UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) DEBRA AUGUSTUS, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1003 (EGS) ) GARY LOCKE, Secretary, ) U.S. Department of Commerce, ) ) Defendant. ) ) ______________________________)

MEMORANDUM OPINION

Plaintiff Debra Augustus brings this action against

Defendant United States Department of Commerce (the “DOC”)

alleging race and sex discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Pending before the Court is defendant’s motion to dismiss, or in

the alternative, for summary judgment. Upon consideration of the

motion, the response and reply thereto, the applicable law, the

entire record, the arguments of counsel made during the motions

hearing held on March 24, 2010, and for the reasons stated below,

the Court DENIES defendant’s motion for summary judgment as to

plaintiff’s race and sex discrimination claims and GRANTS without

prejudice defendant’s motion for summary judgment as to

plaintiff’s retaliation claim. I. BACKGROUND

Plaintiff is an African-American female employed as an

Equipment Facilities Services Assistant in the Office of

Facilities Management at the DOC. Compl. ¶¶ 5, 6. She has been

employed in that position since approximately June 2004. Compl.

¶ 6. Her rank is roughly equivalent to a GS-8 rank, and

plaintiff’s annual salary is approximately $52,000. Compl. ¶ 6.

On or about December 18, 2007, defendant assigned plaintiff

the duties of the Contracting Officer Technical Representative

(“COTR”) in the cafeteria at the Herbert C. Hoover Building in

addition to her duties as an administrative assistant. Compl.

¶ 7. Her duties as a COTR include, among other things,

performing twice daily inspections of the cafeteria, monitoring

the employees for health code compliance, and inventory

maintenance. Compl. ¶ 9. Plaintiff spends approximately 45-50%

of her work time performing COTR duties. Compl. ¶ 10.

A. Plaintiff’s Allegations of Race & Sex Discrimination (Agency Complaint No. 08-51-00148)

When plaintiff was assigned the COTR duties, she was

informed by her first-line supervisor, Ms. Pat McNutt (white,

female), that she would receive a pay increase. Compl. ¶ 11.1

Plaintiff’s second-line supervisor (white, male) and fourth-line

supervisor (white, male), however, allegedly stalled efforts to

increase plaintiff’s salary. See Compl. ¶¶ 12-17.

1 The previous COTR was GS-12 rank (white, male), and the previous back-up COTR was a GS-11 rank (white, male); both earned salaries of approximately $75,000. Compl. ¶ 8.

2 Accordingly, on June 23, 2008, plaintiff filed a formal

complaint of discrimination (Agency Complaint No. 08-51-00148)

alleging that she was not properly compensated for her additional

COTR duties because of her race and sex. See Def.’s Statement of

Material Facts (“SMF”) ¶ 2; Pl.’s Ex. 1, Declaration of Debra

Augustus (“Augustus Decl.”) ¶ 6; see also Def.’s Ex. C. The

agency accepted these claims for investigation on July 9, 2008.

See Pl.’s Ex. 3. The agency completed its investigation on

September 23, 2008, and advised plaintiff that she had 30 days to

either request a hearing before an Equal Employment Opportunity

Commission (“EEOC”) administrative judge or a Final Agency

Decision based on the record. See Def.’s Ex. E. On September

29, 2008, Ms. Augustus elected to proceed with a hearing before

an administrative judge. See Def.’s SMF ¶ 3; Def.’s Ex. F.

On December 10, 2008 - 170 days after plaintiff filed her

agency complaint – the Washington field office of the EEOC sent

the parties an “Acknowledgment and Order.” See Def.’s Ex. H.

This order acknowledged receipt of plaintiff’s request for a

hearing, and provided an overview of the hearing process,

including the parties’ discovery obligations. See Def.’s Ex. H.

Specifically, the order advised that “[a]bsent prior approval

from the Administrative Judge, a party must initiate discovery

within twenty (20) calendar days of receipt of this Order.”

Def.’s Ex. H. Plaintiff’s counsel received the Acknowledgment

and Order on December 19, 2008, see Augustus Decl. ¶ 8, and

3 served discovery requests on the DOC on January 7, 2009. On

January 8, 2009, however, the DOC advised plaintiff that it would

not respond to her discovery requests, explaining that the

requests were due by January 5, 2009 and were therefore untimely.

