Briscoe v. Kerry , 111 F. Supp. 3d 46 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANN JUANITA BRISCOE, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1204 (EGS)
)
JOHN KERRY, Secretary, )
Department of State, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff Ann Briscoe brings this action against John Kerry,
in his capacity as Secretary of State, alleging that she
suffered discrimination on the basis of her age, race, and
disability, and that she suffered retaliation for engaging in
protected activity, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §
621, et seq.; and the Rehabilitation Act, 29 U.S.C. § 794, et
seq. Pending before the Court is defendant’s motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. Upon consideration of the motion, the
response and reply thereto, the applicable law, and the entire
record, the Court GRANTS defendant’s motion.
I. Background
Ms. Briscoe—an African-American woman who was born in April
1956, Report of EEO Investigation, ECF No. 7-1 at 1—was employed
with the Media Resource Unit of the State Department’s Bureau of
Public Affairs. See Def.’s Statement of Material Facts (“Def.’s
SMF”), ECF No. 7-8 ¶ 1; Pl.’s Statement of Material Facts
(“Pl.’s SMF”), ECF No. 11 at 7 ¶ 1. She has a physical
disability that limits her “ability to reach, stand or push.”
Compl., ECF No. 1 at 2. This disability is mentioned in her
State Department personnel file, and has been known to the State
Department since 2001. See id.; Def.’s SMF ¶ 8; Pl.’s SMF ¶ 3.
A. Ms. Briscoe’s Experience in the Rapid Response Unit.
The Media Resource Unit was abolished in 2006, and Ms. Briscoe
was forced to find a job in the newly formed Rapid Response
Unit. See Def.’s SMF ¶ 1; Pl.’s SMF ¶ 1. The State Department
“did not offer her assistance walking to Department offices in
search of alternative employment.” Def.’s SMF ¶ 8; Pl.’s SMF ¶
3. The Rapid Response Unit was then led by Duncan McAnnis, who
supervised Ms. Briscoe from January 2006 through June 2007. See
Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3. Prior to Ms. Briscoe’s transfer
to the Rapid Response Unit, Mr. McAnnis said “out with the old
in with the new,” a statement that Ms. Briscoe did not hear, but
“another employee told her about the comment.” Def.’s SMF ¶¶ 5–
6; Pl.’s SMF ¶ 3. At this time, Mr. McAnnis also hired and
2
treated more favorably younger employees. See Def.’s SMF ¶ 7;
Pl.’s SMF ¶ 3.
“[D]uring an unspecified period of time[, Ms. Briscoe] was
tasked with helping new staffers sign-in in the building’s
lobby, located two floors beneath her own office,” which was
difficult due to her disability. See Def.’s SMF ¶ 9; Pl.’s SMF ¶
3. Ms. Briscoe was also “the only African American in [the Rapid
Response Unit] and felt segregated and singled out.” Def.’s SMF
¶ 11; Pl.’s SMF ¶ 3. Ms. Briscoe, however, “has not observed any
employee at [the Rapid Response Unit] make a derogatory
statement about race” or about her disability. Def.’s SMF ¶ 12,
29–30; Pl.’s SMF ¶ 3, 10–11. In 2006 and 2007, Ms. Briscoe
received neither a performance rating nor an annual review,
making her ineligible for promotion. See Def.’s SMF ¶ 13; Pl.’s
SMF ¶ 3.
Beginning in September or October 2007, Jennifer Barnes became
Ms. Briscoe’s supervisor. See Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3.
Upon Ms. Barnes’s arrival, she “met individually with all [Rapid
Response Unit] staff except for Plaintiff and inquired as to
Plaintiff’s status in the [Rapid Response Unit] but not that of
other employees.” Def.’s SMF ¶ 14; Pl.’s SMF ¶ 3. Ms. Briscoe
was also isolated from the staff during their daily morning
meetings. See Def.’s SMF ¶ 15; Pl.’s SMF ¶ 3. Nonetheless,
“[p]laintiff received an outstanding rating for 2008 and an
3
exceeding expectations rating in 2009.” Def.’s SMF ¶ 13; Pl.’s
SMF ¶ 3.
