Noisette v. Paulson ( 2010 )


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  •                    UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    _____________________________
    )
    ANDRE NOISETTE,                )
    )
    Plaintiff,           )
    )
    v.                   ) Civil Action No. 08-2237 (RWR)
    )
    TIMOTHY F. GEITHNER,           )
    )
    Defendant.           )
    _____________________________ )
    MEMORANDUM OPINION
    Plaintiff Andre Noisette brought this action against the
    Treasury Secretary alleging racial discrimination and retaliation
    in employment in violation of Title VII of the Civil Rights Act
    of 1964, 42 U.S.C. § 2000e, et seq.   The Secretary has moved to
    dismiss, challenging venue and claiming that Noisette failed to
    exhaust his administrative remedies before filing this action.
    Because venue is proper in this district for Counts I and II and
    pendent venue applies to Counts III and IV, the defendant’s
    motion to dismiss Counts III and IV based on improper venue will
    be denied.   Because Noisette has raised a genuine issue of
    material fact as to when he had a reasonable suspicion that he
    had been the victim of the alleged discrimination, the
    defendant’s motion to dismiss Counts I and II, treated as a
    motion for summary judgment, will be denied.   However, because
    Noisette did not wait the requisite 180 days after filing his
    appeal of the Department of Treasury’s Final Agency Decision
    -2-
    (“FAD”), the defendant’s motion will be granted in part and this
    action will be dismissed without prejudice.
    BACKGROUND
    Noisette is a management official in the Criminal
    Investigation Division (“CID”) of the Treasury Department’s
    Internal Revenue Service (“IRS”).       (Am. Compl. (“Compl.”) ¶ 12.)
    He participated in an internal investigation of a discrimination
    pre-complaint filed against the IRS by a junior CID special
    agent, Sarah Peebles.    (Id. ¶¶ 19, 22.)    He made findings
    favorable to Peebles and then arranged a pre-complaint settlement
    on behalf of the IRS.    (Id. ¶¶ 24-25.)    Shortly after
    participating in that matter, Noisette applied for a vacant
    Supervisory Special Agent (“SSA”) position in Florida.      (Id.
    ¶¶ 28-29.)    Initially, in mid-September of 2006, Noisette was
    chosen to fill the vacancy without having to compete for the
    position.    (Id. ¶¶ 30-32.)   However, on October 10, 2006,
    officials at the IRS headquarters in Washington, D.C. revoked
    Noisette’s selection.    (Id. ¶ 35.)    He received no official
    notice of the revocation, though, and his supervisor told him
    merely that if he wanted the position, he had to either interview
    competitively for it to be eligible for a pay increase or forego
    the increase and accept the position as a non-competitive
    reassignment.    (Id. ¶ 36; Pl.’s Opp’n, Noisette Decl. ¶ 7 and
    Att. F at 119.)    He believed he was the selectee and the
    -3-
    interview was an administrative formality.    (Pl.’s Opp’n,
    Noisette Decl. ¶ 9 and Att. F at 119.)    Noisette interviewed in
    Atlanta for the position, but the IRS ultimately selected another
    candidate on October 23, 2006.    (Compl. ¶ 38; Def.’s Mem of P. &
    A. in Supp. of Mot. to Dis. (“Def.’s Mem.”) at 4-5 ¶¶ 8-10.)
    On December 5, 2007, Noisette contacted the agency’s equal
    employment opportunity office, and later filed a formal complaint
    of discrimination, alleging that these personnel decisions were
    the product of discriminatory and retaliatory actions against him
    based on his participation in Peebles’ pre-complaint proceedings.
    (Compl. ¶ 40; Pl.’s Opp’n at 5.)    On September 30, 2008, the
    Department issued a FAD on Noisette’s formal administrative
    complaint.   (Compl. ¶ 41.)   On October 29, 2008, Noisette
    appealed the FAD to the Equal Employment Opportunity Commission’s
    (“EEOC’s”) Office of Federal Operations (“OFO”) and, before the
    OFO ruled on his appeal, Noisette filed a request to withdraw it.
    (Id. ¶¶ 42-43.)   On January 15, 2009, OFO granted Noisette’s
    request, but not before Noisette filed this action on
    December 29, 2008.   (Id. ¶¶ 43-44.)   The Secretary has moved to
    dismiss, arguing venue is improper in this district for two of
    the four counts in the complaint and that Noisette failed to
    exhaust his administrative remedies.
