Briscoe v. Kerry

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANN JUANITA BRISCOE, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1204 (EGS)
)
JOHN KERRY, Secretary, )
Department of State, )
)
Defendant. )
______________________________)

MEMORANDUM OPINION

Plaintiff Ann Briscoe brings this action against John Kerry,

in his capacity as Secretary of State, alleging that she

suffered discrimination on the basis of her age, race, and

disability, and that she suffered retaliation for engaging in

protected activity, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.;

the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §

621, et seq.; and the Rehabilitation Act, 29 U.S.C. § 794, et

seq. Pending before the Court is defendant’s motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the

alternative, for summary judgment pursuant to Federal Rule of

Civil Procedure 56. Upon consideration of the motion, the

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

record, the Court GRANTS defendant’s motion.
I. Background

Ms. Briscoe—an African-American woman who was born in April

1956, Report of EEO Investigation, ECF No. 7-1 at 1—was employed

with the Media Resource Unit of the State Department’s Bureau of

Public Affairs. See Def.’s Statement of Material Facts (“Def.’s

SMF”), ECF No. 7-8 ¶ 1; Pl.’s Statement of Material Facts

(“Pl.’s SMF”), ECF No. 11 at 7 ¶ 1. She has a physical

disability that limits her “ability to reach, stand or push.”

Compl., ECF No. 1 at 2. This disability is mentioned in her

State Department personnel file, and has been known to the State

Department since 2001. See id.; Def.’s SMF ¶ 8; Pl.’s SMF ¶ 3.

A. Ms. Briscoe’s Experience in the Rapid Response Unit.

The Media Resource Unit was abolished in 2006, and Ms. Briscoe

was forced to find a job in the newly formed Rapid Response

Unit. See Def.’s SMF ¶ 1; Pl.’s SMF ¶ 1. The State Department

“did not offer her assistance walking to Department offices in

search of alternative employment.” Def.’s SMF ¶ 8; Pl.’s SMF ¶

3. The Rapid Response Unit was then led by Duncan McAnnis, who

supervised Ms. Briscoe from January 2006 through June 2007. See

Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3. Prior to Ms. Briscoe’s transfer

to the Rapid Response Unit, Mr. McAnnis said “out with the old

in with the new,” a statement that Ms. Briscoe did not hear, but

“another employee told her about the comment.” Def.’s SMF ¶¶ 5–

6; Pl.’s SMF ¶ 3. At this time, Mr. McAnnis also hired and

2
treated more favorably younger employees. See Def.’s SMF ¶ 7;

Pl.’s SMF ¶ 3.

“[D]uring an unspecified period of time[, Ms. Briscoe] was

tasked with helping new staffers sign-in in the building’s

lobby, located two floors beneath her own office,” which was

difficult due to her disability. See Def.’s SMF ¶ 9; Pl.’s SMF ¶

3. Ms. Briscoe was also “the only African American in [the Rapid

Response Unit] and felt segregated and singled out.” Def.’s SMF

¶ 11; Pl.’s SMF ¶ 3. Ms. Briscoe, however, “has not observed any

employee at [the Rapid Response Unit] make a derogatory

statement about race” or about her disability. Def.’s SMF ¶ 12,

29–30; Pl.’s SMF ¶ 3, 10–11. In 2006 and 2007, Ms. Briscoe

received neither a performance rating nor an annual review,

making her ineligible for promotion. See Def.’s SMF ¶ 13; Pl.’s

SMF ¶ 3.

Beginning in September or October 2007, Jennifer Barnes became

Ms. Briscoe’s supervisor. See Def.’s SMF ¶ 4; Pl.’s SMF ¶ 3.

Upon Ms. Barnes’s arrival, she “met individually with all [Rapid

Response Unit] staff except for Plaintiff and inquired as to

Plaintiff’s status in the [Rapid Response Unit] but not that of

other employees.” Def.’s SMF ¶ 14; Pl.’s SMF ¶ 3. Ms. Briscoe

was also isolated from the staff during their daily morning

meetings. See Def.’s SMF ¶ 15; Pl.’s SMF ¶ 3. Nonetheless,

“[p]laintiff received an outstanding rating for 2008 and an

3
exceeding expectations rating in 2009.” Def.’s SMF ¶ 13; Pl.’s

SMF ¶ 3.

B. Ms. Briscoe Pursues Administrative Proceedings Regarding
Her Discrimination Claims.

On February 25, 2009, Ms. Briscoe contacted an EEO Counselor

for the first time. See Def.’s SMF ¶ 16; Pl.’s SMF ¶ 3; EEO

Counselor’s Report, ECF No. 7-3 at 1. Her formal discrimination

complaint was filed on March 25, 2009. See Def.’s SMF ¶ 17;

Pl.’s SMF ¶ 4; Formal Complaint of Discrimination, ECF No. 7-2.

That complaint alleged discrimination on the basis of race, age,

and physical disability, and the creation of a hostile work

environment. Id. at 2, 3.

Before this complaint was filed, Ms. Briscoe worked the night

shift alone; after the complaint was filed, another employee

began sharing the shift with her some nights and monitoring her

work. See Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. On March 26, 2009, Ms.

Barnes informed Ms. Briscoe that she would have her first-ever

annual review the following day. See Def.’s SMF ¶ 19; Pl.’s SMF

¶ 5. During the review, Ms. Barnes referred repeatedly to Ms.

Briscoe’s EEO complaint and asked Ms. Briscoe to take on

additional tasks. See Def.’s SMF ¶ 20; Pl.’s SMF ¶ 5. Following

the review, Ms. Barnes “reached to grab hold” of Ms. Briscoe.

Def.’s SMF ¶ 21; Pl.’s SMF ¶ 5.

4
 Ms. Briscoe’s initial discrimination-related complaint was

assigned the administrative case number DOS-F-055-09. See Def.’s

SMF ¶ 17; Pl.’s SMF ¶ 4. The State Department moved for summary

judgment in the case on May 20, 2010. See Def.’s SMF ¶ 24; Pl.’s

SMF ¶ 7. Ms. Briscoe’s case was subsequently assigned to a new

Judge in July 2010, and Ms. Briscoe alleges that her opposition

to the motion for summary judgment was received. See Pl.’s SMF ¶

8; Notice of Reassignment, Ex. 5B to Opp., ECF No. 11-1 at 31.

On December 29, 2010, in part because of a finding that Ms.

Briscoe did not file an opposition to the State Department’s

motion for summary judgment, the motion was granted. See Def.’s

SMF ¶ 26; Pl.’s SMF ¶ 9; Decision, ECF No. 7-4 at 2–11. That

decision did not address any retaliation claim. See Decision,

ECF No. 7-4 at 2–11. Ms. Briscoe appealed this Order and, on

November 14, 2012, the EEOC affirmed, finding, among other

things, that even if Ms. Briscoe had filed an opposition to the

motion for summary judgment, judgment in favor of the State

Department was nonetheless appropriate. See EEOC Appeal

Decision, ECF No. 7-5; Def.’s SMF ¶ 27; Pl.’s SMF ¶ 10. Ms.

Briscoe’s motion for reconsideration of that decision was denied

on May 8, 2013. See Def.’s SMF ¶ 28; Pl.’s SMF ¶ 10. These

decisions, too, did not address retaliation.

5
 C. Ms. Briscoe Simultaneously Pursues Administrative
Proceedings Regarding Her Retaliation Claims.

On March 30, 2009, Ms. Briscoe filed an addendum to her

preexisting EEO complaint, alleging retaliation based upon Ms.

Barnes’s behavior on March 27, 2009. See Def.’s SMF ¶ 22; Pl.’s

SMF ¶ 6. A formal complaint was filed the following day. See

Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6; Formal Retaliation Complaint,

Ex. 3 to Pl.’s Opp., ECF No. 11 at 70–71.

On April 8, 2011—after the EEOC had granted the State

Department’s motion for summary judgment in Ms. Briscoe’s

discrimination case—Ms. Briscoe received notice that the

retaliation claim would proceed under case number DOS-F-047-11.

See Letter, Ex. 3A to Pl.’s Opp., ECF No. 11 at 73–75; Pl.’s SMF

¶ 6. Ms. Briscoe responded on April 17, 2011 to contest the

assignment of a new case number on the ground that the

retaliation claim “is included in the current case”—i.e. the

case involving her discrimination claims. See Letter, Ex. 3B to

Pl.’s Opp., ECF No. 11 at 76–77. At that point, however, summary

judgment had already been granted to the State Department in

that case, in a decision that made no mention of any retaliation

claim. See Decision, ECF No. 7-4 at 2–11.

Ms. Briscoe’s retaliation case was dismissed in a final

decision issued on February 9, 2012. See Final Decision, ECF No.

7-6. The decision found that she had failed to respond to

6
requests for interview by the individual investigating her claim

and “did not provide testimony and/or otherwise provide any

information to the Investigator regarding her allegation.” Id.

at 4. This led to the claim being “dismissed for failure to

cooperate.” Id. Ms. Briscoe was simultaneously informed of her

right to appeal to the EEOC within thirty days of receiving the

decision. See id. at 1. No appeal was filed.

D. Procedural History of This Lawsuit.

Ms. Briscoe filed this action pro se on August 5, 2013. See

Compl., ECF No. 1. She seeks as relief $45,000,000 in damages,

and an assurance “that there will be no harm brought to me or

further threats against me by the State Department.” Id. at 7.

The State Department subsequently moved to dismiss or, in the

alternative, for summary judgment. See Mot. to Dismiss or for

Summ. J. (“Mot.”), ECF No. 7. Ms. Briscoe filed an opposition to

that motion. See Opp. to Mot. (“Opp.”), ECF No. 11. The State

Department has filed a reply in further support of its motion.

See Reply in Supp. of Mot. (“Reply”), ECF No. 14. The motion is

ripe for resolution by the Court.

II. Standard of Review

Summary judgment is appropriate when the moving party shows

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, 477 U.S. 317, 322 (1986);

7
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir.

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

outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A genuine issue exists where the “evidence

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

nonmoving party.” Id. A court considering a motion for summary

judgment must draw all “justifiable inferences” from the

evidence in favor of the nonmovant. Id. at 255.

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., 475 U.S. 574, 586–87 (1986)

(quoting Fed. R. Civ. P. 56(e)). Moreover, “although summary

judgment must be approached with special caution in

discrimination cases, a plaintiff is not relieved of his

obligation to support his allegations by affidavits or other

competent evidence showing that there is a genuine issue for

trial.” Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010)

(quotation marks and alterations omitted).1 “Where, as here, a

1 When a party moves for summary judgment, especially at an early
stage of proceedings, Federal Rule of Civil Procedure 56(d)
permits the opposing party to “show[] by affidavit or

8
plaintiff is proceeding pro se, ‘the Court must take particular

care to construe the plaintiff’s filings liberally, for such

[filings] are held to less stringent standards than formal

pleadings drafted by lawyers.’” Nguyen v. Mabus, 895 F. Supp. 2d

158, 171 (D.D.C. 2012) (quoting Cheeks v. Fort Myer Const. Co.,

722 F. Supp. 2d 93, 107 (D.D.C. 2010)).

III. Analysis

The State Department argues that it is entitled to judgment on

nearly all of Ms. Briscoe’s claims due to her failure to exhaust

administrative remedies. The State Department also asserts that

Ms. Briscoe’s claims all fail on the merits. The Court agrees

that Ms. Briscoe’s disability-discrimination claims, her

retaliation claims, and one of her discrete-act race-

discrimination claims must be dismissed for failure to exhaust.

The Court also finds that the State Department is entitled to

judgment on the merits of the remaining claims.

A. Applicable Law

1. Administrative Exhaustion Under Title VII, the ADEA,
and the Rehabilitation Act.

declaration that, for specified reasons, it cannot present facts
essential to justify its opposition,” in which case the Court
may deny the motion without prejudice, defer ruling on it, or
permit additional time to take discovery. Ms. Briscoe has not
filed such an affidavit or otherwise indicated a desire to
conduct further discovery before responding to the defendant’s
motion for summary judgment. Accordingly, the Court will address
the motion as one for summary judgment and consider all of the
materials submitted by the parties.

9
 Before bringing any lawsuit under Title VII, the ADEA, or the

Rehabilitation Act, an aggrieved party must timely exhaust her

administrative remedies. See, e.g., Hamilton v. Geithner, 666

F.3d 1344, 1349 (D.C. Cir. 2012) (Title VII); Spinelli v. Goss,

446 F.3d 159, 162 (D.C. Cir. 2006) (Rehabilitation Act); Rann v.

Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (ADEA). This is

necessary because “strict adherence to the procedural

requirements specified by the legislature is the best guarantee

of evenhanded administration of the law.” Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 108 (2002) (quotation marks

omitted).

Under Title VII and the ADEA, “[a]dministrative exhaustion . .

. is an affirmative defense that defendant has the burden to

plead and prove.” Carty v. District of Columbia, 699 F. Supp. 2d

1, 2 (D.D.C. 2010). Under Title VII, a lawsuit must be filed

“‘[w]ithin 90 days of receipt of notice’ of the defendant

agency’s [Final Agency Decision].” Woodruff v. Peters, 482 F.3d

521, 525 (D.C. Cir. 2007) (quoting 42 U.S.C. § 2000e-16(c)). The

ADEA similarly permits a plaintiff to “invoke the EEOC’s

administrative process, and then sue if dissatisfied with the

results.” Rann, 346 F.3d at 195 (citing 29 U.S.C. § 633a(b)-

(d)).

The Rehabilitation Act, “limits judicial review to employees

‘aggrieved by the final disposition’ of their administrative

10
‘complaint.’” Spinelli, 446 F.3d at 162 (quoting 29 U.S.C. §

794a(a)(1)). In so doing, the Rehabilitation Act makes “failure

to exhaust administrative remedies . . . a jurisdictional

defect, requiring dismissal for lack of subject-matter

jurisdiction,” so “the plaintiff has the burden to plead and

prove it.” Ellison v. Napolitano, 901 F. Supp. 2d 118, 124

(D.D.C. 2012) (quotation marks omitted).

These distinctions aside, “[t]he procedures governing

administrative processing of discrimination complaints brought

by employees of the federal government under the ADEA, Title

VII, and the Rehabilitation Act are set forth in 29 C.F.R. Part

1614.” Id. First, the employee must initiate contact with an EEO

counselor “within forty-five days of the date of the matter

alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1).

Second, if the matter is not resolved informally, the employee

may file a formal complaint of discrimination with the agency.

Id. §§ 1614.105(d), 1614.106(a). Third, “[a] complainant who

receives an adverse final decision from the agency may appeal

that decision to the EEOC within 30 days, or may file a civil

action within 90 days.” Ellison, 901 F. Supp. 2d at 125; 29

C.F.R. § 1614.407. “These deadlines for filing suit on EEO

claims are strictly enforced.” Horsey v. Harris, 953 F. Supp. 2d

203, 210 (D.D.C. 2013). For Title VII and the ADEA, however,

“these time limits are subject to equitable tolling, estoppel,

11
and waiver.” Bowden v. United States, 106 F.3d 433, 437 (D.C.

Cir. 1997). Such doctrines are “not applicable to jurisdictional

deadlines such as those imposed by the Rehabilitation Act’s

exhaustion requirements.” Chavers v. Shinseki, 667 F. Supp. 2d

116, 128 (D.D.C. 2009).

Administrative remedies must generally be timely exhausted in

accordance with these requirements before a case may proceed in

federal court. See, e.g., Bowden, 106 F.3d at 437. “[D]iscrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges. Each

discrete discriminatory act starts a new clock for filing

charges alleging that act. The charge, therefore, must be filed

within the [applicable] time period after the discrete

discriminatory act occurred.” Morgan, 536 U.S. at 113. “Courts

in this district disagree, however, about whether plaintiffs

must exhaust allegations of discrimination and retaliation that

are related to prior administrative charges.” Hicklin v.

McDonald, No. 14-1569, 2015 WL 3544449, at *2 (D.D.C. June 8,

2015). One side of the debate holds that this is not possible,

and that each discrete act must be separately exhausted. See id.

Another side finds that claims “must arise from the

administrative investigation that can reasonably be expected to

follow the charge of discrimination.” Park v. Howard Univ., 71

F.3d 904, 907 (D.C. Cir. 1995). At a minimum, however, claims

12
must be administratively exhausted “unless they were (1) related

to the claims in the initial administrative complaint, and (2)

specified in that complaint to be of an ongoing and continuous

nature.” Nguyen, 895 F. Supp. 2d at 184.

2. Prima Facie Case Under Title VII and the ADEA.

Where, as here, a plaintiff offers no direct evidence of

discrimination, “to survive summary judgment and earn the right

to present her case to a jury, she must resort to the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973).” Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.

Cir. 2006). Under this framework, Ms. Briscoe must show “that:

‘(1) [s]he is a member of a protected class; (2) [s]he suffered

an adverse employment action; and (3) the unfavorable action

gives rise to an inference of discrimination.’” Burley v. Nat'l

Passenger Rail Corp., 33 F. Supp. 3d 61, 68 (D.D.C. 2014)

(quoting Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)).

An adverse employment action is not limited to “‘hirings,

firings, promotions, or other discrete incidents.” Doe v. Gates,

828 F. Supp. 2d 266, 270 (D.D.C. 2011) (quoting Holcomb v.

Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). That said, “‘a

plaintiff must show materially adverse consequences affecting

the terms, conditions, or privileges of employment or future

employment such that a trier of fact could find objectively

13
tangible harm.’” Id. (quoting Nurriddin v. Bolden, 674 F. Supp.

2d 64, 89–90 (D.D.C. 2009)).

B. Ms. Briscoe’s Age-Discrimination Claims

Ms. Briscoe’s age-discrimination claims relate to two actions

of Mr. McAnnis: (1) his statement “out with the old in with the

new”; and (2) his hiring of and giving more favorable treatment

to younger staffers. See Compl., ECF No. 1 at 2.

1. Ms. Briscoe Did Not Exhaust Her Age-Discrimination
Claims, But May Obtain Equitable Tolling.

Administrative documents make clear that both actions occurred

in the process of the reorganization of the Media Resource Unit

and the creation of the Rapid Response Unit in 2005 and 2006.

See Formal Complaint of Discrimination, ECF No. 7-2 at 4. It is

undisputed, however, that Ms. Briscoe first contacted her EEO

counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s SMF ¶

3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly, any

discrete acts of discrimination arising in 2005 or 2006 occurred

far more than forty-five days earlier than this date and were

not timely exhausted.

Ms. Briscoe appeared to plead in her opposition brief an

argument that may support equitable tolling of this requirement.

“[W]ith respect to ADEA claims, this Circuit has noted that ‘the

timeliness and exhaustion requirements of [the ADEA] are subject

to equitable defenses and are in that sense non-

14
jurisdictional.’” Williams-Jones v. LaHood, 656 F. Supp. 2d 63,

66 (D.D.C. 2009) (quoting Rann, 346 F.3d at 194–95) (alteration

in original). EEOC regulations permit such tolling “when the

individual shows that he or she was not notified of the time

limits and was not otherwise aware of them.” 29 C.F.R. §

1614.105(a)(2). Ms. Briscoe cited this legal provision and

appeared to argue that she “had no knowledge of the time limits”

under the ADEA. Opp. at 12 (citing Summary of Meeting with EEO

Counselor, Ex. 2A to Opp., ECF No. 11 at 40). Because

administrative exhaustion under the ADEA is the defendant’s

burden to plead and prove, Carty, 699 F. Supp. 2d at 2, this

argument is sufficient to raise the issue. On the current

record, moreover, the Court finds that there is a dispute of

fact as to whether Ms. Briscoe knew of the deadline, so the

Court finds that a genuine dispute of fact exists on this point.

See Harris v. Gonzales, 488 F.3d 442, 444-46 (D.C. Cir. 2007).

2. Ms. Briscoe Has Failed to State a Prima Facie Case for
Discrimination Under the ADEA.

In any event, Ms. Briscoe’s age-discrimination claims must be

dismissed because she has failed to make out a prima facie case.

It is undisputed that she falls within the ADEA’s protected

class of individuals over forty years of age. See Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 142 (2000); Report of

EEO Investigation, ECF No. 7-1 at 1. Ms. Briscoe, however, does

15
not allege any adverse employment action in connection with

these claims. Mr. McAnnis alleged statement “out with the old in

with the new”—even assuming that it is not two layers of

hearsay—is unconnected to any adverse action taken against Ms.

Briscoe. Her allegation that Mr. McAnnis hired and treated more

favorably younger staffers is far too vague to support an

inference that Ms. Briscoe suffered any adverse employment

action by Mr. McAnnis at this time—Ms. Briscoe, after all, was

also hired into the Rapid Response Unit. Ms. Briscoe must

instead show that Mr. McAnnis caused “materially adverse

consequences affecting the terms, conditions, or privileges of

employment or future employment such that a trier of fact could

find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.

