Sellers v. Duke ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KIMBERLY SELLERS,
Plaintiff,
v. Civ. Action No: 17-2205 (EGS)
KIRSTJEN NIELSEN, Secretary,
Department of Homeland Security,
Defendant.
MEMORANDUM OPINION
Kimberly Sellers has worked for the Department of Homeland
Security (“DHS”), Immigration and Custom Enforcement (“ICE”) for
over 30 years. She alleges that DHS has subjected her to several
types of discrimination and harassment on the basis of her
gender and care-taker status beginning in October 2013 after she
took leave in connection with the adoption of her daughter. Two
broad categories of discriminatory actions are alleged in Ms.
Sellers’ complaint: (1) DHS’s gradual removal of Ms. Seller’s
substantive responsibilities with the purpose of putting her in
a marginal role; and (2) DHS’s denial of several promotions and
other career-advancement opportunities from 2014 to 2017. As a
result of these, and several other alleged acts, Ms. Sellers
brings this action against Kirstjen Nielsen, in her official
capacity as Secretary of DHS (“Defendant or DHS”), alleging
discrimination on the basis of her gender and caregiver status,
retaliation, and hostile work environment, all in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-2 et seq.
Pending before the Court is defendant’s motion for partial
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). Upon consideration of the motion, the
opposition and the reply thereto, the applicable law, the entire
record, and for the reasons stated below, the Court will GRANT
IN PART and DENY IN PART defendant's motion.
I. Background
The facts set forth in this Memorandum Opinion reflect the
allegations in plaintiff’s complaint, which the Court assumes
are true for the purposes of this motion and liberally construes
in the plaintiff’s favor. See Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994).
A. Factual Background
1. Pre-EEO Investigation Discriminatory Acts
Ms. Sellers is employed by Homeland Security Investigations
(“HSI”), an office within ICE, which is a component of DHS. See
Compl., ECF No. 1 at ¶¶ 1, 6. 1 Beginning in 2008, HSI assigned
1 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
2
Ms. Sellers to the Department of State (“DOS”) as a Liaison to
the Bureau of International Narcotics and Law Enforcement
Affairs (“INL”). Id. ¶ 15. While serving as a Liaison in 2013,
Ms. Sellers took leave under the Family and Medical Leave Act
(“FMLA”) in connection with the adoption of her child. Id. ¶ 23.
Although Ms. Sellers was on leave, she continued to receive
emails and calls from her supervisors, requesting that she
complete various tasks. Id. ¶¶ 24—25. She reminded her
colleagues that she was on FMLA leave and caring for her adopted
daughter, but nonetheless completed the tasks when others could
not because she was expected to do so. Id. ¶ 25.
At the conclusion of Ms. Sellers’ leave on October 1, 2013,
she was prepared to return to her full-time Liaison position.
Id. ¶ 26. However, two weeks later, on October 15, 2013, she was
told that she was being removed as Liaison and would be
reassigned to HSI headquarters. Id. ¶ 27. This came as a shock
to Ms. Sellers because prior to her leave, she had discussions
with HSI regarding significant projects, both long and short-
term, that she would work on as a Liaison. Id. ¶¶ 28–29.
Ms. Sellers was also informed that her duties would be
assumed by another employee, Mr. Charles Allen, an employee less
qualified for the position. Id. ¶¶ 27, 30. She later discovered
that Mr. Allen had assumed some of her responsibilities while
she was away on leave. Id. ¶ 31. Ms. Sellers was officially
3
instructed to return to HSI headquarters on December 13, 2013,
and her Liaison position was given to Mr. Allen. Id. ¶¶ 27, 32.
Although Ms. Sellers was no longer serving as a Liaison, she
remained on the INL team and supported Mr. Allen on his
projects. Id. ¶ 32.
After Ms. Sellers lost her Liaison position, she suspected
that she may have been discriminated against because she used
FMLA leave. Id. ¶ 54. Accordingly, Ms. Sellers contacted the
agency’s Equal Employment Opportunity (“EEO”) office. Id. ¶ 54.
She explained that she was demoted immediately after taking FMLA
leave and the EEO office advised that, because DHS’s actions
were potentially a violation of the FMLA, Ms. Sellers needed to
report her complaint to the leave office. Id. ¶ 55. Ms. Sellers
took this advice and filed a complaint with the Office of
Special Counsel for violation of her FMLA rights. Id.
Over the following year, however, several actions by DHS
led Ms. Sellers to realize it was her gender and caregiver
status, rather than her choice to take FMLA leave, that
motivated the agency’s alleged discriminatory conduct as well as
its hostile work environment. Id. ¶ 56. For example, Mr. Allen
treated her in an “increasingly hostile and aggressive manner,
which continues to this day.” Id. ¶ 33. Mr. Allen has menaced
Ms. Sellers, telling her “how well he was doing in her job,”
loomed over her physically, passed needlessly close to her on
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numerous occasions, blocked her path, criticized her in public,
took credit for her work, and otherwise attempted to intimidate
her. Id. ¶ 35-38. Additionally, feeling the need to document
that he had successfully been appointed to her position, Mr.
Allen took photographs of Ms. Seller’s personal possessions in
boxes when he moved into her office, and emailed their
supervisor, gloating about the fact he was taking over her
office. Id. ¶ 34.
Ms. Sellers reported Mr. Allen’s hostility to her
supervisor, Ted Lopez, and sought his intervention. Id. ¶ 39.