See Def.’s SMF ¶ 4; Augustus Decl. ¶ 10. Plaintiff’s counsel

immediately filed a motion to extend the deadline to initiate

discovery nunc pro tunc and to compel discovery responses,

stating her intent to file suit in federal court if the request

was denied. See Def.’s SMF ¶ 4; Augustus Decl. ¶ 10.2

On or about February 11, 2009, the administrative judge

advised counsel that he would not grant plaintiff’s motion and

ruled that plaintiff would be precluded from conducting

discovery. See Def.’s SMF ¶ 5; Augustus Decl. ¶ 11.

Accordingly, on February 16, 2009, plaintiff’s counsel advised

the EEOC that plaintiff had decided to file a complaint in

federal district court. See Pl.’s Ex. 6.

B. Plaintiff’s Allegation of Retaliation (Agency Complaint No. 09-51-00510)

Plaintiff also alleges that after she filed her

administrative complaint asserting race and sex discrimination

claims (Agency Complaint No. 08-51-00148), her first-line

supervisor, Ms. McNutt, began retaliating against her by, inter 2 See also Pl.’s Ex. 5, Plaintiff’s Motion To Extend Deadline to Initiate Discovery (“There is no reason to believe that the two day delay between when discovery requests were due – January 5, 2009 – and when Complainant served discovery – January 7, 2009 – would prejudice or cause any harm to the Agency. Furthermore, if the Agency refuses to respond to discovery, Complainant’s recourse would be to file a lawsuit in federal court, which would result in unnecessary delay and cost to all parties.”).

4 alia, scrutinizing her work performance, threatening to give

plaintiff’s COTR duties to other employees, prohibiting plaintiff

from leaving her desk during certain hours, and withholding

pertinent information from plaintiff. See Compl. ¶¶ 20-27.

Accordingly, on June 15, 2009, plaintiff filed another formal

complaint of discrimination (Agency Complaint No. 09-51-00510),

alleging that Ms. McNutt subjected her to a hostile work

environment in retaliation for filing her initial EEO complaint

(Agency Complaint No. 08-51-00148). See Def.’s SMF ¶ 6; Augustus

Decl. ¶ 15. This complaint was accepted for investigation on

July 1, 2009. See Pl.’s Ex. 7. On September 1, 2009, plaintiff

amended her complaint to include additional events in support of

her claims for hostile work environment and retaliation. See

Augustus Decl. ¶ 16. Plaintiff’s amended complaint was accepted

for investigation on September 8, 2009, and was completed on

December 3, 2009. See Docket No. 14, Pl.’s Status Report dated

March 23, 2010 (“Pl.’s Status Report”) ¶ 3. On December 10,

2009, plaintiff elected to proceed with a hearing before an

administrative judge. See Pl.’s Status Report ¶ 4. The parties

are currently engaged in discovery, which is set to close on

April 2, 2010. Pl.’s Status Report ¶ 6.

C. This Action

Plaintiff filed a complaint in this Court on May 29, 2009,

alleging sex discrimination, race discrimination, and

retaliation. On August 24, 2009, defendant filed a motion to

5 dismiss, or in the alternative, for summary judgment based on

plaintiff’s alleged failure to exhaust her administrative

remedies as to these claims. This motion is now ripe for

determination by the Court.

II. STANDARD OF REVIEW3

Summary judgment is appropriate when the moving party has

shown that there are no genuine issues of material fact and that

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. Dist. of Columbia,

(D.C.

Cir. 2002). A material fact is one that is capable of affecting

the outcome of the litigation. Anderson v. Liberty Lobby,

(1986). A genuine issue is one where the “evidence

is such that a reasonable jury could return a verdict for the

non-moving party.”