The record contains nothing to explain how the alleged favorable

treatment of younger individuals impacted Ms. Briscoe, so

judgment must be granted to the defendant on Ms. Briscoe’s age-

discrimination claims.2

2 To the extent that Ms. Briscoe seeks to bring a claim for age-
related hostile work environment, such a claim fails because the
statement by Mr. McAnnis and the vague allegation that he hired
and treated favorably younger individuals do not nearly
establish that “the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.” Outlaw v. Johnson, 49 F.
Supp. 3d 88, 91 (D.D.C. 2014) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)).

16
 C. Ms. Briscoe’s Disability-Discrimination Claims

Ms. Briscoe’s claims regarding disability discrimination

relate to the following actions: (1) the abolition of her job,

after which she “was ordered to find my own job in six weeks

which involved walking the lengthy halls which included going to

other Annex buildings”; and (2) being “asked over a period of

time to go to [a] lobby located two flights down and sign in new

staffers who did not have a security clearance.” Compl., ECF No.

1 at 2. The abolition of her job relates to the time period in

2005 and 2006 when the Media Resource Unit was disbanded. See

Formal Complaint of Discrimination, ECF No. 7-2 at 4. Ms.

Briscoe has provided no indication of when the second event took

place.

Again, it is undisputed that Ms. Briscoe first contacted her

EEO counselor on February 25, 2009. See Def.’s SMF ¶ 16; Pl.’s

SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at 1. Accordingly,

the 2005 and 2006 time period when she was allegedly forced to

walk the hallways of the State Department to secure a new

position is well outside the counseling timeframe. As for the

requirement that Ms. Briscoe walk down two flights of stairs to

sign in other staffers, the record contains no information from

which the Court could determine whether those discrete acts were

timely raised in counseling. For that reason, and because the

plaintiff bears the burden of pleading and proving

17
jurisdictional exhaustion under the Rehabilitation Act, Ellison,

901 F. Supp. 2d at 124, this event was not properly exhausted.

Nor could Ms. Briscoe avail herself of any equitable tolling

under the exhaustion requirements applicable to claims under the

Rehabilitation Act, for such a doctrine is “not applicable to

jurisdictional deadlines such as those imposed by the

Rehabilitation Act’s exhaustion requirements.” Chavers, 667 F.

Supp. 2d at 128.3 Accordingly, judgment must be granted to the

defendant on Ms. Briscoe’s disability-discrimination claims.

D. Ms. Briscoe’s Race-Discrimination Claims

Ms. Briscoe’s claims regarding race discrimination relate to a

handful of events, as best the Court can discern: (1) while Mr.

McAnnis was still Ms. Briscoe’s supervisor, he failed to provide

her a review or performance rating for two years, thereby

preventing her from being promoted; (2) Ms. Briscoe was the only

African-American in the Rapid Response Unit and felt singled out

and segregated; (3) Ms. Barnes questioned other employees about

3 For the same reasons, to the extent that Ms. Briscoe sought to
raise a hostile-work-environment claim under the Rehabilitation
Act, judgment must be granted to the defendant because Ms.
Briscoe has failed to allege any act that occurred within the
forty-five-day window and, therefore, no hostile-work-
environment claim has been properly exhausted. See Morgan, 536
U.S. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for the
purposes of determining liability.”).

18
Ms. Briscoe’s duties in the Rapid Response Unit, but did not do

so regarding the duties of other employees; (4) Ms. Barnes met

individually with other employees but not with Ms. Briscoe; and

(5) Ms. Barnes made Ms. Briscoe sit away from other staff during

morning meetings. See Compl., ECF No. 1 at 2–3.4

1. The 2006–2007 Events Were Not Properly Exhausted.

Ms. Briscoe’s first allegation—that Mr. McAnnis failed to

provide her a performance review for two years—relates to events

in 2006 and 2007. As the Court has noted, Ms. Briscoe’s

administrative contact began on February 25, 2009. See Def.’s

SMF ¶ 16; Pl.’s SMF ¶ 3; EEO Counselor’s Report, ECF No. 7-3 at

1. Because this far exceeds the forty-five-day counseling

period, Ms. Briscoe did not properly exhaust this claim. Nor did

she appear to argue that equitable tolling should apply.