Mr. Lopez took no action but rather, blamed Mr. Allen’s
hostility on Ms. Sellers. Id. ¶¶ 40-41. For example, in April
2015, when Ms. Sellers sought out Mr. Lopez’s assistance with
Mr. Allen’s aggressive behavior, Mr. Lopez insisted that Ms.
Sellers “drop it.” Id. ¶ 41. Concerned for her safety, Ms.
Sellers asked if it would take Mr. Allen to actually physically
assault her before DHS intervened to which Mr. Lopez responded,
“that’s correct.” Id. Ms. Sellers was also forced to do
administrative and secretarial tasks for Mr. Allen. Id. ¶ 44.
These duties were far below her grade-level and experience and
were an attempt by Mr. Allen and Mr. Lopez to put her in her
place as a subordinate to Mr. Allen. Id. ¶ 44.
In June 2014, Mr. Lopez informed Ms. Sellers that she was
to have no contact with INL whatsoever. Id. ¶ 45. Mr. Lopez did
5
not provide a reason for the no-contact order. Id. Seeking a way
out of her predicament, Ms. Sellers began applying to other
positions. Id. ¶ 46. In August 2014, Ms. Sellers applied to two
GS-14 positions, Liaison to Europol, and Assistant Attaché to
Pretoria, and achieved scores of 99 and 90 respectively for the
positions. Id. ¶ 47. She was the most qualified of all
applicants, however, the positions were given to two male
employees. Id.
On September 10, 2014, Ms. Sellers was notified that she
would be removed from the INL team entirely and her remaining
administrative responsibilities would be assumed by Mr. Allen
and Mr. Chris Nissen, another employee at HSI. Id. ¶ 49. Ms.
Sellers often reported her concerns regarding the increased
marginalization and lack of responsibilities and duties to Mr.
Lopez, but to no avail. Id. ¶ 53. Despite Ms. Sellers’ many
pleas to Mr. Lopez, no changes were made to provide her with any
meaningful duties and responsibilities. Id. Furthermore, she
applied for a detail assignment to the National Security Council
(“NSC”) in November 2014 but was not selected for that position.
Id. ¶ 48.
2. EEO Investigation and Discriminatory Acts
Disturbed by the fact that her duties had gradually
diminished, and her remaining duties were given to two men who
were less qualified than she was, Ms. Sellers again contacted
6
the EEO on October 23, 2014, alleging discrimination on the
basis of her gender and status as caregiver to her recently
adopted child. Id. ¶ 54. Ms. Seller’s suspicions that the
agency’s conduct was motivated by her gender and status as a
mother were confirmed soon after when Mr. Lopez told her that
the reason her substantive duties were replaced was because she
“was caring for her young daughter” and explicitly stated he had
his “wife stay at home and take care of all that.” Id. ¶ 57.
Based on her formal complaint, the agency accepted five
claims, three of which are relevant to this action:
Whether U.S. Department of Homeland Security
discriminated against Complainant and
subjected her to a hostile work environment on
the bases of sex (female) pregnancy and
reprisal (prior EEO activity) when the
following events occurred:
1. On August 5, 2013, Complainant was asked to
perform significant amounts of work while on
leave under the Family Medical Leave Act
(FMLA);
2. On October 15, 2013, Complainant was
informed that she was going to be removed as
Liaison and was being assigned back to
Homeland Security Investigations (HSI)
headquarters;
3. On December 13, 2013, Complainant was
instructed to report to HSI, where she was
stripped of her Liaison duties and consigned
to performing administrative duties. 2
2 Defendant does not challenge the other two alleged adverse
actions which occurred in 2014. Def.’s Mot., ECF No. 1 at 1.
Additionally, defendant concedes that Ms. Sellers exhausted her
remedies for an alleged hostile work environment claim on the
7
Statement of Accepted Claims. Def.’s Mot., Ex. B., ECF No. 10-2
at 2. The Statement of Accepted Claims instructed that:
If you believe that your client’s claim has
not been correctly identified, please provide
to me written clarification within seven (7)
calendar days after receipt of this letter,
specifying why the claim has not been
correctly identified. If a reply is not
received within the specified time period, I
will consider that you agree with the claim as
defined above
Id. It is undisputed that Ms. Sellers submitted no
clarification. However, in her formal administrative complaint
she referenced, among other things, that she was “recently
passed over for multiple positions for which she was qualified.”
ECF No. 10-1 at 6. She expressly referenced the two non-
selections for the positions she applied for in August of 2014,
the Liaison to Europol and Assistant Attaché to Pretoria
positions. Id.
While Ms. Sellers’ EEOC complaint was working its way
through the administrative process, life became worse for her at
the agency. Ms. Sellers alleges that throughout the
administrative process Mr. Allen became increasingly aggressive
towards her and threatened to file a formal complaint if she did
not stop “spreading rumors” about him. Id. ¶ 59. Additionally,
the agency blocked several different attempts by Ms. Sellers to
basis of caregiver status, and retaliation. Id.
8
obtain promotions. She applied for three positions while her
investigation was being conducted: (1) in May 2015, she applied
for an Assistant Attaché to London position, Id. ¶ 62; (2) in
2015, on an unspecified date, she applied for a Liaison to U.S.
Customs and Border Patrol position, Id. ¶ 63; and (3) in 2015,
on an unspecified date, she applied to a position with DHS’s
one-year Master’s Program through National Defense University.
Id. ¶ 67.
