Lawson v. Sessions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
SHEILA J. LAWSON, )
)
Plaintiff, )
)
v. ) No. 15-cv-1723 (KBJ)
)
JEFFERSON B. SESSIONS, U.S. )
Attorney General, et al., )
)
Defendants. )
)

MEMORANDUM OPINION

During the summer of 2006, pro se plaintiff Sheila Lawson resigned from the

Federal Bureau of Investigation (“FBI”) following a nearly 11-year tenure as a Special

Agent. (First Am. Compl. (“Compl.”), ECF No. 5, ¶¶ 10, 13.) Shortly after her

resignation, Lawson had a change of heart, and between 2007 and 2010, she repeatedly

asked to be reinstated to her former position. (See id. ¶¶ 18, 24, 27, 30.) The FBI

denied each of Lawson’s four requests for reinstatement. (See id. ¶¶ 20, 25, 28, 32.) In

the instant lawsuit, Lawson alleges that the FBI’s refusal to reinstate her as a Special

Agent constitutes discrimination on the basis of her age, sex, and race, and was also

retaliation for an Equal Employment Opportunity (“EEO”) complaint that Lawson had

filed in 2006. (See id. ¶ 1.) The instant complaint separately alleges that the FBI

retaliated against Lawson by improperly processing another one of her EEO complaints;

specifically, Lawson contends that an FBI employee interfered with the processing of

an EEO complaint she filed in 2010 in order to retaliate against her for filing the 2006

EEO complaint. (See id. ¶¶ 106–10, 147–51.)
 Notably, this legal action consists of seven separate discrimination or retaliation

counts, and each of these counts has been brought under either Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17 (see Counts V–VII),

or the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621−34 (see

Counts I–IV). Furthermore, each count relates either to the FBI’s refusal to reinstate

Lawson as an SA (Counts I, II, III, V, and VI (referred to herein, collectively, as the

“failure-to-hire claims”)), or the alleged improper processing of Lawson’s 2010

administrative complaint (Counts IV and VII (collectively, the “retaliatory interference

claims”)).

Before this Court at present is the motion to dismiss Lawson’s complaint that the

FBI, the Department of Justice (“DOJ”), Attorney General Jefferson Sessions, and FBI

Director Christopher Wray (collectively, “Defendants”) have filed. (See generally

Defs.’ Mot. to Dismiss (“Defs.’ Mot”), ECF No. 9.) 1 Defendants argue that several of

Lawson’s failure-to-hire claims are unexhausted (see id. at 13–15), that any exhausted

claims were not timely presented to this Court (see id. at 12–13), and that all of the

claims in the complaint fail to state valid grounds for relief (see id. at 15–21). 2

1
Lawson’s complaint actually names former Attorney General Loretta Lynch and former FBI Director
James Comey as the officer defendants (see Compl. ¶ 1), but pursuant to Federal Rule of Civil
Procedure 25(d), their respective successors in office—Attorney General Jefferson Sessions and FBI
Director Christopher Wray—have since been automatically substituted as defendants. Furthermore,
because “the only proper defendant in suits brought under [Title VII and the ADEA] is the head of the
department or agency being sued[,]” Wilson v. Dep’t of Transp., 759 F. Supp. 2d 55, 67 (D.D.C. 2011);
see also 42 U.S.C. § 2000e-16(c), it is hereby ORDERED that all of the defendants in this action other
than Attorney General Sessions are DISMISSED. The proper defendant in a Title VII action filed
against the FBI is the head of DOJ. See Mulhall v. Ashcroft, 287 F.3d 543, 550 (6th Cir. 2002) (“[I]n
the present case [the plaintiff] alleges Title VII retaliation by the FBI; the FBI is a subunit of the
Justice Department. Therefore, the proper defendant is the Attorney General, the head of the Justice
Department.”). However, for the sake of convenience, this Court will persist in using the plural term
“Defendants” when referring to the movant in this Memorandum Opinion.
2
Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system automatically assigns.