B. Ms. Briscoe Pursues Administrative Proceedings Regarding
Her Discrimination Claims.
On February 25, 2009, Ms. Briscoe contacted an EEO Counselor
for the first time. See Def.’s SMF ¶ 16; Pl.’s SMF ¶ 3; EEO
Counselor’s Report, ECF No. 7-3 at 1. Her formal discrimination
complaint was filed on March 25, 2009. See Def.’s SMF ¶ 17;
Pl.’s SMF ¶ 4; Formal Complaint of Discrimination, ECF No. 7-2.
That complaint alleged discrimination on the basis of race, age,
and physical disability, and the creation of a hostile work
environment. Id. at 2, 3.
Before this complaint was filed, Ms. Briscoe worked the night
shift alone; after the complaint was filed, another employee
began sharing the shift with her some nights and monitoring her
work. See Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. On March 26, 2009, Ms.
Barnes informed Ms. Briscoe that she would have her first-ever
annual review the following day. See Def.’s SMF ¶ 19; Pl.’s SMF
¶ 5. During the review, Ms. Barnes referred repeatedly to Ms.
Briscoe’s EEO complaint and asked Ms. Briscoe to take on
additional tasks. See Def.’s SMF ¶ 20; Pl.’s SMF ¶ 5. Following
the review, Ms. Barnes “reached to grab hold” of Ms. Briscoe.
Def.’s SMF ¶ 21; Pl.’s SMF ¶ 5.
4
Ms. Briscoe’s initial discrimination-related complaint was
assigned the administrative case number DOS-F-055-09. See Def.’s
SMF ¶ 17; Pl.’s SMF ¶ 4. The State Department moved for summary
judgment in the case on May 20, 2010. See Def.’s SMF ¶ 24; Pl.’s
SMF ¶ 7. Ms. Briscoe’s case was subsequently assigned to a new
Judge in July 2010, and Ms. Briscoe alleges that her opposition
to the motion for summary judgment was received. See Pl.’s SMF ¶
8; Notice of Reassignment, Ex. 5B to Opp., ECF No. 11-1 at 31.
On December 29, 2010, in part because of a finding that Ms.
Briscoe did not file an opposition to the State Department’s
motion for summary judgment, the motion was granted. See Def.’s
SMF ¶ 26; Pl.’s SMF ¶ 9; Decision, ECF No. 7-4 at 2–11. That
decision did not address any retaliation claim. See Decision,
ECF No. 7-4 at 2–11. Ms. Briscoe appealed this Order and, on
November 14, 2012, the EEOC affirmed, finding, among other
things, that even if Ms. Briscoe had filed an opposition to the
motion for summary judgment, judgment in favor of the State
Department was nonetheless appropriate. See EEOC Appeal
Decision, ECF No. 7-5; Def.’s SMF ¶ 27; Pl.’s SMF ¶ 10. Ms.
Briscoe’s motion for reconsideration of that decision was denied
on May 8, 2013. See Def.’s SMF ¶ 28; Pl.’s SMF ¶ 10. These
decisions, too, did not address retaliation.
5
C. Ms. Briscoe Simultaneously Pursues Administrative
Proceedings Regarding Her Retaliation Claims.
On March 30, 2009, Ms. Briscoe filed an addendum to her
preexisting EEO complaint, alleging retaliation based upon Ms.
Barnes’s behavior on March 27, 2009. See Def.’s SMF ¶ 22; Pl.’s
SMF ¶ 6. A formal complaint was filed the following day. See
Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6; Formal Retaliation Complaint,
Ex. 3 to Pl.’s Opp., ECF No. 11 at 70–71.
On April 8, 2011—after the EEOC had granted the State
Department’s motion for summary judgment in Ms. Briscoe’s
discrimination case—Ms. Briscoe received notice that the
retaliation claim would proceed under case number DOS-F-047-11.
See Letter, Ex. 3A to Pl.’s Opp., ECF No. 11 at 73–75; Pl.’s SMF
¶ 6. Ms. Briscoe responded on April 17, 2011 to contest the
assignment of a new case number on the ground that the
retaliation claim “is included in the current case”—i.e. the
case involving her discrimination claims. See Letter, Ex. 3B to
Pl.’s Opp., ECF No. 11 at 76–77. At that point, however, summary
judgment had already been granted to the State Department in
that case, in a decision that made no mention of any retaliation
claim. See Decision, ECF No. 7-4 at 2–11.