3. Post-Investigation Discriminatory Acts
After the conclusion of the investigation, on November 23,
2015, Ms. Sellers applied to at least eight more positions and
was not selected for any of them. In December 2016, she applied
for a detail assignment to the White House Situation Room. Id. ¶
65. In 2016, on unspecified dates, she applied for a position as
Liaison to the Office of National Drug Control Policy, Id. ¶ 64,
and for a leadership position in the Homeland Security Program,
Id. ¶ 68. In May and June 2017, she applied for several detail
assignments to the NSC including Director for Critical
Infrastructure, Director for Cybersecurity, Director for Health
and Development, and Director for Security Screening and
Vetting. Id. ¶ 66. Last, on an unspecified date in 2017, she
applied for another Leadership position in the Homeland Security
Program. Id. ¶ 68.
In 2017, an administrative judge granted the agency’s
9
motion to dismiss the 2013 claims for failure to make timely
contact with an EEO counselor. Def.’s Mot., Ex. D., ECF No. 10-4
at 2. The administrative judge agreed with defendant that the
claims that occurred from August 5, 2013, through December 13,
2013, occurred well outside the 45-day regulatory time-frame
since Ms. Sellers contacted the EEO on October 23, 2014. Id. The
Administrative Judge later clarified that the 2013 claims were
only dismissed as discrete claims of discrimination but remain
part of Ms. Seller’s hostile work environment claim. Def.’s
Mot., Ex. E., ECF No. 10-5 at 2.
B. Procedural Background
Ms. Sellers filed this action alleging discrimination,
retaliation, and hostile work environment claims, based on her
gender and care-giver status. See Compl., ECF No. 1. Defendant
has moved for judgment on the pleadings as to the three 2013
alleged discrete discriminatory acts, and for all of the non-
selection claims. See Def. Mot., ECF No. 10. Plaintiff has filed
her opposition, ECF No. 13, and defendant has filed a reply, ECF
No. 14. The motion is ripe for determination by the Court.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter
the pleadings are closed--but early enough not to delay trial--a
party may move for judgment on the pleadings.” Fed. R. Civ. P.
12(c). A Rule 12(c) motion is “functionally equivalent” to a
10
Rule 12(b)(6) motion and governed by the same standard. Rollins
v. Wackenhut Servs., Inc., 703 F.3d 122, 130 (D.C. Cir. 2012). A
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
“tests the legal sufficiency of a complaint.” Browning v.
Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)(internal quotation marks omitted; alteration in
original). While detailed factual allegations are not necessary,
a plaintiff must plead enough facts “to raise a right to relief
above the speculative level.” Id.
“The court is limited to considering facts alleged in the
complaint, any documents attached to or incorporated in the
complaint, matters of which the court may take judicial notice,
and matters of public record.” Maniaci v. Georgetown Univ., 510
F. Supp. 2d 50, 59 (D.D.C. 2007)(citations omitted). The Court
must construe the complaint liberally in plaintiff's favor and
grant plaintiff the benefit of all reasonable inferences
deriving from the complaint. Kowal v. MCI Commc'ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court must not
accept plaintiff's inferences that are “unsupported by the facts
set out in the complaint.” Id. “Nor must the court accept legal
11
conclusions cast in the form of factual allegations.” Id.
“[O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).
III. Analysis
Before bringing suit under Title VII, an aggrieved party is
required to timely exhaust his or her administrative remedies.
See Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007).
These exhaustion requirements are not jurisdictional, but rather
operate as a statute of limitations defense. Artis v. Bernanke,
630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011)(citation omitted).
“Because untimely exhaustion of administrative remedies is an
affirmative defense, the defendant bears the burden of pleading
and proving it.” Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997)(citation omitted).
An employee of the federal government who believes he or
she has been subject to discrimination is first required to
“initiate contact” with an EEO counselor within 45 days of the
allegedly discriminatory action. 29 C.F.R. § 1614.105(a)(1). The
45-day period begins to run when an employee has a “reasonable
suspicion” of a discriminatory action. Adesalu v. Copps, 606 F.
Supp. 2d 97, 102 (D.D.C. 2009). If the matter is not resolved
informally, the counselor shall inform the employee in writing
of the right to sue, and the employee must file a formal
12
complaint of discrimination with the agency. See 29 C.F.R. §§
1614.105(d), 1614.106(a)-(c). The agency must then investigate
the matter, after which the complainant may demand an immediate
final decision from the agency or a hearing before an EEOC
administrative judge. See 29 C.F.R. §§ 1614.106(e)(2),
1614.108(f). A complainant may file a civil action within ninety
days of receiving a final decision from the agency or after a
complaint has been pending before the EEOC for at least 180
days. See 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407; Price
v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006).
Critically, an employee must exhaust the administrative
process for each discrete act for which he or she seeks to bring
a claim. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113–14 (2002). In Morgan, the Supreme Court held that “discrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.” Id.
at 113. This is because “[e]ach discrete discriminatory act
starts a new clock for filing charges alleging that act. The
charge, therefore, must be filed within the [45]-day time period
after the discrete discriminatory act occurred.” Id.
A. 2013 Adverse Acts
The parties agree that because at least one of Ms. Seller’s
allegations of discrete discriminatory acts, i.e., the 2014
acts, fall within the 45-day window, the Court may consider all
13
of the alleged acts as part of Ms. Seller’s hostile work
environment claim. See Def.’s Mot., ECF No. 10 at 12 n.2
(stating the agency does not challenge, at this stage, the 2013
claims offered in support of a hostile work environment claim).