    -4-
    DISCUSSION
    I.   VENUE
    Noisette’s complaint includes four separate counts and the
    defendant has moved to dismiss Counts III and IV asserting
    improper venue.   Title VII’s venue provision states that
    an action may be brought in any judicial district in
    the State in which the unlawful employment practice is
    alleged to have been committed, in the judicial
    district in which the employment records relevant to
    such practice are maintained and administered, or in
    the judicial district in which the aggrieved person
    would have worked but for the alleged unlawful
    employment practice, but if the respondent is not found
    within any such district, such an action may be brought
    within the judicial district in which the respondent
    has his principal office.
    42 U.S.C. § 2000e-5(f)(3).   Under Title VII’s venue provision, a
    court first must “look to the place where the decisions and
    actions concerning the employment practices occurred.”    Milanes
    v. Holder, Civil Action No. 09-824 (GK), 
    2009 WL 3367497
    , at *2
    (D.D.C. Oct. 21, 2009) (internal quotation marks omitted).
    Courts also must focus on “the locus of the alleged
    discrimination[,]” Washington v. Gen. Elec. Corp., 
    686 F. Supp. 361
    , 363 (D.D.C. 1988), and employ a “‘commonsense appraisal’ of
    events having operative significance in the case.”    Donnell v.
    Nat’l Guard Bureau, 
    568 F. Supp. 93
    , 94 (D.D.C. 1983) (quoting
    Lamont v. Haig, 
    590 F.2d 1124
    , 1134 (D.C. Cir. 1978)).
    Moreover, while venue generally must be appropriate on each
    cause of action, 
    Lamont, 590 F.2d at 1135
    , “this Circuit has
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    adopted the principle of pendent venue which provides that proper
    venue as to one claim will support adjudication of any other
    claim as long the claims amount to a single cause of action.”
    Archuleta v. Sullivan, 
    725 F. Supp. 602
    , 605-06 (D.D.C. 1989)
    (citing Beattie v. United States, 
    756 F.2d 91
    , 100-01 (D.C. Cir.
    1984) (overruled on other grounds)).     This approach, “which
    [gives priority to] joinder over venue in cases where the claims
    are tied together in the same action, illustrates the importance
    of joinder for factually interrelated claims.”     Spender v.
    Sytsma, 
    67 P.3d 1
    , 5 (Colo. 2003).      Also, “to apply the principle
    of pendent venue in any given case is a discretionary decision,
    based on applicable policy considerations.”     
    Beattie, 756 F.2d at 103
    .    These considerations include judicial economy, convenience,
    fairness and avoidance of piecemeal litigation.     
    Id. Ultimately, “the
    purpose of venue rules is generally considered to be
    ‘primarily a matter of convenience of litigants and witnesses.’”
    
    Id. (quoting Denver
    & R.G.W.R. Co. v. Bhd. of R.R. Trainmen, 
    387 U.S. 556
    , 560 (1967)).
    Venue is proper in the District of Columbia based on Counts
    I and II because the alleged acts involve senior management
    officials in the District of Columbia revoking Noisette’s
    selection for the SSA position.    (Compl. ¶¶ 35, 49, 57.)   Counts
    III and IV allege that, after having his offer revoked by
    officials in the District of Columbia, Noisette was not selected
    -6-
    to fill the SSA position available in the Florida office.     (Id.
    ¶¶ 66-68, 78-80.)   This non-selection decision occurred in
    Atlanta, where Noisette interviewed for and was denied the
    position.   (Pl.’s Opp’n at 4-5, 15.)   Thus, under the first prong
    of Title VII’s venue provision, venue is proper in the District
    of Columbia on Counts I and II only.
    Nonetheless, if the complaint alleges essentially one cause
    of action, pendent venue may extend to Counts III and IV.     In
    determining whether a case can be described as a single cause of
    action, courts examine whether the plaintiff has asserted
    essentially one wrong, whether the grounds for relief are the
    same as to the parties and proof, and whether there will be
    “great commonality as to witnesses and evidence.”   
    Beattie, 756 F.2d at 101
    (describing the litigation “as a single cause of
    action with separate grounds for relief” because the plaintiffs
    seek damages for “‘an essentially single wrong,’ i.e., wrongful
    death” (footnote omitted)); see, e.g., Zenith Radio Corp. v.