Ms. Briscoe’s retaliation case was dismissed in a final
decision issued on February 9, 2012. See Final Decision, ECF No.
7-6. The decision found that she had failed to respond to
6
requests for interview by the individual investigating her claim
and “did not provide testimony and/or otherwise provide any
information to the Investigator regarding her allegation.” Id.
at 4. This led to the claim being “dismissed for failure to
cooperate.” Id. Ms. Briscoe was simultaneously informed of her
right to appeal to the EEOC within thirty days of receiving the
decision. See id. at 1. No appeal was filed.
D. Procedural History of This Lawsuit.
Ms. Briscoe filed this action pro se on August 5, 2013. See
Compl., ECF No. 1. She seeks as relief $45,000,000 in damages,
and an assurance “that there will be no harm brought to me or
further threats against me by the State Department.” Id. at 7.
The State Department subsequently moved to dismiss or, in the
alternative, for summary judgment. See Mot. to Dismiss or for
Summ. J. (“Mot.”), ECF No. 7. Ms. Briscoe filed an opposition to
that motion. See Opp. to Mot. (“Opp.”), ECF No. 11. The State
Department has filed a reply in further support of its motion.
See Reply in Supp. of Mot. (“Reply”), ECF No. 14. The motion is
ripe for resolution by the Court.
II. Standard of Review
Summary judgment is appropriate when the moving party shows
that there are no genuine issues of material fact and that the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
7
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.
2002). A material fact is one that is capable of affecting the
outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine issue exists where the “evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. A court considering a motion for summary
judgment must draw all “justifiable inferences” from the
evidence in favor of the nonmovant. Id. at 255.
To survive a motion for summary judgment, however, the
requester “must do more than simply show that there is some
metaphysical doubt as to the material facts”; instead, the
nonmoving party must come forward with “‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)
(quoting Fed. R. Civ. P. 56(e)). Moreover, “although summary
judgment must be approached with special caution in
discrimination cases, a plaintiff is not relieved of his
obligation to support his allegations by affidavits or other
competent evidence showing that there is a genuine issue for
trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010)
(quotation marks and alterations omitted).1 “Where, as here, a
1 When a party moves for summary judgment, especially at an early
stage of proceedings, Federal Rule of Civil Procedure 56(d)
permits the opposing party to “show[] by affidavit or
8
plaintiff is proceeding pro se, ‘the Court must take particular
care to construe the plaintiff’s filings liberally, for such
[filings] are held to less stringent standards than formal
pleadings drafted by lawyers.’” Nguyen v. Mabus, 895 F. Supp. 2d
158, 171 (D.D.C. 2012) (quoting Cheeks v. Fort Myer Const. Co.,
722 F. Supp. 2d 93, 107 (D.D.C. 2010)).
III. Analysis
The State Department argues that it is entitled to judgment on
nearly all of Ms. Briscoe’s claims due to her failure to exhaust
administrative remedies. The State Department also asserts that
Ms. Briscoe’s claims all fail on the merits. The Court agrees
that Ms. Briscoe’s disability-discrimination claims, her
retaliation claims, and one of her discrete-act race-
discrimination claims must be dismissed for failure to exhaust.
The Court also finds that the State Department is entitled to
judgment on the merits of the remaining claims.
A. Applicable Law
1. Administrative Exhaustion Under Title VII, the ADEA,
and the Rehabilitation Act.
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition,” in which case the Court
may deny the motion without prejudice, defer ruling on it, or
permit additional time to take discovery. Ms. Briscoe has not
filed such an affidavit or otherwise indicated a desire to
conduct further discovery before responding to the defendant’s
motion for summary judgment. Accordingly, the Court will address
the motion as one for summary judgment and consider all of the
materials submitted by the parties.