2
Defendants’ arguments for dismissal generally treat the discrimination and retaliation

claims that Lawson brings under Title VII as largely interchangeable with those that she

brings under the ADEA; however, as explained below, there are critical differences

between the procedures that a plaintiff must follow with respect to exhaustion and

timeliness under those two statutes. Consequently, although the Court largely agrees

with Defendants’ exhaustion and timeliness arguments as they apply to Lawson’s Title

VII failure-to-hire claims (with an exception discussed below), the Court concludes that

Defendants have not demonstrated that Lawson’s ADEA failure-to-hire claims are

unexhausted or untimely. The Court also concludes that the ADEA failure-to-hire

counts state valid claims for discrimination and retaliation, because the complaint

plausibly alleges both (1) that age was a factor in the FBI’s refusal to reinstate Lawson,

and (2) that the FBI’s refusal was causally related to an EEO complaint that Lawson

previously filed in 2006. Finally, the Court concludes that Lawson’s retaliatory

interference claims state valid grounds for relief, because Lawson has plausibly alleged

that interference in the processing of her EEO complaint was a materially adverse

action of the sort that can substantiate retaliation claims under both Title VII and the

ADEA.

Accordingly, Defendants’ motion to dismiss will be GRANTED IN PART AND

DENIED IN PART. Lawson’s Title VII failure-to-hire claims (Counts V and VI) will

be largely dismissed for failure to exhaust, while the corresponding ADEA failure-to-

hire claims (Counts II and III), as well as her Title VII and ADEA retaliatory

interference claims (Counts IV and VII), may proceed. With respect to the failure-to-

hire allegations that Lawson makes in Count I, the Court will permit Lawson to amend

3
her complaint to clarify the claim, and Lawson can also amend Counts V and VI to

address deficiencies in the surviving portions of those claims, as outlined below. A

separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Facts Pertaining To Lawson’s Failure-To-Hire Claims 3

Sheila Lawson is an African-American woman who began her employment as a

Special Agent (“SA”) with the FBI on October 15, 1995. (See Compl. ¶¶ 9–10.) At

some unspecified point in 2006, Lawson “initiated the EEOC discrimination complaint

process” (id. ¶ 12), and filed a formal complaint of discrimination (see id. ¶ 90). The

exact substance of Lawson’s 2006 grievance is not apparent from her complaint in the

instant case, although Lawson does allege that the EEO claims were brought “against

[Robert Enriquez, her former supervisor] and other FBI employees[.]” (Id. ¶ 107.) On

July 7, 2006, after serving nearly 11 years as an SA, Lawson resigned from her position

(see id. ¶ 13), and the following year, she withdrew the 2006 EEO complaint (see id.

¶ 14).

Following Lawson’s resignation, the FBI Human Resources office sent Lawson

an electronic communication that outlined the agency’s reinstatement policy for former

SAs. (See id. ¶ 15.) This message “stated that if an individual took a refund of the

retirement contributions made to the FERS pension account, that individual is

prohibited by federal law from repaying that amount to get credit for their prior service

and would, therefore, be ineligible for reinstatement if they are already older than age

3
The following facts are drawn from Lawson’s first amended complaint. Although the complaint is at
times difficult to follow, the Court believes that the following recitation accurately represents the
substance of Lawson’s allegations and claims.

4
37.” (Id. ¶ 16 (internal quotation marks omitted).) 4 Lawson received this message on

March 20, 2007. (See id. ¶¶ 15−16.) Ten days later—on March 30, 2007—Lawson

requested reinstatement as an FBI SA. (See July 7, 2015 EEOC Decision (“Final EEOC

Decision”), Ex. A to Compl., ECF No. 5-1, at 3.) And five days after the reinstatement

request—on April 5, 2007—Lawson “took a refund of the retirement contributions in

her FERS account.” (Compl. ¶ 17.)