    Matsushita Elec. Indus. Co., 
    402 F. Supp. 262
    , 328 n.38 (E.D. Pa.
    1975) (applying pendent venue in a case involving both the Anti-
    Dumping Act of 1916 and federal antitrust law because it would be
    “senseless . . . to bifurcate these two exceedingly complex
    antitrust cases by dismissing or transferring the antidumping
    counts while retaining the antitrust counts since the facts
    underlying both sets of issues are essentially the same”); Laffey
    -7-
    v. Northwest Airlines, 
    321 F. Supp. 1041
    , 1042 (D.D.C. 1971)
    (extending pendent venue to the plaintiff’s Civil Rights Act
    claim because venue was proper under the Equal Pay Act claim and
    the two separate causes of action arose out of common allegations
    of employment discrimination against female flight attendants).
    Cf. 
    Archuleta, 725 F. Supp. at 606
    (refusing to extend pendent
    venue because, although plaintiff’s discrimination claims were
    based on the conduct of a single supervisor, each claim alleged
    discriminatory conduct against a different protected class, the
    evidence to support each discrimination claim would of necessity
    be different, and the suit included nondiscrimination claims
    based on administrative law issues).
    Although Noisette has separated his claim into four separate
    counts, all counts reflect essentially one wrong --
    discriminatorily denying Noisette the SSA position.      The non-
    selection alleged in Counts III and IV stemmed precisely from the
    revocation alleged in Counts I and II and followed closely on the
    heels of it.   Noisette would not have interviewed in Atlanta for
    the position and been denied it had the alleged revocation in
    Washington D.C. never occurred.    The grounds for relief in Counts
    III and IV overlap with those in Counts I and II, and all involve
    the same plaintiff and defendant.       The facts common to all counts
    would be subject to proof by evidence common to all counts.
    Because venue is proper in the District of Columbia on Counts I
    -8-
    and II, pendent venue therefore will be extended to Counts III
    and IV.1
    II.   EXHAUSTION
    The Secretary has moved to dismiss all claims under Federal
    Rules of Civil Procedure 12(b)(1) for lack of subject matter
    jurisdiction and 12(b)(6) for failure to state a claim for which
    relief can be granted, alleging that Noisette failed to exhaust
    his administrative remedies.     Generally, “[b]ecause the
    exhaustion requirement [under Title VII], though mandatory, is
    not jurisdictional,” Douglas v. Donovan, 
    559 F.3d 549
    , 556 n.4
    (D.C. Cir. 2009), motions to dismiss for failure to exhaust
    administrative remedies are more appropriately analyzed under
    Rule 12(b)(6).     Citizens For Responsibility and Ethics in Wash.
    v. Bd. of Governors of the Fed. Reserve Sys., Civil Action No.
    09-633 (RWR), 
    2009 WL 3859700
    , at *2 (D.D.C. Nov. 19, 2009)
    (citing Marshall v. Honeywell Tech. Solutions, Inc., 
    536 F. Supp. 1
           None of the other prongs of the Title VII venue statute
    lays proper venue in the District of Columbia. The employment
    records relevant to the non-selection alleged in Counts III and
    IV are maintained in Cincinnati, Ohio (see Def.’s Reply at 13),
    but it is not clear where the employment records relevant to the
    revocation alleged in Counts I and II are maintained. A decision
    on venue, therefore, cannot accurately be made based on the
    location of all relevant employment records. Also, because
    Noisette would have worked in the Tampa/St. Petersburg, Florida
    office had the alleged discrimination not occurred, venue is
    proper in the Middle District of Florida based on the third prong
    of the Title VII venue statute. However, issues of convenience
    weigh against transferring the case to the Middle District of
    Florida. Neither party has alleged that any of the litigants,
    witnesses or evidence are located there.
    -9-
    2d 59, 64 n.6 (D.D.C. 2008) (quoting Hazel v. Wash. Metro.
    Transit Auth., Civil Action No. 02-1375 (RWR), 
    2006 WL 3623693
    ,
    at *3 (D.D.C. Dec. 4, 2006))).    “In order to survive a motion to
    dismiss under Rule 12(b)(6), the allegations stated in the . . .
    complaint ‘must be enough to raise a right to relief above the
    speculative level[.]’”    Demery v. Montgomery County, Md., 602 F.
    Supp. 2d 206, 212 (D.D.C. 2009) (alteration in original) (quoting
    Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007)).    If,
    however, “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); see also
    Citizens for Responsibility and Ethics in Wash., 
    2009 WL 3859700
    ,
    at *2.
    To succeed on a summary judgment motion, the movant must
    demonstrate that there is no genuine issue as to any material
    fact and that the movant is entitled to judgment as a matter of
    law.    Fed. R. Civ. P. 56(c).   In ruling on a motion for summary
    judgment, “[t]he evidence of the non-movant is to be believed,
    and all justifiable inferences are to be drawn in his favor.”
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986).      The
    threshold question is whether “there are any genuine factual
    issues that properly can be resolved only by a finder of fact
    because they may reasonably be resolved in favor of either
    party.”    Single Stick, Inc. v. Johanns, 
    601 F. Supp. 2d 307
    , 312
    -10-
    (D.D.C. 2009) (internal quotation marks omitted).    “A genuine
    issue is present where the ‘evidence is such that a reasonable
    jury could return a verdict for the non-moving party,’ in
    contrast to a situation where the evidence is ‘so one-sided that
    one party must prevail as a matter of law.’”    Citizens for
    Responsibility and Ethics in Wash., 
    2009 WL 3859700
    , at *2
    (quoting 
    Anderson, 477 U.S. at 248
    , 252)).
    A.     45-day deadline
    “[T]he EEOC has been given ‘broad authority to enforce
    [Title VII’s] antidiscrimination mandate within the federal
    government, including responsibility for issuing regulations to
    control federal agencies’ processing of discrimination
    complaints.’”    Jones v. Ashcroft, 
    321 F. Supp. 2d 1
    , 10 (D.D.C.
    2004) (second alteration in original) (quoting Bowden v. United
    States, 
    106 F.3d 433
    , 437 (D.C. Cir. 1997) (citing 42 U.S.C.
    § 2000e-16)).    “Pursuant to that authority, the EEOC has
    established detailed procedures for seeking informal adjustment
    of complaints, filing formal charges, and appealing agency
    decisions to the Commission.”    
    Bowden, 106 F.3d at 437
    (citing 29
    C.F.R. §§ 1613.201-283 (1991) (recodified at 29 C.F.R. part 1614
    (1996))).
    A person who believes he has been discriminated against must
    consult an EEO “Counselor within 45 days of the date of the
    matter alleged to be discriminatory or, in the case of personnel
    -11-
    action, within 45 days of the effective date of the action.”    29
    C.F.R. § 1614.105(a)(1); Boone v. Clinton, Civil Action No. 05-
    346 (RWR), 
    2009 WL 5125510
    , at *3 (D.D.C. Dec. 29, 2009).    Under
    the applicable regulations, the “agency or the Commission shall
    extend the 45-day time limit . . . when the individual shows
    . . . that he or she did not know and reasonably should not have
    known that the discriminatory matter or personnel action
    occurred[.]”    29 C.F.R. § 1614.105(a)(2).   “The plaintiff’s time
    for [contacting an EEO counselor] starts to run when the
    plaintiff has a reasonable suspicion that [he] has been the
    victim of discrimination.”    Hines v. Bair, 
    594 F. Supp. 2d 17
    ,
    22-23 (D.D.C. 2009) (first alteration in original) (internal
    quotations marks omitted).
    The Secretary argues that the first two counts of Noisette’s
    complaint should be dismissed because Noisette waited until
    December 5, 2006 to contact an EEO counselor, which is more than
    45 days after the Secretary’s October 10, 2006 revocation.
    (Def.’s Mem. at 13.)    Noisette contends, on the other hand, that
    he did not know and reasonably should not have known until
    October 23, 2006 that he had suffered a revocation that was
    discriminatory because it was only then that “the significance of
    the October 10 ‘revocation’ became apparent.”    (Pl.’s Opp’n at
    11.)    Because both parties have submitted declarations outside
    -12-
    the pleadings and they have not been excluded, the Secretary’s
    motion will be treated as one for summary judgment on this issue.
