Noisette v. Paulson

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
ANDRE NOISETTE, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-2237 (RWR)
)
TIMOTHY F. GEITHNER, )
)
Defendant. )
_____________________________ )

MEMORANDUM OPINION

Plaintiff Andre Noisette brought this action against the

Treasury Secretary alleging racial discrimination and retaliation

in employment in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e, et seq. The Secretary has moved to

dismiss, challenging venue and claiming that Noisette failed to

exhaust his administrative remedies before filing this action.

Because venue is proper in this district for Counts I and II and

pendent venue applies to Counts III and IV, the defendant’s

motion to dismiss Counts III and IV based on improper venue will

be denied. Because Noisette has raised a genuine issue of

material fact as to when he had a reasonable suspicion that he

had been the victim of the alleged discrimination, the

defendant’s motion to dismiss Counts I and II, treated as a

motion for summary judgment, will be denied. However, because

Noisette did not wait the requisite 180 days after filing his

appeal of the Department of Treasury’s Final Agency Decision
 -2-

(“FAD”), the defendant’s motion will be granted in part and this

action will be dismissed without prejudice.

BACKGROUND

Noisette is a management official in the Criminal

Investigation Division (“CID”) of the Treasury Department’s

Internal Revenue Service (“IRS”). (Am. Compl. (“Compl.”) ¶ 12.)

He participated in an internal investigation of a discrimination

pre-complaint filed against the IRS by a junior CID special

agent, Sarah Peebles. (Id. ¶¶ 19, 22.) He made findings

favorable to Peebles and then arranged a pre-complaint settlement

on behalf of the IRS. (Id. ¶¶ 24-25.) Shortly after

participating in that matter, Noisette applied for a vacant

Supervisory Special Agent (“SSA”) position in Florida. (Id.

¶¶ 28-29.) Initially, in mid-September of 2006, Noisette was

chosen to fill the vacancy without having to compete for the

position. (Id. ¶¶ 30-32.) However, on October 10, 2006,

officials at the IRS headquarters in Washington, D.C. revoked

Noisette’s selection. (Id. ¶ 35.) He received no official

notice of the revocation, though, and his supervisor told him

merely that if he wanted the position, he had to either interview

competitively for it to be eligible for a pay increase or forego

the increase and accept the position as a non-competitive

reassignment. (Id. ¶ 36; Pl.’s Opp’n, Noisette Decl. ¶ 7 and

Att. F at 119.) He believed he was the selectee and the
 -3-

interview was an administrative formality. (Pl.’s Opp’n,

Noisette Decl. ¶ 9 and Att. F at 119.) Noisette interviewed in

Atlanta for the position, but the IRS ultimately selected another

candidate on October 23, 2006. (Compl. ¶ 38; Def.’s Mem of P. &

A. in Supp. of Mot. to Dis. (“Def.’s Mem.”) at 4-5 ¶¶ 8-10.)

On December 5, 2007, Noisette contacted the agency’s equal

employment opportunity office, and later filed a formal complaint

of discrimination, alleging that these personnel decisions were

the product of discriminatory and retaliatory actions against him

based on his participation in Peebles’ pre-complaint proceedings.

(Compl. ¶ 40; Pl.’s Opp’n at 5.) On September 30, 2008, the

Department issued a FAD on Noisette’s formal administrative

complaint. (Compl. ¶ 41.) On October 29, 2008, Noisette

appealed the FAD to the Equal Employment Opportunity Commission’s

(“EEOC’s”) Office of Federal Operations (“OFO”) and, before the

OFO ruled on his appeal, Noisette filed a request to withdraw it.

(Id. ¶¶ 42-43.) On January 15, 2009, OFO granted Noisette’s

request, but not before Noisette filed this action on

December 29, 2008. (Id. ¶¶ 43-44.) The Secretary has moved to

dismiss, arguing venue is improper in this district for two of

the four counts in the complaint and that Noisette failed to

exhaust his administrative remedies.
 -4-

DISCUSSION

I. VENUE

Noisette’s complaint includes four separate counts and the

defendant has moved to dismiss Counts III and IV asserting

improper venue. Title VII’s venue provision states that

an action may be brought in any judicial district in
the State in which the unlawful employment practice is
alleged to have been committed, in the judicial
district in which the employment records relevant to
such practice are maintained and administered, or in
the judicial district in which the aggrieved person
would have worked but for the alleged unlawful
employment practice, but if the respondent is not found
within any such district, such an action may be brought
within the judicial district in which the respondent
has his principal office.

