UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANN M. MOGENHAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 06-2041 (GK)
) Civil Action No. 08-0391 (GK)
1
Eric K. Shinseki, Secretary, ) (Consolidated)
Dep’t of Veterans Affairs )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Plaintiff Ann Mogenhan (“Plaintiff”) brings this action
against Defendant Eric K. Shinseki, Secretary of Veterans Affairs
(“Defendant”), pursuant to Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. She alleges that
she was subjected to discrimination on account of her race,
disability, and gender, and retaliation on account of her prior
Equal Employment Opportunity (“EEO”) activity (Count I); and
disparate treatment on account of gender and prior EEO activity
(Count II).
This matter is now before the Court on Defendant’s Motion to
Dismiss those claims in Count I based on race and disability [Dkt.
1
Pursuant to Fed. R. Civ. P. 25(d), Secretary of Veterans
Affairs Eric K. Shinseki is automatically substituted as Defendant
for former Secretary of Veterans Affairs James B. Peake.
No. 34].2 Upon consideration of the Motion, Opposition, Reply, the
entire record herein, and for the reasons set forth below,
Defendant’s Motion to Dismiss is granted.
I. Background3
On October 8, 2000, Plaintiff was hired as an Administrative
Officer in the Office of Financial Management and Accounting
Systems at the Veterans Health Administration in the Department of
Veterans Affairs (“the Agency”). Her position required her to
handle a variety of issues, including “budget, financial
management, human resources, procurement and contracting, property
management, executive correspondence, health and safety, and
security.” Compl. ¶ 15. During her service, she received several
awards, including Sustained Superior Performance Awards, Special
Contribution Awards, and Exemplary Performance Awards. Id. at ¶ 15
[sic].4
Plaintiff applied for the One-VA SES Candidate Development
Program. To be considered for admission to the program, Plaintiff
2
For ease of reference, unless otherwise specified, all
docket numbers refer to filings in the lead case, Civil Action No.
06-2041.
3
For purposes of ruling on a motion to dismiss, the factual
allegations of the Complaint must be presumed to be true and
liberally construed in favor of the Plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir.
Apr. 29, 2008). Therefore, the facts set forth herein are taken
from Plaintiff’s Complaint unless otherwise noted.
4
Plaintiff’s Complaint includes two paragraphs numbered
“15.” See generally Compl.
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needed two of her supervisors, David Rutledge (“Rutledge”) and
Jimmy Norris (“Norris”), to complete an appraisal of her
performance.
Plaintiff states that the appraisal submitted by Rutledge and
Norris was “mediocre” and that they knew that it “did not
accurately reflect her performance.” Id. ¶ 19. On February 3,
2007, Plaintiff was informed that Norris would not sign a form
indicating that he supported her for the position.
On February 26, 2007, Plaintiff received a letter informing
her that she had not been selected for the position. Plaintiff
states that her “non-selection was due in large part to the refusal
of Mr. Norris to sign” the form. Id. ¶ 22. Plaintiff also states
that other applicants were accepted “without the requirement that
their supervisors execute the form.” Id. ¶ 23.
Plaintiff filed three formal EEO complaints: the first on
December 20, 2001, the second on March 23, 2005, and the third on
December 19, 2005. Plaintiff consolidated these three
administrative complaints into a civil action that was filed on
November 29, 2006 in this Court (Civil Action No. 06-2041). In the
Amended Complaint, Plaintiff alleged that she was subjected to a
hostile work environment on the basis of her gender and her prior
EEO activity (Count I); that she was subjected to disparate
treatment for the same reasons (Count II); and that she was
subjected to adverse personnel actions because of her race, gender,
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and prior EEO activity (Count III). See 06-2041, Am. Compl. ¶¶ 34-
36.
On February 28, 2007, Plaintiff contacted an EEO Counselor.
On March 26, 2007, she filed a formal EEO complaint alleging that
she was discriminated against on the basis of her gender and that
she was retaliated against on the basis of her prior EEO activity.
Id. ¶ 11. This EEO complaint did not allege that she was subjected
to discrimination on account of her race and disability. See
generally Defs.’ Mot., Ex. A.