According to Lawson, on at least four different occasions between May 31, 2007,

and March 26, 2010, the FBI denied her formal requests for reinstatement, and Lawson

alleges that the FBI refused to rehire her because of her age, sex, and race, and also in

retaliation for her filing of the 2006 EEO complaint. The first denial occurred on May

31, 2007, when the Chief of Human Resources allegedly “denied [Lawson] the FBI SA

position because she was 41 years old” (id. ¶ 20), and therefore could not accumulate

20 years of service before the FBI’s mandatory-retirement age of 57 (see id. ¶ 22; see

also supra note 4). Undaunted, Lawson again requested reinstatement, and enclosed

with her reinstatement request was a letter that she addressed to the Director of the FBI

and that asked for an age waiver. (See id. ¶ 24.) 5 In correspondence dated September

4
The reinstatement policy provides that all reinstatement candidates must be able to complete 20 years
of service by the mandatory-retirement age, which at that time was 57. (See FBI Special Agent
Reinstatement Policy, Ex. A to Defs.’ Mot, ECF No. 9-1, at 2; Letter of May 31, 2007, Ex. C to Defs.’
Mot., ECF No. 9-3, at 1.) When making this years-of-service calculation, the agency typically credits a
reinstatement applicant with her years of prior service, unless that “individual took a refund of the
retirement contributions [she] made to FERS,” in which case the reinstatement applicant is prohibited
“from repaying that amount to get credit for [her] prior service[.]” (FBI Special Agent Reinstatement
Policy at 2.) Accordingly, “if an individual took a refund of [her] retirement contributions[,]” she
could not receive credit for prior years of service and would thus “be ineligible for reinstatement if [she
is] already older than age 37.” (Id.) The Court includes this information, which is contained in
exhibits to Defendants’ motion, to provide additional context for its explanation of the facts at issue,
and has not otherwise relied upon Defendants’ exhibits in resolving the instant motion to dismiss.

5
Pursuant to “Human Resources Order−DOJ 1200.1[,]” age waivers are available to individuals who
otherwise exceed the maximum permissible age for reinstatement in cases involving “especially
qualified individuals; shortage of highly qualified individuals for specific law enforcement positions[;]

5
2, 2008, the FBI again denied Lawson’s request, explaining that “the FBI Director

could give ‘no further consideration’ because the FBI Director could only grant age

waivers up to age 60” (id. ¶ 25), and as a 41-year-old requester, Lawson could not

accumulate 20 years of service before that cutoff.

Lawson subsequently submitted two more reconsideration requests, both of

which the agency swiftly denied in a letter dated January 7, 2009. (See id. ¶¶ 27−28.)

In this denial letter—the agency’s third in less than two years—the agency purportedly

advised Lawson “that she had ‘reached the age’ where she could no longer be reinstated

in the FBI SA position” (id. ¶ 28), and further instructed her to direct age waiver

requests to the Attorney General (see id. ¶ 29). Lawson followed this instruction

approximately four months later by sending “a letter to Attorney General Eric H.

Holder, Jr. requesting a decision regarding her application for reinstatement in the FBI

SA position.” (Id. ¶ 30.) This request was subsequently forwarded to the FBI’s Human

Resources office, and in a letter dated March 26, 2010, the agency, for the fourth time,

declined to reinstate Lawson. (See id. ¶¶ 31−32.)

B. Facts Pertaining To Lawson’s Retaliatory Interference Claims

At some point in 2010, Lawson “contacted an EEO counselor” and “initiated the

informal discrimination complaint counseling phase[.]” (Id. ¶ 106.) On July 10, 2010,

Lawson filed a formal complaint with the EEOC in which she claimed that the FBI had

discriminated against her on the basis of sex and age, and had retaliated against her for

. . . [and] situations where tentative selectees for law enforcement positions have passed the maximum
entry age due to unavoidable or unexpectedly lengthy clearance or processing requirements[.]”
(Compl. ¶ 37 (internal quotation marks omitted) (quoting HR Order−DOJ 100.1, Chap. 1−6, Maximum
Entry Age And Mandatory Retirement of Law Enforcement Officers, found at
https://www.justice.gov/jmd/hr-order-doj12001-part-1-employment-1).)