9
Before bringing any lawsuit under Title VII, the ADEA, or the
Rehabilitation Act, an aggrieved party must timely exhaust her
administrative remedies. See, e.g., Hamilton v. Geithner, 666
F.3d 1344, 1349 (D.C. Cir. 2012) (Title VII); Spinelli v. Goss,
446 F.3d 159, 162 (D.C. Cir. 2006) (Rehabilitation Act); Rann v.
Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (ADEA). This is
necessary because “strict adherence to the procedural
requirements specified by the legislature is the best guarantee
of evenhanded administration of the law.” Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 108 (2002) (quotation marks
omitted).
Under Title VII and the ADEA, “[a]dministrative exhaustion . .
. is an affirmative defense that defendant has the burden to
plead and prove.” Carty v. District of Columbia, 699 F. Supp. 2d
1, 2 (D.D.C. 2010). Under Title VII, a lawsuit must be filed
“‘[w]ithin 90 days of receipt of notice’ of the defendant
agency’s [Final Agency Decision].” Woodruff v. Peters, 482 F.3d
521, 525 (D.C. Cir. 2007) (quoting 42 U.S.C. § 2000e-16(c)). The
ADEA similarly permits a plaintiff to “invoke the EEOC’s
administrative process, and then sue if dissatisfied with the
results.” Rann, 346 F.3d at 195 (citing 29 U.S.C. § 633a(b)-
(d)).
The Rehabilitation Act, “limits judicial review to employees
‘aggrieved by the final disposition’ of their administrative
10
‘complaint.’” Spinelli, 446 F.3d at 162 (quoting 29 U.S.C. §
794a(a)(1)). In so doing, the Rehabilitation Act makes “failure
to exhaust administrative remedies . . . a jurisdictional
defect, requiring dismissal for lack of subject-matter
jurisdiction,” so “the plaintiff has the burden to plead and
prove it.” Ellison v. Napolitano, 901 F. Supp. 2d 118, 124
(D.D.C. 2012) (quotation marks omitted).
These distinctions aside, “[t]he procedures governing
administrative processing of discrimination complaints brought
by employees of the federal government under the ADEA, Title
VII, and the Rehabilitation Act are set forth in 29 C.F.R. Part
1614.” Id. First, the employee must initiate contact with an EEO
counselor “within forty-five days of the date of the matter
alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).
Second, if the matter is not resolved informally, the employee
may file a formal complaint of discrimination with the agency.
Id. §§ 1614.105(d), 1614.106(a). Third, “[a] complainant who
receives an adverse final decision from the agency may appeal
that decision to the EEOC within 30 days, or may file a civil
action within 90 days.” Ellison, 901 F. Supp. 2d at 125; 29
C.F.R. § 1614.407. “These deadlines for filing suit on EEO
claims are strictly enforced.” Horsey v. Harris, 953 F. Supp. 2d
203, 210 (D.D.C. 2013). For Title VII and the ADEA, however,
“these time limits are subject to equitable tolling, estoppel,
11
and waiver.” Bowden v. United States, 106 F.3d 433, 437 (D.C.
Cir. 1997). Such doctrines are “not applicable to jurisdictional
deadlines such as those imposed by the Rehabilitation Act’s
exhaustion requirements.” Chavers v. Shinseki, 667 F. Supp. 2d
116, 128 (D.D.C. 2009).
Administrative remedies must generally be timely exhausted in
accordance with these requirements before a case may proceed in
federal court. See, e.g., Bowden, 106 F.3d at 437. “[D]iscrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges. Each
discrete discriminatory act starts a new clock for filing
charges alleging that act. The charge, therefore, must be filed
within the [applicable] time period after the discrete
discriminatory act occurred.” Morgan, 536 U.S. at 113. “Courts
in this district disagree, however, about whether plaintiffs
must exhaust allegations of discrimination and retaliation that
are related to prior administrative charges.” Hicklin v.
McDonald, No. 14-1569, 2015 WL 3544449, at *2 (D.D.C. June 8,
2015). One side of the debate holds that this is not possible,
and that each discrete act must be separately exhausted. See id.
Another side finds that claims “must arise from the
administrative investigation that can reasonably be expected to
follow the charge of discrimination.” Park v. Howard Univ., 71
F.3d 904, 907 (D.C. Cir. 1995). At a minimum, however, claims
12
must 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.” Nguyen, 895 F. Supp. 2d at 184.
