Webster v. Del Toro

• Decision Date: 20 September 2022
• Docket Number: 21-5040
• Citation: 49 F.4th 562
• Parties: Katrina L. WEBSTER, Appellant v. Carlos DEL TORO, Secretary of Navy, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

49 F.4th 562

Katrina L. WEBSTER, Appellant
v.
Carlos DEL TORO, Secretary of Navy, Appellee

No. 21-5040

United States Court of Appeals, District of Columbia Circuit.

Argued May 13, 2022
Decided September 20, 2022

Keith Klovers, appointed by the court, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steffen N. Johnson and Kelsey J. Curtis, appointed by the court.

Christopher C. Hair, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys. Kenneth A. Adebonojo and Heather Graham-Oliver, Assistant U.S. Attorneys, entered appearances.

Before: Rogers, Katsas, and Walker, Circuit Judges.

Katsas, Circuit Judge:

49 F.4th 564

An employee charged the Navy with discrimination and retaliation in violation of Title VII. The Navy investigated the charge and dismissed it as unproven. The Equal Employment Opportunity Commission agreed that the charge was unproven, but it identified in the administrative record a distinct retaliation claim that the employee herself had not charged. The question on appeal is whether the employee may pursue that claim in court without first exhausting it before the Navy. We hold that she may not.

I

A

Section 717 of the Civil Rights Act of 1964 prohibits federal employers from discriminating based on race and from retaliating against employees who have complained of discrimination. 42 U.S.C. § 2000e-16 ; see Rochon v. Gonzales , 438 F.3d 1211, 1219 (D.C. Cir. 2006). An aggrieved employee may file suit, but only after exhausting her claim administratively. Section 717(c) sets forth the exhaustion process: First, the employee must file with the employing agency an initial charge or complaint that describes the alleged violation. Once the agency takes final action on the complaint or 180 days pass, the employee may file suit in federal district court. Alternatively, she may appeal the agency's decision to the EEOC. If unsatisfied by the EEOC's final decision or 180 days pass, the employee has another opportunity to file suit.

B

Katrina Webster worked as a secretary for the Navy. In 2017, Webster filed a charge alleging that Richard Garland, a Navy contractor, had subjected her to a hostile work environment. According to Webster, Garland made comments describing her as trouble and telling co-workers to watch out or turn away when she approached. Webster also alleged that Garland, who provided IT support, once tried to remove a printer from her desk. The charge alleged that Webster's direct supervisor, Captain Patrick Croley, who headed the branch where Webster worked, permitted the harassment because of her race and her past EEO activity.

The Navy investigated Webster's charge. During the investigation, Webster provided a sworn statement naming Garland as the individual responsible for her harassment and backing away from the allegation that Croley had permitted it. Webster further stated her view that Garland knew of her prior EEO activity, and she suggested that Croley may have told him. Lieutenant Tarik Yameen, the deputy branch head under Croley, testified that he was unaware of Webster's EEO activity when she filed the complaint against Garland. Yameen further testified that he learned of that complaint from Webster's EEO counselor shortly after she filed it, and that he learned from Croley, around the same time, that Webster had filed other complaints.

In 2018, the Navy issued a final decision concluding that Webster failed to prove that Garland harassed her.

On appeal, the EEOC agreed with the Navy's conclusion, but it raised two distinct claims that Webster had not charged. First, the Commission concluded that Croley retaliated against Webster by disclosing her past EEO activity to Yameen. Second, the EEOC noted certain perceived deficiencies with the Navy's anti-harassment policy. The Commission thus remanded the case with instructions for the Navy to consider damages for Webster and to amend its policy.

49 F.4th 565

Despite the remand, the EEOC deemed its own decision to be final. Its order contained a section titled "Complainant's Right To File A Civil Action," which stated in relevant part:

This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. ...

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