6
prior protected activity, when it refused to grant her reinstatement requests between

May 23, 2007 and March 26, 2010. (See Final EEOC Decision at 1.) Lawson alleges

that while she was “participat[ing] in the EEOC formal discrimination complaint

process[,]” Robert Enriquez—Lawson’s former FBI Unit Chief, “who knew [Lawson

had] filed a prior discrimination complaint against him in 2006” (Compl. ¶ 48)—got

involved with Lawson’s EEO case and purportedly “interfered” with her administrative

complaint “through improper complaint processing, an incomplete investigation of

Plaintiff’s claims of discrimination, and the omission of any investigation of Plaintiff’s

claims of retaliation.” (Id. ¶ 49; see also id. ¶ 48.) Enriquez’s actions allegedly

prompted Lawson to file “a spin-off EEOC complaint” regarding Enriquez’s conduct

during the administrative proceedings for Lawson’s July 2010 complaint. (Id. ¶ 50.)

The instant complaint provides no additional details regarding the timing, content, or

disposition of Lawson’s “spin-off” administrative complaint.

On July 7, 2015, the EEOC issued its final decision dismissing Lawson’s July

2010 complaint. (See generally Final EEOC Decision.) At the end of its decision

letter, the Commission informed Lawson that she had the right to file a civil action in

federal court “within ninety (90) calendar days from the date that” she received its

decision, and further explained that, “[f]or timeliness purposes, the Commission will

presume that this decision was received within five (5) calendar days after it was

mailed.” (Id. at 6, 8.)

C. Procedural History

Lawson initiated the instant lawsuit on October 19, 2015—104 days after the

EEOC issued its decision of July 7, 2015. Lawson subsequently filed an amended

7
complaint, which is the current operative complaint in this matter, asserting seven

separate causes of action that, as explained above, arise from two distinct categories of

acts. (See generally Compl.)

The claims in the first category, which this Court calls the “failure-to-hire

claims,” challenge the FBI’s repeated refusal to reinstate Lawson as an SA. Lawson

alleges that the agency’s four denial letters constitute disparate treatment due to age,

race, and sex under the ADEA (Count II) and Title VII (Count V), respectively (see id.

¶¶ 71−85, 116−27), and Lawson also contends that the agency refused to reinstate her

on these occasions in retaliation for her prior EEO activity, in violation of the ADEA

(Count III) and Title VII (Count VI) (see id. ¶¶ 86−99, 128−40). Lawson’s first failure-

to-hire claim (Count I) is more difficult to characterize. This cause of action—which is

brought under the ADEA and is captioned, “Unlawful Discrimination Because of Age in

FBI Reinstatement Policy”—at times appears to challenge the FBI’s reinstatement

policy as facially discriminatory (see id. ¶ 67 (“The hiring policy . . . unlawfully

excluded Plaintiff because of age.”)), and at other times appears to raise a disparate

treatment claim (see id. ¶ 65 (alleging that the “discriminatory age-based policy was not

applied to every over age 37 reinstatement applicant who depleted the FERS pension

account but was applied to disadvantage Plaintiff because of her age”)).

The second category of claims in Lawson’s complaint, which the Court refers to

as the “retaliatory interference claims,” challenges Enriquez’s purported interference

with, and improper processing of, Lawson’s EEO complaint. (See id. ¶¶ 100–15, 141–

55.) The complaint contends that Enriquez’s conduct amounted to retaliation in

violation of the ADEA (Count IV) and Title VII (Count VII).

8
 On June 15, 2016, Defendants filed a motion to dismiss Lawson’s complaint.

(See generally Defs.’ Mot.) Largely without differentiating between Lawson’s various

claims and the asserted legal bases for them, Defendants argue that Lawson’s “case”

should be dismissed as untimely because Lawson filed the complaint more than 90 days

after receiving her EEOC right-to-sue letter (see id. at 12−13), and because Lawson

failed to exhaust any claims that are based on acts that occurred prior to November 17,

2009 (see id. at 15). Defendants also contend that none of Lawson’s disparate treatment

or retaliation allegations state a valid claim for discrimination or retaliation in violation

of Title VII or the ADEA. (See id. at 15−21.) For her part, Lawson responds that she

timely filed her complaint within 90 days of receiving the right-to-sue letter (see Pl.’s

Suppl. Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No. 15-1, at 10−12), and

Lawson also insists that she has exhausted all available administrative remedies (see id.

at 13−14). 6 Lawson further maintains that the complaint adequately alleges

discriminatory treatment and retaliation in violation of the law. (See id. at 14−23.)