2. Prima Facie Case Under Title VII and the ADEA.
Where, as here, a plaintiff offers no direct evidence of
discrimination, “to survive summary judgment and earn the right
to present her case to a jury, she must resort to the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973).” Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.
Cir. 2006). Under this framework, Ms. Briscoe must show “that:
‘(1) [s]he is a member of a protected class; (2) [s]he suffered
an adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.’” Burley v. Nat'l
Passenger Rail Corp., 33 F. Supp. 3d 61, 68 (D.D.C. 2014)
(quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)).
An adverse employment action is not limited to “‘hirings,
firings, promotions, or other discrete incidents.” Doe v. Gates,
828 F. Supp. 2d 266, 270 (D.D.C. 2011) (quoting Holcomb v.
Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). That said, “‘a
plaintiff must show materially adverse consequences affecting
the terms, conditions, or privileges of employment or future
employment such that a trier of fact could find objectively
13
tangible harm.’” Id. (quoting Nurriddin v. Bolden, 674 F. Supp.
2d 64, 89–90 (D.D.C. 2009)).
B. Ms. Briscoe’s Age-Discrimination Claims
Ms. Briscoe’s age-discrimination claims relate to two actions
of Mr. McAnnis: (1) his statement “out with the old in with the
new”; and (2) his hiring of and giving more favorable treatment
to younger staffers. See Compl., ECF No. 1 at 2.
1. Ms. Briscoe Did Not Exhaust Her Age-Discrimination
Claims, But May Obtain Equitable Tolling.
Administrative documents make clear that both actions occurred
in the process of the reorganization of the Media Resource Unit
and the creation of the Rapid Response Unit in 2005 and 2006.
See Formal Complaint of Discrimination, ECF No. 7-2 at 4. It is
undisputed, however, that Ms. Briscoe first contacted her EEO
counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s SMF ¶
3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly, any
discrete acts of discrimination arising in 2005 or 2006 occurred
far more than forty-five days earlier than this date and were
not timely exhausted.
Ms. Briscoe appeared to plead in her opposition brief an
argument that may support equitable tolling of this requirement.
“[W]ith respect to ADEA claims, this Circuit has noted that ‘the
timeliness and exhaustion requirements of [the ADEA] are subject
to equitable defenses and are in that sense non-
14
jurisdictional.’” Williams-Jones v. LaHood, 656 F. Supp. 2d 63,
66 (D.D.C. 2009) (quoting Rann, 346 F.3d at 194–95) (alteration
in original). EEOC regulations permit such tolling “when the
individual shows that he or she was not notified of the time
limits and was not otherwise aware of them.” 29 C.F.R. §
1614.105(a)(2). Ms. Briscoe cited this legal provision and
appeared to argue that she “had no knowledge of the time limits”
under the ADEA. Opp. at 12 (citing Summary of Meeting with EEO
Counselor, Ex. 2A to Opp., ECF No. 11 at 40). Because
administrative exhaustion under the ADEA is the defendant’s
burden to plead and prove, Carty, 699 F. Supp. 2d at 2, this
argument is sufficient to raise the issue. On the current
record, moreover, the Court finds that there is a dispute of
fact as to whether Ms. Briscoe knew of the deadline, so the
Court finds that a genuine dispute of fact exists on this point.
See Harris v. Gonzales, 488 F.3d 442, 444-46 (D.C. Cir. 2007).
2. Ms. Briscoe Has Failed to State a Prima Facie Case for
Discrimination Under the ADEA.
In any event, Ms. Briscoe’s age-discrimination claims must be
dismissed because she has failed to make out a prima facie case.
It is undisputed that she falls within the ADEA’s protected
class of individuals over forty years of age. See Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); Report of
EEO Investigation, ECF No. 7-1 at 1. Ms. Briscoe, however, does
15
not allege any adverse employment action in connection with
these claims. Mr. McAnnis alleged statement “out with the old in
with the new”—even assuming that it is not two layers of
hearsay—is unconnected to any adverse action taken against Ms.