42 U.S.C. § 2000e-5(f)(3). Under Title VII’s venue provision, a

court first must “look to the place where the decisions and

actions concerning the employment practices occurred.” Milanes

v. Holder, Civil Action No. 09-824 (GK), 2009 WL 3367497, at *2

(D.D.C. Oct. 21, 2009) (internal quotation marks omitted).

Courts also must focus on “the locus of the alleged

discrimination[,]” Washington v. Gen. Elec. Corp., 686 F. Supp.

361, 363 (D.D.C. 1988), and employ a “‘commonsense appraisal’ of

events having operative significance in the case.” Donnell v.

Nat’l Guard Bureau, 568 F. Supp. 93, 94 (D.D.C. 1983) (quoting

Lamont v. Haig, 590 F.2d 1124, 1134 (D.C. Cir. 1978)).

Moreover, while venue generally must be appropriate on each

cause of action, Lamont, 590 F.2d at 1135, “this Circuit has
 -5-

adopted the principle of pendent venue which provides that proper

venue as to one claim will support adjudication of any other

claim as long the claims amount to a single cause of action.”

Archuleta v. Sullivan, 725 F. Supp. 602, 605-06 (D.D.C. 1989)

(citing Beattie v. United States, 756 F.2d 91, 100-01 (D.C. Cir.

1984) (overruled on other grounds)). This approach, “which

[gives priority to] joinder over venue in cases where the claims

are tied together in the same action, illustrates the importance

of joinder for factually interrelated claims.” Spender v.

Sytsma, 67 P.3d 1, 5 (Colo. 2003). Also, “to apply the principle

of pendent venue in any given case is a discretionary decision,

based on applicable policy considerations.” Beattie, 756 F.2d at

103. These considerations include judicial economy, convenience,

fairness and avoidance of piecemeal litigation. Id. Ultimately,

“the purpose of venue rules is generally considered to be

‘primarily a matter of convenience of litigants and witnesses.’”

Id. (quoting Denver & R.G.W.R. Co. v. Bhd. of R.R. Trainmen, 387

U.S. 556, 560 (1967)).

Venue is proper in the District of Columbia based on Counts

I and II because the alleged acts involve senior management

officials in the District of Columbia revoking Noisette’s

selection for the SSA position. (Compl. ¶¶ 35, 49, 57.) Counts

III and IV allege that, after having his offer revoked by

officials in the District of Columbia, Noisette was not selected
 -6-

to fill the SSA position available in the Florida office. (Id.

¶¶ 66-68, 78-80.) This non-selection decision occurred in

Atlanta, where Noisette interviewed for and was denied the

position. (Pl.’s Opp’n at 4-5, 15.) Thus, under the first prong

of Title VII’s venue provision, venue is proper in the District

of Columbia on Counts I and II only.

Nonetheless, if the complaint alleges essentially one cause

of action, pendent venue may extend to Counts III and IV. In

determining whether a case can be described as a single cause of

action, courts examine whether the plaintiff has asserted

essentially one wrong, whether the grounds for relief are the

same as to the parties and proof, and whether there will be

“great commonality as to witnesses and evidence.” Beattie, 756

F.2d at 101 (describing the litigation “as a single cause of

action with separate grounds for relief” because the plaintiffs

seek damages for “‘an essentially single wrong,’ i.e., wrongful

death” (footnote omitted)); see, e.g., Zenith Radio Corp. v.

Matsushita Elec. Indus. Co., 402 F. Supp. 262, 328 n.38 (E.D. Pa.

1975) (applying pendent venue in a case involving both the Anti-

Dumping Act of 1916 and federal antitrust law because it would be

“senseless . . . to bifurcate these two exceedingly complex

antitrust cases by dismissing or transferring the antidumping

counts while retaining the antitrust counts since the facts

underlying both sets of issues are essentially the same”); Laffey
 -7-

v. Northwest Airlines, 321 F. Supp. 1041, 1042 (D.D.C. 1971)

(extending pendent venue to the plaintiff’s Civil Rights Act

claim because venue was proper under the Equal Pay Act claim and

the two separate causes of action arose out of common allegations

of employment discrimination against female flight attendants).

Cf. Archuleta, 725 F. Supp. at 606 (refusing to extend pendent

venue because, although plaintiff’s discrimination claims were

based on the conduct of a single supervisor, each claim alleged

discriminatory conduct against a different protected class, the

evidence to support each discrimination claim would of necessity

be different, and the suit included nondiscrimination claims

based on administrative law issues).