Defendants’ motion to dismiss is now ripe for this Court’s review. (See Defs.’

Mot; Pl.’s Opp’n; Defs.’ Reply in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Reply”),

ECF No. 16.)

6
Lawson filed an initial brief in opposition to Defendants’ motion on July 15, 2016 (see Pl.’s Mem. in
Opp’n to Defs.’ Mot. to Dismiss, ECF No. 13), and thereafter sought, and received, leave to file a
supplemental opposition brief (see Pl.’s Mot. for Leave to File Suppl. Mem. in Opp’n to Defs.’ Mot. to
Dismiss, ECF No. 15; Min. Order of Aug. 1, 2016). Because the supplemental memorandum that
Lawson has filed effectively supplants, rather than supplements, her initial opposition brief, this Court
will refer exclusively to the ‘supplemental’ memorandum when recounting Lawson’s arguments.

9
II. LEGAL STANDARD

A motion to dismiss a complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) challenges the adequacy of the complaint on its face, testing whether the

pleading “state[s] a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6).

Although a complaint does not require detailed factual allegations, it must contain

sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on

its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[M]ere conclusory

statements” are not enough to make out a cause of action against a defendant, Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009); instead, the facts alleged “must be enough to raise a

right to relief above the speculative level,” Twombly, 550 U.S. at 555. “In determining

whether a complaint states a claim, the court may consider the facts alleged in the

complaint, documents attached thereto or incorporated therein, and matters of which it

may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.

Cir. 2007).

Of course, this Court is mindful that Lawson is proceeding in this matter pro se,

and that the pleadings of pro se parties are to be “liberally construed” and “held to less

stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus,

551 U.S. 89, 94 (2007). “This benefit is not, however, a license to ignore the Federal

Rules of Civil Procedure[,]” Sturdza v. United Arab Emirates, 658 F. Supp. 2d 135, 137

(D.D.C. 2009), and “even a pro se plaintiff must meet his burden of stating a claim for

relief[,]” Horsey v. Dep’t of State, 170 F. Supp. 3d 256, 263−64 (D.D.C. 2016).

10
III. ANALYSIS

As explained above, Lawson’s complaint raises seven causes of action that arise

from two distinct categories of acts. First, Lawson’s failure-to-hire claims challenge

the FBI’s repeated refusals to reinstate her as an SA, on the grounds that these refusals

constitute discrimination and retaliation in violation of Title VII (Counts V, VI) and the

ADEA (Counts I, II, III). By contrast, Lawson’s second group of claims challenges the

agency’s interference with, and improper processing of, her EEO complaint, which,

Lawson contends, amounts to retaliation in violation of Title VII (Count VII) and the

ADEA (Count IV). This parsing of the claims is important because, for the reasons set

forth below, the Court concludes that Lawson’s failure-to-hire claims brought pursuant

to Title VII must be dismissed in part for failure to exhaust, while those brought under

the ADEA either suffice to state a claim or may be amended to clarify Lawson’s theory

of liability. The Court further finds that Lawson’s retaliatory interference claims

survive Defendants’ motion to dismiss.

A. Lawson’s Title VII Failure-To-Hire Claims Must Be Largely
Dismissed

Although Defendants conflate the failure-to-hire claims that Lawson has brought

under Title VII with the similar claims that she has brought under the ADEA (see Defs.’

Mot. at 12−15), the exhaustion and timeliness “rules relating to Title VII and ADEA

claims . . . are not identical[,]” Achagzai v. Broad. Bd. of Govs., 170 F. Supp. 3d 164,

171 (D.D.C. 2016), and as a result, the two causes of action must be analyzed

separately. So analyzed, it is clear from the face of Lawson’s complaint that she failed

to exhaust three of the four discrete acts that form the basis of her Title VII failure-to-

hire claims (with respect to the fourth act, this Court will give Lawson permission to

11
amend her complaint to address the deficiencies that Defendants have identified). With

respect to Lawson’s corresponding ADEA claims, the Court concludes that there is no

exhaustion problem and that Lawson has alleged sufficient facts to support the age

discrimination and retaliation claims stemming from the FBI’s refusal to reinstate her.

The Court will also allow Lawson to amend her complaint to clarify the ADEA claim

she intends to raise in Count I.

1. The Failure-To-Hire Claims That Arise Under Title VII Must Be
Dismissed For Failure To Exhaust Administrative Remedies With
Respect To Three Out Of The Four Denial Letters Upon Which
Those Claims Are Based, But Lawson May Amend Her Complaint
With Respect To The Fourth Letter

Lawson’s Title VII failure-to-hire claims (Counts V and VI) arise out of the

FBI’s refusal on four separate occasions (May 31, 2007; September 2, 2008; January 7,

2009; and March 26, 2010) to reinstate Lawson as an FBI SA. As noted, Lawson

contends that these denials constitute disparate treatment based on her sex and race, and

in addition, that the FBI issued these denials in retaliation for her 2006 EEOC

complaint. It is well established that, if Lawson is correct that the FBI’s denials were

discriminatory, each refusal is treated as a separate discriminatory act for purposes of

Title VII’s exhaustion requirements. See Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002) (“Each discrete discriminatory act starts a new clock for filing

charges alleging that act.”). For the reasons that follow, this Court finds that, with

respect to the first three denial letters from the FBI, it is clear from the face of

Lawson’s complaint that she did not contact an EEO counselor within 45 days of these

purported violations, and as a result, failed to exhaust her administrative remedies in

regard to those discrimination claims.

12
 “Before a federal employee can file suit against a federal agency for violation of

Title VII, the employee must run a gauntlet of agency procedures and deadlines to

administratively exhaust his or her claims.” Crawford v. Duke, 867 F.3d 103, 105 (D.C.

Cir. 2017). First, an employee must contact the agency’s Equal Employment

Opportunity (“EEO”) counselor to initiate informal counseling “within 45 days of the

date of the matter alleged to be discriminatory or, in the case of personnel action,

within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). If the

matter is not resolved informally within 30 days, the employee then has 15 days to file

a formal complaint with the agency. See id. §§ 1614.105(d), 1614.106(a). Once an

employee has filed a formal complaint, the agency must “conduct an impartial and

appropriate investigation of the complaint within 180 days” of that filing, id.

§ 1614.106(e)(2), and the employee may subsequently file suit in federal district court,

but must do so within 90 days of receipt of the agency’s final determination, or if the

agency does not take final action, after 180 days have elapsed since the filing of the

complaint with the agency, see 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(c).

“[T]he administrative time limits . . . erect no jurisdictional bars to bringing

suit[,]” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); instead, these

requirements function like statutes of limitations, and as such, are subject to waiver,

estoppel, and equitable tolling, see Horsey, 170 F. Supp. 3d at 264–65; see also Rann v.

Chao, 346 F.3d 192, 195 (D.C. Cir. 2003) (reiterating that “the timeliness and

exhaustion requirements of § 633a(d) are subject to equitable defenses and are in that

sense non-jurisdictional”). However, in order to receive the benefit of equitable tolling,

a tardy plaintiff must show “(1) that [s]he has been pursuing h[er] rights diligently, and

13
(2) that some extraordinary circumstance stood in h[er] way and prevented timely

filing[.]” Horsey, 170 F. Supp. 3d at 267 (internal quotation marks and citation

omitted). The Supreme Court has suggested that equitable tolling might be available

where a claimant “received inadequate notice,” where “a motion for appointment of

counsel is pending[,]” or “where the court has led the plaintiff to believe that she had

done everything required of her[.]” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,

151 (1984) (per curiam).

In the instant case, it is evident on the face of Lawson’s complaint that she did

not exhaust administrative remedies with respect to the first three denial letters and that

no grounds for equitable tolling exist. Lawson’s complaint alleges that the agency

denied her requests for reinstatement by issuing letters dated May 31, 2007; September

2, 2008; January 7, 2009; and March 26, 2010 (see Compl. ¶¶ 20, 25, 28, 32), and that

she initiated contact with an EEO counselor at some unspecified time in 2010 (see id.

¶ 106). While it is possible that Lawson’s 2010 EEO contact occurred within 45 days

of the March 26, 2010 letter, the same cannot be said with respect to the first three

denial letters. That is, even assuming that Lawson initiated contact with the EEO

counselor at the earliest possible time in 2010 with respect to the 2007, 2008, and 2009

denial letters (i.e., on January 1, 2010), this contact occurred 946 days after the May 31,

2007 letter, 486 days after the September 2, 2008 letter, and 359 days after the January

7, 2009 letter, respectively—far beyond the applicable 45-day reporting period.

Therefore, it is clear on the face of Lawson’s complaint that she did not timely contact

an EEO counselor with respect to the first three denial letters.

14
 Nor has Lawson established that this is one of the “extraordinary and carefully

circumscribed instances” in which equitable tolling is warranted. Washington v.

WMATA, 160 F.3d 750, 753 (D.C. Cir. 1998) (internal quotation marks and citation

omitted). Lawson suggests that tolling is justified simply and solely because she “could

not have known about the discrimination or retaliation upon receipt of a letter at

issue[.]” (Pl.’s Opp’n at 13−14.) Critically, however, Lawson fails to articulate

precisely why she could not possibly have known that the denial letters were

discriminatory and retaliatory when she received them, and her contention in this regard

is particularly odd given that her current discrimination and retaliation claims appear to

rest solely upon the FBI’s issuance of these same letters. What is more, because the

denial letters at issue are dated between one and three years before Lawson initiated

contact with an EEO counselor (again, construing Lawson’s “2010” contact with an

EEO counselor as having occurred on January 1, 2010 (Compl. ¶ 106)), Lawson has

failed to demonstrate diligence in pursuing her administrative remedies by any stretch

of the imagination. See Washington, 160 F.3d at 753 (finding that a complainant’s lack

of diligence precluded equitable tolling where the complainant filed an EEOC

complaint “over a year” (13 months) after the alleged act of discrimination, in violation

of an 180-day filing deadline); Dyson v. District of Columbia, 710 F.3d 415, 421–22

(D.C. Cir. 2013) (finding that a complainant’s lack of diligence precluded equitable

tolling where the complainant missed a filing deadline by 38 days due to circumstances

that were within her control). In the absence of any evidence that Lawson exercised the

requisite due diligence in pursuing her administrative remedies, or that some

15
extraordinary circumstances impeded Lawson’s ability to pursue those rights, this Court

declines to toll the 45-day reporting deadline.

In a final effort to avoid the dismissal of her Title VII failure-to-hire claims,

Lawson argues that all four denial letters at issue constitute one continuous

discriminatory and retaliatory action. (See Pl.’s Opp’n at 13 (“These letters mailed to

Plaintiff from the FBI Human Resources Division continually provided reasons that

denied Plaintiff’s reinstatement in the FBI SA position.”).) As this Court has already

explained, however, “[d]iscrete acts such as termination, failure to promote, denial of

transfer, or refusal to hire are” acts that occur at a fixed time, and thus an employee

must adhere to the established administrative process for each discrete action for which

she seeks to bring a claim. Morgan, 536 U.S. at 114; see also id. at 113; Nguyen v.

Mabus, 895 F. Supp. 2d 158, 172 (D.D.C. 2012) (“[S]ince the Supreme Court’s decision

in Morgan, the continuing violation theory is restricted to claims akin to hostile work

environment claims because those violations—unlike a discrete act such as firing or

failing to promote an employee—cannot be said to occur on any particular day.”

(internal quotation marks and citation omitted)).

