Burton v. Donley
| Decision Date | 06 July 2010 |
| Docket Number | Civil Action No. 09-843 (JDB). |
| Citation | 724 F.Supp.2d 1 |
| Parties | Patricia L. BELL and Jacqueline D. Burton, Plaintiffs, v. Michael B. DONLEY, Defendant. |
| Court | U.S. District Court — District of Columbia |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Joseph D. Gebhardt, Madeha Chaudry Dastgir, Gebhardt & Associates, LLP, Washington, DC, for Plaintiffs.
Mitchell P. Zeff, U.S. Attorney's Office, Washington, DC, for Defendant.
Plaintiffs Patricia L. Bell and Jacqueline D. Burton bring this action against Michael B. Donley, in his official capacity as the Secretary of the Air Force, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiffs allege that the Air Force took several adverse actions against them on the basis of their race (African-American), and retaliated against them in response to protected EEO activity. The events giving rise to this suit occurred, for the most part, while they were both employed at Bolling Air Force Base in the Clearance Review Branch and the Due Process Branch at the Air Force Central Adjudication Facility (“AFCAF”). The claims stem primarily from their unsuccessful applications for other positions or promotions at AFCAF and the alleged fallout from then pursuing EEO relief. In most other respects, Bell and Burton have raised Title VII claims distinct from each other's cases.
Presently before the Court is defendant's motion for partial dismissal, or, in the alternative, for partial summary judgment, raising the threshold issue of whether plaintiffs have adequately exhausted their administrative remedies as to certain claims. 1 In the course of briefing, the parties have narrowed the claims at issue, with each side having conceded the adequacy, or inadequacy, of exhaustion as to specific claims, as further described below. As to the claims that remain in controversy, the Court has determined that plaintiffs failed to exhaust their administrative remedies, and will therefore grant defendant's motion.
Plaintiff Bell is an African-American woman, currently employed in the Flex Team Review Branch of AFCAF, at Bolling Air Force Base in the District of Columbia. Compl. ¶ 11. Bell was interviewed for a promotion to the position of Personnel Security Specialist, (GG-080-14/14, Vacancy Announcement 07MAY606279) on August 22, 2007. Def.'s Ex. 1. She was not selected. Compl. ¶ 25. She then filed an informal pre-complaint with the EEOC on September 13, 2007, alleging that she did not receive the promotion because of racial discrimination, and that the candidate selected was “a White female with less seniority and experience.” Def.'s Ex. 1. Bell amended her informal pre-complaint on November 16, 2007, to add two additional discrimination claims concerning the denial of awards the prior September-an annual performance award and a “Special Act Award.” See Def.'s Ex. 2. On January 3, 2008, Bell filed a formal complaint of discrimination with the EEOC. Compl. ¶ 8; Def.'s Ex. 3.
In June 2008, Bell received a performance appraisal, but no cash award for her performance. Def.'s Ex. 5. The following month, she sought to amend her EEO complaint alleging that the denial of a cash award was in retaliation for her EEO activity. Id.; Compl. ¶ 8. The amendment was accepted, and on August 19, 2008, Bell formally requested a hearing before the EEOC. Compl. ¶ 8.
Four months later, on January 16, 2009, Bell submitted another motion to amend her complaint, alleging two additional discrete instances of retaliation. Def.'s Ex. 6. First, she alleged that she was retaliated against in August 2008, when she was demoted from Team Chief/Supervisor to Signature Authority Manager, and transferred from an office to a cubicle. Id. Second, she alleged further retaliation when she was denied an opportunity to work overtime. Id. By Order dated February 18, 2009, the Administrative Judge “conditionally granted” the motion, subject to the submission of a timetable for discovery on the amended issues. Def.'s Ex. 7. The parties submitted a joint discovery timetable, and on March 10, 2009, the Administrative Judge granted the motion to amend the original complaint to include the new claims. Def.'s Ex. 9.
But discovery did not move forward. The next day, Bell moved to stay discovery for 30 days, citing a death in the family. See Def.'s Ex. 10. Then on April 3, Bell withdrew her request for an EEOC hearing, and requested that the Administrative Judge remand her case to the Air Force's EEO office for a final decision. See Def.'s Ex. 11. The Administrative Judge granted the withdrawal request, but instead of remanding the case for a final decision, she instructed the Air Force's EEO office to conduct further investigation of the amended issues. Id. About a month later, on May 6, 2009, Bell filed this lawsuit.