Where the parties disagree is whether Ms. Sellers’ timely
exhausted her remedy for the discrete discrimination claims that
occurred in 2013. The two acts in dispute are as follows: (1) On
October 15, 2013, Ms. Sellers was informed that she was going to
be removed as Liaison and assigned back to Homeland Security
Investigations (HSI) headquarters; and (2) on December 13, 2013,
Ms. Sellers was instructed to report to HSI, where she was
stripped of her Liaison duties and assigned administrative
duties. 3
A plaintiff does not have a claim for discrimination unless
and until she suffered from “adverse action.” See Czekalski v.
Peters, 475 F.3d 360, 364 (D.C. Cir. 2007). Pursuant to EEOC
Regulation 29 C.F.R. § 1614.105(a)(1), a complainant must
ordinarily contact an EEOC counselor within 45 days of the date
of the matter alleged to be discriminatory. Again, the 45-day
3 Defendant argues that all three 2013 acts are in dispute.
However, Ms. Sellers clarified in her opposition that she did
not bring the issue relating to DHS’s request for her to work
while on FMLA leave as a discrete act in her discrimination or
retaliation counts but rather only raised that issue as part of
her hostile work environment claim. Pl.’s Opp’n., ECF No. 13 at
17 n.2. Accordingly, there are only two discrete acts relevant
to this motion.
14
period begins to run when an employee has a “reasonable
suspicion” of a discriminatory action. Copps, 606 F. Supp. 2d at
102.
It is undisputed that Ms. Sellers first contacted an EEO
counselor on October 23, 2014, and therefore, she only timely
exhausted “discrete discriminatory act[s]” of which she had a
reasonable suspicion that occurred within 45 days of this date.
See 29 C.F.R. § 1614.105(a)(1). Accordingly, this Court may
review any conduct that occurred on or after September 8, 2014,
45 days before Ms. Sellers made initial contact. See Morgan, 536
U.S. at 110. However, whether Ms. Seller’s 2013 claims fall
outside the 45-day window depends on how the discrete acts are
characterized.
Defendant argues that the dates on which the discrete acts
occurred were October 15, 2013, for Ms. Seller’s removal from
the Liaison position and reassignment to HSI headquarters; and
December 13, 2013, for the removal of her Liaison duties and
assignment to administrative tasks. Def.’s Mot., ECF No. 10 at
10. Ms. Sellers argues that the removal from the Liaison
position and the removal of her substantive duties were the
initial steps in a multi-step process which culminated in an
adverse action on September 10, 2014, when she was removed from
the INL team and her INL duties were given to less-qualified
men. Pl.’s Opp’n., ECF No. 13 at 19.
15
Taking all inferences in Ms. Seller’s favor, at this stage
of the proceedings, the Court cannot say that as a matter of law
she did not timely make initial contact with the EEO counselor.
Cases in this District illustrate the difficulty in determining
when an adverse action occurs where the basis for the claim is
the removal of substantive duties. See, e.g., Kline v.
Archuleta, 102 F. Supp. 3d 24, 30 (D.D.C. 2015)(“Whether a
particular reassignment is materially adverse depends upon the
circumstances of the particular case, and ‘should be judged from
the perspective of a reasonable person in the plaintiff's
position, considering all the circumstances.’”). In Kline for
example, the court held that the plaintiff’s allegations that
she was stripped of her regular duties and that she was
assigned only “menial, clerical and/or administrative duties”
were not sufficient to meet the threshold of an adverse action
under Title VII. 102 F. Supp. 3d at 31. After engaging in a
fact-intensive inquiry, which included the plaintiff’s precise
duties prior to her reassignment, the court found that taking
all evidence in the plaintiff’s favor no reasonable jury could
find that there was an adverse action. Id. at 31–34.
This case stands in stark contrast to Kline because there
simply is not enough information at this juncture to determine
when the adverse employment action occurred. Unlike a claim for
wrongful termination, where there is a set date for the adverse
16
employment action and a fixed event such as a firing, a material
adverse reassignment depends “on the circumstances of the
particular case . . . and should be judged from the perspective
of the reasonable person in the plaintiff’s position,
considering all the circumstances.” Kline, 102 F. Supp. 3d at
30. The Court agrees with the plaintiff that “[f]urther factual
development is necessary to determine exactly what duties were
removed and when, how her position description changed over
time, what the precise nature of her role was, [and] what duties
she was tasked with during the ensuing months” before the Court
may rule as a matter of law she failed to exhaust her remedies. 4
Pls.’ Opp’n., ECF No. 13 at 20. It is the defendant’s burden to
plead and prove untimely exhaustion of administrative remedies.
Bowden, 106 F.3d at 437 (citation omitted). The defendant has
failed to do so at this stage of the proceedings.
Additionally, the Court is not convinced that Ms. Sellers
should have reasonably suspected she was being discriminated
against because of her gender and care-giver status in 2013.
Under Title VII, “if an employee did not at the time know or
have reason to know that an employment decision was
4 The parties agree that this conduct is part of the hostile-work
environment claim, so the parties will need to take discovery on
this issue regardless of whether it will ultimately survive as
part of her discrete discriminatory act claims.
