Ferrell v. Fudge

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MICHELLE A. FERRELL,
Plaintiff,
v.
Civil Action No. 21-01412 (CKK)
MARCIA L. FUDGE,
Defendant.
MEMORANDUM OPINION
Plaintiff Michelle A. Ferrell, appearing pro se and in forma pauperis (“IFP”), sues her
former employer, the Secretary of the United States Department of Housing and Urban
Development (“the Secretary” and “HUD”). See generally Complaint (“Compl.”), ECF No. 1.
Ferrell is suing the Secretary for alleged violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e-16 et seq., the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq., and the Rehabilitation Act of 1973 1 (“Rehabilitation Act”),
29 U.S.C. §§ 701 et seq. See Compl. at 1–2, 4–5. Before the Court is the Secretary’s Motion to
Dismiss (“MTD”), ECF No. 16, pursuant to Federal Rule 12(b)(6) 2 in full, for failure to meet
1
Ferrell also cites to the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§
12101 et seq., see Compl. at 2, but “the ‘ADA does not apply to employees of the federal
government because the federal government is not considered an ‘employer’ under the ADA.’”
Ahmed v. Napoliano, 825 F. Supp. 2d 112, 115 (D.D.C. 2011) (quoting Klute v. Shinseki, 797 F.
Supp. 2d 12, 17 (D.D.C. July 12, 2011); citing 42 U.S.C. § 12111(5)(B)(i) (specifically excluding
“the United States” from the definition of “employer”)). Federal employees shall exclusively rely
on the Rehabilitation Act in raising claims for discrimination based on disability. See id. (quoting
Woodruff v. Peters, 482 F.3d 521, 526 (D.C. Cir. 2007); citing 29 U.S.C. § 791(g); 42 U.S.C. §
12112(a)).
2
The Secretary also mentions Federal Rule 12(b)(1), see MTD at 1, but then presents no
arguments thereunder.
1
minimal pleading standards, see MTD at 1–6 (also citing Federal Rule 8(a)), and in part, for failure
to exhaust administrative remedies, see id. at 6–9. For the reasons explained below, the Court will
grant the Motion to Dismiss pursuant to Rule 12(b)(6) for failure to state a claim.
I. BACKGROUND
Administrative History
Ferrell filed two Informal EEO Complaints against HUD sometime in 2016, see Compl. at
3. She then filed Formal Complaint No. HUD-00031-2017 (“Claim No. 31”), on March 7, 2017,
and Formal Complaint No. HUD-00022-2017 (“Claim No. 22”) at some unknown time, see MTD
Exhibit B (EEOC Decision in Appeal No. 2019005695) at 2; Errata (“Err.”), ECF No. 26, at 16.
Neither the Informal nor Formal Complaints were submitted to this Court.
Claim Nos. 31 and 22 were each assigned to an Administrative Law Judge (“ALJ”). See
Compl. at 3; MTD Ex. B at 3; Err. at 1, 16–17. On June 12, 2019, the ALJ issued a Notice of
Intent to Issue Summary Judgment (“Notice Email”). See MTD Ex. B at 3–5; Err. at 16; Err. Ex.
12 (Emails b/t Ferrell and ALJ), ECF No. 26-12. The ALJ sent that Notice, in which he ordered
both parties to submit briefing, via email only. On July 3, 2019, having received no response from
Ferrell, the ALJ entered summary judgment for HUD (“Summary Decision”), as to both Claims.
See id. The ALJ’s Summary Decision was mailed to the parties. See MTD Ex. B at 3. This Court
has not received the Notice Email, the ALJ’s Summary Decision, or any related mailing or tracking
information.
On July 17, 2019, HUD issued a Final Order (“Final Order No. 31”), adopting the ALJ’s
Summary Decision, but only as to Claim No. 31. See id. at 1, 3. Neither Final Order No. 31 nor
any associated mailing or tracking information has been submitted to this Court.