. A court considering a motion for

3 Motions to dismiss for failure to exhaust Title VII administrative remedies are generally resolved as motions to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Marcelus v. Corr. Corp. of America,

(D.D.C. 2008) (citing cases and explaining that because the Title VII exhaustion requirement is not jurisdictional, cases should not be resolved under Federal Rule of Civil Procedure 12(b)(1)). In this case, however, the Rule 12(b)(6) standard is inappropriate, as plaintiff’s complaint does not attach or reference the relevant agency documents needed to resolve the exhaustion issue. Cf.

at 235 n.5 (treating an EEOC charge as incorporated in the complaint because it was referenced therein). Therefore, because the Court must look outside the pleadings to resolve defendant’s motion, the Court will analyze plaintiff’s alleged failure to exhaust her Title VII administrative remedies under the summary judgment standard. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6). . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”).

6 summary judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant.

. To survive a

motion for summary judgment, however, the requester “must do more

than simply show that there is some metaphysical doubt as to the

material facts”; instead, the nonmoving party must come forward

with “‘specific facts showing that there is a genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986) (quoting Fed. R. Civ. P. 56(e)).

III. ANALYSIS

Defendant argues that plaintiff’s complaint must be

dismissed, or, alternatively, summary judgment must be granted,

because plaintiff has failed to exhaust her administrative

remedies. First, with regards to plaintiff’s claims of race and

sex discrimination, defendant argues that plaintiff is precluded

from pursuing those claims because she purportedly “abandoned”

them by withdrawing from the administrative hearing process on

February 16, 2009. Second, with regards to plaintiff’s

retaliation claim, defendant argues that Ms. Augustus has not yet

exhausted this claim as she is actively litigating the issue

before an administrative judge. The Court will explore these

arguments in turn.

A. Exhaustion of Administrative Remedies Generally

It is well settled that prior to commencing a Title VII suit

in federal district court, a plaintiff must exhaust his or her

remedies at the administrative level by asserting all claims in

7 an administrative complaint and allowing the agency time to act

on the complaint. See generally 42 U.S.C. § 2000e-16(c). The

exhaustion requirement “serves the important purposes of giving

the charged party notice of the claim and narrowing the issues

for prompt adjudication and decision.” Park v. Howard Univ.,

(D.C. Cir. 1995) (internal quotation marks

omitted). “The Court may dismiss a claim when a plaintiff fails

to exhaust administrative remedies before filing a discrimination

action.” Jones v. Wash. Times,

(D.D.C.

2009)(citing Rann v. Chao,

(D.C. Cir.

2003)).

B. Exhaustion of Plaintiff’s Race and Sex Discrimination Claims

Defendant argues that “[w]hen a plaintiff elects to request

a hearing before an EEOC administrative judge, her failure to

complete the hearing process is regarded as an abandonment of the

administrative process,” which “bar[s] [her] from seeking redress

from the courts.” Def.’s Mot. at 11-12. Plaintiff responds that

she should not be precluded from seeking relief as to her race

and sex discrimination claims in this Court because she assisted

the agency in its initial investigation of her complaint and

waited more than 180 days to file suit. See Pl.’s Opp’n Br. at 6

(citing

).4 This Court agrees with

4 The right of federal employees to file a civil action against the government is provided by section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c). The regulation interpreting this statute is

. This regulation provides that a

8 plaintiff, and finds that Ms. Augustus has sufficiently exhausted

her race and sex discrimination claims at the administrative

level.

While the Court is aware that at least two judges in this

district have held that voluntary dismissal of a request for an

administrative hearing precludes a plaintiff from filing suit in

federal district court, see Wiley v. Johnson,

(D.D.C. 2006) (finding that the plaintiff, who voluntarily

dismissed his administrative hearing action nearly two years

after filing his agency complaint, had failed to exhaust his

administrative remedies; “[I]nstead of exhausting his

Administrative Claim, [plaintiff] voluntarily dismissed it. . . .

[Plaintiff] cannot use a voluntary dismissal to avoid the

requirement of exhaustion, as this would undermine the purposes

behind the exhaustion doctrine. . . . Because [plaintiff] failed

to exhaust his administrative remedies, the Court lacks

jurisdiction and will dismiss this suit.”); Smith v. Koplan,

(D.D.C. 2005) (“Upon completion of the

[agency] investigation, plaintiff had the option of either

complainant is deemed to have exhausted all administrative remedies and is authorized under Title VII to file a civil action in the appropriate United States District Court if any of the following conditions are met: “(a) Within 90 days of receipt of the final action on an individual or class complaint if no appeal has been filed; (b) After 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final action has not been taken; (c) Within 90 days of receipt of the Commission’s final decision on an appeal; or (d) After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission.”

