Katrina Webster v. Carlos Del Toro ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 13, 2022 Decided September 20, 2022
No. 21-5040
KATRINA L. WEBSTER,
APPELLANT
v.
CARLOS DEL TORO, SECRETARY OF NAVY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00610)
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.
2
Opinion for the Court filed by Circuit Judge KATSAS.
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
3
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.
4
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.
5
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
6
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 (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. 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-
7
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,
1
The amicus also asserts that the Navy waived exhaustion by
not pressing it in its motion for summary affirmance. We disagree.
To obtain summary affirmance, an appellee must satisfy a “heavy
burden” of showing that the merits “are so clear that expedited action
is justified.” Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297
(D.C. Cir. 1987). We do not grant summary affirmance lightly;
many arguments warrant affirmance but not summary affirmance.
So there is no basis for holding that a party, if it seeks summary
affirmance on one ground, must simultaneously raise all of its
arguments for affirmance. Nor is there any basis for holding that a
party, if it affirmatively waives an argument as a basis for summary
affirmance, also waives it as a basis for affirmance after full briefing.
In this case, the Navy raised an exhaustion defense in the district
court and reasserted the defense in its merits brief on appeal. That
was enough to preserve the issue.
8
because Webster exhausted one claim, she was free to litigate
another.
That suggestion is mistaken. As explained above, section
717(c) requires a federal employee to file an “initial charge”
with her employer before pursuing a Title VII claim in court.
It borrowed that requirement from section 706(b) of the Civil
Rights Act, which requires a private-sector employee to file a
“charge” with the EEOC before pursuing a Title VII claim in
court. 42 U.S.C. § 2000e-5(b); see also id. § 2000e-16(c)
(authorizing civil actions for federal employees “as provided in
section 2000e-5”). Such a “charge” must include the “date,
place and circumstances of the alleged unlawful employment
practice.” Id. § 2000e-5(b) (“contents of charges”). And
outside the context of hostile work environment claims, an
“unlawful employment practice” under Title VII is a “discrete
retaliatory or discriminatory act” that must be individually
charged and filed within the appropriate deadline. Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 109–10 (2002); see
42 U.S.C. § 2000e-2(a) (making discriminatory acts an
“unlawful employment practice”); id. § 2000e-3(a) (same for
retaliatory acts). These provisions together make clear that a
“charge” alleging one “unlawful employment practice” does
not permit the employee to challenge others.
Both the EEOC and this Court have recognized as much.
EEOC regulations confirm that the “complaint” filed with the
employing agency must “describe generally the action(s) or
practice(s) that form the basis of the complaint.” 29 C.F.R.
§ 1614.106(c). Likewise, we routinely apply section 717(c)’s
exhaustion requirement on a claim-by-claim basis, to hold that
federal employees have exhausted challenges to some
employment practices but not others. For example, in
Crawford v. Duke, 867 F.3d 103 (D.C. Cir. 2017), we held that
the plaintiff “adequately exhausted his claims of racial
9
discrimination, retaliation, and a hostile work environment”
arising out of an October 2011 performance evaluation and a
December 2011 suspension, but “did not … properly exhaust
his claimed denial of a promotion” in November 2011. Id. at
109. In Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012),
we held that the plaintiff exhausted a challenge to the selection
of another employee for a manager position in 2003, but not to
the selection of that same employee for a temporary detail in
2002. See id. at 1350. And in Payne v. Salazar, 619 F.3d 56(D.C. Cir. 2010), we held that the plaintiff exhausted a
challenge to retaliation that she suffered in 2004, but not to
retaliation that she suffered four years later. See id. at 65.
In this case, Webster exhausted her claim that Garland
created a hostile work environment by speaking ill of her to co-
workers and by attempting to remove her printer. But as the
EEOC acknowledged in its decision, Webster’s complaint to
the Navy “did not allege” that Croley retaliated against her by
disclosing her prior EEO activity to Yameen. J.A. 23. Without
more, Webster’s exhaustion of the former claim does not
permit her to litigate the latter one.
The fact that the EEOC told Webster she had a right to sue
does not change this analysis. As noted above, the EEOC itself
recognizes that an employee must describe in her charge “the
action(s) or practice(s) that form the basis of the complaint.”
29 C.F.R. § 1614.106(c). The EEOC thus stated that Webster
could “file a civil action on the underlying complaint”
originally filed with the Navy. J.A. 32 (emphasis added).