On February 21, 2008, the Agency’s Office of Employment
Discrimination and Complaint Adjudication (“OEDCA”) denied
Plaintiff’s March 26, 2007 EEO Complaint, finding that Plaintiff
had not been subjected to discrimination on the basis of gender or
reprisal. Id. The OEDCA decision never referenced race or
disability discrimination, and it made no findings on these issues.
See id.
On March 4, 2008, Plaintiff filed a second Complaint (Civil
Action No. 08-391). The Complaint alleged that Plaintiff was
subjected to unlawful discrimination on the basis of her race,
disability, and gender, and retaliation on the basis of her prior
EEO activity (Count I), and disparate treatment on account of her
gender and her prior EEO activity (Count II).
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On June 16, 2008, the Court consolidated the two cases5 and
specified that all future pleadings were to be filed in the lead
case, 06-2041. Defendant filed this Motion to Dismiss on June 19,
2008.
II. Standard of Review
To survive a motion to dismiss, a plaintiff need only plead
“enough facts to state a claim to relief that is plausible on its
face” and to “nudge[] [his or her] claims across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 579.
Under the standard set out in Twombly, a “court deciding a
motion to dismiss must not make any judgment about the probability
of the plaintiff's success . . . must assume all the allegations in
the complaint are true (even if doubtful in fact) . . . [and] must
give the plaintiff the benefit of all reasonable inferences derived
from the facts alleged.” Aktieselskabet AF 21.November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal
quotation marks and citations omitted).
5
Plaintiff did not request leave to file a Consolidated
Amended Complaint. In 06-2041, the Amended Complaint was filed on
January 17, 2007 [Dkt. No. 2]. In 08-391, the Complaint was filed
on March 4, 2008 [Dkt. No. 1]. The Motion, Opposition, and Reply
refer to the Complaint filed in 08-391. Accordingly, unless
otherwise specified, hereinafter all references to the “Complaint”
are to the Complaint filed in 08-391.
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III. Analysis
Defendant argues that Plaintiff failed to exhaust her
administrative remedies with respect to the claims of race and
disability discrimination in Count I. Def.’s Mot. at 3. Defendant
argues that Plaintiff did not raise either of these claims in the
formal EEO complaint she filed with the Agency on March 26, 2007.
Id. at 4.
In response, Plaintiff argues that she exhausted her
administrative remedies because the race and disability claims were
“reasonably related” to the gender and retaliation claims that were
included in her administrative case. Pl.’s Opp’n at 6. Plaintiff
also argues that the “discriminatory actions” in the Complaint are
the same as the allegations she made in the administrative process,
even though she acknowledges that she “identified two additional
bases for the discrimination actions.” Pl.’s Opp’n at 5 (emphasis
added). Moreover, Plaintiff argues that Defendant “has been aware
of Plaintiff’s disability for many years,” that Defendant “would
not be prejudiced” by permitting the race and disability claims to
proceed, that dismissing these claims would be contrary to the
“interest of justice,” and that Defendant would “suffer no
prejudice” if the claims were not dismissed. Pl.’s Opp’n at 3, 7,
8, 11.
Title VII requires that a plaintiff exhaust her administrative
remedies prior to bringing a civil action in federal court. Park
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v. Howard University, 71 F.3d 904, 907 (D.C. Cir. 1995). To
exhaust her administrative remedies, a plaintiff must file a claim
with the agency and “allow the agency time to act on the charge.”
Id. A lawsuit in federal court is “limited in scope to claims that
are ‘like or reasonably related to the allegations’” in the
administrative charge. Id. (quoting Cheek v. Western and Southern
Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994)). The claims “must
arise from ‘the administrative investigation that can reasonably be
expected to follow the charge of discrimination.’” Id. (quoting
Chisholm v. U.S. Postal Service, 665 F.2d 482, 491 (4th Cir.
1981)); see Hussain v. Gutierrez, 593 F. Supp. 2d 1, 5 (D.D.C.
2008) (“Specificity in a charge is not a mere technicality.”)
(internal quotation marks omitted).
