Butler v. Schapiro

• Citation: 839 F.Supp.2d 252
• Decision Date: 20 March 2012
• Docket Number: No. 11–cv–00574 (RCL).,11–cv–00574 (RCL).
• Court: U.S. District Court — District of Columbia
• Parties: Ronesha BUTLER, Plaintiff, v. Mary SCHAPIRO, Chairman, Securities and Exchange Commission, Defendant.

839 F.Supp.2d 252

Ronesha BUTLER, Plaintiff,

v.Mary SCHAPIRO,¹ Chairman, Securities and Exchange Commission, Defendant.

No. 11–cv–00574 (RCL).

United States District Court,

District of Columbia.

March 20, 2012.

Ari Micha Wilkenfeld, Gary M. Gilbert, Kevin Lee Owen, The Law Office of Gary M. Gilbert & Associates, PC, Silver Spring, MD, for Plaintiff.

Laurie J. Weinstein, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

Plaintiff Ronesha Butler (“Butler”) brings this action against Mary Schapiro, Chairman of the Securities and Exchange Commission (“SEC” or “the defendant”), pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Butler alleges discrimination and a hostile work environment based on race, and she further alleges retaliation for engaging in protected EEO activity. Presently before the Court is the defendant's motion [5] to dismiss, or in the alternative, motion for summary judgment. For the reasons explained below, the Court will DENY the defendant's motion.

II. BACKGROUND

Butler, an African–American female, was hired by the SEC in 2003 as an attorney advisor. Com pl. ¶¶ 9–10. In 2004, Butler received a promotion to the position of Senior Counsel in the SEC's Office of Market Supervision (“OMS”), within the Division Trading and Markets. Id. From her initial hiring in 2003 until 2008, OMS Assistant Director Nancy Burke–Sanow (“Burke–Sanow”), a Caucasian female, supervised Butler. Id. ¶ 12.

In March 2005, Butler took four months of maternity leave. Id. ¶ 15. Prior to taking this leave, Burke–Sanow required Butler to fill out four months of daily leave requests. Id. ¶ 16. Burke–Sanow failed, however, to have Butler submit the required extended leave form. Id. ¶ 18. As a result, Butler received more compensation than she was entitled to during this time, and the SEC required her to repay the unearned portion. Id. ¶ 19.

In May 2006, Butler's mother suffered cardiac arrest, and Burke–Sanow “reluctantly” granted Butler's leave request to attend to her mother. Id. ¶ ¶ 22–23. While on leave to care for her mother, plaintiff alleges that Burke–Sanow informed other employees that Butler was on an extended last-minute vacation. Id. ¶ 24.

From 2005 to 2006, Butler assisted on a delisting project with fellow employee Susie Cho. Id. ¶ 28. On April 20, 2006, Burke–Sanow approached Cho and made disparaging comments about Butler. Id. ¶ 29. Burke–Sanow also questioned Cho about whether Butler actually performed the tasks under the delisting projects that were reported. Id. ¶

During her time at the SEC, Butler teleworked two days each month. Id. ¶ 33. On six occasions between August 2005 and October 2006, Burke–Sanow questioned Butler about whether Butler was actually working from home, or instead, caring for her daughter. Id. ¶ 35. On August 14, 2006, Butler sent a work report to Burke–Sanow of the tasks she would complete while teleworking from home that day. Id. ¶ 37. Burke–Sanow followed up with two employees on the list to verify that Butler performed the tasks on her work report. Id. ¶ 38. Butler eventually stopped teleworking. Id. ¶ 41.

On May 30, 2006, Associate Directors Elizabeth King and David Shillman met with the Assistant Directors, including Burke–Sanow, to discuss employee performance for the May 2005 to April 2006 time period. Def.'s Mot. at 5. During this meeting, the Assistant Directors gave recommendations to King and Shillman regarding merit pay raises. Compl. ¶ 50. Butler received an overall acceptable rating for the period at issue, but she did not receive a merit pay increase in 2006. Id. ¶ 51.

In August 2006, Burke–Sanow called Deborah Balducchi, the SEC's then Director of Equal Employment Opportunity, to inquire into Butler's current time commitment to the SEC's African–American Council. Id. ¶ 42.

On October 10, 2006, Butler contacted an EEO Counselor to initiate the formal complaint process for race discrimination and harassment based on race. Id. ¶ 63. During the discovery period of Butler's EEOC claims, Butler's work assignments and feedback from Burke–Sanow decreased. Id. ¶ 68. Butler was additionally removed from working on the OTCBB and Pink Sheets Over–the–Counter Derivatives projects. Id. ¶ 71.