Although Noisette has separated his claim into four separate

counts, all counts reflect essentially one wrong --

discriminatorily denying Noisette the SSA position. The non-

selection alleged in Counts III and IV stemmed precisely from the

revocation alleged in Counts I and II and followed closely on the

heels of it. Noisette would not have interviewed in Atlanta for

the position and been denied it had the alleged revocation in

Washington D.C. never occurred. The grounds for relief in Counts

III and IV overlap with those in Counts I and II, and all involve

the same plaintiff and defendant. The facts common to all counts

would be subject to proof by evidence common to all counts.

Because venue is proper in the District of Columbia on Counts I
 -8-

and II, pendent venue therefore will be extended to Counts III

and IV.1

II. EXHAUSTION

The Secretary has moved to dismiss all claims under Federal

Rules of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction and 12(b)(6) for failure to state a claim for which

relief can be granted, alleging that Noisette failed to exhaust

his administrative remedies. Generally, “[b]ecause the

exhaustion requirement [under Title VII], though mandatory, is

not jurisdictional,” Douglas v. Donovan, 559 F.3d 549, 556 n.4

(D.C. Cir. 2009), motions to dismiss for failure to exhaust

administrative remedies are more appropriately analyzed under

Rule 12(b)(6). Citizens For Responsibility and Ethics in Wash.

v. Bd. of Governors of the Fed. Reserve Sys., Civil Action No.

09-633 (RWR), 2009 WL 3859700, at *2 (D.D.C. Nov. 19, 2009)

(citing Marshall v. Honeywell Tech. Solutions, Inc., 536 F. Supp.

1
None of the other prongs of the Title VII venue statute
lays proper venue in the District of Columbia. The employment
records relevant to the non-selection alleged in Counts III and
IV are maintained in Cincinnati, Ohio (see Def.’s Reply at 13),
but it is not clear where the employment records relevant to the
revocation alleged in Counts I and II are maintained. A decision
on venue, therefore, cannot accurately be made based on the
location of all relevant employment records. Also, because
Noisette would have worked in the Tampa/St. Petersburg, Florida
office had the alleged discrimination not occurred, venue is
proper in the Middle District of Florida based on the third prong
of the Title VII venue statute. However, issues of convenience
weigh against transferring the case to the Middle District of
Florida. Neither party has alleged that any of the litigants,
witnesses or evidence are located there.
 -9-

2d 59, 64 n.6 (D.D.C. 2008) (quoting Hazel v. Wash. Metro.

Transit Auth., Civil Action No. 02-1375 (RWR), 2006 WL 3623693,

at *3 (D.D.C. Dec. 4, 2006))). “In order to survive a motion to

dismiss under Rule 12(b)(6), the allegations stated in the . . .

complaint ‘must be enough to raise a right to relief above the

speculative level[.]’” Demery v. Montgomery County, Md., 602 F.

Supp. 2d 206, 212 (D.D.C. 2009) (alteration in original) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If,

however, “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.” Fed. R. Civ. P. 12(d); see also

Citizens for Responsibility and Ethics in Wash., 2009 WL 3859700,

at *2.

To succeed on a summary judgment motion, the movant must

demonstrate that there is no genuine issue as to any material

fact and that the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). In ruling on a motion for summary

judgment, “[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The

threshold question is whether “there are any genuine factual

issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either

party.” Single Stick, Inc. v. Johanns, 601 F. Supp. 2d 307, 312
 -10-

(D.D.C. 2009) (internal quotation marks omitted). “A genuine

issue is present where the ‘evidence is such that a reasonable

jury could return a verdict for the non-moving party,’ in

contrast to a situation where the evidence is ‘so one-sided that

one party must prevail as a matter of law.’” Citizens for

Responsibility and Ethics in Wash., 2009 WL 3859700, at *2

(quoting Anderson, 477 U.S. at 248, 252)).

A. 45-day deadline

“[T]he EEOC has been given ‘broad authority to enforce

[Title VII’s] antidiscrimination mandate within the federal

government, including responsibility for issuing regulations to

control federal agencies’ processing of discrimination

complaints.’” Jones v. Ashcroft, 321 F. Supp. 2d 1, 10 (D.D.C.

2004) (second alteration in original) (quoting Bowden v. United

States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing 42 U.S.C.

