Wright v. Ross

CHRISTOPHER L. WRIGHT, Pro se Plaintiff, v. WILBUR L. ROSS, JR., Secretary, U.S. Department of Commerce, Defendant.

Case No. 20-cv-306 (CRC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

June 10, 2020

MEMORANDUM OPINION

Christopher Wright is a veteran employee of the Office of Sustainable Fisheries within the National Oceanic and Atmospheric Administration ("NOAA"). In 2018 and 2019, he filed three separate administrative complaints with the agency's Office of Civil Rights alleging various instances of discrimination and retaliation based on his sex, age, and disability during the course of his employment. The agency issued final decisions finding no discrimination or retaliation with respect to the first two complaints and has not yet issued an investigative report or final decision on Wright's third complaint. Wright sued the agency in this Court under Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1964 ("ADEA"), and the Rehabilitation Act, based on the discrimination and retaliation claims raised in all three administrative complaints. The Government has filed a partial motion to dismiss Wright's claims relating to his first and third administrative complaints based on the statute of limitations and lack of exhaustion, respectively. Because both parties rely on materials outside the pleadings, the Court will convert the Government's motion into one for summary judgment. Agreeing that the claims raised in Wright's first and third administrative complaints are barred, the Court will grant summary judgment to the Government on those claims.

I. Background

A. Statutory Background

Generally, a federal employee who believes that his employer discriminated against him must seek administrative adjudication of his claim before filing suit in federal district court. "The procedural requirements governing a plaintiff's right to bring a [discrimination] claim in court are not mere technicalities." Hines v. Bair, 594 F. Supp. 2d 17, 23 (D.D.C. 2009). Rather, they are "part and parcel of the Congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel 'primary responsibility' for maintaining nondiscrimination in employment." Patterson v. Johnson, 391 F. Supp. 2d 140, 145 (D.D.C. 2005) (quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983)).

All three of the statutes under which Wright brings his claims—Title VII, the ADEA, and the Rehabilitation Act—are governed by the same set of exhaustion requirements.¹ See 42 U.S.C. § 2000e-16 (setting forth Title VII exhaustion requirements); 29 U.S.C. § 633a(b) (incorporating Title VII procedures into the ADEA);² id. § 794a(a)(1) (requiring claims broughtagainst federal agencies under the Rehabilitation Act to comply with Title VII procedures).³ The necessary procedure begins with mandatory Equal Employment Opportunity ("EEO") counseling within 45 days of the alleged discriminatory acts. 29 C.F.R. § 1614.105(a)(1). Should counseling not resolve the employee's claims, he must then file an administrative complaint with his agency. Id. § 1614.106. The agency must subsequently conduct an investigation and issue a report within 180 days of receiving a complete complaint. Id. §§ 1614.106(e)(2), 1614.108(e). After receiving the agency's investigative report, the employee has 30 days to request a hearing and decision before an EEO administrative judge. Id. §§ 1614.108(f) & 1614.109. Should the employee elect an EEO hearing and decision, the agency must issue a final order on the complaint within 40 days of receiving the hearing file and the administrative judge's decision. Id. § 1614.110(a). Otherwise, the agency must issue a final decision within 60 days of receiving an employee's affirmative request for one or the end of the 30-day waiting period following the employee's non-response. Id. § 1614.110(b). The finalagency decision must notify the employee of his right to appeal the decision to the Equal Employment Opportunity Commission ("EEOC") or to file a civil action in federal district court. Id. The employee must then bring a federal suit within 90 days of receiving the final agency decision or within 30 days of receiving a right to file notice from the EEOC. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a).

B. Factual and Procedural Background

Wright has worked in the Office of Sustainable Fisheries since at least 2006. Compl. ¶ 17. Since 2012, he has allegedly experienced "harassment and retaliation" and "unfair bias" in the office that "has been passed on from one supervisor to the next." Id. On Christmas Day 2017, Wright contacted the agency's Office of Civil Rights to request EEO counseling concerning allegations of age, sex, and disability discrimination and retaliation. Compl., Exh. 2, ECF No. 1-1 at 80-81.⁴

