Mount v. Johnson, Civil Action No. 12–CV–1276KBJ

• Decision Date: 10 April 2014
• Docket Number: Civil Action No. 12–CV–1276KBJ
• Citation: 36 F.Supp.3d 74
• Court: U.S. District Court — District of Columbia
• Parties: Jason Mount, Plaintiff, v. Jeh Johnson, Secretary, Department of Homeland Security,Defendant.

36 F.Supp.3d 74

Jason Mount, Plaintiff
v.
Jeh Johnson, Secretary, Department of Homeland Security¹ Defendant.

Civil Action No. 12–CV–1276KBJ

United States District Court, District of Columbia.

Signed April 10, 2014

Kyle G. Ingram, Morris Eli Fischer, Law Office of Morris E. Fischer, LLC, Silver Spring, MD, for Plaintiff.

Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

This employment discrimination case turns on a question of law regarding whether alleged acts of retaliation that occur subsequent to the plaintiff's filing of an administrative Equal Employment Opportunity (“EEO”) charge need to be exhausted separately. Plaintiff Jason Mount (“Plaintiff” or “Mount”) filed the instant complaint on August 27, 2013, pursuant to

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Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, alleging that his employer, the Department of Homeland Security (“DHS” or “Defendant”), wrongfully refused to select him for 43 different positions that he applied for within the agency. (See Complaint, ECF No. 1.) Mount maintains that this extensive series of non-selections was motivated by discriminatory and retaliatory animus; specifically, Mount alleges that he was not promoted to any of the posts due to discrimination based on his gender and race (id. ¶¶ 123–143 (Counts I and II)), and that agency officials also refused to select him because he had previously filed an EEO charge claiming gender and race discrimination on the basis of his supervisor's treatment of him (id. ¶¶ 144–151 (Count III)).

Before this Court at present is Defendant's motion to dismiss the complaint in part, or in the alternative, motion for partial summary judgment. (Def.'s Partial Mot. to Dismiss or in the Alternative for Partial Summ. J., (“Def.'s Mot.”), ECF No. 7.) Offering additional documentation regarding the scope of Mount's EEO charge, Defendant argues that only one of the 43 alleged non-selection events listed in Mount's complaint was raised in the context of Mount's EEO complaint; therefore, the rest of the alleged instances of discrimination/retaliation must be dismissed from the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative remedies. (Id. at 1.)² Because this Court agrees with Defendant that the applicable legal standards regarding administrative exhaustion were not satisfied under the circumstances presented here, the Court concludes that there is no genuine issue of material fact regarding Mount's failure to satisfy Title VII's exhaustion requirement with respect to all but one of his non-selection retaliation allegations. Therefore, Defendant's motion to dismiss the complaint in part, or in the alternative, motion for partial summary judgment, is GRANTED . As explained below, Counts I and II of the complaint are dismissed in their entirety, and the only surviving non-selection event for the purpose of Count III is Mount's contention that the agency retaliated against him in the spring of 2011, when officials did not select him for a posted agency position in Los Angeles. A separate order consistent with this opinion will follow.

I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

For the purpose of the pending motion, the essential facts of this matter are not in dispute. (See Def.'s Reply, ECF No. 9, at 7.) Mount was hired in 2001 to serve as an employee of the U.S. Customs Service, which is the predecessor agency to U.S. Immigration and Customs Enforcement (“ICE”), a division of the U.S. Department of Homeland Security's Investigations (“HSI”) unit. (Compl.¶¶ 1, 13.)³ By 2009, Mount had been promoted to the position of Branch Chief/Supervisor Special Agent

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at ICE headquarters in Washington, DC. (Id. ¶ 14.)

In November of 2010, Mount filed an administrative EEO complaint alleging gender discrimination because his then-supervisor, Sharon Peyus, had decided to have Mount work from a cubicle instead of an office, while giving offices to his female coworkers. (Id. ¶¶ 15, 22; Ex. 6 to Def.'s Mot., Report of Investigation (“ROI”), ECF No. 7–6, at 7, 22–24, 27–31.) Mount contends that, as a result of this EEO charge, Peyus and other agency officials embarked on a series of retaliatory actions (mostly in the form of non-selections) beginning in January of 2011, and continuing until April of 2012. Notably, as explained below, only some of these alleged retaliatory actions were raised within the context of Mount's EEO complaint.