Accordingly, judgment is granted for the defendant on this

portion of the claim.5

4 In her opposition brief, Ms. Briscoe appeared to add an
additional race-discrimination allegation: That the Media
Resource Unit was abolished for discriminatory reasons. See Opp.
at 14. To the extent Ms. Briscoe sought to bring this as a
discrete-act claim for race discrimination, it was not properly
exhausted for the same reasons discussed in Part III.D.1. Nor
did Ms. Briscoe provide the Court with any evidence from which a
jury could infer that the Media Resource Unit was abolished for
discriminatory reasons.

5 Even if the deadlines could be tolled regarding this action,
Ms. Briscoe failed to provide any evidence from which a jury
could infer that the failure to provide a review was connected
to race. See Burkes v. Holder, 953 F. Supp. 2d 167, 173 (D.D.C.

19
 2. Ms. Briscoe Failed to Make Out a Prima Facie Case of
Race Discrimination.

The remainder of Ms. Briscoe’s race-discrimination claim

cannot survive because she failed to plead or provide evidence

of having suffered any adverse employment action in connection

with these events. “When asserting a race discrimination claim

under Title VII, the plaintiff must allege two essential

elements: 1) that the plaintiff suffered an adverse employment

action, and 2) that the adverse employment action was the result

of plaintiff’s race.” Burkes, 953 F. Supp. 2d at 973 (citing

Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008)). Ms.

Briscoe cannot satisfy the first element because the events she

alleges, at most, relate to the general working environment, not

any “significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing significant

change in benefits.” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.

Cir. 2003). Even recognizing that an adverse employment action

need not be as formal as termination or demotion, none of the

events described by Ms. Briscoe relate to “materially adverse

consequences affecting the terms, conditions, or privileges of

2013) (plaintiff must supply evidence “that the adverse
employment action was the result of plaintiff’s race”). Indeed,
Ms. Briscoe conceded that she “has not observed any employee at
[the Rapid Response Unit] make a derogatory statement about
race.” Def.’s SMF ¶ 12; Pl.’s SMF ¶ 3.

20
employment or future employment such that a trier of fact could

find objectively tangible harm.” Gates, 828 F. Supp. 2d at 270.

Accordingly, judgment must be granted to the State Department on

Ms. Briscoe’s race discrimination claim.6

E. Ms. Briscoe’s Retaliation Claims

Ms. Briscoe’s retaliation claims relate to events that

occurred in the immediate aftermath of her filing of an EEO

complaint alleging discrimination in March 2009. The allegations

are as follows: First, after the EEO complaint was filed,

another employee was assigned to work the night shift along with

Ms. Briscoe and that employee appeared to be monitoring her. See

Def.’s SMF ¶ 18; Pl.’s SMF ¶ 5. Second, during a March 27, 2009

meeting with Ms. Barnes, Ms. Barnes allegedly held an unexpected

annual review, referred repeatedly to Ms. Briscoe’s EEO

complaint, asked Ms. Briscoe to take on additional tasks, and

6 Assuming, for argument’s sake, that Ms. Briscoe properly
exhausted her administrative remedies such that she may stitch
together all of these different events in an effort to make out
a claim for race-based hostile work environment, such a claim
must fail because her allegations are not sufficient for a jury
to find that “‘the workplace is permeated with discriminatory
intimidation, ridicule and insult that is sufficiently severe
and pervasive to alter the conditions of [her] employment and
create an abusive working environment.’” Outlaw, 49 F. Supp. 3d
at 91 (quoting Harris, 510 U.S. at 21). Indeed, Ms. Briscoe
admitted that she “has not observed any employee at [the Rapid
Response Unit] make a derogatory statement about race.” Def.’s
SMF ¶ 12; Pl.’s SMF ¶ 3.

21
“reached to grab hold” of Ms. Briscoe in a manner that

frightened her. See Def.’s SMF ¶¶ 19–21; Pl.’s SMF ¶ 5.

Unlike for many of her discrimination claims, Ms. Briscoe

timely contacted an EEO counselor regarding these incidents. See

Formal Retaliation Complaint, Ex. 3 to Pl.’s Opp., ECF No. 11 at

70–71; Def.’s SMF ¶ 22; Pl.’s SMF ¶ 6. The problem arose, for

administrative exhaustion purposes, after she received the final

agency decision in her retaliation case, which was issued on

February 9, 2012. See Final Decision, ECF No. 7-6. Upon receipt

of that decision, Ms. Briscoe had ninety days to file a civil

action. See 29 C.F.R. § 1614.407(a). This deadline is “strictly

enforced” and “[c]ourts . . . will dismiss a suit for missing

the deadline by even one day,” including in situations in which

a litigant is proceeding pro se. Horsey, 953 F. Supp. 2d at 210.