Although this limitation “should not be construed to place a
heavy technical burden on individuals untrained in negotiating
procedural labyrinths,” the integrity of the administrative process
depends upon ensuring that a “liberal interpretation of an
administrative charge” does not allow a plaintiff “to bypass the
Title VII administrative process.” Park, 71 F.3d at 907 (internal
quotation marks and citations omitted).
A plaintiff fails to exhaust her administrative remedies when
the complaint she files in federal court includes a claim that was
not raised in the administrative complaint. Id. at 907 (“Although
Park filed an administrative charge, it did not express or even
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hint at a national origin hostile work environment claim.”); Miller
v. Rosenker, 578 F. Supp. 2d 107, 112 (D.D.C. 2008); Marcelus v.
Corrections Corp. of Am./Corr. Treatment Facility, 540 F. Supp. 2d
231, 235 (D.D.C. 2008) (“The theories of discrimination in
plaintiff’s lawsuit are limited to the theories contained in the
EEOC Charge he filed.”); see Rattigan v. Gonzales, 503 F. Supp. 2d
56, 69 (D.D.C. 2007) (“[E]ach incident of discrimination and each
retaliatory adverse employment decision constitutes a separate
actionable unlawful employment practice for which an administrative
charge must be filed.”) (quoting Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002)) (internal quotation marks
omitted); Lytes v. D.C. Water and Sewer Auth., 2006 WL 890005, at
*6 (D.D.C. Mar. 30, 2006) (“Because Mr. Lytes’s EEO charge did not
allege gender discrimination and because gender discrimination is
not like, or reasonably related to, his charge of discrimination
based on his disability, he has failed to exhaust his
administrative remedies on his gender charge.”).
In Miller, a plaintiff raised a retaliation claim in his
administrative complaint, but did not raise age or gender
discrimination claims. Miller, 578 F. Supp. 2d at 112. This Court
dismissed the age and gender discrimination claims, holding that
even though the claims “may be similar in that they all involve
harms suffered in the workplace, they are each distinct allegations
involving different types of discrimination. . . . [and] they must
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each be specifically alleged during the administrative process in
order to raise them in a subsequent complaint in federal court.”
Id.
In this case, Plaintiff concedes that she raised neither her
race discrimination claim nor her disability discrimination claim
in the formal EEO complaint she filed on March 26, 2007. Pl.’s
Opp’n at 3 (“In this action, Plaintiff added two additional bases
for discrimination, disability (suffers from migraine headaches)
and race (white).”); see also Compl. ¶ 11 (“On March 26, 2007, she
filed her formal discrimination complaint based on gender (female)
and reprisal for prior EEO activity.”). In the absence of specific
allegations of race or disability discrimination in the formal EEO
complaint, the Agency concluded in its Final Agency Decision that
Plaintiff had not been subjected to discrimination on the basis of
sex or reprisal, but made no reference to discrimination based on
race or disability. Def.’s Mot., Ex. A.
Discrimination claims based on race and disability are
distinct from discrimination claims based on gender and
retaliation.6 Accordingly, an Agency’s investigation of a race or
disability claim would require it to pursue different facts and
issues than an investigation of a claim based on gender
discrimination or retaliation. Because Plaintiff failed to raise
6
It should be noted that disability claims are governed by
the Rehabilitation Act, 29 U.S.C. § 794, et seq., not by Title VII
of the Civil Rights Act of 1964.
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the race and disability discrimination claims during the
administrative process, the Agency had no opportunity to
investigate them. Thus, as in Miller, Plaintiff was required to
specifically allege these distinct allegations during the
administrative process. To permit Plaintiff to proceed on her race
and disability claims when she had omitted both from her formal
administrative complaint would permit her “to bypass the Title VII
administrative process.”
For these reasons, Plaintiff failed to exhaust her
administrative remedies with respect to the race and disability
claims in Count I.
IV. Conclusion
For the reasons set forth above, Defendant’s Motion to Dismiss
is granted. The race and disability discrimination claims in Count
I are dismissed.
An Order shall accompany this Memorandum Opinion.
/s/
July 2, 2009 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
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