UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) WILLIE D. BELTON, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 04-704 (EGS) ) ERIK K. SHINSEKI,1 ) Secretary of Veteran ) Affairs, ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Willie D. Belton, Sr., proceeding pro se, has

brought claims against defendant, the Secretary of Veteran

Affairs, under the Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 633a et seq., the Americans With Disabilities Act

(“ADA”),

et seq., and Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.

After plaintiff filed an amended complaint, defendant moved to

dismiss or, in the alternative, for summary judgment. Upon

consideration of defendant’s motion, the responses and replies

thereto, the applicable law, the entire record herein, and for

the reasons stated below, the Court GRANTS defendant’s motion to

dismiss and DENIES AS MOOT defendant’s motion for summary

1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Shinseki, in his official capacity as the Secretary of Veteran Affairs, is automatically substituted as the named defendant. judgment.

I. Background

Plaintiff is an African-American male who was forty-eight

years old when his amended complaint was filed. Am. Compl. ¶ 6.

Plaintiff joined the Veterans Administration (“VA”) in 1981 as an

electrician’s helper. Id. ¶ 6. He alleges that he was disabled

while in military service and that his lower back is “rated at

20%.” Id. ¶ 9. Plaintiff claims that he was subjected to

intentional discrimination, retaliation, and a hostile work

environment based on his age, race, and disability. Id. ¶¶ 8-10.

Specifically, plaintiff claims that he applied for a General

Engineer position (Vacancy Announcement No. VAR-DV-0-1956) in

April 2000.2 Id. ¶¶ 20, 27. He alleges that he was qualified

for the position but that he was not selected or notified of the

non-selection. Id. ¶ 27. Defendant, however, points to evidence

that plaintiff was notified of his ineligibility for the position

on May 12, 2000. Def.’s Statement of Material Facts Not in

Genuine Dispute ¶ 3; Pl.’s Opp’n Ex. B-1.

Plaintiff also claims that he was harassed by his

supervisor. In particular, plaintiff alleges that his supervisor

sent plaintiff e-mails requesting that he complete his work

2 Plaintiff alleges that he applied for the position in April 2000, while the EEO letter sent to plaintiff by defendant refers to the application date as May 2000. Because the relevant date is when plaintiff was notified of his non-selection, however, this discrepancy is immaterial.

2 orders on the same day they were assigned to him. Am. Compl.

¶ 9. He also claims that he received a phone call at home from

his supervisor, who threatened physical harm after plaintiff

filed complaints. Id. ¶ 14. Finally, plaintiff alleges that his

supervisor retaliated against him by forcing him to work with a

co-worker who plaintiff claims was known to be “dangerous.”

Id. ¶ 16. More generally, plaintiff contends that he was

discriminated and retaliated against because the VA refused to

provide him with “electrically protective clothing.” Id. ¶¶ 10-

12.

Plaintiff contacted an Equal Employment Opportunity (“EEO”)

counselor on June 25, 2001 with claims of harassment and non-

selection on the basis of race and physical disability. See

Def.’s Mot. Ex. 1. He then filed an initial EEO complaint on

August 24, 2001. Id. On January 3, 2002, the VA accepted for

further processing plaintiff’s harassment claim and rejected as

untimely his non-selection claim because plaintiff did not

contact a counselor within forty-five days of the date of his

non-selection. See id. at 4. On September 25, 2003, plaintiff

was placed in a “Leave Without Pay” status pending resolution of

workers’ compensation claims related to his continued

unauthorized absences from work. See Def.’s Exs. 7-8. When his

workers’ compensation claims were denied by the Department of

Labor on March 15, 2004, plaintiff was placed in an “Absent

3 Without Leave” status. See Def.’s Mot. Exs. 7-8.

Plaintiff filed a complaint in this Court in April 2004 and

sought leave to amend the complaint in March 2005. Defendant

moved to dismiss the amended complaint pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative,

for summary judgment pursuant to Rule 56. Plaintiff filed a

“preliminary” opposition and, after defendant filed a reply,

moved for an extension of time to respond to defendant’s reply

and to obtain counsel.3 The Court granted plaintiff’s motion,

directing plaintiff to file a “final opposition” and permitting

defendant to file a surreply. The parties did so, and the motion

is ripe for decision.

II. Standard of Review

A. Rule 12(b)(1)

On a motion to dismiss for lack of subject-matter

jurisdiction pursuant to Federal Rule of Civil Procedure

12(b)(1), the plaintiff bears the burden of establishing that the

court has jurisdiction. Lujan v. Defenders of Wildlife,

(1992). Because subject-matter jurisdiction focuses on

the court’s power to hear the claim, however, the court must give

the plaintiffs’ factual allegations closer scrutiny when

resolving a Rule 12(b)(1) motion than would be required for a

3 Plaintiff did not succeed in securing the representation of counsel, and has instead proceeded pro se for the duration of this lawsuit.

4 Rule 12(b)(6) motion for failure to state a claim. Macharia v.

United States,

(D.C. Cir. 2003). Thus, to

determine whether it has jurisdiction over the claim, the court

may consider materials outside the pleadings where necessary to

resolve disputed jurisdictional facts. Herbert v. Nat’l Acad. of

Sciences,

(D.C. Cir. 1992).

B. Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 8(a), a pleading

stating a claim for relief must contain “‘a short and plain

statement of the claim showing that the pleader is entitled to

relief’” in order to provide the defendant with “fair notice of

the claims against” him. Ciralsky v. CIA,

(D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also

Erickson v. Pardus,

(2007) (per curiam).

