Noisette v. Geithner , 934 F. Supp. 2d 200 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANDRE NOISETTE, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-1594 (RWR)
)
JACOB LEW, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Andre Noisette, an African-American man, brings
this action against the Secretary1 of the United States
Department of the Treasury (“Treasury”) alleging racial
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.
Treasury moves to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6), or alternatively, for summary judgment
under Federal Rule of Civil Procedure 56, for failure to exhaust
administrative remedies. Because Noisette exhausted his
administrative remedies before filing this civil action,
Treasury’s motion will be denied.
BACKGROUND
The facts of this case are set forth in Noisette v.
Geithner, 693 F. Supp. 2d 60 (D.D.C. 2010). Briefly, Noisette
1
Jacob Lew is substituted as the defendant under Federal
Rule of Civil Procedure 25(d).
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was a management official in the Criminal Investigation Division
(“CID”) of Treasury’s Internal Revenue Service. Id. at 62.
Noisette alleges that he engaged in protected equal employment
opportunity (“EEO”) activity and was later retaliated against by
not being selected for a vacant supervisory position. Id. at 62-
63. In December 2007, Noisette filed a formal discrimination
complaint with the Treasury’s EEO office. Id. at 63. In
September 2008, Treasury issued a Final Agency Decision (“FAD”)
on Noisette’s formal administrative complaint, and, on
October 29, 2008, Noisette appealed the FAD to the Equal
Employment Opportunity Commission’s (“EEOC’s”) Office of Federal
Operations (“OFO”). Id. “[B]efore the OFO ruled on his appeal,
Noisette filed a request to withdraw it. On January 15, 2009,
OFO granted Noisette’s request, but not before Noisette filed [a
civil] action on December 29, 2008.” Id. (internal citations
omitted). Treasury, in turn, moved to dismiss the complaint.
Id.Treasury’s motion was granted because Noisette had failed to
exhaust his administrative remedies. A complainant “may bring a
civil action in a United States District Court ‘[w]ithin 90 days
of receipt of the Commission’s final decision on an appeal’ or
‘[a]fter 180 days from the date of the filing of an appeal . . .
if there has been no final decision by the Commission.’” Id. at
67 (alterations in original) (quoting 29 C.F.R. § 1614.407(c),
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(d)). Noisette, however, had filed his civil complaint 23 days
after he filed his FAD appeal and “did not wait to receive a
final decision on his appeal from OFO or wait 180 days from the
date he filed his appeal to bring [that] action.” Id. at 68.
The court explained that “Noisette [would] be allowed to file a
new complaint after the OFO . . . attempted to resolve his charge
for the full 180 days[,]” id. at 69, but that he would have to
“wait 180 days from the filing of his appeal or file his
complaint anew within 90 days from when the OFO issues a final
decision.” Id. at 69 n.2.
Noisette’s counsel promptly sent a letter to the OFO
“request[ing] that [Noisette’s] appeal to the Office of Federal
Operations be reinstated so that OFO can ‘conduct[] a de novo
review’ of the Final Agency Decision issued by the Department of
the Treasury.” Def.’s Mot. to Dismiss or, Alternatively, for
Summ. J. (“Def.’s Mot.”), Ex. 5 (Letter from Robert C. Seldon,
Robert C. Seldon & Associates, P.C., to Director, Office of
Federal Operations, U.S. Equal Employment Opportunity Commission
(Mar. 22, 2010)) (third alteration in original) (quoting
Noisette, 693 F. Supp. 2d at 69 n.2). Although the OFO received
the letter, the OFO “did not respond substantively” to Noisette.
Mem. of P. & A. in Opp’n to Def.’s Mot. to Dismiss or, in the
Alternative, for Summ. J. (“Pl.’s Opp’n”), Pl.’s Stmt. of Genuine
Issues ¶ 19; see also Def.’s Mot., Mem. of P. & A. in Supp. of
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Def.’s Mot. to Dismiss or, in the Alternative, for Summ. J.
(“Def.’s Mem.”) at 3 (“The Commission never responded to or
otherwise acted on Plaintiff’s letter.”). Noisette waited over
180 days after requesting that his appeal be reinstated, and then
filed this civil action. Treasury now moves to dismiss
Noisette’s complaint arguing that Noisette failed to exhaust his
administrative remedies because the OFO “‘has [not] attempted to
resolve [Noisette’s] charge for [a] full 180 days.’” Def.’s Mem.
at 1-2 (quoting Noisette, 693 F. Supp. 2d at 69).
DISCUSSION
“Title VII ‘[c]omplainants must timely exhaust the[ir]
administrative remedies before bringing their claims to court.’”
Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (alterations
in original) (quoting Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997)). However, Title VII’s “time-filing
requirements are not jurisdictional prerequisites to suit[.]”
Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir.
1985); accord Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). If a plaintiff does not timely exhaust his
administrative remedies before filing a Title VII action, his
claim is subject to dismissal under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. Noisette, 693 F.
Supp. 2d at 65.
In the D.C. Circuit, it is clear that “because untimely
exhaustion of administrative remedies is an affirmative
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defense, the defendant bears the burden of pleading and
proving it. If the defendant meets its burden, the
plaintiff then bears the burden of pleading and proving
facts supporting equitable avoidance of the defense.”