17
discriminatory in nature, the time limits for filing an
administrative complaint may be tolled.” Loe v. Heckler, 768
F.2d 409, 418 (D.C. Cir. 1985)(internal citation omitted). “The
time within which EEO counseling must be sought is likewise
tolled until the claimant knows or has reason to know the facts
that would support a charge of discrimination.” Id. (citations
omitted).
In this case, Ms. Sellers was first told by the agency that
she was to file her complaint with the Office of Special Counsel
because she likely had a claim for violations of the FMLA. See
Compl., ECF No. 1 ¶ 55. This is understandable because the
alleged discrimination occurred as Ms. Sellers took her FMLA
leave: she was removed from the Liaison position after she
returned from FMLA leave and alleges that the removal process
began while she was on leave. Id. ¶¶ 27, 31. Construing all
inferences in Ms. Sellers favor, it was not until the following
year—after being continually stripped of substantive duties that
were given to less qualified men—that she reasonably knew that
DHS’s actions were motivated by her gender and her status as a
caregiver. Specifically, when, on September 10, 2014, she was
removed from the INL team entirely. Because the October 23, 2014
EEO contact occurred within 45 days of the September 10, 2014
date, the Court cannot say at this stage of the proceedings that
she did not exhaust her administrative remedies as a matter of
18
law.
Accordingly, the Court DENIES the defendant’s motion for
judgment on the pleadings as to Ms. Seller’s discrimination
claims related to the 2013 adverse acts, and Ms. Sellers’ claims
for discrimination based on the 2013 adverse acts may proceed.
B. Non-selection Claims
The parties agree that the non-selection claims are best
analyzed under three categories: (1) two non-selections
occurring in 2014 prior to Ms. Sellers filing her formal charge
of discrimination with the EEO; (2) three non-selections that
occurred after Ms. Sellers filed her formal charge of
discrimination with the EEO, but before the EEO concluded its
investigation, and (3) six non-selections that occurred after
the EEO concluded its investigation. The Court addresses each
claim in turn.
1. 2014 Pre-EEO Complaint Non-Selections
The first two non-selection claims concern two positions
that Ms. Sellers applied for in August 2014. Defendant argues
that these non-selections should be dismissed because Ms.
Sellers did not give the agency an opportunity to investigate
those claims when she failed to challenge the Agency’s Statement
of Accepted Claims which excluded the non-selections. Def.’s
Mot., ECF No. 10 at 13. Ms. Sellers argues that the non-
selections were included in her formal charge and it is the
19
formal complaint that governs, not the agency’s informal
statement of accepted issues. Pl.’s Opp’n., ECF No. 13 at 34.
Defendant acknowledges that Ms. Sellers raised the two
August 2014 non-selections in her formal administrative
complaint, but faults her for failing to correct the agency when
it did not include these two non-selections in its Statement of
Accepted Claims. Def.’s Mot., ECF No. 10 at 13. Because she
failed to correct the Statement of Accepted Claims, defendant
argues, Ms. Sellers has failed to exhaust her administrative
remedies. Id. In support of its position, defendant cites
several cases in which courts have adhered to the general rule
that “failure to respond to the [agency]’s framing of the issue
supports a finding that a plaintiff has failed to exhaust his
administrative remedies with respect to those claims not
approved by the EEO.” Def.’s Reply, ECF No. 14 at 12. Review of
these cases, however, reveals that courts in this District have
not taken such a hardline approach.
For example, in McKeithan v. Boarman, 803 F. Supp. 2d 63,
68 (D.D.C. 2011), a plaintiff not only failed to respond to the
EEO’s letter that omitted his alleged gender and religion
discrimination claims, but had filed an affidavit affirmatively
stating that he was “discriminated against and subjected to a
hostile work environment ‘based on [his] age.’” Despite those
facts, the court found that plaintiff only “arguably abandoned
20
[the claims based on Sex and Religion] . . . by failing to
contest the EEO’s framing of his complaint and by affirmatively
stating that the actions taken against him were because of his
age.” Id. The court noted that although those actions “may well
constitute ground for dismissal,” it declined to “adopt such a
rigid position” and dismissed the claims on other grounds. Id.
Here, Ms. Sellers has not affirmatively limited her
discrimination claims to the removal of her substantive duties.
And even if she had, the Court is persuaded by McKeithan that
such a “rigid position” is not mandated by the statute or
regulation. Id.
Defendant also relies on Robinson v. Chao, 403 F. Supp. 2d
24, 28 (D.D.C. 2005), but that case is inapposite. In Robinson,
the plaintiff failed to respond to requests for additional
information about certain of her discrimination claims. Id.
There, the EEO sent the plaintiff a formal request for
additional information so it could determine if certain claims
would be accepted for investigation. Id. at 27. The EEO warned
plaintiff that “her failure to respond within 15 calendar days
could result in dismissal of the additional claims.” Id. Because
plaintiff failed to respond to the formal request, the court
held that plaintiff did not fulfill her obligation to respond to
reasonable requests in the course of the agency’s investigation
of her claims, and therefore failed to exhaust her
21
administrative remedies as to those claims. Id. at 29.
However, a “failure to cooperate during the administrative
investigation must be treated as factually and legally distinct
from failure to respond to the acceptance-of-claims letter.”