“[W]hen a complaint adequately states a claim, it may not be

dismissed based on a district court’s assessment that the

plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder.” Bell Atlantic Corp. v. Twombly,

, 563

n.8 (2007). In considering a 12(b)(6) motion, the Court should

construe the complaint “liberally in the plaintiff’s favor,”

“accept[ing] as true all of the factual allegations” alleged in

the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans

Inc.,

(D.C. Cir. 2008) (alteration in original)

5 (quoting Kassem v. Wash. Hosp. Ctr.,

(D.C. Cir.

2008)). A plaintiff is entitled to “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v.

MCI Commc’ns Corp.,

(D.C. Cir. 1994).

C. Pro se litigants

The pleadings of pro se parties are “to be liberally

construed, and a pro se complaint, however inartfully pleaded,

must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson,

(internal

citations and quotation marks omitted). But “although a court

will read a pro se plaintiff’s complaint liberally,” a pro se

complaint, no less than any other complaint, “must present a

claim on which the Court can grant relief.” Chandler v. Roche,

(D.D.C. 2002) (citing Crisafi v.

Holland,

, 1308 (D.C. Cir. 1981)). Because pro se

litigants are afforded a more lenient pleading standard, their

failure to respond to an argument is not construed as a

concession unless they have been advised of this rule. See Neal

v. Kelly,

(D.C. Cir. 1992); Fox v. Strickland,

(D.C. Cir. 1988). This Court gave such notice

by way of an Order issued on November 26, 2004. Defendant also

provided plaintiff with the requisite notice in its renewed

motion to dismiss or for summary judgment filed on May 19, 2005.

6 III. Discussion

A. Non-Selection Claim

An aggrieved federal employee must initiate contact with an

EEO counselor within forty-five days of the date of the event

believed to be discriminatory or retaliatory; for personnel

actions, contact must occur within forty-five days of the

effective date of the personnel action.

(a)(1). Although this time limit is not a jurisdictional

bar to bringing suit in federal court, it nevertheless operates

like a statute of limitations to bar claims not timely raised

before the employer agency. See Bowden v. United States,

(D.C. Cir. 1997). The D.C. Circuit, moreover, has

emphasized that courts should exercise their equitable power to

toll the statute of limitations “only in extraordinary and

carefully circumscribed instances.” Mondy v. Sec’y of Army,

(D.C. Cir. 1988).

Under this standard, plaintiff’s discrimination claim based

on non-selection for the General Engineer vacancy must be

dismissed as untimely. Plaintiff alleged in his complaint that

he was never notified of his non-selection, but has since

acknowledged that he was notified of his ineligibility for the

position on May 12, 2000. See Pl.’s Opp’n ¶ 6; Pl.’s Ex. 2.

Plaintiff, however, did not contact an EEO counselor until June

25, 2001, more than thirteen months later. See Def.’s Mot. Ex.

7 1. Plaintiff argues that he was late in contacting an EEO

counselor because the May 12, 2000 letter did not advise him of

the time limits. Pl.’s Opp’n at 2. The Court certainly

recognizes that the prudent course for defendant would have been

to provide such notice to plaintiff. The agency’s failure to do

so, however, does not constitute the type of “extraordinary”

circumstance that merits equitable tolling of the forty-five day

limit. See, e.g., Williams v. Munoz,

(D.D.C. 2000) (citing examples of cases of equitable tolling

where the defendant “engaged in affirmative misconduct” or

“tricked plaintiff into allowing the filing deadline to pass”).

In short, because plaintiff has failed to demonstrate that the

forty-five day filing limit should be excused, his non-selection

claim must be dismissed for failure to exhaust administrative

remedies. The Court therefore grants defendant’s motion to

dismiss this claim for lack of subject matter jurisdiction.

B. Remaining Claims

Plaintiff’s amended complaint also alleges retaliation and

harassment claims based on age, race, and disability. In his

opposition to defendant’s motion, however, plaintiff states that

he “withdraws his claim of age discrimination as to the

harassment, but is without knowledge as to the awardee of the

non-selection claim as to the General Engineer position.” Pl.’s

Opp’n ¶ 3. Additionally, plaintiff’s opposition accepts most of

8 defendant’s statement of material facts, disputing only two

statements: (1) defendant’s allegation that his non-selection

claim was untimely, and (2) the characterization of his worker’s

compensation claims. Compare Def.’s Statement of Material Facts

¶¶ 4, 8, with Pl.’s Opp’n at 4. Because plaintiff was given

notice that failure to contest defendant’s arguments would result

in the Court treating his claims as conceded, the Court will

grant defendant’s motion to dismiss plaintiff’s claims of age

discrimination, retaliation, harassment, and a hostile work

environment. See, e.g., Fox,

; Stephenson v. Cox,

(D.D.C. 2002) (“[W]hen a plaintiff files

a response to a motion to dismiss but fails to address certain

arguments made by the defendant, the court may treat those

arguments as conceded, even when the result is dismissal of the

entire case.”).

IV. Conclusion

For the reasons set forth above, the Court GRANTS

defendant’s motion to dismiss and DENIES AS MOOT defendant’s

motion for summary judgment. An appropriate Order accompanies

this Memorandum Opinion.

SIGNED: Emmet G. Sullivan United States District Judge July 27, 2009

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