Meanwhile, on July 31 and August 1, 2019, after receiving the ALJ’s Summary Decision
2
by mail, Ferrell emailed the ALJ, stating that she never received the Notice Email and was
therefore unaware that her Claims were at risk for summary judgment. See Err. Ex. 12. She
requested that the ALJ reopen both of her Claims for reconsideration, and she also asked that Claim
Nos. 31 and 22 be treated separately, rather than “bulked together.” Id. The ALJ responded by
providing a copy of the Notice Email and declined to reconsider the Claims, instead referring
Ferrell to the appeal instructions attached to his Summary Decision. See id.Then, on August 6, 2019, HUD issued another Final Order (“Final Order No. 22”),
adopting the ALJ’s Summary Decision as to Claim No. 22. See MTD Ex. A (EEOC Decision in
Appeal No. 2019005800) at 1. Neither Final Order No. 22 nor any associated mailing or tracking
information was submitted to this Court.
Although the timeline is disputed, Ferrell appealed both HUD’s Final Order Nos. 31 and
22, see id.; Compl. at 3–4; MTD Ex. B at 1; Err. at 1, 15–17, and upon receipt, the EEOC treated
Ferrell’s two Appeals separately, see generally MTD Exs. A–B; Compl. at 15–17.
Appeal No. 2019005695 (Hearing No. 450-2018-00041X; Final Order/Claim No. HUD-
00031-2017)
On May 24, 2021, the EEOC affirmed HUD’s Final Order No. 31, implementing the ALJ’s
findings. See MTD Ex. B at 5–8. The EEOC noted that Ferrell apparently received Final Order
No. 31 by mail on July 25, 2019. See id. at 1, 3. According to the EEOC, she then filed that Notice
of Appeal––No. 2019005695––on August 24, 2019. Id. at 1 (citing 29 C.F.R. § 1614.403(a)). The
EEOC next found that HUD failed, despite its burden, to submit “documentation regarding
delivery of the final decision, aside from providing the tracking number associated with the final
decision package.” See id. at n.2. Because this information was unavailable, and because HUD
did not contest the issue, the EEOC deemed Appeal No. 2019005695 timely. Id.3
Second, the EEOC found that the ALJ entered his Summary Decision without providing
Ferrell adequate notice. See id. at 5 (citing 29 C.F.R. § 1614.109(g)(3); Complainant v. Dep’t of
Commerce, EEOC Appeal No. 01A04453 (March 14, 2002)). Notwithstanding, the EEOC found
that this error was ultimately harmless because Ferrell still failed to show that there was a genuine
dispute of material fact, and therefore, summary judgment was still appropriate. See id. On
February 17, 2021, the EEOC denied Ferrell relief upon reconsideration. See Compl. at 7; Compl.
Ex. 2 (EEOC’s Reconsideration Opinion in No. HUD-00031-2017), ECF No. 1-2.
Appeal No. 2019005800 (Hearing No. 450-2018-00047X; Final Order/Claim No. HUD-
00022-2017)
On October 15, 2020, the EEOC dismissed Ferrell’s Appeal––No. 2019005800–– of Final
Order No. 22, as untimely. See MTD Ex. A at 1. Ferrell stated in her Notice of Appeal (a copy of
which was not submitted to this Court) that she received Final Order No. 22 on August 8, 2019.
See id. According to the EEOC, Ferrell’s deadline to file an appeal ran 30 days later, September
8, 2019, a Sunday, so Ferrell was afforded until the next business day, September 9, 2019. See id.(citing 29 C.F.R. §1614.403(c)). The EEOC found that Ferrell faxed her Notice of Appeal on
September 10, 2019, one day late. See id. Based on these findings, the Secretary now argues that
Appeal No. 2019005800 was improperly exhausted. See MTD at 7.
In response, Ferrell contends that she mailed Notices of Appeal in mid-August, as to both
Final Order No. 22 and Final Order No. 31, together in the same envelope, and that both Notices
of Appeal were received by the EEOC’s Office of Field Operations (“OFO”) on or about August
20, 2019. See Compl. at 3; Err. at 15–16. Ferrell has not provided this Court copies of these
Appeal Notices or any evidence of delivery. She also maintains that she received a letter from
OFO confirming that both Notices of Appeal were received and docketed sometime in August,
4
see Err. at 16, but she has not submitted a copy of that letter to this Court.
Ferrell agrees with the Secretary that she faxed documents to the EEOC, however, she
maintains that the fax was not a notice of appeal; it was a supplement to her previously (and timely)
mailed Notices of Appeal. See Compl. at 3–4. She states that, after the OFO’s receipt of her
Notices of Appeal in August, she was given until September 20, 2019 to supplement her Claims,
and that she faxed supplemental documentation on August 23, 2019 and September 9, 2019––but
not on September 10. See id. at 3. In other words, she not only disagrees with the date of the fax
at issue, but with the nature of that fax. See id.; see also Err. at 15–16.