Briscoe. Her allegation that Mr. McAnnis hired and treated more
favorably younger staffers is far too vague to support an
inference that Ms. Briscoe suffered any adverse employment
action by Mr. McAnnis at this time—Ms. Briscoe, after all, was
also hired into the Rapid Response Unit. Ms. Briscoe must
instead show that Mr. McAnnis caused “materially adverse
consequences affecting the terms, conditions, or privileges of
employment or future employment such that a trier of fact could
find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.
The record contains nothing to explain how the alleged favorable
treatment of younger individuals impacted Ms. Briscoe, so
judgment must be granted to the defendant on Ms. Briscoe’s age-
discrimination claims.2
2 To the extent that Ms. Briscoe seeks to bring a claim for age-
related hostile work environment, such a claim fails because the
statement by Mr. McAnnis and the vague allegation that he hired
and treated favorably younger individuals do not nearly
establish that “the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.” Outlaw v. Johnson, 49 F.
Supp. 3d 88, 91 (D.D.C. 2014) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).
16
C. Ms. Briscoe’s Disability-Discrimination Claims
Ms. Briscoe’s claims regarding disability discrimination
relate to the following actions: (1) the abolition of her job,
after which she “was ordered to find my own job in six weeks
which involved walking the lengthy halls which included going to
other Annex buildings”; and (2) being “asked over a period of
time to go to [a] lobby located two flights down and sign in new
staffers who did not have a security clearance.” Compl., ECF No.
1 at 2. The abolition of her job relates to the time period in
2005 and 2006 when the Media Resource Unit was disbanded. See
Formal Complaint of Discrimination, ECF No. 7-2 at 4. Ms.
Briscoe has provided no indication of when the second event took
place.
Again, it is undisputed that Ms. Briscoe first contacted her
EEO counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s
SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly,
the 2005 and 2006 time period when she was allegedly forced to
walk the hallways of the State Department to secure a new
position is well outside the counseling timeframe. As for the
requirement that Ms. Briscoe walk down two flights of stairs to
sign in other staffers, the record contains no information from
which the Court could determine whether those discrete acts were
timely raised in counseling. For that reason, and because the
plaintiff bears the burden of pleading and proving
17
jurisdictional exhaustion under the Rehabilitation Act, Ellison,
901 F. Supp. 2d at 124, this event was not properly exhausted.
Nor could Ms. Briscoe avail herself of any equitable tolling
under the exhaustion requirements applicable to claims under the
Rehabilitation Act, for such a doctrine is “not applicable to
jurisdictional deadlines such as those imposed by the
Rehabilitation Act’s exhaustion requirements.” Chavers, 667 F.
Supp. 2d at 128.3 Accordingly, judgment must be granted to the
defendant on Ms. Briscoe’s disability-discrimination claims.
D. Ms. Briscoe’s Race-Discrimination Claims
Ms. Briscoe’s claims regarding race discrimination relate to a
handful of events, as best the Court can discern: (1) while Mr.
McAnnis was still Ms. Briscoe’s supervisor, he failed to provide
her a review or performance rating for two years, thereby
preventing her from being promoted; (2) Ms. Briscoe was the only
African-American in the Rapid Response Unit and felt singled out
and segregated; (3) Ms. Barnes questioned other employees about
3 For the same reasons, to the extent that Ms. Briscoe sought to
raise a hostile-work-environment claim under the Rehabilitation
Act, judgment must be granted to the defendant because Ms.
Briscoe has failed to allege any act that occurred within the
forty-five-day window and, therefore, no hostile-work-
environment claim has been properly exhausted. See Morgan, 536
U.S. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the
purposes of determining liability.”).
18
Ms. Briscoe’s duties in the Rapid Response Unit, but did not do
so regarding the duties of other employees; (4) Ms. Barnes met
individually with other employees but not with Ms. Briscoe; and
(5) Ms. Barnes made Ms. Briscoe sit away from other staff during
morning meetings. See Compl., ECF No. 1 at 2–3.4
1. The 2006–2007 Events Were Not Properly Exhausted.
Ms. Briscoe’s first allegation—that Mr. McAnnis failed to
provide her a performance review for two years—relates to events
in 2006 and 2007. As the Court has noted, Ms. Briscoe’s
administrative contact began on February 25, 2009. See Def.’s
SMF ¶ 16; Pl.’s SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at
1. Because this far exceeds the forty-five-day counseling
period, Ms. Briscoe did not properly exhaust this claim. Nor did
she appear to argue that equitable tolling should apply.