First, in March of 2011, four months after the filing of his discrimination complaint, Mount notified the agency that he believed Peyus had taken certain actions in response to his having brought administrative charges, and he wanted this alleged retaliation to be included in his EEO complaint. (ROI at 7.) Specifically, Mount maintained that (1) the parties' failure to settle the initial claims at mediation constituted retaliation, and (2) Peyus had withheld training opportunities when she cancelled Mount's attendance at a leadership training program and did not permit him to apply to an ICE fellowship program, and he requested a formal amendment to the original EEO complaint to include these two new allegations. (Id. ) Shortly after that amendment and also in March of 2011, Mount filed a second EEO complaint, this time alleging that he was discriminated against on the basis of his race when he was not selected for an Assistant Special Agent–in–Charge (“ASAC”) position in Las Vegas, Nevada. (ROI at 13 (“I believe I was not considered for the [Las Vegas] position based on my race.”); Ex. 7 to Def.'s Mot., Report of Investigation (“Second ROI”), ECF No. 7–7, at 13–14.) Mount had apparently applied to the Las Vegas ASAC position on October 15, 2010, and had learned that he was not selected for the position on December 30, 2010. (Second ROI at 3; Ex. 3 to Def.'s Mot., Decl. of Dinisha Brown (“Brown Decl.”), ECF No. 7–3, at 2.) Claude Arnold, who was the Special Agent-in-Charge of the Los Angeles HSI office, made the selection for that Las Vegas ASAC position, which a three-member evaluation panel and HSI's National Director for Operations approved. (ROI at 54–57; Arnold Aff. ¶¶ 5, 13, 17–35, 28–31.) Mount, who is Caucasian (Compl.¶ 135), asserted in his second EEO complaint that the agency had chosen an African–American man for the position instead of him solely because of race. (ROI at 12–13.)

Mount then asked the agency to consolidate his two separate administrative complaints. (See Second ROI at 13–14.) By letter of April 7, 2011, the agency notified Mount that it had consolidated the complaints such that, with the exception of his allegations regarding the purportedly retaliatory failure to settle at mediation, the consolidated administrative complaint addressed all of Mount's claims up to that point in time (i.e., his claims that Peyus had discrimination against him on the basis of gender and had retaliated against him for bringing that EEO charge, and that Arnold had discriminated against him on the basis of race when he failed to select him for the Las Vegas ASAC position). (Id. at 14; ROI at 22–24.) An EEO contractor was assigned to investigate the claims in the consolidated complaint, and that investigator contacted Mount on May 27, 2011. (Second ROI at 17–18.) An investigation of Mount's consolidated EEO complaint took place from May 31, 2011, through August 10, 2011. (ROI at 4.)

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On August 29, 2011, after the investigation of the claims in Mount's consolidated complaint had ended, Mount requested an amendment to his consolidated EEO complaint. (Second ROI at 13–14.) Mount had applied for a Special Agent-in-Charge position in HSI's office in Los Angeles, California on March 21, 2011, and had learned that he had not been selected on July 14, 2011. (Id. ; Brown Decl. at 2.)⁴ The same person who had not selected Mount for the Las Vegas position (Claude Arnold) also made the selection determination regarding the Los Angeles post. (Second ROI at 19–20.) Mount maintained that the only reason Arnold did not select him for the Los Angeles position was the fact that Mount had previously filed an administrative complaint against Arnold; therefore, Mount requested that his consolidated EEO complaint be amended in order to include an additional charge of retaliation based on the Los Angeles non-selection. By letter dated November 14, 2011, the agency granted his request. (Second ROI at 13–14.) Notably, the agency's grant letter specifically addressed the agency's policy regarding such amendments:

While a complaint is pending, a Complainant may raise a new incident of alleged discrimination that is not a part of the existing claim but may be like or related to the pending claim. If the new claim is like or related to claim(s) raised in the pending complaint, the pending complaint may be amended to include the newly-raised allegation and there is no requirement to seek counseling on the new claim. EEOC Management Directive 110, Chapter 5; III B. Your client's complaint is hereby amended to include this issue.

(Id. at 14.)

Having...