Mokhtar v. Kerry, 83 F. Supp. 3d 49, 66 (D.D.C. 2015). In
Mokhtar, the district court explained that acceptance-of-claims
letters are “more akin to an elective agency housekeeping
procedure” rather than “a legally mandated aspect of the
administrative fact-finding investigative process.” Id. Indeed,
a complainant need not respond to an acceptance-of-claims letter
for the agency to investigate his or her claim. Id. In contrast,
under 29 C.F.R. § 1614.107(a)(7), an agency “shall dismiss” a
complaint if the agency has sent to the complainant “a written
request to provide relevant information” and a complainant fails
to respond to that request, provided that “the request included
a notice of the proposed dismissal.” The acceptance-of-claims
letter sent to Ms. Sellers was not a formal written request for
information, and it contained no requirement that Ms. Sellers
respond to the letter for the agency to begin the investigation.
In light of these differences, the Court cannot conclude that
the failure to respond to an acceptance-of-claims letter is
tantamount to a failure to cooperate in the investigative
process.
Defendant responds with several reasons for why rejecting
22
its rigid rule would lead to bad administrative policy.
Defendant argues that complainants would have an incentive to
file vague claims and leverage an oversight by the agency to
functionally expand those claims when they sued in federal
court. The Court is not persuaded. This is not a case in which
Ms. Sellers alluded to a general failure to select her for some
unnamed position at some undisclosed time, both August 2014 non-
selections were named by position and date in her formal
complaint to the agency. Def.’s Mot., Ex. A., ECF No. 10-1 at 6.
This is also not a case in which a plaintiff fails to allege a
particular type of discrimination (e.g., race) or claim (e.g.,
retaliation), and later brings that type of claim in federal
court. Such a case would surely fail on exhaustion grounds. See
McKeithan, 803 F. Supp. at 67 (dismissing retaliation claim for
failure to exhaust when plaintiff failed to include it in his
administrative complaint or any allegations that could be
construed as a retaliation claim).
This Court does not believe that the hardline approach
suggested by the defendant is appropriate as a matter of law in
this case. Ultimately, the fact that the agency itself omitted
the non-selections that were clearly referenced in the formal
complaint from its statement of accepted issues does not bar the
claims from this case. The agency was free to send a formal
request for more information about those claims, but it failed
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to do so. See generally Robinson, 403 F. Supp. 2d at 28
(dismissing claims because of plaintiff’s failure to respond to
formal written request for additional information). Ms. Sellers
presented the 2014 non-selection claims in her charge of
discrimination and this was all she was required to do. See
Mokthar, 83 F. Supp. 3d at 65 (stating there is no statutory or
regulatory requirement for a plaintiff to respond to an
acceptance-of-claims letter within a certain time to avoid
waiving plaintiff’s claims).
Accordingly, the Court DENIES defendant’s motion for
judgment on the pleadings as to the 2014 non-selection claims,
and Ms. Sellers may proceed on her claims that she was
discriminated against based on gender and caregiver status when
she was not selected for two positions in August 2014.
2. 2015 Post-Charge Non-Selections
The next category of non-selections relate to three
positions Ms. Sellers applied for after she filed her complaint
but prior to the conclusion of the investigation. These
positions were: (1) an Assistant Attaché to London position she
applied for on May 2015; (2) a Liaison to U.S. Customs and
Border Patrol position she applied for at an unspecified time in
2015; and (3) a position through DHS’s Master’s Program through
National Defense University, she applied for at an unspecified
time in 2015. Ms. Sellers alleges that she was not selected for
24
these positions based on: (1) gender and care-giver status; and
(2) in retaliation for filing a complaint with the EEO. Pl.’s
Opp’n., ECF No. 13 at 29. It is undisputed that Ms. Sellers
failed to initiate EEO contact when these non-selections
occurred. Id. However, Ms. Sellers argues that she was not
required to do so once she initiated the EEO process, because
the post-charge non-selections were reasonably related to the
two non-selections cited within her formal complaint. Id. at 36.
Defendant argues that Ms. Seller’s discrimination and
retaliation claims for these non-selections should be dismissed
for slightly different reasons. First, defendant argues that Ms.
Seller’s discrimination claim for these three non-selections is
foreclosed by this Court’s decision in Nguyen v. Mabus, 895 F.
Supp. 2d 158 (2012). In Nguyen, this Court granted summary
judgment to the defendant on plaintiff’s discrete acts of
discrimination claims for failure to exhaust administrative
remedies. Id. at 172–73. Relevant to this case were three acts
of non-selection which occurred after the investigation began
and more than 45-days after the plaintiff contacted the EEO. Id.
The Court found that the three acts of non-selection were
discrete acts of alleged discrimination and because the
plaintiff did not contact the EEO about these acts within 45-
days of when they occurred they were not timely exhausted and
therefore procedurally barred. Id. at 173.
25
Defendant is correct that “courts should not treat
individual incidents of alleged discrimination as part of a
discriminatory pattern for exhaustion purposes.” Id. at 172
(citing Morgan 536 U.S. at 114). Under Morgan, a plaintiff who
alleges discrete acts of discrimination must initiate EEO
contact for every act which falls outside the 45-day window. 536
U.S. at 114. Ms. Sellers failed to do so for her post-charge
non-selection claims which did not occur within 45-days of the
October 24, 2014, EEO contact, and therefore did not exhaust her
remedies for her discrimination claims as to these three non-
selections. Accordingly, Ms. Sellers may not proceed with these
three non-selection claims under her theory of discrimination.
As to the retaliation claim, defendant recognizes that
whether a plaintiff needs to exhaust post-charge retaliation
claims remains an open question for this Court. After the
Supreme Court's decision in Morgan, this Court has required
plaintiffs to exhaust their administrative remedies with respect
to each discrete act of discrimination. Several courts in this
District, however, have distinguished retaliation claims that
arise after a plaintiff has filed an administrative complaint,
holding that separate exhaustion is not required for those later
acts of retaliation that would have come within the “scope of
any investigation that reasonably could have been expected to
result from [the] initial [administrative] charge of
26
discrimination.” Hazel v. Wash. Metro. Area Transit Auth., No.
02–1375, 2006 WL 3623693, *8 (D.D.C. Dec. 4, 2006) (relying on
Wedow v. Kansas City, 442 F.3d 661, 673–74 (8th Cir. 2006) and
Lane v. Hilbert, No. 03–5309, 2004 WL 1071330, *1 (D.C. Cir. May
12, 2004)); see also Jones v. Bernanke, 685 F. Supp. 2d 31, 37
(D.D.C. 2010); Thomas v. Vilsack, 718 F. Supp. 2d 106, 121
(D.D.C. 2010); Smith–Thompson v. Dist. of Columbia, 657 F. Supp.
2d 123, 137 (D.D.C. 2009); Lewis v. Dist. of Columbia, 535 F.
Supp. 2d 1, 6–8 (D.D.C. 2008). 5 This Court has followed this
approach and has required claims of retaliation to be
administratively exhausted unless they were (1) related to the
claims in the initial administrative complaint, and (2)
specified in that complaint to be of an ongoing and continuous
nature. See Nguyen 895 F. Supp. 2d at 184. Because exhaustion of
administrative remedies is an affirmative defense, defendant
bears the burden of pleading and proving it. Bowden, 106 F.3d at
437.
With respect to the three non-selection claims under the
retaliation theory, defendant argues that the non-selection
claims at issue are not reasonably related to the claims in the
5 The D.C. Circuit has declined to weigh in on this split. See
Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010)(“We need not
decide whether Morgan did in fact overtake that line of cases
[that permits federal employees to litigate unfiled retaliation
claims that are like or reasonably related to claims they did
file with the agency].”).
27
administrative complaint because Ms. Seller’s administrative
complaint failed to “describe the same conduct and implicate the
same individuals.” Def.’s Mot., ECF No. 10 at 16–17 (quoting
Craig v. District of Columbia, 74 F. Supp. 3d 349, 366 (D.D.C.
2014)). In other words, there were no allegations that the
“selecting officials for the vacancies were the same as those
who allegedly discriminated against and harassed [Ms.] Sellers.”
Id. at 16.
However, this argument supports plaintiff’s position more
than that of the defendant. Defendant bears the burden of
proving that the plaintiff failed to exhaust and “the
incompleteness of the factual record prevents the court from
determining [at the pleadings stage] whether the allegations in
question were ‘of a like kind’ to the retaliatory acts alleged
in the EEOC charge.” Smith-Thompson v. District of Columbia, 657
F. Supp. 2d 123, 137-38 (2009). Given the number of factual
issues that remain unresolved, the Court cannot conclude, on the
basis of the pleadings alone, that the plaintiff failed to
exhaust her administrative remedies. The record requires factual
development, and therefore defendant cannot carry its burden to
prove Ms. Sellers did not exhaust her claims on the pleadings as
to the retaliation claim for the post-charge non-selections.
Accordingly, the Court will GRANT defendant’s motion for
judgment on the pleadings as to Ms. Seller’s 2015 post-charge
28
non-selection discrimination claims and will DENY defendant’s
motion for judgment on the pleadings as to Ms. Seller’s 2015
post-charge non-selection retaliation claims. Ms. Sellers may
proceed on her claim that she was not selected for the three
positions in 2015 in retaliation for filing her formal charge of
discrimination with EEO.
3. 2016-2017 Post-Investigation Non-Selections
The last category concerns several positions for which Ms.
Sellers applied that post-date the conclusion of the
investigation. Ms. Sellers concedes that binding authority in
this jurisdiction has held that acts that occur after an
investigation has concluded must be separately exhausted. Pl.’s
Opp’n., ECF No. 13 at 42; see Payne v. Salazar, 619 F.3d 56, 65
(D.C. Cir. 2010)(dismissing claim concerning retaliatory conduct
in January 2008 because it “could not possibly have arisen from
the administrative investigation” that “ended in September
2007”). Ms. Sellers argues, however, that the post-investigation
conduct may still be considered as part of her hostile work
environment claim. Id.
Defendant makes two arguments against allowing such claims
to be considered as part of a hostile work environment claim,
one general to all non-selection claims, the other specific to
Ms. Seller’s post-investigation claims. The general argument is
that all non-selection claims may not be considered as part of a
29
hostile work environment claim because they are “discrete events
that occur at a specific time [and] do not constitute
initimidat[ion] ridicule, or insult.” Def.’s Mot., ECF No. 10 at
13–14 (citing Morgan, 536 U.S. at 114). The specific argument
with regard to her post-investigation non-selection claim is
that Ms. Sellers is attempting to bootstrap her concededly
unexhausted non-selection claims into a catch-all hostile work
environment claim. Def.’s Reply, ECF No. 14 at 21.
As to defendant’s general argument that non-selection
claims may not be part of a hostile work environment, Morgan has
made clear that, with regard to hostile work environment claims,
“plaintiffs may incorporate non-exhausted allegations into a
hostile work environment claim so long as some allegations were
exhausted and all of the allegations together form one hostile
environment claim.” Nguyen, 895 F. Supp. 2d at 187 (citing
Morgan, 536 U.S. at 115). The Court of Appeals for the District
of Columbia Circuit (“D.C. Circuit”) has confirmed this view in
Baird v. Gotbaum, 662 F.3d 1246 (D.C. Cir. 2011). In Baird, the
D.C. Circuit explained that a court may not “dismiss a hostile
work environment claim merely because it contains discrete acts
that the plaintiff claims (correctly or incorrectly) are
actionable on their own.” Id. at 1252. Indeed, defendant
acknowledges as much in its reply brief. See Def.’s Reply, ECF
No. 14 at 21. (“[Ms. Sellers] is correct that there is no per se
30
prohibition on discrete acts being part of a hostile work
environment claim.”). As long as Ms. Sellers has alleged a
hostile work environment, and at least one of the non-selection
acts occurred within the 45-day window, she may rely on the
other non-selection claims in her hostile work environment claim
regardless of when they occurred. See Allen v. Napolitano, 774
F. Supp. 2d 186, 204-06 (D.D.C. 2011)(considering up to seven
non-selection claims in hostile work environment analysis).
As to defendant’s bootstrapping argument, in Ms. Sellers’
complaint, she alleges public humiliation, and several instances
of actions that she alleges interfered with her work performance
for which she repeatedly asked her supervisor to intervene. See
generally Compl., ECF No. 1. In fact, she was told that it would
take nothing short of physical assault on the part of her abuser
before DHS intervened. See id. ¶ 41. This is not an instance of
a plaintiff “attempt[ing] to bootstrap their alleged discrete
acts of retaliation into a broader hostile work environment
claim.” See Baloch v. Norton, 517 F. Supp. 2d 345, 364 (D.D.C.
2007)(explaining that, as a general matter, this jurisdiction
frowns on such attempts). Because Ms. Sellers has alleged at
least one non-selection claim within the 45-day window, Morgan
applies and her other non-selection claims may proceed as part
of her hostile-work environment claims.
Accordingly, the Court will DENY defendant’s motion for
31
judgment on the pleadings as to Ms. Seller’s post-investigation
hostile work environment non-selection claims.
D. Non-Selections for Requested Detail Assignments
Finally, defendant argues that Ms. Sellers has no Title VII
claim based on the agency’s decision to deny her a specific
detail assignment because that is not an adverse employment
action cognizable under the statute. Def.’s Mot., ECF No. 10 at
19. The D.C. Circuit has instructed that [a]dverse employment
actions are not confined to hirings, firings, promotions, or
other discrete incidents.” Holcomb v. Powell, 433 F.3d 889, 902
(D.C. Cir. 2006)(citation omitted). So long as a plaintiff meets
the statutory requirement of being “aggrieved” by an employer's
action, 42 U.S.C. § 2000e–16(c) (2000), a court may not
“categorically reject a particular personnel action as
nonadverse simply because it does not fall into a cognizable
type.” Id. (internal citations omitted)
To the extent the defendant argues for a categorical rule
that the denial of a detail assignment generally does not
constitute an adverse employment action, under Holcomb this
Court cannot endorse such a rule. Id. Courts in this District
have found that a denial of a detail assignment is cognizable
under the statute as a claim for discrimination if the non-
selection has “materially adverse consequences . . . such that a
reasonable trier of fact could find objectively tangible harm.”
32
See Nichols v. Truscott, 424 F. Supp. 2d 124, 136 (D.D.C.
2006)(citing Holcomb, 433 F.3d at 902)). Courts have also
recognized denial of detail assignment claims in the retaliation
context. For example in Browne v. Donovan, a court refused to
endorse the rule that the “failure to detail does not constitute
an adverse employment action for purposes of Title VII’s anti-
retaliation provision.” 12 F. Supp. 3d 145, 154 (D.D.C. 2014).
The court instead engaged in a highly fact-specific analysis to
determine whether the detail was an adverse employment decision
and ultimately denied the defendant’s motion to dismiss after
analyzing the specific details of the position, the
opportunities for advancement the position would provide, and
whether the failure to detail might dissuade a reasonable
employee from making or supporting a charge of discrimination.
Id. (stating the failure to detail plaintiff into the Associate
General Counsel position constituted an adverse employment
action).
To be sure, when a plaintiff alleges the denial of a detail
but only claims harms—or benefits—that are speculative, a court
may find that the failure to detail was not an adverse
employment action. See Maramark v. Spellings, No. 06–5099, 2007
WL 2935411, at *1 (D.C. Cir. Sept. 20, 2007) (denial of a five-
month detail that might have allowed plaintiff to secure a
permanent position was “too speculative to constitute an
33
objectively tangible harm”). However, Ms. Sellers has alleged
detail assignments that included, among other things, promotion
opportunities with increased pay. See Pl.’s Opp’n., ECF No. 13
at 44. At the pleading stage, it cannot be said that the
benefits from the detail assignments she was denied are “too
speculative to constitute an objectively tangible harm.”
Maramark, 2007 WL 2935411, at *1. Accordingly, the defendant’s
motion is DENIED as to Ms. Seller’s detailed related non-
selections, and Ms. Sellers may proceed on her Title VII claims
based on the denial of specific detail assignments.
IV. Conclusion
For the foregoing reasons, defendant’s motion for partial
judgment on the pleadings is GRANTED IN PART and DENIED IN PART.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 26, 2019
34