The Instant Matter
Ferrell filed this matter on May 24, 2021. Two days later, the matter was randomly
assigned to this Court. While the Court was in the process of serving Defendant, see Summonses
Issued, ECF Nos. 3, 10; Returns of Service, ECF Nos. 8,11; see also 28 U.S.C. § 1915(d), it also
issued an Order (“Oct. 15, 2021 Ord.”), ECF No. 9, dismissing as defendants, the Chair of the
EEOC and the Director of the OFO, 3 for failure to state a claim, see id. at 1–2 (citing Smith v.
Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997) (per curiam)).
After the Secretary filed the pending Motion to Dismiss, Ferrell was granted an extension
and leave to file an opposition totaling no more than 68 pages (including exhibits), in excess of the
Court’s standing 45-page limitation, see Min. Ord. (citing Standing Order, ECF No. 6, at ¶10(A)).
Ferrell filed an Opposition (“Opp’n”), ECF No. 24, on June 1, 2022, with supporting exhibits
3
Ferrell has filed a “Motion to Amend/Correct” (“MTA”) ECF No. 28, the docket entry
associated with the Secretary’s Motion to Dismiss, ECF No. 16, because it originally listed the
EEOC Chair and OFO Director as defendants, despite their dismissal from this case. The Court
agrees that this is a misnomer and DIRECTS the Clerk of Court to modify the docket entry
accordingly. Consequently, Ferrell’s Motion to Amend/Correct is DENIED as moot. The Court,
however, roundly rejects Ferrell’s suggestion that this misnomer was an act of deception, see MTA
at 2, finding that it was a harmless inaccuracy that had no practical effect on this matter whatsoever.
5
(“Opp’n Exs.”), ECF Nos. 24-1, 25, 25-1 through 25-3, altogether totaling 57 pages. Then, on
June 30, 2022, Ferrell also filed an “Errata,” that mostly replicates the Opposition, except it
explains and corrects nominal “errors in her documents,” and reattaches and reorganizes the
Opposition’s exhibits, see ECF Nos. 26-1 through 26-12. Although this Errata was filed without
leave of Court, and totals 80 pages, exceeding even the expanded page-limit, the Court has
nonetheless considered it. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999)
(holding that, where a plaintiff is proceeding pro se, a court must consider all of plaintiff's filings
in toto when assessing a motion to dismiss).
II. LEGAL STANDARDS
Failure to State a Claim
In evaluating a motion to dismiss for failure to state a claim, a court must “treat a
complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States, 617 F.2d 605,
608 (D.C. Cir. 1979)).
In order to survive a challenge to its sufficiency, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,
556 U.S. at 678–79, the Supreme Court reiterated the two principles underlying its decision in
Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions[,]” and “[s]econd, only a complaint that states a
plausible claim for relief survives a motion to dismiss.”
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A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels
and conclusions” or a “formulaic recitation of the elements of a cause of action,” id. (quoting
Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Id.In assessing a 12(b)(6) challenge, a court may ordinarily consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint and
matters about which the Court may take judicial notice,” Gustave–Schmidt v. Chao, 226 F. Supp.
2d 191, 196 (D.D.C. 2002) (citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624–
25 (D.C. Cir. 1997)), without converting the motion to dismiss into one for summary judgment,
Baker v. Henderson, 150 F. Supp. 2d 13, 15 (D.D.C. 2001) (citations omitted). This includes
documents that are “referred to in the complaint and . . . central to the plaintiff's claim,” even if
they are produced by defendant in furtherance of a motion to dismiss. See Solomon v. Office of
the Architect of the Capitol, 539 F. Supp. 2d 347, 349–50 (D.D.C. 2008) (citing Vanover v.
Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999)), aff'd, 38 Fed. Appx. 4 (D.C. Cir. 2002) (internal
citations omitted); see also Kruger v. Cogent Commc'ns, Inc., 174 F. Supp. 3d 75, 85 (D.D.C.
2016) (considering the plaintiff's EEO agency complaint incorporated by reference).
Failure To Exhaust
A motion to dismiss for a plaintiff's failure to exhaust Title VII or ADEA administrative
remedies is “properly addressed as [a] motion[ ] to dismiss for failure to state a claim.” Scott v.
Dist. Hosp. Partners, 60 F. Supp. 3d 156, 161 (D.D.C. 2014), aff’d, 715 Fed. Appx. 6 (D.C. Cir.
7
2018), cert. denied, 139 S. Ct. 326 (2018), because a “failure to exhaust administrative remedies
under the ADEA and Title VII is an affirmative defense, not a jurisdictional requirement[,]” Koch
v. Walter, 935 F. Supp. 2d 164, 170 (D.D.C. 2013).
Conversely, the exhaustion requirement under the Rehabilitation Act is generally
jurisdictional, and therefore, ordinarily reviewed under the standard set forth in Federal Rule
12(b)(1), if a plaintiff “fail[s] to file an administrative complaint or to obtain any administrative
decision at all.” Doak v. Johnson, 798 F.3d 1096, 1103 (D.C. Cir. 2015), cert. denied, 137 S. Ct.
33 (2016). “However, when a plaintiff allegedly fails to exhaust their administrative remedies due
to a failure to comply with a regulatory requirement the defect is not jurisdictional, and therefore
reviewed under the standard set forth in Rule 12(b)(6).” Pearson v. Chao, No. 17-1965, 2019 WL
1004040, at *3 (D.D.C. Feb. 28, 2019) (citing Doak, 798 F.3d at 1103)).
Here, the Secretary contends that Ferrell failed to exhaust Final Order No. HUD-00022-
2017, because the associated Appeal––No. 2019005800, was untimely. See MTD at 6–9. It
appears undisputed that Ferrell’s associated Formal Complaint––Claim No. HUD-00022-2017––
included Title VII and ADEA claims for discrimination and reprisal, see id. at 3; MTD Ex. B at 1,
but despite Ferrell’s contentions in the Complaint, see Compl. at 2, it does not appear that she
ever formally raised a Rehabilitation Act claim, see MTD Ex. B at 2 n.3. Assuming arguendo that
she did (for purposes of the exhaustion analysis only), because Ferrell filed a Formal Complaint,
see id. at 1 (acknowledging Ferrell’s “equal employment opportunity (EEO) complaint alleging
employment discrimination”), and the alleged exhaustion defect arises from the dismissal of her
Appeal as untimely under 29 C.F.R. §1614.403(c), see id.; see also MTD at 7, or in other words,
due to a “regulatory requirement,” see Pearson, 2019 WL 1004040, at *3, a 12(b)(6) standard
8
would nonetheless also apply to her alleged failure to exhaust a Rehabilitation Act claim, see Doak,
798 F.3d at 1103.
III. ANALYSIS
Exhaustion of Claim/Final Order No. HUD-00022-2017 (Appeal No. 2019005800)
A claimant may appeal a final agency action “within 30 days of receipt of the dismissal,
final action or decision.” 29 C.F.R. § 1614.402(a); see id. § 1614.110 (governing final agency
orders), 1614.403(c) (“If an appellant does not file an appeal within the time limits of this subpart,
the appeal shall be dismissed by the Commission as untimely.”).
As discussed, the Secretary asserts that Ferrell’s Notice of Appeal of Final Order No. 22
was faxed on September 10, 2019, and is therefore untimely by one day. See MTD at 7; MTD Ex.
A at 1. Ferrell contends that she timely filed Notices of Appeal as to both Final Orders by mail
and that the OFO confirmed receipt of both on August 20, 2019. See Compl. at 3; Err. at 15–16.
The Court has been provided with little to no supporting documentation, from either party,
to prove or disprove the existence of the alleged August delivery and OFO’s confirmation of
receipt, or of the late-received fax. Relevant here, and given the dearth of supporting evidence,
“[w]hen a plaintiff takes a Title VII complaint to court before an administrative agency has made
a merits determination . . . the government is not bound by the EEOC's adverse finding of
timeliness, and the adverse finding is not entitled to deference.” Contreras v. Ridge, 305 F. Supp.
2d 126, 131 (D.D.C. 2004) (collecting cases). On the other hand, a plaintiff is generally afforded
deference when facing a Rule 12(b)(6) challenge, see Sparrow, 216 F.3d at 1113, particularly at
this early juncture, and moreover, the Secretary “bears the burden of pleading and proving”
Ferrell’s alleged failure to exhaust, Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).