    Although Noisette’s complaint treats the October 10, 2006
    revocation as a separate discriminatory and retaliatory act (see
    Compl. ¶¶ 46-61), there is some suggestion that Noisette
    reasonably did not know that he was subject to discrimination at
    the time of the revocation.    For example, Noisette’s own sworn
    statement shows that, although Noisette was informed orally on
    October 10, 2006 that he had to participate in the competitive
    selection process for the SSA position, he received no official
    documentation from the agency stating that his selection had been
    revoked.    (Pl.’s Opp’n, Noisette Decl. ¶ 7.)   Noisette’s
    statement further shows that he believed the interview to be
    merely an administrative formality, that he decided to
    participate in the competitive process because he wanted to
    receive the pay increase, and that he was confident that he would
    be selected for the position because he previously had been
    selected.   (See 
    Id. ¶ 9;
    see also Pl.’s Opp’n, Att. F at 119
    (“[I]f I wanted the position in St. Petersburg, [for] which I was
    previously selected, I had two choices.    I could take a non-
    competitive reassignment . . . or I could interview for the
    position.”).)   These statements suggest that Noisette did not
    believe that the choices imposed upon him after October 10 had
    -13-
    any greater meaning than that he was required to compete for the
    position in order to receive the pay increase.
    These facts are distinct from those of other cases where
    plaintiffs have claimed that they did not have a reasonable
    suspicion of the discriminatory act, but the evidence indicated
    otherwise.   In Aceto v. England, 
    328 F. Supp. 2d 1
    (D.D.C. 2004),
    for example, the plaintiff argued that he did not know or have
    reason to know that he was subject to discrimination when the
    defendant prohibited him from using his personal handicapped
    parking card while driving a Navy vehicle, but the undisputed
    evidence rebutted this argument.     Indeed, in a memorandum sent to
    the defendant more than 45 days before the plaintiff contacted an
    EEO counselor, the plaintiff asserted that disability protection
    regulations allowed him to use his personal handicapped card in a
    government vehicle.   
    Id. at 7.
       Also, the plaintiff stated that
    nearly six months prior to contacting an EEO counselor, he
    believed the defendant’s conduct was discriminatory.    See 
    id. Similarly, in
    McCants v. Glickman, 
    180 F. Supp. 2d 35
    (D.D.C.
    2001), though the plaintiff contacted an EEO counselor within
    days of learning that other candidates had been selected for the
    position he sought, undisputed facts in the record revealed that
    the plaintiff suspected discrimination on the day he interviewed
    for the position, which was two years before he contacted the
    counselor.   By letter, the plaintiff stated that he believed that
    -14-
    his “interview was ‘tainted’ and that he began ‘bracing’ himself
    that day to be ‘kicked in the face’ by the USDA because one of
    the interviewers treated him rudely.”   
    Id. at 41.
    Here, although there are some inconsistencies in Noisette’s
    complaint and supporting documents regarding whether Noisette
    viewed the revocation as an act distinct from the non-selection,
    the question of when Noisette believed or should have believed
    that he was the subject of discrimination centers on a disputed
    material fact that bears upon whether Noisette properly exhausted
    his administrative remedies under 29 C.F.R. § 1614.105(a)(1).
    Because summary judgment may be granted only where there is no
    genuine issue of material fact, the Secretary’s motion as to this
    issue, treated as a motion for summary judgment, will be denied.
    B.   180-day waiting period
    A federal employee complainant who has filed an appeal of a
    FAD with the EEOC may bring a civil action in a United States
    District Court “[w]ithin 90 days of receipt of the Commission’s
    final decision on an appeal” or “[a]fter 180 days from the date
    of the filing of an appeal . . . if there has been no final
    decision by the Commission.”   29 C.F.R. § 1614.407(c), (d).
    “Complainants must timely exhaust these remedies before bringing
    their claims to court.”   
    Bowden, 106 F.3d at 437
    (emphasis
    added); see also Bayer v. U.S. Dep’t of Treasury, 
    956 F.2d 330
    ,
    332 (D.C. Cir. 1992) (“This administrative remedies exhaustion
    -15-
    requirement is mandatory.” (citing Brown v. Gen. Servs. Admin.,
    
    425 U.S. 820
    , 832-33 (1976))).
    The defendant has shown that Noisette failed to exhaust his
    administrative remedies.    Noisette filed his FAD appeal on
    October 29, 2008 and 23 days later, on November 21, 2008,
    requested withdrawal of his appeal.     However, before the EEOC
    ruled on Noisette’s withdrawal request, Noisette filed this
    lawsuit.    Noisette did not wait to receive a final decision on
    his appeal from OFO or wait 180 days from the date he filed his
    appeal to bring this action.
    For a federal employee complainant who has not filed an
    appeal of a FAD with the EEOC, the EEOC regulation sets the
    deadline to bring a civil action as 90 days after he has received
    the FAD.    29 C.F.R. § 1614.407(a).    Noisette filed this action on
    December 29, 2008 and argues that because he ultimately withdrew
    the appeal of his September 30, 2008 FAD, the only way “to avoid
    running the risk of being untimely was to initiate this action
    before his appeal . . . was formally dismissed[.]”     (Pl.’s Opp’n
    at 12.)    However, Noisette has presented no authority for the
    view that withdrawing an appeal switches the applicable timetable
    for filing a civil action from that set forth in § 1614.407(c)
    and (d) to the 90-day deadline in § 1614.407(a).     Indeed, under a
    nearly identical set of facts, Jones held that a plaintiff who
    had requested a withdrawal of his appeal and then proceeded to
    -16-
    file a lawsuit before the 180-day period had run had failed to
    exhaust his administrative remedies.      
    Jones, 321 F. Supp. 2d at 11
    .
    “Exhaustion is required in order to give federal agencies an
    opportunity to handle matters internally whenever possible[.]”
    Brown v. Marsh, 
    777 F.2d 8
    , 14 (D.C. Cir. 1985).      By withdrawing
    his appeal, however, Noisette stripped the OFO of its chance to
    investigate in a meaningful way Noisette’s complaint.      To allow
    Noisette to abandon course after he affirmatively chose an appeal
    at the administrative level could frustrate Title VII’s goal of
    encouraging discrimination complaints to be resolved at the
    administrative level.    See 
    id. Courts have
    recognized the
    importance of the exhaustion requirement in similar, though not
    identical, circumstances, such as where plaintiffs had withdrawn
    or failed to pursue their complaints at the initial
    administrative step.    “Allowing a plaintiff to abandon the
    administrative remedies he has initiated would tend to frustrate
    the ability of the agency to deal with complaints.      All
    participants would know that at any moment an impatient
    complainant could take his claim to court and abort the
    administrative proceedings.”    Gagnon v. Potter, No. 3:05-CV-
    324RM, 
    2006 WL 2051730
    , at *3 (N.D. Ind. July 19, 2006) (holding
    that plaintiff was not allowed to voluntarily withdraw her
    complaint after electing to have her complaint heard before an
    -17-
    administrative law judge); see also Mackay v. USPS, 
    607 F. Supp. 271
    , 276 (E.D. Pa. 1985) (“The exhaustion requirement is not met
    by plaintiff’s taking the initial administrative steps and then
    abandoning the process.”)
    The time limits are not a jurisdictional bar to a civil
    suit, though, because they can be rendered inapplicable by
    waiver, estoppel and equitable tolling.     See 
    Bowden, 106 F.3d at 437
    ; see also Ikossi v. Dep’t of Navy, 
    516 F.3d 1037
    , 1044 (D.C.
    Cir. 2008); 
    Brown, 777 F.2d at 16
    .     “In the D.C. Circuit, it is
    clear that ‘[b]ecause untimely exhaustion of administrative
    remedies is an affirmative defense, the defendant bears the
    burden of pleading and proving it.     If the defendant meets its
    burden, the plaintiff then bears the burden of pleading and
    proving facts supporting equitable avoidance of the defense.’”
    
    Jones, 321 F. Supp. 2d at 12
    (alteration in original) (quoting
    
    Bowden, 106 F.3d at 437
    ).
    Noisette argues that this case should go forward based on
    equitable considerations.   Specifically, he argues that because
    “the OFO had taken no substantive action on [his appeal]” and
    briefing had not begun prior to his withdrawal, “[t]he agency was
    not prejudiced in any way[.]”   (Pl.’s Opp’n at 12.)   While a
    “plaintiff who fails to comply, to the letter, with
    administrative deadlines ‘ordinarily will be denied a judicial
    audience[,]’” 
    Brown, 777 F.2d at 13
    (quoting Shehadeh v.
    -18-
    Chesapeake and Potomac Tel. Co. of Md., 
    595 F.2d 711
    , 717-18
    (D.C. Cir. 1978) (footnote omitted)), equitable doctrines may be
    applied, though sparingly.   See Nat’l R.R. Passenger Corp. v.