§ 2000e-16)). “Pursuant to that authority, the EEOC has

established detailed procedures for seeking informal adjustment

of complaints, filing formal charges, and appealing agency

decisions to the Commission.” Bowden, 106 F.3d at 437 (citing 29

C.F.R. §§ 1613.201-283 (1991) (recodified at 29 C.F.R. part 1614

(1996))).

A person who believes he has been discriminated against must

consult an EEO “Counselor within 45 days of the date of the

matter alleged to be discriminatory or, in the case of personnel
 -11-

action, within 45 days of the effective date of the action.” 29

C.F.R. § 1614.105(a)(1); Boone v. Clinton, Civil Action No. 05-

346 (RWR), 2009 WL 5125510, at *3 (D.D.C. Dec. 29, 2009). Under

the applicable regulations, the “agency or the Commission shall

extend the 45-day time limit . . . when the individual shows

. . . that he or she did not know and reasonably should not have

known that the discriminatory matter or personnel action

occurred[.]” 29 C.F.R. § 1614.105(a)(2). “The plaintiff’s time

for [contacting an EEO counselor] starts to run when the

plaintiff has a reasonable suspicion that [he] has been the

victim of discrimination.” Hines v. Bair, 594 F. Supp. 2d 17,

22-23 (D.D.C. 2009) (first alteration in original) (internal

quotations marks omitted).

The Secretary argues that the first two counts of Noisette’s

complaint should be dismissed because Noisette waited until

December 5, 2006 to contact an EEO counselor, which is more than

45 days after the Secretary’s October 10, 2006 revocation.

(Def.’s Mem. at 13.) Noisette contends, on the other hand, that

he did not know and reasonably should not have known until

October 23, 2006 that he had suffered a revocation that was

discriminatory because it was only then that “the significance of

the October 10 ‘revocation’ became apparent.” (Pl.’s Opp’n at

11.) Because both parties have submitted declarations outside
 -12-

the pleadings and they have not been excluded, the Secretary’s

motion will be treated as one for summary judgment on this issue.

Although Noisette’s complaint treats the October 10, 2006

revocation as a separate discriminatory and retaliatory act (see

Compl. ¶¶ 46-61), there is some suggestion that Noisette

reasonably did not know that he was subject to discrimination at

the time of the revocation. For example, Noisette’s own sworn

statement shows that, although Noisette was informed orally on

October 10, 2006 that he had to participate in the competitive

selection process for the SSA position, he received no official

documentation from the agency stating that his selection had been

revoked. (Pl.’s Opp’n, Noisette Decl. ¶ 7.) Noisette’s

statement further shows that he believed the interview to be

merely an administrative formality, that he decided to

participate in the competitive process because he wanted to

receive the pay increase, and that he was confident that he would

be selected for the position because he previously had been

selected. (See Id. ¶ 9; see also Pl.’s Opp’n, Att. F at 119

(“[I]f I wanted the position in St. Petersburg, [for] which I was

previously selected, I had two choices. I could take a non-

competitive reassignment . . . or I could interview for the

position.”).) These statements suggest that Noisette did not

believe that the choices imposed upon him after October 10 had
 -13-

any greater meaning than that he was required to compete for the

position in order to receive the pay increase.

These facts are distinct from those of other cases where

plaintiffs have claimed that they did not have a reasonable

suspicion of the discriminatory act, but the evidence indicated

otherwise. In Aceto v. England, 328 F. Supp. 2d 1 (D.D.C. 2004),

for example, the plaintiff argued that he did not know or have

reason to know that he was subject to discrimination when the

defendant prohibited him from using his personal handicapped

parking card while driving a Navy vehicle, but the undisputed

evidence rebutted this argument. Indeed, in a memorandum sent to

the defendant more than 45 days before the plaintiff contacted an

EEO counselor, the plaintiff asserted that disability protection

regulations allowed him to use his personal handicapped card in a

government vehicle. Id. at 7. Also, the plaintiff stated that

nearly six months prior to contacting an EEO counselor, he

believed the defendant’s conduct was discriminatory. See id.

Similarly, in McCants v. Glickman, 180 F. Supp. 2d 35 (D.D.C.

2001), though the plaintiff contacted an EEO counselor within

days of learning that other candidates had been selected for the

position he sought, undisputed facts in the record revealed that

the plaintiff suspected discrimination on the day he interviewed

for the position, which was two years before he contacted the

counselor. By letter, the plaintiff stated that he believed that
 -14-

his “interview was ‘tainted’ and that he began ‘bracing’ himself

that day to be ‘kicked in the face’ by the USDA because one of

the interviewers treated him rudely.” Id. at 41.