Therefore, the Court finds in favor of Ferrell, deferring to her averment that she timely mailed the
9
Notices of Appeal as to both Claims after she received one or both of HUD’s Final Orders. See
Compl. at 3; Err. at 15–16.
But even if Ferrell’s Claim was untimely, the Court finds that she is alternatively entitled
to equitable tolling here, due in large part to the logistical confusion surrounding HUD’s handling
of her Claims. Ordinarily, a plaintiff's lawsuit is precluded unless she “file[d] h[er] administrative
appeal with the EEOC within the thirty-day period prescribed by EEOC regulations[.]” Miller v.
Rosenker, 578 F. Supp. 2d 67, 70–71 (D.D.C. 2008). However, because “the administrative time
limits created by the EEOC erect no jurisdictional bars to bringing suit[,]” they function “like
statutes of limitations,” and “are subject to equitable tolling, estoppel, and waiver.” Fortune v.
Holder, 767 F. Supp. 2d 116, 120 (D.D.C. 2011) (quoting Bowden, 106 F.3d at 437).
Application of equitable tolling is solely within a court’s discretion, id. at 119–21 (citing
Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998)). Equitable tolling is
proper in circumstances “where a claimant has received inadequate notice[,]” see Mondy v. Sec. of
the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988) (quoting Baldwin County Welcome Center v.
Brown, 466 U.S. 147, 151 (1984)) (internal quotation marks omitted), including where a claimant
has been “confused about the time limits[,]” Starapoli v. Donahoe,786 F. Supp. 2d 384, 392
(D.D.C. 2011) (citing Bowden, 106 F.3d at 438); see also Gantt v. Mabus, 857 F. Supp. 2d 120,
128–29 (D.D.C. 2012) (finding that “[e]quitable tolling has been applied in limited situations, such
as where a party, particularly one proceeding pro se, was misled about the running of a limitations
period.”) (collecting cases), aff’d, No. 12–5175, 2012 WL 5896962 (D.C. Cir. Oct. 18, 2012).
It is uncontested that Ferrell filed two separate Informal Complaints, and then two separate
Formal Complaints. See Compl. at 3. At some point after filing, and for reasons unknown, HUD
and the ALJ began treating Ferrell’s two Claims as one, although it does not appear that they were
10
ever formally consolidated. See id.; see also MTD Ex. B at 3–5; Err. at 1, 16–17; Err. Ex. 12.
Indeed, the ALJ issued a single Summary Decision as to both Claim No. 22 and Claim No. 31.
See MTD Ex. B at 3. Despite the ALJ’s collective handling of the Claims, HUD then affirmed the
ALJ’s Summary Decision in two different Final Orders, issued on different dates. See MTD Ex.
B at 1, 3; MTD Ex. A at 1. HUD and the ALJ may have had a perfectly valid reason for merging
and separating Ferrell’s Claims, but the Secretary offers no explanation. Agency complaint
processes are difficult for a pro se claimant to navigate, and HUD’s actions in this case exacerbated
that difficulty.
It is also plausible that Ferrell reasonably believed that she had formally appealed either
the ALJ’s Summary Decision and/or the Final Orders, but that she failed to make clear that she
was appealing both Claims, due to mutual misunderstandings. This is evidenced by her emails
with the ALJ, in which Ferrell seeks, and does not obtain, clarification as to whether her Claims
were still being treated collectively, and as to whether his Summary Decision was final, or
alternatively, if there was yet additional action to come from the agency. See Err. Ex. 12.
Moreover, the Secretary “has not indicated that any prejudice resulted from the plaintiff’s
delay.” Starapoli, 786 F. Supp. 2d at 393–93 (citing Dougherty v. Barry, 869 F.2d 605, 613 (D.C.
Cir. 1989) (indicating that where a party has established a basis for equitable tolling, such as
inadequate notice, the lack of prejudice to the opposing party is an equitable factor that is
appropriate for consideration in deciding whether to toll the limitations period); Strong-Fischer v.
Peters, 554 F. Supp. 2d 19, 25 (D.D.C. 2008) (same)).