Accordingly, judgment is granted for the defendant on this
portion of the claim.5
4 In her opposition brief, Ms. Briscoe appeared to add an
additional race-discrimination allegation: That the Media
Resource Unit was abolished for discriminatory reasons. See Opp.
at 14. To the extent Ms. Briscoe sought to bring this as a
discrete-act claim for race discrimination, it was not properly
exhausted for the same reasons discussed in Part III.D.1. Nor
did Ms. Briscoe provide the Court with any evidence from which a
jury could infer that the Media Resource Unit was abolished for
discriminatory reasons.
5 Even if the deadlines could be tolled regarding this action,
Ms. Briscoe failed to provide any evidence from which a jury
could infer that the failure to provide a review was connected
to race. See Burkes v. Holder, 953 F. Supp. 2d 167, 173 (D.D.C.
19
2. Ms. Briscoe Failed to Make Out a Prima Facie Case of
Race Discrimination.
The remainder of Ms. Briscoe’s race-discrimination claim
cannot survive because she failed to plead or provide evidence
of having suffered any adverse employment action in connection
with these events. “When asserting a race discrimination claim
under Title VII, the plaintiff must allege two essential
elements: 1) that the plaintiff suffered an adverse employment
action, and 2) that the adverse employment action was the result
of plaintiff’s race.” Burkes, 953 F. Supp. 2d at 973 (citing
Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)). Ms.
Briscoe cannot satisfy the first element because the events she
alleges, at most, relate to the general working environment, not
any “significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant
change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2003). Even recognizing that an adverse employment action
need not be as formal as termination or demotion, none of the
events described by Ms. Briscoe relate to “materially adverse
consequences affecting the terms, conditions, or privileges of
2013) (plaintiff must supply evidence “that the adverse
employment action was the result of plaintiff’s race”). Indeed,
Ms. Briscoe conceded that she “has not observed any employee at
[the Rapid Response Unit] make a derogatory statement about
race.” Def.’s SMF ¶ 12; Pl.’s SMF ¶ 3.
20
employment or future employment such that a trier of fact could
find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.
Accordingly, judgment must be granted to the State Department on
Ms. Briscoe’s race discrimination claim.6
E. Ms. Briscoe’s Retaliation Claims
Ms. Briscoe’s retaliation claims relate to events that
occurred in the immediate aftermath of her filing of an EEO
complaint alleging discrimination in March 2009. The allegations
are as follows: First, after the EEO complaint was filed,
another employee was assigned to work the night shift along with
Ms. Briscoe and that employee appeared to be monitoring her. See
Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. Second, during a March 27, 2009
meeting with Ms. Barnes, Ms. Barnes allegedly held an unexpected
annual review, referred repeatedly to Ms. Briscoe’s EEO
complaint, asked Ms. Briscoe to take on additional tasks, and
6 Assuming, for argument’s sake, that Ms. Briscoe properly
exhausted her administrative remedies such that she may stitch
together all of these different events in an effort to make out
a claim for race-based hostile work environment, such a claim
must fail because her allegations are not sufficient for a jury
to find that “‘the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.’” Outlaw, 49 F. Supp. 3d
at 91 (quoting Harris, 510 U.S. at 21). Indeed, Ms. Briscoe
admitted that she “has not observed any employee at [the Rapid
Response Unit] make a derogatory statement about race.” Def.’s
SMF ¶ 12; Pl.’s SMF ¶ 3.
21
“reached to grab hold” of Ms. Briscoe in a manner that
frightened her. See Def.’s SMF ¶¶ 19–21; Pl.’s SMF ¶ 5.