.

9 requesting an immediate final decision from the agency, or a

hearing before an EEOC administrative judge. Plaintiff chose the

latter, but failed to complete the process. . . . Plaintiff

abandoned the administrative proceedings that she initiated with

regard to her claims, and is therefore prohibited from seeking

redress of those claims in this Court.”), the Court declines to

follow those decisions. Instead, the Court concludes this

court’s decision in Brown v. Tomlinson,

(D.D.C. 2006) – which holds that, pursuant to

(b), a plaintiff may withdraw from an administrative

hearing after cooperating with an agency’s investigation for 180

days – is most consistent with the case law of this and other

Circuit courts, and should be followed.

In Brown, the plaintiff filed a formal administrative

discrimination complaint against the defendant agency.

. After the agency completed its investigation of the

complaint, the plaintiff elected to have a hearing before an EEOC

administrative judge.

After missing several discovery

deadlines, the plaintiff withdrew his complaint from the hearing

process in order to pursue his claim in federal district court.

While the Brown court initially granted defendant’s motion

for summary judgment based on the plaintiff’s alleged failure to

exhaust his administrative remedies,

, the court

subsequently vacated the decision, concluding that plaintiff had

satisfied

(b) because “more than 180 days had

10 elapsed before plaintiff withdrew from the administrative

proceeding[.]”

; see

(b) (allowing

a complainant to bring a lawsuit in federal court “[a]fter 180

days from the date of filing an individual or class complaint if

an appeal has not been filed and a final action has not been

taken”).

Defendant urges the Court to reject Brown, arguing that the

decision overlooked regulations governing the hearing and post-

hearing administrative process. See Def.’s Reply Br. at 3-4; see

also

(requiring an administrative judge to

issue a decision within 180 days of receipt of the complaint

file);

§ 1614.110(a) (requiring the agency to issue a final

order within 40 days of receipt of the hearing file).

Specifically, defendant argues that “Brown improperly compressed

the entirety of the administrative process into a single 180-day

period, even though the plaintiff requested an EEOC hearing and

the applicable regulations allow an 180-day period for the

hearing process.” Def.’s Reply Br. at 3-4. What defendant fails

to recognize, however, is that “the EEOC’s guidance makes clear

that a complainant may voluntarily withdraw a request for hearing

at any time.” Abdelkarim v. Tomlinson,

(D.D.C. 2009) (Sullivan, J.); see Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1

(Nov. 9, 1999) (“Generally, an Administrative Judge will conduct

a hearing on the merits of a complaint unless . . . the hearing

11 request is voluntarily withdrawn.”). While a complainant may

elect to allow an administrative hearing to run its full course,

there is no statute or regulation requiring a plaintiff to

complete the administrative hearing process if more than 180 days

has passed without a final determination by the agency; to the

contrary, the plain language of 42 U.S.C. § 2000e-16(c) and

(b) give federal employees the right to sue in

federal district court if an agency fails to take final action on

his or her Title VII complaint with 180 days. This determination

is consistent with the purpose of the 180-day provision, which

our Circuit has described as follows:

The 180 day provision represents a Congressional determination that providing prompt access to the courts in discrimination disputes is so important that the administrative process will be given only a finite time to deal alone with a given dispute. . . . Requiring a complainant to further pursue administrative remedies after fulfilling all the prerequisites to suit specified by the EEOA, and most importantly, after 180 days have elapsed without final administrative action, would frustrate that response.

Wilson v. Pena,

(D.C. Cir. 1996)(quoting Grubbs

v. Butz,

(D.C. Cir. 1975)).