Here, although there are some inconsistencies in Noisette’s

complaint and supporting documents regarding whether Noisette

viewed the revocation as an act distinct from the non-selection,

the question of when Noisette believed or should have believed

that he was the subject of discrimination centers on a disputed

material fact that bears upon whether Noisette properly exhausted

his administrative remedies under 29 C.F.R. § 1614.105(a)(1).

Because summary judgment may be granted only where there is no

genuine issue of material fact, the Secretary’s motion as to this

issue, treated as a motion for summary judgment, will be denied.

B. 180-day waiting period

A federal employee complainant who has filed an appeal of a

FAD with the EEOC 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.” 29 C.F.R. § 1614.407(c), (d).

“Complainants must timely exhaust these remedies before bringing

their claims to court.” Bowden, 106 F.3d at 437 (emphasis

added); see also Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330,

332 (D.C. Cir. 1992) (“This administrative remedies exhaustion
 -15-

requirement is mandatory.” (citing Brown v. Gen. Servs. Admin.,

425 U.S. 820, 832-33 (1976))).

The defendant has shown that Noisette failed to exhaust his

administrative remedies. Noisette filed his FAD appeal on

October 29, 2008 and 23 days later, on November 21, 2008,

requested withdrawal of his appeal. However, before the EEOC

ruled on Noisette’s withdrawal request, Noisette filed this

lawsuit. Noisette 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 this action.

For a federal employee complainant who has not filed an

appeal of a FAD with the EEOC, the EEOC regulation sets the

deadline to bring a civil action as 90 days after he has received

the FAD. 29 C.F.R. § 1614.407(a). Noisette filed this action on

December 29, 2008 and argues that because he ultimately withdrew

the appeal of his September 30, 2008 FAD, the only way “to avoid

running the risk of being untimely was to initiate this action

before his appeal . . . was formally dismissed[.]” (Pl.’s Opp’n

at 12.) However, Noisette has presented no authority for the

view that withdrawing an appeal switches the applicable timetable

for filing a civil action from that set forth in § 1614.407(c)

and (d) to the 90-day deadline in § 1614.407(a). Indeed, under a

nearly identical set of facts, Jones held that a plaintiff who

had requested a withdrawal of his appeal and then proceeded to
 -16-

file a lawsuit before the 180-day period had run had failed to

exhaust his administrative remedies. Jones, 321 F. Supp. 2d at

11.

“Exhaustion is required in order to give federal agencies an

opportunity to handle matters internally whenever possible[.]”

Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). By withdrawing

his appeal, however, Noisette stripped the OFO of its chance to

investigate in a meaningful way Noisette’s complaint. To allow

Noisette to abandon course after he affirmatively chose an appeal

at the administrative level could frustrate Title VII’s goal of

encouraging discrimination complaints to be resolved at the

administrative level. See id. Courts have recognized the

importance of the exhaustion requirement in similar, though not

identical, circumstances, such as where plaintiffs had withdrawn

or failed to pursue their complaints at the initial

administrative step. “Allowing a plaintiff to abandon the

administrative remedies he has initiated would tend to frustrate

the ability of the agency to deal with complaints. All

participants would know that at any moment an impatient

complainant could take his claim to court and abort the

administrative proceedings.” Gagnon v. Potter, No. 3:05-CV-

324RM, 2006 WL 2051730, at *3 (N.D. Ind. July 19, 2006) (holding

that plaintiff was not allowed to voluntarily withdraw her

complaint after electing to have her complaint heard before an
 -17-

administrative law judge); see also Mackay v. USPS, 607 F. Supp.

271, 276 (E.D. Pa. 1985) (“The exhaustion requirement is not met

by plaintiff’s taking the initial administrative steps and then

abandoning the process.”)

The time limits are not a jurisdictional bar to a civil

suit, though, because they can be rendered inapplicable by

waiver, estoppel and equitable tolling. See Bowden, 106 F.3d at

437; see also Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1044 (D.C.

Cir. 2008); Brown, 777 F.2d at 16. “In the D.C. Circuit, it is

clear that ‘[b]ecause untimely exhaustion of administrative

remedies is an affirmative 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, 321 F. Supp. 2d at 12 (alteration in original) (quoting

Bowden, 106 F.3d at 437).

