Vasser v. McDonald

• Decision Date: 29 December 2016
• Docket Number: Civil Action No.: 14-0185 (RC)
• Parties: Vivian VASSER, Plaintiff, v. Robert MCDONALD, Secretary, United States Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

228 F.Supp.3d 1

Vivian VASSER, Plaintiff,

v.Robert MCDONALD, Secretary, United States Department of Veterans Affairs, Defendant.

Civil Action No.: 14-0185 (RC)

United States District Court, District of Columbia.

Signed December 29, 2016

Lisa Alexis Jones, Lisa Alexis Jones, PLLC, New York, NY, for Plaintiff.

John Cuong Truong, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S PARTIAL MOTION TO DISMISS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Vivian Vasser alleges that she was unlawfully discriminated and retaliated against when the Department of Veterans Affairs failed to promote her ten different times over the course of three years. Although the details of each alleged failure-to-promote are unique, Defendant's motion hinges on just one attribute of Ms. Vasser's claims: their timing. Defendant argues that Ms. Vasser did not administratively exhaust her claims because she failed to raise some of them to an Equal Employment Opportunity Counselor within the prescribed time. Because Ms. Vasser indeed failed to timely raise many of the claims that she brings in this case, the Court must dismiss them. The Court further dismisses Ms. Vasser's age-discrimination claims brought pursuant to the Age Discrimination in Employment Act and her retaliation claims for non-selections occurring prior to her participation in any protected activities, because she has conceded that she did not exhaust either category of claims.

II. FACTUAL BACKGROUND

A. Plaintiff's Second Amended Complaint

Plaintiff Vivian Vasser brings this action against Defendant Robert McDonald in his official capacity as Secretary of the United States Department of Veterans Affairs ("VA"), alleging that the VA unlawfully discriminated against her on the basis of race, sex, and age in connection with her employment. See 2d Am. Compl. ("Compl.") ¶¶ 1, 4–5, ECF No. 19. She specifically contends that her supervisors willfully refused to promote her to higher positions ten different times, in violation of Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). Id. ¶¶ 17–19, 30–48. She also contends that the VA retaliated against her by not promoting her the same ten times. Id. ¶¶ 59–60.

Of the ten alleged instances of unlawful failure to promote, the first five occurred in 2007 and 2008.¹ See id. ¶¶ 17–18; see also Pl.'s Opp'n to Def.'s Renewed Partial Mot. Dismiss ("Pl.'s Opp'n to Mot. Dismiss") at 4–6, ECF No. 31. In the first four cases, less-experienced candidates who were not black females were selected for the positions. See Compl. ¶ 17. In the fifth, Ms. Vasser alleges that after she was told by the interviewer that he would "recommend her selection" and that she should "begin looking for a residence," the VA informed her that the position was "cancelled." Id. ¶ 18; see also Pl.'s Opp'n to Mot. Dismiss at 6–7. After she was told of the cancellation in January 2009, the VA again announced that it was hiring for the position. Compl. ¶ 18. Ms. Vasser applied again for this position in May 2009. See id. ¶ 21.

The sixth alleged failure to promote was for Ms. Vasser's May 2009 re-application.² See id. ¶ 21; see also Pl.'s Opp'n to Mot. Dismiss at 7–8. Ms. Vasser alleges that in July 2009 a less-qualified white male was hired for the position. See Compl. ¶ 22. Then, in November 2009, Ms. Vasser "filed a formal complaint of discrimination for [that] non-selection." See id. ¶¶ 21–29; see also Pl.'s Opp'n to Mot. Dismiss at 7–8. The seventh alleged failure-to-promote³ occurred "[i]n late 2010 to early 2011," after which a fellow applicant filed a separate lawsuit. See Compl. ¶ 30. "To this day, that vacancy has not been filled despite the presence of at least two qualified candidates," Ms. Vasser and the fellow applicant, who is "another African[-]American woman." Id. ; see also Pl.'s Opp'n to Mot. Dismiss at 9 (noting that as of September 23, 2015—the day the Opposition was filed—the position had still not been filled). Ms. Vasser does not specifically contend that she contacted an Equal Employment Opportunity ("EEO") counselor or otherwise engaged the EEO process in connection with this alleged non-promotion.

The final three instances of alleged discrimination occurred from 2010 to 2011. See Compl. ¶¶ 35–39, 47–48; see also Pl.'s Opp'n to Mot. Dismiss at 9–11. The VA does not contend that Plaintiff failed to exhaust her administrative remedies for these three claims. See P. & A. Supp. Def.'s Partial Mot. Dismiss ("Mot. Dismiss") at 11–12, ECF No. 21-1. Plaintiff's Second Amended Complaint states that she "filed a charges [sic] of discrimination for these non-selection [sic] on the basis of race, gender[,] and in retaliation for filing her previous ... complaints against" her supervisor, and that because it has been more than 180 days since she filed her "complaints of discrimination," she has "exhausted her administrative remedies for each of the non-selections since 2007." Compl. ¶ 59.

