Stevens v. Murphy ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
PATRICIA STEVENS,
Plaintiff,
v.
Civil Action No. 18-2930 (RDM)
EMILY MURPHY, Administrator, General
Services Administration, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Patricia Stevens, an African-American woman in her mid-sixties 1 proceeding
pro se, alleges that Defendants Emily Murphy, the Administrator of the General Services
Administration (“GSA”) and three other employees of that agency, violated the Age
Discrimination in Employment Act of 1967 (“ADEA”), as amended 29 U.S.C. § 621 et seq., by
failing to promote her due to her age. See, e.g., Dkt. 1 at 2. All four Defendants argue that
Stevens failed to exhaust her administrative remedies as required by the ADEA and, accordingly,
move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), or in the alternative, for summary judgment
pursuant to Fed. R. Civ. P. 56. See Dkt. 11 at 1; Dkt. 11-1 at 7–8. Defendants Frank Tiller,
William Lewis, and Danita Byrd separately move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
on the ground that only the agency head may be sued under the ADEA. See Dkt. 11 at 1; Dkt.
11-1 at 6. For the reasons that follow, the Court will GRANT Tiller, Lewis, and Byrd’s motion
to dismiss and will also GRANT Murphy’s motion for summary judgment.
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Stevens was fifty-eight years old “at the time she applied for the” position in question. Dkt. 1
at 18 (Compl. ¶ 37).
I. BACKGROUND
For purposes of evaluating Defendants’ motions, the following facts, taken primarily
from Stevens’ complaint, are accepted as true. See Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137,
1139 (D.C. Cir. 2011) (citing Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). At the
time of the events giving rise to this complaint, Stevens was employed by GSA as a
Telecommunications Specialist, which pays at the GS-13 level. Dkt. 1-1 at 21. On February 28,
2013, GSA placed on USAJOBS a job announcement that advertised an IT Specialist position,
which pays at the GS-14 level. See id. at 1. In March 2013, Stevens applied for the position.
See Dkt. 1 at 3. Stevens subsequently interviewed for the position, see Dkt. 1 at 10, 12 (Compl.
¶¶ 15, 20), but was not selected, see id. at 15 (Compl. ¶ 16). Two “young . . . Caucasian[]
males,” who Stevens describes as “unqualified,” were, instead, selected for the position. Id.
(Compl. ¶ 26).
On October 7, 2013, Stevens filed an Equal Employment Opportunity (“EEO”) complaint
alleging “discriminat[ion] . . . by [GSA] on the basis of her race.” Dkt. 1-1 at 21. Stevens, after
reviewing a copy of the GSA report on its investigation, timely requested a hearing before an
Equal Employment Opportunity Commission (“EEOC”) Administrative Judge (“AJ”). Id. at 22.
The AJ decided in favor of GSA, and GSA issued a final order adopting the AJ’s decision. Id.
Stevens appealed to the EEOC, which affirmed GSA’s adoption of the AJ’s decision and
“conclude[d] that substantial evidence of record support[ed] the AJ’s determination.” Id.
On December 13, 2018, Stevens filed suit in this Court alleging discrimination by GSA
on the basis of her age. See, e.g., Dkt. 1 at 1–2. Although Stevens’s complaint contains a stray
reference to “Title VII of the Civil Rights Act of 1996 [sic],” Dkt. 1 at 2, that is insufficient to
raise such a claim when the complaint is viewed as a whole, even construing it liberally, see
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Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (citing Haines v. Kerner, 404
U.S. 519, 520–21 (1972) (per curiam)) (“Courts must construe pro se filings liberally.”).
Stevens’s complaint does refer to the sex and race of both Stevens and the individuals who were
hired for the GS-15 position, Dkt. 1 at 1, but she mentions Title VII only once and
unequivocally alleges discrimination only on the basis of age, see, e.g., id. at 2, which is not a
protected class under Title VII, see 42 U.S.C. § 2000e–2(a).
Defendants now move to dismiss or, in the alternative, for summary judgment. See Dkt.
11 at 1. On August 23, 2019, Stevens filed her response to Defendants’ motions. See Dkt. 14 at
1. In that response, Stevens does not dispute that her complaint raises only claims of age
discrimination under the ADEA nor does she refer to Title VII. See Dkt. 14.
II. ANALYSIS
Defendants Tiller, Lewis, and Byrd move to dismiss the claims against them on the
ground that they are not properly named as defendants. Dkt. 11-1 at 6. As they correctly point
out, the ADEA does not impose individual liability, and thus “the only proper defendant . . . is
the head of the department or agency being sued.” Lawson v. Sessions, 271 F. Supp. 3d 119, 124
n.1 (D.D.C. 2017). Plaintiff is therefore mistaken that these defendants “are accountable as
representatives of the agency for actions taken on Behalf of the agency towards the Plaintiff.”
Dkt. 14 at 5. Rather, because they were acting on the agency’s behalf, the agency, not the
individuals, are subject to suit under the ADEA. Because Plaintiff brings claims only under the
ADEA, her claims against Defendants Tiller, Lewis, and Byrd must be dismissed for failure to
state a claim.