In this lawsuit, Plaintiff Bell brings several Title VII claims, arising out of seven discrete incidents:
(1) Discrimination, for nonselection for a Personnel Security Specialist position (GG-0080-14/14, Vacancy Announcement 07MAY606279). Compl. ¶ 25.
(2) Discrimination and retaliation, for denial of a performance award in June 2008. Id. ¶¶ 33, 69.
(3) Discrimination, for denial of a “Special Act Award” in September 2007. Id. ¶ 22.
(4) Discrimination, for denial of a performance award in September 2007. Id. ¶ 31.
(5) Discrimination and retaliation, for demotion and transfer from an office to a cubicle. Id. ¶¶ 19, 63.
(6) Retaliation, for denial of an opportunity to work overtime. Id. ¶ 68.
(7) Retaliation, for denial of a request for time off to attend a training seminar. Id. ¶ 67.
Bell now concedes that she failed to exhaust her administrative remedies with respect to the last of these claims-the denial of her request for time off. See Pls.' Opp'n at 10 n. 2. For his part, defendant concedes that two of these claims have been exhausted-the discrimination claim concerning nonselection for the Personnel Security Specialist position and the retaliation claim concerning denial of a performance award in 2008. The parties disagree over whether Bell exhausted her administrative remedies for the remaining claims.
Plaintiff Burton is also an African-American woman, and an employee of the United States Air Force. She currently works in the Due Process Branch at AFCAF. Compl. ¶ 11. In 2007 and 2008, Burton applied for over ten positions and/or promotions. Although her complaint encompasses all of the nonselections, she now concedes that she did not exhaust administrative remedies for most of the nonselections, and has limited her case to the following adverse actions. See Pls.' Opp'n at 10 n. 2. 2 Burton alleges that in October 2007, she was not considered for a temporary/early promotion to GG-0080-13, because of racial discrimination by defendant. Compl. ¶ 35; Def.'s Ex. 14. She filed a complaint with the EEOC on March 10, 2008. Def.'s Ex. 13. A few months later, she applied for the position of Personnel Security Specialist (GG-0080-13/13, Vacancy Announcement 08MAY652556), and was one of 20 candidates interviewed. Compl. ¶¶ 73-74. She was not selected. Id. ¶ 73. In August 2008, Burton amended her complaint to include a claim of retaliation based on the nonselection. Id. ¶ 9; Def.'s Ex. 15.
In Burton's view, the retaliation continued into the next year. In February 2009, she received a “Memorandum for Record”-apparently, a form of reprimand or criticism, although the record is unclear on this point. Compl. ¶ 84. And when she applied for another Personnel Security Specialist position in April 2009 (Vacancy Announcement 09APR704512), she was not selected. Id. ¶ 81. Burton filed this lawsuit on May 6, 2009, seeking relief under Title VII for all of the foregoing incidents, without having sought administrative relief for the latter 2009 actions. Only after initiating this lawsuit did Burton file an administrative EEO complaint covering the 2009 Memorandum for Record and subsequent nonselection. See Def.'s Ex. 16 (EEO complaint dated June 30, 2009).
B. List of Burton's Title VII Claims
To summarize Burton's Title VII claims that she contends were adequately exhausted, they are:
(1) Discrimination, for not being considered for a temporary/early promotion to GG0080-13, in October 2007. Compl. ¶ 35.
(2) Discrimination and retaliation, for nonselection for a Personnel Security Specialist position (GG-0080-13/13, Vacancy Announcement 08MAY652556) in June 2008. Id. ¶¶ 40, 73.
(3) Retaliation, for being given a “Memorandum for Record” in February 2009. Id. ¶ 84.
(4) Retaliation, for nonselection for a Personnel Security Specialist position (GG-0080-13/13, Vacancy Announcement 09APR704512) in April 2009. Id. ¶ 81.
Defendant concedes that Burton adequately exhausted her administrative remedies in some respects-the first discrimination claim concerning the temporary/early promotion, and the claim of retaliation in June 2008 when she was not selected for the first Personnel Security Specialist position. The parties disagree on whether Burton adequately exhausted her administrative remedies in all other respects.
This motion will be treated as a motion for summary judgment. Defendant asserts that exhaustion of administrative remedies is a jurisdictional prerequisite to bringing suit under Title VII, and hence, seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). Def.'s Mem. at 10. This Circuit has held, however, that Title VII's exhaustion requirement “though mandatory, is not jurisdictional.” Douglas v. Donovan, 559 F.3d 549, 556 n. 4 (D.C.Cir.2009) (). This is because, as the Supreme Court has recently reiterated, “ ‘when Congress does not rank a statutory limitation on [the statute's]...
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