Butler filed the instant action on March 21, 2011 alleging harassment and discrimination on the basis of race, and retaliation. The defendant subsequently filed a motion to dismiss, or in the alternative, motion for summary judgment. This motion is now ripe for determination by the Court.

III. ANALYSISA. Standard of Review for a Motion to Dismiss

A motion to dismiss is appropriate when a complaint fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To overcome this hurdle, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is[,] and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). The Court must “accept as true all of the factual allegations contained in the complaint,” Atherton v. District of Columbia, 567 F.3d 672, 681 (D.C.Cir.2009), and grant a plaintiff “the benefit of all inferences that can be derived from the facts alleged,” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court may not “accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Id. In other words, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009); see also Atherton, 567 F.3d at 681.

B. Retaliation Claim

The defendant moves to dismiss Butler's retaliation claim on the grounds that she failed to exhaust her administrative remedies. Def.'s Mot. at 10. Specifically, the defendant asserts that on January 25, 2010, Butler received a right to file a formal complaint with the EEOC on her retaliation claim, and she failed to do so within the 15–day allotted period. Id. at 11. Butler argues in response that the failure to timely file an administrative complaint should be excused because the delay in filing was unintentional. Pl.'s Opp'n at 17. Butler further argues that the facts asserted in her retaliation claim are “like or related” to her properly filed administrative claims of discrimination and harassment, and therefore, she should be allowed to proceed with this claim. Id. at 17–18.

An employee must file an EEOC complaint within 15 days of receiving notice of his or her right to do so. See29 C.F.R. § 1614.106(b). The failure to file a timely complaint within the 15–day period constitutes a failure to exhaust administrative remedies, and is grounds for dismissal of the case by the agency, subject to equitable tolling. See Wilkins v. Daley, 49 F.Supp.2d 1, 2 (D.D.C.1999) (citing Saltz v. Lehman, 672 F.2d 207, 208–09 (D.C.Cir.1982)); 29 C.F.R. 1614.604(c) (“the time limits in this part are subject to waiver, estoppel and equitable tolling”). If the employee files a formal administrative complaint and is not satisfied with the agency's resolution of that complaint, he or she may either appeal to the Equal Employment Opportunity Commission or file a civil action in federal court. See Johnson v. Peterson, 996 F.2d 397, 399 (D.C.Cir.1993). Again, there is a specified time period within which the employee must take these steps. See29 C.F.R. § 1614.110.

The Court's power to equitably toll these filing periods may be exercised “only in extraordinary and carefully circumscribed instances.” Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988); see also Smith–Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C.Cir.1998). In order to gain the benefit of equitable tolling, the plaintiff “bears the burden of pleading and proving facts supporting equitable avoidance of the defense.” Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) (citing Bayer v. United States Dep't of the Treasury, 956 F.2d 330, 333 (D.C.Cir.1992) and Jarrell v. United States Postal Service, 753 F.2d 1088, 1091–92 (D.C.Cir.1985)). In addition, a plaintiff must establish that he or she “acted diligently to preserve [the] claim.” Wilkins v. Daley, 49 F.Supp.2d at 2.

Butler does not deny that she failed to timely file an administrative complaint for her Title VII retaliation claim. Instead, she argues that her attorney's paralegal attempted to file this complaint on time, and it was accidentally delivered to a different government office. Pl.'s Opp'n Ex. 22. Upon discovery of this mistake, Butler's attorney promptly filed the complaint with the correct office the next day. See id. Ex. 23. The properly filed complaint did not fall within the 15–day period. Upon careful consideration of the filings of the parties, and particularly of the undisputed facts proffered by plaintiff with respect to the unintentional filing at the wrong agency, the Court finds that the 15–day period is equitably tolled from the time Butler attempted to file her complaint to the EEOC Office on February 4, 2010 until the next reasonable opportunity she had to file his complaint, the day after she discovered the error. See Baker v. Henderson, 150 F.Supp.2d 17, 21–22 (D.D.C.2001) (time period equitably tolled where plaintiff, in exercising due diligence, acted “swiftly” to file the complaint as soon as she discovered error on the part of the clerk's office). Therefore, the defendant's motion to dismiss the plaintiff's retaliation claim based upon failure to exhaust her administrative remedies is denied.

C. Hostile Working Environment Claim

To begin, Butler's hostile work environment alleges the following actions demonstrate that she was subjected to discriminatory intimidation, ridicule, and insult: (1)...