Finally, the Court “does not find that the plaintiff’s delay in this case was so lengthy that it
indicated a lack of due diligence.” Starapoli, at 786 F. Supp. 2d at 393 (citing Battle v. Rubin, 121
F. Supp. 2d 4, 8 (D.D.C. 2000) (equitable tolling requires a plaintiff to exercise due diligence)).
11
According to the Secretary, Ferrell filed her Notice of Appeal one day late. See MTD at 7; MTD
Ex. A at 1. Although one day late is still late, there is no indication that Ferrell had otherwise been
pursuing her administrative remedies anything but diligently. See Koch v. Donaldson, 260 F. Supp.
2d 86, 90–91 (D.D.C. 2003) (finding that the plaintiff, who had otherwise been pursuing his
remedies diligently, was entitled to equitable tolling after faxing his administrative complaint to
the EEOC one day late), aff’d, No. 03-5202, 2004 WL 758957 (D.C. Cir. Apr. 7, 2004). For this
reason, and all of the above stated reasons, Ferrell is alternatively entitled to equitable tolling.
Sufficiency of the Complaint
The Court agrees with the Secretary, however, that Ferrell’s Complaint is inadequate as
pleaded. See MTD at 6–9. Pro se litigants must comply with the Federal Rules of Civil Procedure.
Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987). Rule 8(a) of the Federal Rules of Civil
Procedure requires complaints to contain “(1) a short and plain statement of the grounds for the
court’s jurisdiction [and] (2) a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a); see Iqbal, 556 U.S. at 678–79; Ciralsky v. CIA, 355 F.3d
661, 668–71 (D.C. Cir. 2004). The Rule 8(a) standard ensures that defendants receive fair notice
of the claim being asserted so that they can prepare a responsive answer and an adequate defense
and determine whether the doctrine of res judicata applies. Brown v. Califano, 75 F.R.D. 497,
498 (D.D.C. 1977). Additionally, “each allegation [in a pleading] must be simple, concise, and
direct[,]” Fed. R. Civ. P. 8(d)(1), and Ferrell’s allegations cannot be described that way.
The Complaint provides some facts but relies mostly on, at best, boilerplate allegations of
discrimination and reprisal, with insinuations of a conspiracy orchestrated against her by HUD and
the EEOC––an untenable contention. See, e.g., Compl. at 1–5. The remainder of the allegations
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focus on Ferrell’s discontent with the administrative process, rather supporting any colorable claim
for employment discrimination against HUD.
Indeed, the Complaint contains an introduction, see id. at 1–2, a background section, see
id. at 3–5, and a request for relief, see id. at 5, but it contains no claims section. It simply fails to
present facts, including identities of the involved individuals, locations or times relevant, or other
information essential to maintaining an employment discrimination claim. The Court notes that
“[w]hile such a pro se litigant must of course be given fair and equal treatment, [s]he cannot
generally be permitted to shift the burden of litigating his case to the courts[.]” Dozier v. Ford
Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983); see also Roman v. National Reconnaissance
Office, 952 F. Supp. 2d 159, 163 (D.D.C. 2013) (“a pro se complaint must still meet the
requirements of Fed. R. Civ. P. 8(a) to survive a Rule 12(b)(6) motion to dismiss”).
When a complaint “contains an untidy assortment of claims that are neither plainly nor
concisely stated, nor meaningfully distinguished from bold conclusions, sharp harangues and
personal comments [,]” it does not fulfill the requirements of Rule 8. Jiggetts v. D.C., 319 F.R.D.
408, 413 (D.D.C. 2017), aff’d sub nom. Cooper v. D.C., No. 17-7021, 2017 WL 5664737 (D.C.
Cir. Nov. 1, 2017). “A confused and rambling narrative of charges and conclusions . . . does not
comply with the requirements of Rule 8.” Cheeks v. Fort Myer Constr. Corp., 71 F. Supp. 3d 163,
169 (D.D.C. 2014) (citation and internal quotation marks omitted). Ferrell’s Complaint falls into
this category. Moreover, “[a] party must state its claims or defenses in numbered paragraphs, each
limited as far as practicable to a single set of circumstances[,]” Fed. R. Civ. P. 10(b), and the
Complaint fails to uniformly follow this directive.
Ferrell has appended scant exhibits to her complaint, and those exhibits only shed light on
the EEOC’s summary decision at the reconsideration stage, and only as to Claim No. 22, see
13
Compl. Ex. 2; Compl. Ex. 1 (Partial Duplicate of Compl. Ex. 2), ECF No. 1-1, providing little to
no substantive context or detail as to her actual claims. See D.C. LCvR 5.1(e) (“No complaint . .
