Charles v. Brennan
Charles v. Brennan
Opinion of the Court
MEMORANDUM OPINION
[Dkt. # 16]
Former Central Intelligence Agency Non-Official Cover (“NOC”) Operations Officer Mack L. Charles
BACKGROUND
Plaintiff worked at the CIA as a NonOfficial Cover (“NOC”) Operations Officer from 1996 until his termination in 2010. Am. Compl. ¶¶ 19, 93. He received high commendations and served without incident with his superiors until the following events that gave rise to this case. Am. Compl. ¶¶ 19-47. In February 2008, Charles began dating Nina, a fellow NOC. Am. Compl. ¶ 48. He was 47 and she was 26, Am. Compl. ¶ 48, but their relationship did not violate any CIA rule or policy, Am. Compl. ¶ 49. In March 2009, plaintiffs and Nina’s superior, Eric P., spoke to Nina regarding her relationship with plaintiff for the first time, asking if she knew plaintiff had been married and divorced previously, and stating he had a daughter her age and “kn[e]w what’s right for [Nina].” Am. Compl. ¶¶ 50-51. Charles and Nina became engaged in April 2009, after which Eric P. and Imelda, another superior, “continued to interfere with their relationship” by, among other things, proffering geographically distant assignments to them. Am. Compl. ¶ 53. Perceiving discrimination based on his age, plaintiff emailed his managers on May 8, 2009, “warning that they were violating his EEO rights and demanding they cease all such efforts.” Am. Compl. ¶ 54. Three days later, his managers “initiated a ‘security scrub’ of his entire employment record to search for derogatory information,” which continued through July 2009. Am. Compl. ¶¶ 55, 58-59. Plaintiff alleges this security scrub marked the beginning of a “series of conspiratorial actions — constituting one continuing violation — in relation for Charles’ expression of his intent to defend his rights under EEO laws and regulations.” Am. Compl. ¶ 56.
On June 10, 2009, plaintiff filed añ EEO complaint alleging age discrimination; Am. Compl. ¶ 57. On August 5, 2009, in a request containing false and misleading statements regarding the plaintiff, his managers requested that a Personal Evaluation Board (“PEB”) be convened to evaluate plaintiffs conduct. Am. Compl. ¶¶ 61-66. The PEB met on October 28, 2009 and declined . to take action against plaintiff. Am. Compl. ¶¶ 72-73. Thereafter, in a continued effort to have him fired, plaintiffs superior Imelda obtained a false memorandum from “Chester” who had once supervised plaintiff. Am. Compl. ¶¶ 74-75. The PEB reconvened on May 5, 2010 and, based on the allegedly false memorandum, recommended that plaintiff be fired. Am. Compl. ¶¶ 89-92. Plaintiff appealed the PEB’s recommendation but was fired in December 2010. Am. Compl. ¶ 93.
On September 16, 2009 — after the PEB request, but before it convened — Plaintiff saw the false and misleading allegations in the request materials, then filed an EEO complaint alleging retaliation. Am. Compl. ¶¶ 67-68. The case was decided against him, plaintiff asked for reconsideration, and then, by letter dated August 28, 2014, the EEOC informed him that his request for reconsideration was denied. Am. Compl. Ex. 2, EEOC’s Notice of Right to Sue Letter [Dkt. #15-2]. The letter stated “you have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days ‘from the date that you receive this decision.” Id. at 2. Though plaintiff does not specify the date he received the letter, he concedes he failed to meet the 90-day deadline. Am. Compl. ¶ 122. Plaintiff alleges this ruling against him, combined with notice the same day that he could not
Plaintiff “attempted, in early November 2014, to obtain the assistance of counsel” Mark Zaid, but “the CIA’s Office of General Counsel (“OGC”) told Charles [Zaid] had to sign a new secrecy agreement before Zaid could be cleared,” Am. Compl. ¶ 123, and told Zaid that Charles had to “sign a new secrecy agreement,”' Am. Compl. ¶ 124. Plaintiff alleges he was “unable to go forward with the Complaint on his own” at that time, Am. Compl. ¶ 126, but after taking medication his depression subsided enough to enable him to prepare and file his initial complaint pro se on January 23, 2015. Am. Compl. ¶ 128. Sincé that time plaintiff obtained counsel and filed an amended complaint.
STANDARD OF REVIEW
The Court may dismiss a complaint for failure to state a claim upon which' relief may be granted. See Fed. R. Civ. P. 12(b)(6). In considering a motion' to dismiss under Rule 12(b)(6), the court must “liberally” construe the complaint “in favor :of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged.” Schuler v. United States, 617 F.2d 605, 605 (D.C.Cir. 1979) (internal citation and quotation marks omitted). However, in considering the pleadings, the Court is not required to “accept legal conclusions cast in the form of factual allegations,” or to rely on inferences “unsupported by the facts set out in the- complaint.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994). Thus, to withstand dismissal, the allegations, when read in a light most favorable to the plaintiff, must “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
ANALYSIS
Because plaintiff concedes he brought this action well past the 90-day statutory deadline, the Court must determine whether plaintiff alleges facts sufficient to show the type of extraordinary circumstances that warrant equitable tolling or equitable estoppel. Unfortunately for plaintiff, I find he has not.
The ADEA permits federal employees to choose one of two avenues to pursue an age discrimination claim. See, e.g., Stevens v. Dep’t of Treasury, 500 U.S. 1, 5-6, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991). First, an employee may pursue his claim through the agency’s administrative process “and then file a civil action in federal district court if he is not satisfied with his administrative remedies.” Id. (citing 29 U.S.C. § 633a(b)-(e)). Alternatively, the employee may bypass the agency’s administrative process and instead “present the merits of his claim to a federal court in the first instance.” Stevens, 500 U.S. at 6, 111 S.Ct. 1562 (citing 29 U.S.C. § 633a(d)). Failure to comply with either of the two designated procedures constitutes a failure
Under- the agency-then-court option, a federal employee has 90 days after receiving a final decision from the EEOC to file a civil action. See Pnce v. Bernanke, 470 F.3d 384, 388-89 (D.C.Cir. 2006). “[S]trict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). Accordingly, “this Circuit requires strict adherence to the 90-day requirement, such that actions brought even one day after the deadline will be dismissed.” Gill v. District of Columbia, 872 F.Supp.2d 30, 35 (D.D.C. 2012) (dismissing as untimely Title VII and ADEA claims filed two days after 90-day deadline); see Smith v. Dalton, 971 F.Supp. 1, 2-3 (D.D.C. 1997) (dismissing pro se plaintiffs Title VII and ADEA claims because suit was filed one day after 90-day deadline). Because the 90-day time period is not a jurisdictional bar, but rather a statute of limitations, it is subject to waiver, estoppel, and equitable tolling. Saltz v. Lehman, 672 F.2d 207, 208 (D.C.Cir. 1982).
Plaintiff concedes he missed the 90-day deadline set forth in the EEOC’s decision denying plaintiffs retaliation claim dated August 28, 2014, Am.. Compl. •¶ 122, so the only question is whether this is one of the “extraordinary and carefully circumscribed instances” in which the Court should exercise its equitable power to overcome plaintiffs untimeliness.
Plaintiff invokes equitable tolling on the grounds that he “fell into a deep depression” that prevented him from filing during the 90-day deadline, Am. Compl. ¶¶ 121-22, but this proposition finds little support in the law.
Plaintiffs equitable estoppel argument also fails. Plaintiff argues that the CIA’s imposition of an “unprecedented security requirement” for him to obtain counsel constituted “misconduct [that] directly contributed to [plaintiffs] tardiness in filing suit.” Pl.’s Opp’n. 22. While the parties refer to this argument as one for equitable tolling, it falls under the rubric of equitable estoppel, which “prevents a defendant from asserting untimeliness where the defendant has taken active steps to prevent the plaintiff from litigating in time.” Currier, 159 F.3d at 1367. Semantics aside, plaintiff fails to meet the high burden to show defendant’s alleged misconduct prevented him from filing suit in a timely fashion. Plaintiff alleges, in relevant part, “[w]hen Charles attempted, in early November 2014, to obtain the assistance of counsel — Washington, D.C., attorney Mark Zaid — and have Zaid cleared to represent him, the CIA’s Office of the General Counsel (OGC) told Charles that he had to sign a new secrecy agreement before Zaid could be cleared” and that “this requirement was unprecedented.” Am. Compl. ¶¶ 122, 124. Even assuming the CIA did in fact require an unprecedented new secrecy agreement that prevented access to that particular attorney,
To the extent plaintiff alleges any ADEA claim here distinct from that pursued administratively, it must also be dismissed. While defendant contends (and the complaint suggests) plaintiffs single-count complaint contains a single claim for retaliation by creating a hostile work environment, see Am. Compl. ¶ 131 (“All the events described above constitute a hostile work environment created in retaliation for Charles’ protected EEO activity.”), in his opposition plaintiff suggests he is bringing at least two distinct employments claims of hostile work environment and retaliation, see PL’s Opp’n 16. Setting aside plaintiffs failure to identify which alleged actions constitute discrete claims of discrimination and which ones support his hostile work environment claim, the undisputed facts show plaintiff raised and exhausted only one retaliation claim through the administrative process, which plaintiff appeals here. See Am. Compl. Ex. 2, at 1 (denying Charles’ request for reconsideration of EEOC’s denial of his claim, noting the previous decision found “there was no showing that the referral to the Personal Evaluation Board (PEB) was based on Complainant’s EEO complaint”). Even assuming plaintiff properly stated any separate claim here, to the extent it falls within the scope of EEOC’s decision it would be time-barred for the reasons stated above. And if the claim falls outside the scope of the EEOC case, it would be time-barred still. To bring an ADEA claim directly to federal court, rather than through the administrative agency fírst, a plaintiff must file notice of intent to sue with the EEOC within 180 days “after the alleged unlawful practice occurred,” 29 U.S.C. § 633a(d). Then ‘the plaintiff must wait at least 30 days after filing notice before commencing suit. Id. In the complaint plaintiff alleges various steps he took to pursue administrative remedies with the CIA EEO and the EEOC. See Am. Compl. ¶¶57, 68, 118. Noticeably absent is any allegation that he notified the EEOC that he intended to file suit in federal court, let alone within 180 days of any allegedly discriminatory action. See generally Am. Compl: Accordingly, none of plaintiff’s ADEA claims can be pursued'in federal court.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s Motion to Dismiss Plaintiffs Amended Complaint. An Order consistent with this decision accompanies this Memorandum Opinion.
. The plaintiff has used aliases for himself and other CIA employees, which the Court adopts here for ease of reference.
. Plaintiff alleges he sent a manuscript to the CIA Publications Review Board (PRB) for the requisite approval to publish a satirical novel he wrote under a pen name about the CIA. Am. Compl. ¶¶ 101, 103-04. He claims that after meeting with representatives from the PRB to discuss their refusal to publish his book, it was clear his superior, Imelda, had led the charge to disallow publication of any part of the novel, Am. Compl. 11102.
. To the extent plaintiff asserts that the single count in his Amended Complaint comprises multiple claims that may fall outside the scope of the claim he pursued through the administrative framework of the CIA EEO and the EEOC, I address that argument below.
. It finds such little legal support that plaintiff appears to have abandoned this argument in his briefing. See Pl.'s Opp’n 21-23 (failing to bring up any argument regarding his depression in the equitable tolling section). While this is grounds for concession, see Howard v. Locke, 729 F.Supp.2d 85, 87 (D.D.C. 2010), I evaluate the underlying allegations nonetheless.
. This allegation seems implausible. According to emails plaintiff attached to his Amended Complaint, plaintiff was asked to sign a routine document indicating he "understood] the security rules” associated with clearing cotinsel — not a "new • secrecy agreement”— because plaintiff was considering hiring a new attorney. Am. Compl. Ex. 3 at 5 [Dkt. # 15-3], Plaintiff concedes no such security requirements were imposed in connection with his current counsel who previously represented him. Pl.’s Opp’n 22.
Reference
- Full Case Name
- Mack L. CHARLES v. John O. BRENNAN, Director of the Central Intelligence Agency
- Cited By
- 7 cases
- Status
- Published