Noisette argues that this case should go forward based on

equitable considerations. Specifically, he argues that because

“the OFO had taken no substantive action on [his appeal]” and

briefing had not begun prior to his withdrawal, “[t]he agency was

not prejudiced in any way[.]” (Pl.’s Opp’n at 12.) While a

“plaintiff who fails to comply, to the letter, with

administrative deadlines ‘ordinarily will be denied a judicial

audience[,]’” Brown, 777 F.2d at 13 (quoting Shehadeh v.
 -18-

Chesapeake and Potomac Tel. Co. of Md., 595 F.2d 711, 717-18

(D.C. Cir. 1978) (footnote omitted)), equitable doctrines may be

applied, though sparingly. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002); Silver v. Leavitt, Civil Action

No. 05-0968 (JDB), 2006 WL 626928, at *10 (D.D.C. Mar. 13, 2006).

Equitable doctrines have been applied where a party has made a

technically defective effort to act within a limitations period,

see Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)

(surveying cases), been misled or lulled into inaction by a

federal agency, see Gray v. Phillips Petroleum Co., 858 F.2d 610,

615-16 (10th Cir. 1988), or been given erroneous advice about a

limitations period. See Jarrell v. USPS, 753 F.2d 1088, 1091-92

(D.C. Cir. 1985).

It is certainly the case that a mere 23 days before Noisette

asked to withdraw his appeal, he had the right to file this

action without involving the EEOC at all. However, even if, as

the plaintiff argues, lack of prejudice to the EEOC is an

equitable justification for avoiding the 180-day waiting period,

alleging and showing lack of prejudice to the EEOC are two

different things. Plaintiff carries the burden of pleading and

proving facts supporting equitable avoidance of the waiting

period. He has not carried that burden. While the parties had

not filed briefs, there is no factual evidence in the record

regarding what efforts and resources the EEOC had expended and
 -19-

whether plaintiff's withdrawal did prejudice the EEOC. Nor has

the plaintiff cited any authority for the proposition that

withdrawing an appeal 23 days after filing it is presumptively

not prejudicial to the EEOC, or even that lack of prejudice to

the EEOC has been recognized as a basis for equitable avoidance

of the 180-day waiting period. He certainly has not shown that

any of the narrow set of recognized bases for equitable avoidance

apply here. Noisette had the benefit of counsel and was advised

of his rights to appeal and of the appropriate timing

requirements. (Def.’s Mem. at 11.) There is no evidence that

Noisette was misled by any federal agency. And Congress’s

preference for federal agencies to examine and either correct or

resolve through informal mediation or formal complaint procedures

allegations of discrimination in the federal workplace before

there is resort to private lawsuits in court counsels against

permitting equitable avoidance here. Noisette, with the benefit

of counsel, made an informed choice among options of which he was

fully notified in the FAD. The statute and the regulation

dictate that his choice -- the appeal process before the EEOC --

must be allowed to run its course before he can maintain an

action here. Noisette’s complaint, therefore, will be dismissed

without prejudice and Noisette will be allowed to file a new
 -20-

complaint after the OFO has attempted to resolve his charge for

the full 180 days.2

CONCLUSION

The defendant’s motion to dismiss Counts III and IV will be

denied as pendent venue applies to those counts. The defendant’s

motion to dismiss Counts I and II, treated as a motion for

summary judgment, will be denied because Noisette has raised a

genuine issue of material fact as to when he had a reasonable

suspicion that he was subject to the alleged discrimination.

However, because Noisette initiated this action before exhausting

his administrative remedies, the defendant’s motion to dismiss

will be granted in part. The complaint will be dismissed without

prejudice, and Noisette may file a new complaint after the

Commission has attempted to resolve his appeal for the full 180-

day period. A separate order accompanies this Memorandum

Opinion.

2
Noisette must 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. Since the EEOC granted Noisette’s
withdrawal request, the agency never made a final decision on his
appeal, as defined by the regulation governing FAD appeals. “The
[OFO], on behalf of the Commission, shall issue a written
decision setting forth its reasons for the decision. . . . The
decision on an appeal from an agency’s final action shall be
based on a de novo review” of the complaint. 29 C.F.R.
§ 1614.405(a). There is no evidence that the OFO conducted a de
novo review of Noisette’s complaint when it granted his
withdrawal request. Also, while the OFO is empowered to dismiss
an appeal under certain circumstances, none of the statutorily
prescribed justifications for dismissal includes a voluntary
withdrawal. See 29 C.F.R. §§ 1614.107, 1614.403(c).
 -21-

SIGNED this 12th day of March, 2010.

/s/
RICHARD W. ROBERTS
United States District Judge