. shall have appended thereto any document that is not essential to determination of the action.”).
As discussed above, Ferrell fails entirely to submit, for example, her Agency Complaints, or the
agency-level decisions, which would at least assist in fleshing out the substance of her intended
claims. Although she later submitted voluminous documentation with her briefing, once again,
these documents are unhelpful in creating a viable claim.
Ferrell’s briefing in response to the Motion to Dismiss, however, provides additional facts
and some level of detail regarding HUD’s alleged discrimination and reprisal. See, e.g., Err. at 3–
21; see Opp’n at 2–19 (same). But where Ferrell’s Complaint is wanting for information and
detail, the Opposition and Errata are, by contrast, lengthy and digressive. Despite the additional
details, the claims are still not entirely clear, and the intended causes of action and facts are still
confusingly amalgamated and disorganized.
Most importantly, although these additional factual allegations provide some clarity
regarding Ferrell’s intended claims, a plaintiff may not amend her complaint nor assert new claims
by way of a brief in opposition. Kingman Park Civic Assoc. v. Gray, 27 F. Supp. 3d 142, 162 n.10
(D.D.C. 2014); Durand v. Dist. of Columbia, 38 F. Supp. 3d 119, 129 (D.D.C. 2014) (finding that,
the plaintiff, who recognized “the insufficiency of his Complaint,” used “his Opposition to provide
additional allegations to support his claim, presenting additional detail[,]” but those “factual
allegations, included for the first time in an opposition to a motion to dismiss, [could not] save
Plaintiff's Complaint.”); Perkins v. Vance-Cooks, 886 F. Supp. 2d 22, 29 n.5 (D.D.C. 2012) (“It is
settled law in this circuit that a plaintiff may not raise new allegations in this manner.”);
Middlebrooks v. Godwin Corp., 722 F. Supp. 2d 82, 87 n.4 (D.D.C. 2010) (“[P]laintiff failed to
14
include these allegations in [his] complaint, and plaintiff may not amend [his] complaint by the
briefs in opposition to a motion to dismiss.”), aff’d, 424 Fed. Appx. 10 (D.C. Cir. Jul. 6, 2011),
cert. denied, 565 U.S. 1093 (2011); College Sports Council v. Gov’t Accountability Office, 421 F.
Supp. 2d 59, 71 n.16 (D.D.C. 2006) (“[T]he Court does not, and cannot, consider claims first raised
in the plaintiff's opposition.”); Calvetti v. Antcliff, 346 F. Supp. 2d 92, 107 (D.D.C. 2004) (finding
“impermissible” plaintiffs’ “tactic” to implicitly amend the complaint by way of opposition by
including supplemental facts that were “not at all alleged” in the complaint.); Arbitraje Casa de
Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003) (“It is axiomatic
that a complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (quoting
Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d 18, 24 n.8 (D.D.C. 2000)). Because these
new allegations, see, e.g., Err. at 3–21; see Opp’n at 2–19 (same), are not included in the
Complaint, the Court simply “cannot consider” them “in deciding the instant motion to dismiss[,]”
Arbitraje, 297 F. Supp. 2d at 170, and the Complaint must be dismissed for failure to state a claim
upon which relief may be granted.
Ferrell’s Miscellaneous Allegations
Ferrell raises several unsubstantiated allegations against the Secretary, HUD, and counsel,
that the Court must address. First, Ferrell accuses HUD and the EEOC of working together to
“tamper[] with her paperwork[,]” Err. at 15, and otherwise conspiring to commit wrongdoing
during the administrative process, see id. at 9; Compl. at 2, 4; Err. Ex. 12, but these allegations are
speculative and without merit. The Court has already addressed some of these allegations,
previously explaining to Ferrell that she does not have a private right of action against EEOC or
its officials, see Oct. 15, 2021 Ord. (citing Smith, 119 F.3d at 34 (collecting cases); Uberoi v.
EEOC, 180 F. Supp. 2d 42, 46 (D.D.C. 2001)), and strictly limiting the claims in this matter to
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Ferrell’s “employment discrimination claims against HUD[,]” see Oct. 15, 2021 Ord. at 1–2.