EEO counseling proving unfruitful, Wright filed his first administrative complaint with the agency's Office of Civil Rights on March 16, 2018. Declaration of Paul Redpath ("Redpath Decl.") ¶ 2; 1st Admin. Compl., Gov. Mot. to Dismiss, Exh. 1. The complaint alleged, among other things, that discrimination infected his negative performance reviews and rating, caused him to be passed over for a branch chief position in 2012, and was the reason that he was excluded from opportunities to gain exposure with senior leadership. Compl. ¶¶ 17, 19-21; 1st Admin. Compl. 1-4. After receiving the agency's investigative report, Wright lodged a request for a hearing before the EEOC, which he subsequently withdrew on July 29, 2019. Gov. Mot. toDismiss, Exh. 3 at 1-2. On September 11, 2019, the Office of Civil Rights issued a final agency decision, which concluded that Wright's first administrative complaint failed to establish discrimination or retaliation. Redpath Decl. ¶ 3; Gov. Mot. to Dismiss, Exh. 4 at 45. The decision informed Wright of his right to appeal the decision to the EEOC within 30 days or to bring suit in federal district court within 90 days. Id. at 46-47.

Undeterred, Wright filed a second administrative complaint with the agency's Office of Civil Rights on March 14, 2019. Redpath Decl. ¶ 4; 2d Admin. Compl., Gov. Mot. to Dismiss, Exh. 5. Wright again complained about various instances of alleged discrimination against him, including his negative Fiscal Year 2018 performance rating and reviews, his exclusion from higher leadership meetings, and the agency's delay in reimbursing him for work-related travel expenses. Compl. ¶¶ 25-28; 2d Admin Compl. 1-4. The agency sent Wright an investigative report, to which Wright did not respond. Redpath Decl. ¶ 5. On November 9, 2019, the agency issued a final agency decision finding no discrimination based on the facts alleged in the second administrative complaint. Id.; Compl., Exh. 1.

Finally, Wright filed a third administrative complaint with the agency's Office of Civil Rights on August 8, 2019. Redpath Decl. ¶ 6; 3d Admin. Compl. 1-9, Gov. Mot. to Dismiss, Exh. 7. Wright subsequently made four requests between August and December 2019 to amend his complaint, each of which the agency granted. Redpath Decl. ¶¶ 6-7; 3d Admin. Compl. 56-67. In sum, the third administrative complaint includes allegations that the agency had improperly denied him an interview for a supervisory position and that discrimination colored his Fiscal Year 2019 performance rating and reviews. Redpath Decl. ¶ 7; 3d Admin. Compl. 1-9. The agency has not yet issued an investigative report or final agency decision on Wright's third complaint. Redpath Decl. ¶¶ 9, 11.⁵

On February 5, 2020, Wright filed suit in this Court against the Secretary of the Department of Commerce. The action encompasses all the claims of discrimination and retaliation that Wright raised in his three administrative complaints with the agency's Office of Civil Rights. Wright seeks an order compelling the agency to reinvestigate his complaints, a transfer or reassignment at his current grade and salary, promotion, modification of his performance rating, and compensatory damages. Compl. ¶¶ 82-95. The Government filed a motion to dismiss the claims that were raised in Wright's first administrative complaint as brought outside the statute of limitations and the claims that were raised in Wright's third administrative complaint as not administratively exhausted. The Court will convert the Government's motion into a motion for summary judgment and grant it.

II. Legal Standards

Generally, "[a] motion to dismiss for a plaintiff's failure to exhaust administrative remedies is 'properly addressed as [a] motion[ ] to dismiss for failure to state a claim'" under Federal Rule of Civil Procedure 12(b)(6). Congress v. District of Columbia, 277 F. Supp. 3d 82, 86-87 (D.D.C. 2017) (Cooper, J.) (quoting Scott v. Dist. Hosp. Partners, 60 F. Supp. 3d 156, 161(D.D.C. 2014)). However, when "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." Fed. R. Civ. P. 12(d). Here, both parties attach and refer to documents outside of the complaint that the Court relies upon in resolving the Government's 12(b)(6) motion. See Kim v. United States, 632 F.3d 713, 719 (D.C. Cir. 2011) (requiring district courts to convert a motion to dismiss for failure to exhaust administrative remedies into a motion for summary judgment where the plaintiff's "alleged failure to exhaust d[oes] not appear on the face of the complaint" and the court must "refer to materials outside the pleadings in resolving [the] 12(b)(6) motion"). And, as required under Rule 12(d), both parties have had "a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d).⁶ The Court will therefore convert the Government's motion to dismiss into one for summary judgment. See Rosier v. Holder, 833 F. Supp. 2d 1, 5 (D.D.C. 2011) (doing the same). The inquiry on summary judgment is whether any genuine issues of...