    Morgan, 
    536 U.S. 101
    , 113 (2002); Silver v. Leavitt, Civil Action
    No. 05-0968 (JDB), 
    2006 WL 626928
    , at *10 (D.D.C. Mar. 13, 2006).
    Equitable doctrines have been applied where a party has made a
    technically defective effort to act within a limitations period,
    see Irwin v. Dep’t of Veterans Affairs, 
    498 U.S. 89
    , 96 (1990)
    (surveying cases), been misled or lulled into inaction by a
    federal agency, see Gray v. Phillips Petroleum Co., 
    858 F.2d 610
    ,
    615-16 (10th Cir. 1988), or been given erroneous advice about a
    limitations period.   See Jarrell v. USPS, 
    753 F.2d 1088
    , 1091-92
    (D.C. Cir. 1985).
    It is certainly the case that a mere 23 days before Noisette
    asked to withdraw his appeal, he had the right to file this
    action without involving the EEOC at all.   However, even if, as
    the plaintiff argues, lack of prejudice to the EEOC is an
    equitable justification for avoiding the 180-day waiting period,
    alleging and showing lack of prejudice to the EEOC are two
    different things.   Plaintiff carries the burden of pleading and
    proving facts supporting equitable avoidance of the waiting
    period.   He has not carried that burden.   While the parties had
    not filed briefs, there is no factual evidence in the record
    regarding what efforts and resources the EEOC had expended and
    -19-
    whether plaintiff's withdrawal did prejudice the EEOC.     Nor has
    the plaintiff cited any authority for the proposition that
    withdrawing an appeal 23 days after filing it is presumptively
    not prejudicial to the EEOC, or even that lack of prejudice to
    the EEOC has been recognized as a basis for equitable avoidance
    of the 180-day waiting period.    He certainly has not shown that
    any of the narrow set of recognized bases for equitable avoidance
    apply here.    Noisette had the benefit of counsel and was advised
    of his rights to appeal and of the appropriate timing
    requirements.   (Def.’s Mem. at 11.)    There is no evidence that
    Noisette was misled by any federal agency.     And Congress’s
    preference for federal agencies to examine and either correct or
    resolve through informal mediation or formal complaint procedures
    allegations of discrimination in the federal workplace before
    there is resort to private lawsuits in court counsels against
    permitting equitable avoidance here.     Noisette, with the benefit
    of counsel, made an informed choice among options of which he was
    fully notified in the FAD.   The statute and the regulation
    dictate that his choice -- the appeal process before the EEOC --
    must be allowed to run its course before he can maintain an
    action here.    Noisette’s complaint, therefore, will be dismissed
    without prejudice and Noisette will be allowed to file a new
    -20-
    complaint after the OFO has attempted to resolve his charge for
    the full 180 days.2
    CONCLUSION
    The defendant’s motion to dismiss Counts III and IV will be
    denied as pendent venue applies to those counts.   The defendant’s
    motion to dismiss Counts I and II, treated as a motion for
    summary judgment, will be denied because Noisette has raised a
    genuine issue of material fact as to when he had a reasonable
    suspicion that he was subject to the alleged discrimination.
    However, because Noisette initiated this action before exhausting
    his administrative remedies, the defendant’s motion to dismiss
    will be granted in part.   The complaint will be dismissed without
    prejudice, and Noisette may file a new complaint after the
    Commission has attempted to resolve his appeal for the full 180-
    day period.   A separate order accompanies this Memorandum
    Opinion.
    2
    Noisette must wait 180 days from the filing of his appeal
    or file his complaint anew within 90 days from when the OFO
    issues a final decision. Since the EEOC granted Noisette’s
    withdrawal request, the agency never made a final decision on his
    appeal, as defined by the regulation governing FAD appeals. “The
    [OFO], on behalf of the Commission, shall issue a written
    decision setting forth its reasons for the decision. . . . The
    decision on an appeal from an agency’s final action shall be
    based on a de novo review” of the complaint. 29 C.F.R.
    § 1614.405(a). There is no evidence that the OFO conducted a de
    novo review of Noisette’s complaint when it granted his
    withdrawal request. Also, while the OFO is empowered to dismiss
    an appeal under certain circumstances, none of the statutorily
    prescribed justifications for dismissal includes a voluntary
    withdrawal. See 29 C.F.R. §§ 1614.107, 1614.403(c).
    -21-
    SIGNED this 12th day of March, 2010.
    /s/
    RICHARD W. ROBERTS
    United States District Judge