Jones v. Ashcroft, 321 F. Supp. 2d 1, 12 (D.D.C. 2004) (quoting
Bowden, 106 F.3d at 437).
A district court can dismiss a complaint under Rule 12(b)(6)
when the defendant shows that the plaintiff “fail[s] to state a
claim upon which relief can be granted[.]” Fed. R. Civ. P.
12(b)(6). However, “[w]hen ‘matters outside the pleadings are
presented to and not excluded by the court’ on a motion to
dismiss under Rule 12(b)(6), ‘the motion must be treated as one
for summary judgment.’” Highland Renovation Corp. v. Hanover
Ins. Grp., 620 F. Supp. 2d 79, 82 (D.D.C. 2009) (quoting Fed. R.
Civ. P. 12(d)). Since both parties rely on materials outside the
pleadings,2 the motion to dismiss will be treated as a motion for
summary judgment. Summary judgment may be granted when “the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009).
It is undisputed that Noisette promptly returned to the OFO
to pursue his administrative appeal as this court allowed him to
do. But Treasury has not demonstrated that it is entitled to
2
See, e.g., Pl.’s Opp’n, Decl. of Robert C. Seldon, Esq.;
Def.’s Mot., Decl. of Mariam Harvey.
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judgment as a matter of law. Treasury argues that Noisette has
not satisfied the 180-day waiting period because the OFO did not
affirmatively reinstate or otherwise attempt to resolve the
appeal. Def.’s Mem. at 8. Treasury attempts to distinguish
between Noisette’s request that the OFO reinstate his appeal and
an affirmative action of reinstatement by the OFO, asserting that
the “OFO must reinstate the appeal that Plaintiff previously
withdrew because the time to appeal the FAD . . . otherwise has
long since expired.” Id. As there has been no such affirmative
action by the OFO, rather, there has been only silence
“indicat[ing] that [the OFO] views [Noisette’s initial]
withdrawal of the appeal as an abandonment . . . of his claim[,]”
Treasury argues that the 180-day waiting period has not tolled
and Noisette has again failed to exhaust his administrative
remedies. Id. at 9.
Treasury does not identify any legal authority that Noisette
must demonstrate that the OFO actually considered his appeal to
exhaust his administrative remedies. To the contrary, Hill v.
Washington Metropolitan Area Transit Authority, 231 F. Supp. 2d
286 (D.D.C. 2002), rejected a similar argument. There, the
plaintiffs attempted to remedy a prematurely filed civil suit by
requesting that the EEOC renew consideration of their charges.
After waiting for the full 180-day period to run, the plaintiffs
refiled their civil suit. Id. at 293-94. Relying on Martini v.
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Federal National Mortgage Association, 178 F.3d 1336 (D.C. Cir.
1999), Judge Walton rejected the defendants’ argument that the
180-day waiting period had not tolled because the EEOC did not
affirmatively consider the charges and held that the plaintiffs
were not required to do anything more than request that the EEOC
begin consideration of their charges anew. Hill, 231 F. Supp. 2d
at 293-94; see also Jones, 321 F. Supp. 2d at 10-12 (relying on
Hill and Martini in analyzing an exhaustion claim where the
plaintiff previously filed an administrative appeal). Similarly,
once Noisette requested that the OFO reinstate his appeal and
waited for the 180-day period to toll, he “did all that is
required by Title VII.” Hill, 231 F. Supp. 2d at 294.
Further, the D.C. Circuit has encouraged that “the
application of Title VII’s procedural requirements be ‘animated
by the broad humanitarian and remedial purposes underlying the
federal proscription of employment discrimination.’” Williams v.
Wash. Metro. Area Transit Auth., 721 F.2d 1412, 1418 (D.C. Cir.
1983) (quoting Coles v. Penny, 531 F.2d 609, 616 (D.C. Cir.
1976)). Moreover, allowing the OFO to indefinitely delay a
claimant’s complaint by refusing to affirmatively reinstate an
appeal would not comport with Congress’s purpose for enacting
timelines in Title VII. For example, after a Title VII claim is
filed with the EEOC, “an aggrieved party may sue under Title VII
if the Commission dismisses the charge or if it neither sues the
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respondent nor reaches an acceptable conciliation agreement
within 180 days after the filing of the charge.” Martini, 178
F.3d at 1342 (citing 42 U.S.C. § 2000e-5(f)(1)). “‘The 180-day
provision is designed to make sure that the person aggrieved does
not have to endure lengthy delays . . . [and it] allows the
person aggrieved to elect to pursue his or her own remedy under
this title in the courts where there is agency inaction[.]’” Id.
at 1345 (quoting 118 Cong. Rec. 7168 (1972)).
OFO’s inaction cannot be utilized as an affirmative defense
to prevent Noisette from advancing his claim. Noisette has
satisfied the 180-day waiting period and thus has exhausted his
administrative remedies.
CONCLUSION AND ORDER
Treasury has not shown that it is entitled to judgment as a
matter of law on Noisette’s complaint. Accordingly, it is hereby
ORDERED that the defendant’s motion [6] to dismiss or,
alternatively, for summary judgment, be, and hereby is, DENIED.
SIGNED this 30th day of March, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge