.C. Dec. 14, 2020).

Webster appealed, and both parties moved for summary disposition. A motions panel denied Webster's motion in full and granted the Navy's motion as to the first three claims. Webster v. Del Toro , No. 21-5040, 2021 WL 6102269 (D.C. Cir. Dec. 15, 2021). But we declined to summarily affirm the retaliation-by-disclosure claim. Instead, we appointed Keith Klovers as an amicus in support of Webster on that claim. He has ably discharged his responsibilities.

II

We review dismissal for failure to state a claim de novo . Hurd v. District of Columbia , 864 F.3d 671, 678 (D.C. Cir. 2017). We may affirm on any ground supported by the record. Smith v. Lanier , 726 F.3d 166, 169 (D.C. Cir. 2013).

III

The only open question in this appeal involves the claim that Croley retaliated against Webster by disclosing her past EEO activity to Yameen. The district court dismissed that claim on the merits. We affirm on the alternative ground that Webster failed to exhaust it before the Navy.

Section 717(c) of the Civil Rights Act permits federal employees to sue for employment discrimination, subject to various exhaustion requirements and time limits for filing. As relevant here, section 717(c) provides:

Within 90 days of receipt of notice of final action taken by a department, agency, or unit [of the federal government], or by the Equal Employment Opportunity Commission upon an appeal from a decision of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section ..., or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title ....

42 U.S.C. § 2000e-16(c).

Section 717(c) consists of one long, convoluted sentence, but this much is clear: It requires a federal employee to present a "charge" or "complaint" of discrimination or retaliation to the employing agency before pressing it in court. When Congress extended Title VII to the federal workforce, it gave agencies the "primary responsibility" for resolving discrimination complaints and eliminating employment discrimination. Brown v. GSA , 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (cleaned up). Section 717(c) imposes "rigorous exhaustion requirements and time limitations" to preserve for the employing agency a "crucial administrative role" in addressing alleged violations. Id. at 833, 96 S.Ct. 1961. Consistent with Brown , we have long held that section 717(c) "renders filing an ‘initial charge’ with the employing agency a prerequisite to court action." Loe v. Heckler , 768 F.2d 409, 417 (D.C. Cir. 1985) ("Congress ordered first resort to agency processes before Title VII complainants repair to court."); see Kizas v. Webster , 707 F.2d 524, 543 (D.C. Cir. 1983) (" ‘sine qua non’ for Title VII civil action regarding federal employment is a complaint formally filed with the agency charged with discrimination" (quoting Porter v. Adams , 639 F.2d 273, 276 (5th Cir. 1981) )).

In this case, it is undisputed that Webster's administrative complaint failed to present a charge of retaliation based on Croley's disclosure to Yameen. The amicus offers two apparently independent arguments for why Webster nonetheless satisfied the statutory exhaustion requirement: First, she either received a final decision from the EEOC or failed to receive such a decision within 180 days of the filing of her administrative appeal. Second, the retaliation-by-disclosure claim, although not raised in her charge, became apparent during the Navy's investigation. We consider these arguments in turn.¹

A

The amicus first contends that Webster exhausted by receiving, or waiting long enough for, a final EEOC decision. He makes alternative arguments depending on whether the EEOC decision was "final action" within the meaning of section 717(c). If it was, then Webster exhausted by receiving the final action, and she permissibly filed suit within 90 days. If not, then Webster exhausted by waiting for the administrative appeal to remain undecided for 180 days, and she then permissibly filed suit. Either way, the amicus concludes, Webster satisfied the "statutory preconditions" for litigating in court. Amicus Br. at 30 (cleaned up). None of these points turns on the substance of the claims that Webster presented to the Navy. The amicus thus appears to suggest that, because Webster exhausted one claim, she was free to...