Nothing in its right-to-sue determination is inconsistent with
our analysis.
B
Alternatively, the amicus contends that Webster exhausted
her retaliation-by-disclosure claim because it became apparent
10
from facts that the Navy uncovered while investigating her
complaint. The amicus reasons that when Yameen testified
that Croley had disclosed Webster’s prior EEO activity to him,
the Navy was put on notice of that claim, as if Webster had
alleged it in her complaint. And because the Navy had notice
of that claim, the amicus concludes, the purpose of the
exhaustion requirement was satisfied.
Before addressing this contention, we briefly note two
points that the amicus does not press. First, we construe
administrative complaints charitably in favor of the employee.
President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980). But
here, Webster’s complaint asserted only that Croley permitted
Garland to subject her to a hostile work environment on or
about March 3, 2017.2 No amount of liberal construction can
transform that claim into one that Croley unlawfully disclosed
Webster’s past EEO activity to Yameen out of retaliatory
animus sometime after mid-March.
Second, we have flexibly construed section 717(c) to
permit litigation not only of the precise claims raised in a
charge, but also of claims “like or reasonably related to” the
ones so raised. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995) (cleaned up). We have twice reserved the question
whether Park survives Morgan. See Payne, 619 F.3d at 65;
Weber v. Battista, 494 F.3d 179, 183–84 (D.C. Cir. 2007). We
do the same here, as the amicus affirmatively disavows any
reliance on this doctrine. See Amicus Reply Br. at 31–32.
2
Webster’s administrative complaint does not appear in the
record, but the charge was restated in the Navy’s formal
acknowledgment of the complaint. J.A. 71; see also 29 C.F.R.
§ 1614.106(e). Webster does not dispute that the charged violation
centered on alleged harassment by Garland.
11
Instead, we focus on the amicus’s contention that Webster
satisfied the exhaustion requirement because the facts
underlying her claim became apparent during the Navy’s
investigation. This theory of exhaustion does not square with
the statute. As explained above, section 717(c) requires an
employee to file a charge that identifies an alleged unlawful
employment practice. The cases cited by the amicus are not to
the contrary. They hold only that attachments to an
administrative complaint count as part of the complaint,
Crawford, 867 F.3d at 107, and that an employee may clarify
ambiguities in the charge during the ensuing investigation,
Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985); President,
627 F.2d at 360–63. The amicus cites no authority, and we find
none, for the proposition that a plaintiff has exhausted any
possible Title VII claim lurking in the administrative record
that neither was raised as, nor is “like or reasonably related to,”
the charged violations. Accepting this theory of exhaustion
would invert the basic rule that the employee must identify for
the agency the claims that she wishes to pursue.
Finally, even if we were to look past the charge to what
happened during the Navy’s investigation, Webster never
indicated that she wished to pursue a retaliation claim based on
Croley’s disclosure of her EEO activity. To the contrary, while
the charge at least had some link to Croley as the alleged
enabler of Garland’s harassment, Webster affirmatively
disavowed even that much during the investigation. When
asked to elaborate on her claim, Webster said that it was not
about Croley’s conduct. J.A. 77 (“Q: You allege that Mr.
Croley permitted a [hostile] work environment … correct? A:
No, I am not …. I filed [an] EEO complaint against Mr. Rich
Garland.” (cleaned up)). Although Webster mentioned in
passing the possibility that Croley may have disclosed her EEO
history to Garland, that statement was purely speculative. J.A.
88 (“[F]or all I know, [Croley] could have been the person who
12
discussed my prior EEO activity with Mr. Garland that led him
to call me ‘trouble.’”). That conjecture fell far short of
suggesting even a claim that Croley retaliated by needlessly
disclosing her prior EEO activity to an IT contractor, much less
one that Croley retaliated by disclosing the activity to his own
second-in-command.
IV
Because Webster failed to present her retaliation-by-
disclosure claim to the Navy before filing this lawsuit, we
affirm the order dismissing it.3
So ordered.
3
Because we decide this appeal on exhaustion grounds, we
modify the order of dismissal to be without prejudice as to Webster’s
retaliation-by-disclosure claim. See Lee v. USAID, 859 F.3d 74, 79
(D.C. Cir. 2017). We express no opinion on whether Webster may
still pursue that claim administratively.