Unlike for many of her discrimination claims, Ms. Briscoe
timely contacted an EEO counselor regarding these incidents. See
Formal Retaliation Complaint, Ex. 3 to Pl.’s Opp., ECF No. 11 at
70–71; Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6. The problem arose, for
administrative exhaustion purposes, after she received the final
agency decision in her retaliation case, which was issued on
February 9, 2012. See Final Decision, ECF No. 7-6. Upon receipt
of that decision, Ms. Briscoe had ninety days to file a civil
action. See 29 C.F.R. § 1614.407(a). This deadline is “strictly
enforced” and “[c]ourts . . . will dismiss a suit for missing
the deadline by even one day,” including in situations in which
a litigant is proceeding pro se. Horsey, 953 F. Supp. 2d at 210.
Courts also presume that a final decision which was mailed to an
individual was “received . . . within five days from the date[
it was] mailed.” Id. Ms. Briscoe, however, did not file suit
until August 8, 2013—approximately eighteen months after the
decision had issued.
Nor can Ms. Briscoe’s retaliation claims—which were subject to
a separate administrative process-be piggybacked onto the timely
filed civil action contesting the administrative decision on her
discrimination claims. For one, allowing such a circumventing of
administrative deadlines where the retaliation claims were
22
actually brought in a separate administrative process would
undermine the purposes of those deadlines. Even if the
retaliation claims had never been brought in any administrative
proceeding, it is not clear in this District that such an
unexhausted claim could ever be piggybacked onto a properly
exhausted one to which it was “related.” Hicklin, 2015 WL
3544449, at *2. Assuming, arguendo, that such a doctrine is
viable, Ms. Briscoe’s retaliation claims are not sufficiently
related to her earlier discrimination claims. That doctrine
requires that claims of each retaliatory act 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.” Nguyen,
895 F. Supp. 2d at 184. Courts have rejected attempts to use
this doctrine to add allegations of subsequent retaliation to
EEO complaints that raised only discrimination. See, e.g.,
Hicklin, 2015 WL 3544449, at *4 (“[C]laims of the ideologically
distinct categories of discrimination and retaliation are not
related simply because they arise out of the same incident.”)
(quotation marks and alterations omitted); Scott v. Dist. Hosp.
Partners, LP, 60 F. Supp. 3d 156, 162–63 (D.D.C. 2014)
(declining to find relatedness where initial charge did not
mention disability-discrimination and retaliation theories);
Marcelus v. Corrections Corp. of Am., 540 F. Supp. 2d 231, 234
23
(D.D.C. 2008) (finding, where “[t]he only theories mentioned in
[the plaintiff’s] EEOC Charge . . . were age and national
origin,” that “[a]bsent an indication of this theory,
plaintiff’s retaliation claim here is not like or reasonably
related to the allegations in his EEOC Charge”) (quotation marks
omitted). Accordingly, Ms. Briscoe’s retaliation claims were not
properly exhausted, so judgment must be entered in favor of the
defendant.
F. Ms. Briscoe’s Claims Regarding the Administrative
Process.
In her opposition brief, Ms. Briscoe appeared to raise various
claims regarding deficiencies in the administrative processing
of her various claims. See Opp. at 3–5. To the extent that these
claims sought to raise separate allegations of retaliation—that
is, that the defendant retaliated against her for filing EEO
complaints by delaying and undermining the investigation of her
complaint—such claims have been found to be improper. See, e.g.,
Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010) (“[T]here
is no cause of action for federal employees to bring retaliation
or discrimination claims based on complaints of delay or
interference in the investigative process.”) (quotation marks
omitted). To the extent that she seeks to raise an independent
claim regarding this administrative processing, the D.C. Circuit
has held “that Congress has not authorized, either expressly or
24
impliedly, a cause of action against the EEOC for the EEOC’s
alleged negligence or other malfeasance in processing an
employment discrimination charge.” Smith v. Casellas, 119 F.3d
33, 34 (D.C. Cir. 1997); see also Jordan v. Summers, 205 F.3d
337, 342 (7th Cir. 2000) (same for claim against federal-agency
employer regarding administrative processing of an EEO
complaint). Accordingly, any independent legal claim regarding
the administrative process would be improper and judgment is
granted to the defendant on any such claim.
IV. Conclusion
For the foregoing reasons, the Court addresses defendant’s
motion as one for summary judgment and GRANTS that motion. An
appropriate Order accompanies this Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
July 2, 2015
25