Miller v. Hersman
| Decision Date | 05 February 2010 |
| Docket Number | No. 08-5494.,08-5494. |
| Citation | 594 F.3d 8 |
| Parties | Richard MILLER, Appellant v. Deborah A.P. HERSMAN, Chairman, National Transportation Safety Board, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 1:06-cv-01071-GK).
David A. Young argued the cause for the appellant. Carl S. Nadler was on brief.
Brian P. Hudak, Assistant United States Attorney, argued the cause for the appellee. R. Craig Lawrence, Assistant United States Attorney, was on brief.
Before HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
Richard Miller, a former employee of the National Transportation Safety Board (NTSB or Board), appeals the district court's judgment in his employment discrimination suit. Miller v. Rosenker, 578 F.Supp.2d 107 (D.D.C.2008). Miller challenges the district court's decision insofar as it (1) granted summary judgment on Count I and Count II alleging discriminatory non-promotion on the ground that he failed to timely seek equal opportunity employment counseling from the Board and (2) dismissed Count III alleging discriminatory treatment on the ground Miller conceded arguments the Board raised in support of dismissal. Because genuine issues of material fact exist regarding Count I and Count II, we reverse the summary judgment on each. We also reverse the court's dismissal of Count III because Miller did not, as the district court concluded, concede arguments raised by the NTSB.
Miller, who was born in 1949, began working at the NTSB in June 1999 as a financial management specialist in the NTSB's Office of Chief Financial Officer in Washington, D.C. His employment was terminated on June 30, 2006.
Miller initially filed a discrimination complaint with the NTSB's Equal Employment Opportunity (EEO) office on March 13, 2002, alleging the NTSB discriminated against him by (1) failing to select him for five different positions, (2) failing to provide a position description detailing the duties of his current position, (3) assigning him a lower performance evaluation than warranted and (4) denying him the use of office equipment and resources. The Board dismissed the complaint and the Equal Employment Opportunity Commission (EEOC) affirmed the dismissal in March 2006. Meanwhile, Miller filed a second EEO complaint on January 21, 2006, alleging additional instances of discrimination, retaliation and harassment.
Miller filed this action on June 9, 2006, asserting a single discrimination count based on his non-selection for the position of Budget Officer. When the NTSB failed to act on his second EEO complaint within 180 days, Miller filed an amended complaint in the district court, alleging eight counts of sex and age discrimination or retaliation, including the three counts (Counts I, II and III) which are at issue in this appeal.
Count I alleges discriminatory non-selection for the Budget Officer position, which was awarded to a 50-year old female, Sylvia Livingston, on October 23, 2001. According to the complaint, Miller did not learn the selectee was a female until sometime in December 2001.
Count II alleges discriminatory non-selection for one of two "Special Assistant" vacancies, which were announced in early 2001. The two selectees, Barbara Czech and David Mayer (both then under 40 years of age), were initially appointed to fill the slots temporarily — from about March 3 to May 5, 2001 — and were appointed permanently on April 30, 2001. The complaint alleges Miller first learned of their temporary selection on April 10, 2001 and of their permanent selection in May 2001.
Count III alleges the NTSB discriminatorily torpedoed his performance appraisal by failing to provide him in advance with an accurate job description ), lowered his performance appraisal in retaliation for his "EEO activity," id. ¶ 85, transferred his duties to other employees and created a hostile work environment. See id. ¶¶ 78-87.
On February 27, 2007, the NTSB filed a Motion to Dismiss or, in the Alternative, for Summary Judgment (Motion to Dismiss), supported by a statement of facts not in dispute, a supporting memorandum and exhibits. See Motion to Dismiss, Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007). Miller filed an Opposition to the Motion to Dismiss (Opposition), along with his own supporting memorandum and exhibits. See Opposition, Miller v. Rosenker, C.A. No. 06-1071 (Nov. 19, 2007).