Second, Ferrell argues that HUD’s participation in settlement discussions constitutes an
admission of liability. See Err. at 2–3; Err. Ex. 1 (Documents Relating to Settlement Negotiations),
ECF No. 21-1.; Opp’n Ex. 1 (same), ECF No. 24-1. Rule 408 of the Federal Rules of Evidence
provides that negotiations and offers of settlement are categorically inadmissible to prove liability.
See Fed. R. Evid. 408(a); see C & E Services, Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 318–20
(D.D.C. 2008) (same).
Last, Ferrell has filed a Response (“Resp.”), ECF No. 29, to the Secretary’s Notice of
Substitution of Counsel (“NOS”), ECF No. 27, filed on October 31, 2022. In the Response, she
cites to Superior Court Civil Rule 101, see Resp. at 1, which is not a Federal Court Rule, and is
thus inapplicable here. Ferrell also challenges the Notice because the entering Assistant United
States Attorney (“AUSA”) signed the Notice, but neither the withdrawing AUSA nor the Secretary
signed it. See id.; see also generally NOS. District of Columbia Local Civil Rule 83.6(b) discusses
the inclusion of the withdrawing attorney and client’s signatures on a “Withdrawal of
Appearance,” but here, the Secretary has instead filed a “Notice of Substitution.” See D.C. LCvR
83.6(a)–(b). Given this distinction, and because the Court recognizes the specific and unique
nature of the United States Attorney’s collective representation of the interests of the United States
(and its agencies and officials), the Court finds that (1) the government’s consent to the substitution
was implicit, and (2) any additional signatures would be superfluous. See id.Indeed, this exact issue has been unsuccessfully raised before in this District. In Truesdale
v. DOJ, No. 08-cv-01862 (PLF) (filed Oct. 29, 2008), the plaintiff repeatedly argued that the
government’s notices of substitution of counsel were defective pursuant to the D.C. Local Rules,
and were otherwise “fraudulent,” because the government defendants, and at times, the
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withdrawing AUSAs, did not personally sign those notices, see id. at ECF Nos. 80–81 (Pl.’s First
Mot. to Strike AUSAs’ Not. of Sub. of Counsel; ECF No. 65); ECF No. 111 (Pl.’s Sec. Mot. to
Strike AUSAs’ Not. of Sub. of Counsel, ECF No. 109). The trial court denied relief, finding no
defects in the government’s notices of substitution. See id. at ECF No. 87 (Order Denying Pl.’s
First Mot. to Strike); Minute Order (Dec. 15, 2011) (denying Pl.’s Sec. Mot. to Strike); see also
Truesdale v. DOJ, No. 09-5215, 2009 WL 2251954, at *1 (D.C. Cir. Aug. 15, 2012) (affirming
and finding that “[t]he district court . . . properly denied appellant's motion to strike because
appellant offered no valid reason to challenge the substitution of counsel.”), cert. denied, 569 U.S.
992 (2013); see also Truesdale, No. 08-cv-01862 at ECF No. 126 (Pl.’s Third Mot. to Strike
AUSAs’ Not. of Sub. of Counsel, ECF No. 123); id. at ECF No. 130 (Mem. Op. & Order Denying
Pl.’s Third Mot. to Strike); Truesdale v. DOJ, 2012 WL 13098210, at *2 (D.D.C. Dec. 13, 2012)
(same). Likewise, this Court finds no defect as to the Secretary’s Notice of Substitution of
Counsel, as it is without question that the Secretary consents to the substitution. Furthermore, at
this juncture, with no trial date set, Ferrell is simply not entitled to weigh in on this issue, see D.C.
LCvR 83.6(a)–(b), therefore, and her request to do so is denied.
IV. CONCLUSION
For the reasons discussed above, the Court GRANTS the Secretary’s Motion to Dismiss,
ECF No. 16, pursuant to Federal Rule 12(b)(6), and dismisses this matter WITH PREJUDICE
for failure to state a claim upon which relief may be granted. Ferrell’s Motion to Amend/Correct,
ECF No. 28, is DENIED AS MOOT, and the relief sought by her Response, ECF No. 29, is
DENIED. A separate Order accompanies this Memorandum Opinion.
________/s/__________________
COLLEEN KOLLAR-KOTELLY
Date: February 16, 2023 United States District Judge
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