Accordingly, the Court concludes that there is no reason for

it to stray from Brown, finding the decision both well-reasoned

and consistent with Circuit authority. See Saksenasingh v. Sec’y

of Educ.,

(D.C. Cir. 1997) (“We have held that

under 42 U.S.C. § 2000e-16(c), a complainant may [] file suit

after the appropriate number of days has elapsed since

12 complaining to the agency . . . .”); Wilson,

(holding, in the context of an EEOC enforcement action, that

“[o]nce a complainant files a complaint or appeal and cooperates

with the agency or EEOC for 180 days, he is not required to take

any further action to exhaust his administrative remedies”); see

also Martinez v. Dep't of the United States Army,

(5th Cir. 2003) (“Because 42 U.S.C. § 2000e-16(c) allows

federal employees to file suit in federal court if an agency has

not taken final action within 180 days and because withdrawing a

request for an EEOC hearing was not a failure to cooperate with

the administrative process, we reverse dismissal of employee’s

lawsuit and remand.”); Waiters v. Parson,

, 237 (3d

Cir. 1984) (“[B]efore filing a Title VII suit, a federal employee

charging an employer with discrimination must file a complaint

with the EEOC, and allow 180 days to pass during which the EEOC

will attempt to resolve the dispute without resorting to

litigation. At the end of the 180 day period the employee is

entitled to sue, regardless of the pendency of EEOC

proceedings.”).

Applying Brown to the facts of this case, the Court

concludes that plaintiff has satisfied the requirements of

(b) with respect to her race and sex

discrimination claims. Specifically, as discussed above,

plaintiff filed her agency complaint alleging race and sex

discrimination on June 23, 2008. Plaintiff participated in the

administrative hearing process until February 16, 2009 - 238 days

13 after the filing of her agency complaint. After cooperating with

the agency for more than 180 days, plaintiff had no obligation to

continue litigating in the administrative forum.5 The Court

finds, therefore, that plaintiff’s race and sex discrimination

claims are properly before this Court. Accordingly, defendant’s

motion for summary judgment as to plaintiff’s race and sex

discrimination claims is hereby DENIED.

C. Exhaustion of Plaintiff’s Retaliation Claim

Defendant also seeks dismissal of plaintiff’s retaliation

claim. As discussed above, plaintiff’s retaliation claim was

raised in her second agency complaint (Agency Complaint No. 09-

51-00510). On December 10, 2009, plaintiff elected to proceed

with a hearing before an administrative judge as to this claim,

and is currently engaged in discovery in the administrative

action. See generally Pl.’s Status Report. At the motions

hearing held on March 24, 2010, the Court asked plaintiff’s

counsel if she was aware of any authority allowing a party to

simultaneously litigate a claim before an agency and a federal

court; plaintiff’s counsel indicated that she was aware of none.

Accordingly, having been provided with no authority to support

the simultaneous adjudication of plaintiff’s retaliation claim in 5 See also, e.g., Martinez,

(concluding that the plaintiff’s withdrawal of his request for an administrative hearing after more than 180 days had elapsed in order to file suit in federal district court did not constitute “a failure to cooperate with the administrative process”); Brown,

(finding that a plaintiff’s failure to cooperate in an administrative hearing after more than 180 days had elapsed did not “result in the loss of the right to file suit in district court”).

14 both fora, and cognizant of the Circuit’s instruction that

exhaustion of administrative remedies is necessary in order to

“afford the agency an opportunity to resolve the matter

internally and to avoid unnecessarily burdening the courts,” the

Court concludes that plaintiff has failed to exhaust her

administrative remedies as to her retaliation claim. Wilson,

. Accordingly, defendant’s motion for summary

judgment as to plaintiff’s retaliation claim is GRANTED. The

Court notes, however, that this judgment is without prejudice, as

plaintiff has the right to pursue her retaliation claim in a

federal district court pursuant to

(b) upon

withdrawal from or completion of the administrative process. See

Pl.’s Ex. 8 (indicating that March 1, 2010 “represents 180 days

from the date of [plaintiff]’s amendment request”).

IV. CONCLUSION For the reasons set forth above, the Court DENIES

defendant’s motion for summary judgment as to plaintiff’s race

and sex discrimination claims, and GRANTS, without prejudice,

defendant’s motion for summary judgment as to plaintiff’s

retaliation claim. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED. Signed: EMMET G. SULLIVAN UNITES STATES DISTRICT JUDGE March 29, 2010

15