That then leaves Defendant Murphy’s motion to dismiss, or in the alternative, for
summary judgment on the ground that Stevens’s suit is barred because she failed to exhaust her
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administrative remedies as required by the ADEA. See Dkt. 11-1 at 7–8. Because exhaustion
under the ADEA is “properly viewed as [an] affirmative defense[], and thus ‘[a] defendant bears
the burden of pleading and proving’ the defense,” Achagzai v. Broad. Bd. of Governors, 170 F.
Supp. 3d 164, 174 (D.D.C. 2016) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997)); see also Menominee Indian Tribe of Wisc. v. United States, 614 F.3d 519, 527 (D.C.
Cir. 2010), the Court must consider the question of exhaustion on summary judgment rather than
on a motion to dismiss. Under the summary judgment standard, Murphy must show that “there
is no genuine dispute as to any material fact” and that she is “entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
The ADEA spells out two routes to federal court. See Nichols v. Vilsack, No. 13-1502,
2015 WL 9581799 at *5 (D.D.C. Dec. 30, 2015). Under one, a plaintiff must first pursue
administrative remedy by (1) contacting an EEO Counselor within 45 days of the alleged
discrimination, 29 C.F.R. § 1614.105; see 29 U.S.C. § 633a, and (2) filing a complaint with the
agency that allegedly discriminated against the plaintiff, 29 C.F.R. § 1614.106(a); see 29 U.S.C.
§ 633a. If the plaintiff is unsatisfied with the administrative remedy, only then may the plaintiff
file a civil action with the appropriate U.S. District Court. 29 C.F.R. § 1614.407(b); see 29
U.S.C. § 633a. Under the other, more direct route, a plaintiff must only (1) file in federal court a
complaint within 180 days of the alleged discrimination and (2) provide notice to the EEOC at
least thirty days prior to filing the suit. See 29 U.S.C. § 633a(d); Rann v. Chao, 346 F.3d 192,
195 (D.C. Cir. 2003).
Murphy contends first that Stevens “has conceded the issue of exhaustion” by not
responding to Murphy’s exhaustion argument in her opposition to Murphy’s motion for summary
judgment. Dkt. 16 at 1 (citing McMillan v. Wash. Metro. Area Transit Auth., 898 F. Supp. 2d 64,
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69 (D.D.C. 2012) (“It is well understood in this Circuit that when a plaintiff files an opposition to
a motion . . . addressing only certain arguments raised by the defendant, a court may treat those
arguments that the plaintiff failed to address as conceded.” (omission in original))). At the
summary judgment stage, however, the Court must assure itself that the movant is entitled to
judgment as a matter of law based on the record before it. See Winston & Strawn LLP v.
McLean, 843 F.3d 503, 507 (D.C. Cir. 2016).
Murphy has made the requisite showing here. She correctly notes that Stevens did not
exhaust her remedies under the first route to court provided by the ADEA because she “raised
racial discrimination allegations through the agency administrative process[] [but] never raised
any age discrimination claims.” Dkt. 11-1 at 7 (emphases in original). A plaintiff fails to
exhaust administrative remedies where she raises a claim of discrimination based on one
protected characteristic through the administrative process but bring a claim absed on a different
protected characteristic through a federal lawsuit. See Haynes v. D.C. Water & Sewer Auth., 924
F.3d 519, 526 (D.C. Cir. 2019) (holding that an ADEA plaintiff had failed to exhaust her
administrative remedies where her administrative complaint raised only disability discrimination
claims).
The undisputed record shows such a discrepancy exists here. For example, a letter from
Lyn Bailey, an EEO Manager at GSA, see Dkt. 14-1 at 5, to Stevens acknowledged receipt of
Stevens’ EEO complaint and confirmed that Stevens alleged discrimination only on the basis of
race, id. at 2. Further, according to a declaration from Mary Gibert, Associate Administrator for
GSA’s Office of Civil Rights, Dkt. 11-2 at 2 (Decl. ¶ 1), her office “conducted a diligent,
thorough, and complete search” and that “[a]t no time did . . . Stevens include age as a basis of
discrimination in any complaint filed with my office,” id. at 3 (Decl. ¶ 5). Stevens identifies
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nothing in the record that indicates that she complained through the EEO process of age
discrimination in her non-promotion. See Dkt. 14. By contrast, Stevens’ complaint in this Court
alleges discrimination only on the basis of age, not race. See, e.g., Dkt. 1 at 2.
Stevens also failed to exhaust her administrative remedies under the more direct route to
court provided by the ADEA, which requires only that a plaintiff provide notice to the EEOC
more than thirty days before filing suit, 29 U.S.C. § 633a(d). According to a declaration from
Dexter Brooks, Associate Director of EEOC’s Office of Federal Operations, Dkt. 11-3 at 2
(Decl. ¶ 1), after his staff “conducted a thorough search” of their files, the EEOC “located no
such notice,” Dkt. 11-3 at 3 (Decl. ¶ 4).
Accordingly, Stevens failed to exhaust her administrative remedies with respect to her
claims of age discrimination under the ADEA, and Murphy is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, the Court will DISMISS Plaintiff’s claims against Defendants
Tiller, Lewis, and Byrd, and will GRANT Defendant Murphy’s motion for summary judgment,
Dkt. 11.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: February 28, 2020
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