On September 29, 2008, the district court granted summary judgment to the NTSB on Counts I and II on the ground that Miller cited no evidence to dispute material facts established by the NTSB's evidence, namely, that the date Miller sought EEO counseling was more than 45 days after he learned the positions had been awarded to other individuals, in violation of EEOC regulation 1614.105(a), 29 C.F.R. § 1614.105(a). Miller, 578 F.Supp.2d at 113-14. The court dismissed the remaining six counts, including Count III, for failure to state a claim, concluding Miller failed to respond to arguments raised by the NTSB and thereby conceded them. Id. at 111-12. Miller filed a timely notice of appeal, challenging only the summary judgment on Counts I and II and the dismissal of Count III.
We review de novo both a summary judgment and a dismissal for failure to state a claim. Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C.Cir.2009) (citing Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C.Cir.2007)). "Summary judgment is appropriate `if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.'" Quigley v. Giblin, 569 F.3d 449, 453 (D.C.Cir.2009) (quoting Fed.R.Civ.P. 56(c)). In assessing whether a genuine issue exists, we "view the evidence in the light most favorable to the nonmoving party." Id. (citing U.S. Postal Serv. v. Am. Postal Workers Union, 553 F.3d 686, 692 (D.C.Cir.2009)). We address first the two counts alleging discriminatory non-selection.
In its Motion to Dismiss, the NTSB asserted it was entitled to summary judgment on both Count I and Count II because Miller failed to exhaust his administrative remedies in that he did not consult an EEO counselor within 45 days of the alleged discriminatory actions pursuant to EEOC regulation 1614.105. Regulation 1614.105 requires that an "[a]ggrieved person[] who believe[s he] ha[s] been discriminated against on the basis of . . . sex [or] age . . . must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter" and "must initiate contact" with the counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a), (a)(1) (2001). Under subsection (a)(2), however, "the time will be tolled if he `did not know and reasonably should not have [] known that the discriminatory matter or personnel action occurred.' " Stewart v. Ashcroft, 352 F.3d 422, 425 (D.C.Cir.2003) (quoting 29 C.F.R. § 1614.105(a)(2)) (alteration in original). The NTSB has maintained that the 45-day period began to run for the Special Assistant positions no later than early May 2001, when Miller learned the identities of the two selectees, and for the Budget Officer position as of October 24, 2001, the date he was told he had not been selected for the post. Thus, the NTSB asserts, Miller failed to comply with the consultation requirement because each 45-day period expired before January 2, 2002, when he first sought counseling from NTSB EEO Director and Diversity Program Manager Fara Guest. See Decl. of Fara D. Guest, Motion to Dismiss ex. 1, ¶ 3 ().1 The district court agreed with the Board as to both Count I and Count II and granted summary judgment on each. Addressing the two counts in order, we reverse the court's summary judgment on each.
With regard to Count I, the NTSB argued that, because it is undisputed that Miller learned on October 24, 2001 that he had not been selected for the Budget Officer position, his counseling request on January 2, 2002, which came more than 45 days thereafter, was necessarily tardy. See Motion to Dismiss Mem. at 8, Miller v. Rosenker, C.A. No. 06-1071 (Feb. 27, 2007) (Motion to Dismiss Memo.). We disagree. It is indeed undisputed that Miller was informed on October 24, 2001 that he had not been selected for the Budget Officer position. See Motion to Dismiss Memo. 7-8; id. ex. 5 (); id. ex. 4 (). But this does not settle the matter. The complaint alleges that, although "a female was selected in October 2001" to fill the Budget Officer position, Miller "only discovered this fact in December 2001." Am. Compl. ¶ 18. Thus, Miller argues, it was only in December 2001 — fewer than 45 days before his January 2, 2002 meeting with Guest — that he "reasonably should . . . have . . . known that the discriminatory matter . . . occurred," 29 C.F.R. § 1614.105(a)(2), that is, that he had been passed over on account of his sex, and that the period...
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