Courts also presume that a final decision which was mailed to an

individual was “received . . . within five days from the date[

it was] mailed.” Id. Ms. Briscoe, however, did not file suit

until August 8, 2013—approximately eighteen months after the

decision had issued.

Nor can Ms. Briscoe’s retaliation claims—which were subject to

a separate administrative process-be piggybacked onto the timely

filed civil action contesting the administrative decision on her

discrimination claims. For one, allowing such a circumventing of

administrative deadlines where the retaliation claims were

22
actually brought in a separate administrative process would

undermine the purposes of those deadlines. Even if the

retaliation claims had never been brought in any administrative

proceeding, it is not clear in this District that such an

unexhausted claim could ever be piggybacked onto a properly

exhausted one to which it was “related.” Hicklin, 2015 WL

3544449, at *2. Assuming, arguendo, that such a doctrine is

viable, Ms. Briscoe’s retaliation claims are not sufficiently

related to her earlier discrimination claims. That doctrine

requires that claims of each retaliatory act be administratively

exhausted “unless they were (1) related to the claims in the

initial administrative complaint, and (2) specified in that

complaint to be of an ongoing and continuous nature.” Nguyen,

895 F. Supp. 2d at 184. Courts have rejected attempts to use

this doctrine to add allegations of subsequent retaliation to

EEO complaints that raised only discrimination. See, e.g.,

Hicklin, 2015 WL 3544449, at *4 (“[C]laims of the ideologically

distinct categories of discrimination and retaliation are not

related simply because they arise out of the same incident.”)

(quotation marks and alterations omitted); Scott v. Dist. Hosp.

Partners, LP, 60 F. Supp. 3d 156, 162–63 (D.D.C. 2014)

(declining to find relatedness where initial charge did not

mention disability-discrimination and retaliation theories);

Marcelus v. Corrections Corp. of Am., 540 F. Supp. 2d 231, 234

23
(D.D.C. 2008) (finding, where “[t]he only theories mentioned in

[the plaintiff’s] EEOC Charge . . . were age and national

origin,” that “[a]bsent an indication of this theory,

plaintiff’s retaliation claim here is not like or reasonably

related to the allegations in his EEOC Charge”) (quotation marks

omitted). Accordingly, Ms. Briscoe’s retaliation claims were not

properly exhausted, so judgment must be entered in favor of the

defendant.

F. Ms. Briscoe’s Claims Regarding the Administrative
Process.

In her opposition brief, Ms. Briscoe appeared to raise various

claims regarding deficiencies in the administrative processing

of her various claims. See Opp. at 3–5. To the extent that these

claims sought to raise separate allegations of retaliation—that

is, that the defendant retaliated against her for filing EEO

complaints by delaying and undermining the investigation of her

complaint—such claims have been found to be improper. See, e.g.,

Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010) (“[T]here

is no cause of action for federal employees to bring retaliation

or discrimination claims based on complaints of delay or

interference in the investigative process.”) (quotation marks

omitted). To the extent that she seeks to raise an independent

claim regarding this administrative processing, the D.C. Circuit

has held “that Congress has not authorized, either expressly or

24
impliedly, a cause of action against the EEOC for the EEOC’s

alleged negligence or other malfeasance in processing an

employment discrimination charge.” Smith v. Casellas, 119 F.3d

33, 34 (D.C. Cir. 1997); see also Jordan v. Summers, 205 F.3d

337, 342 (7th Cir. 2000) (same for claim against federal-agency

employer regarding administrative processing of an EEO

complaint). Accordingly, any independent legal claim regarding

the administrative process would be improper and judgment is

granted to the defendant on any such claim.

IV. Conclusion

For the foregoing reasons, the Court addresses defendant’s

motion as one for summary judgment and GRANTS that motion. An

appropriate Order accompanies this Memorandum Opinion.

Signed: Emmet G. Sullivan
United States District Judge
July 2, 2015

25