In paragraph 60 of her Second Amended Complaint, Plaintiff further alleges that she has been targeted and retaliated against since the filing of this action. See Compl. ¶ 60. She specifically alleges that because, in this lawsuit, she has asserted that her supervisor is "unqualified for the position," her supervisor has since "refused to grant leave ..., subjected [Ms. Vasser] to hostile and abusive treatment[,] and threatened to down-grade[ ] her performance evaluation in retaliation" against Ms. Vasser's participation in protected activity. Id.

B. Related Administrative Materials

In support of its Motion to Dismiss for failure to exhaust—which addresses only the first five and seventh alleged failures to promote—Defendant relies heavily on materials not included as part of the Second Amended Complaint. See Mot. Dismiss at 8–9 (arguing that the Court should take such materials into account at the motion-to-dismiss stage). Plaintiff argues that "[i]n relying on material outside of the pleadings, defendant has converted its motion to dismiss into a motion for summary judgment," and urges the Court not to consider any related administrative materials. Pl.'s Opp'n to Mot. Dismiss at 13–14.

In support of its Motion to Dismiss with respect to the first five alleged unlawful failures to promote—which allegedly occurred from 2007 to 2008—the VA attaches 15 exhibits, all of which are administrative materials. Most importantly for this motion, Defendant cites to Plaintiff's EEO complaint, dated February 17, 2010, and a final decision by the Department of Veterans Affairs Office of Employment Discrimination Complaint Adjudication. See Final Agency Decision in Vasser v. Secretary , VA Case Nos. 200I-153A-2010100557 & 200I-0010-2011104729 ("Final Agency Decision"), Mot. Dismiss Ex. 11 at 3, ECF No. 21-4;⁴ Complaint of Employment Discrimination, No. 200I–153A–2010100557 ("February 2010 Administrative Compl."), Mot. Dismiss. Ex. 13, ECF No. 21-5. Plaintiff's first administrative complaint alleged non-selection for the sixth non-promotion listed in the Complaint. See February 2010 Administrative Compl. at 21.⁵ In a portion of the administrative complaint for complainants to list their "[c]laim(s)," Ms. Vasser listed only the sixth alleged non-promotion, which she stated "occurre[d]" "10/30/09 [,] when [she] found out that some one [sic] else was selected." See id. at 20. She lists the previous five positions in her complaint as background information, and to establish that the VA had, "in the last [two-and-a-half] to three years ... demonstrated a common practice" of discriminatory hiring practices. See id. at 21–22.

The VA's Final Agency Decision concurs with the findings of the VA's Office of Resolution Management, concluding that, because Ms. Vasser's February 2010 administrative complaint was in-part untimely given that she had not initiated the administrative process within 45 days, "it [was] the final decision of the Department to dismiss claim[s] ... relating to the non-selections occurring ... [on or before] January 9, 2009." See Final Agency Decision at 3. The Final Agency Decision noted that Ms. Vasser did not deny failing to contact an EEO counselor within 45 days of her first-five alleged non-selections, and that the first time she mentioned them was in her February 2010 administrative complaint. See id. at 2–3. Ms. Vasser, citing to an EEO counselor's report, see Pl.'s Opp'n to Mot. Dismiss Ex. B, ECF No. 31-2, contends that she actually first mentioned them during her initial interview "on November 10, 2009." See Pl.'s Opp'n to Mot. Dismiss at 4–6 (adding, at the end of each description of the alleged non-promotions, that she "first raised th[e] issue[s]" with an EEO counselor on that date). Like in her formal complaint, Ms. Vasser mentioned the previous non-promotions as background supporting her belief that she had been discriminated against. See Pl.'s Opp'n to Mot. Dismiss Ex. B at 3. Ms. Vasser also contends that she was on active duty from May 2009 until July 2010. See Pl.'s Opp'n to Mot. Dismiss at 4–6; id. Ex. A.

As for the seventh alleged failure to promote, which occurred in late 2010 or early 2011, Defendant makes general reference to Plaintiff's "two pending EEO complaints," reasoning that because neither of them contains allegations of this particular instance of non-selection, Plaintiff did not exhaust her available administrative remedies for it. See Mot. Dismiss at 11–12; see generally February 2010 Administrative Compl.; Complaint of Employment Discrimination, No. 200I–0010–201104729 ("December 2011 Administrative Compl."), Mot. Dismiss. Ex. 9, ECF No. 21-4. In her December 2011 Complaint, Ms. Vasser raised five separate claims, none of which were for the seventh alleged failure-to-promote. See December 2011 Administrative Compl. at 21–23.⁶ The only reference that Ms. Vasser made to this position was in her December 2011 complaint, when she...