Therefore, the Court rejects Lawson’s argument that her claims are exhausted

with respect to all four denial letters because they constitute a continuous

discriminatory or retaliatory event, and the Court also finds it apparent from the face of

Lawson’s complaint that she failed to contact an EEO counselor within 45 days of the

May 31, 2007, September 2, 2008, and January 7, 2009 denial letters. Thus, the Title

VII discrimination and retaliation claims that arise from these denial letters must be

dismissed. See Fortune v. Holder, 767 F. Supp. 2d 116, 122–23 (D.D.C. 2011)

16
(collecting cases in which courts dismissed Title VII claims on exhaustion grounds

where it was clear that the complainant had not contacted an EEO counselor within 45

days of the alleged act of discrimination). Lawson’s Title VII failure-to-hire claims

that stem from the denial letter of March 26, 2010, will not be dismissed on exhaustion

grounds, because at this juncture, Defendants cannot demonstrate that Lawson failed to

contact an EEO counselor within 45 days of that letter, as Defendants themselves

concede. (See Defs.’ Mot. at 15.)

Defendants do not concede that any exhausted claims were timely presented to

this Court. In this regard, Lawson has requested the opportunity to amend the

complaint “to reflect the date of receipt of the [right-to-sue letter] should the Court hold

in abeyance a decision in regard to this issue” (Pl.’s Opp’n at 12), which this Court has

hereby decided to allow (see the accompanying Order). With this opportunity to amend

her complaint, Lawson will also have a chance to add any additional allegations of fact

that pertain to the March 26, 2010, denial letter—which is the sole remaining basis for

her Title VII failure-to-hire claims (Counts V, VI)—before the Court considers

Defendants’ arguments regarding the sufficiency of the factual allegations in support of

these claims. Once Lawson files the anticipated amended complaint, the Court will

permit Defendants to file a partial motion to dismiss that addresses the Title VII failure-

to-hire claims arising out of the denial letter of March 26, 2010.

2. Lawson’s Failure-To-Hire Claims Survive The Motion To Dismiss
To The Extent That They Arise Under The ADEA

In their motion to dismiss, Defendants insist that the failure-to-hire claims that

Lawson has brought under the ADEA (Counts I, II, and III) suffer from the same

fundamental flaws as her Title VII claims—namely, that these claims are both

17
unexhausted and untimely. (See Defs.’ Mot. at 12−15.) In the alternative, Defendants

argue that Lawson’s complaint fails to state any claim for discrimination or retaliation

under the ADEA. (See id. at 15−20.) For the reasons set forth below, this Court

disagrees on both fronts.

a. Defendants Have Not Demonstrated That Lawson’s Age
Discrimination And Retaliation Claims Must Be Dismissed On
Exhaustion Or Timeliness Grounds

Although Lawson’s ADEA failure-to-hire claims arise from the same set of

underlying facts as the corresponding claims that Lawson has brought under Title VII,

the pre-filing procedures that apply under these two statutes are analytically distinct.

Stated simply, Title VII requires a plaintiff to navigate a “maze of administrative

processes[,]” Niskey v. Kelly, 859 F.3d 1, 5 (D.C. Cir. 2017), while an ADEA plaintiff

has a much easier row to hoe when filing a discrimination action, see Chennareddy v.

Bowsher, 935 F.2d 315, 318 (D.C. Cir. 1991). This is because “[a]n ADEA plaintiff has

two means of pursuing his age discrimination claim.” Id. First, a federal employee has

the option of bypassing the administrative process altogether and suing directly in

federal court, subject to certain notice requirements. See 29 U.S.C. § 633a(d).

However, an employee who selects this option must give notice of the lawsuit to the

EEOC “within one hundred and eighty days after the alleged unlawful practice

occurred” and “not less than thirty days[]” prior to the commencement of the action.

Id.; see also Stevens v. Dep’t of the Treasury, 500 U.S. 1, 6−7 (1991) (clarifying that a

plaintiff is required to file her notice—not the civil action itself—within 180 days of

the conduct at issue and at least 30 days prior to the commencement of suit, and

indicating that a plaintiff may wait considerably more than 30 days after filing her

18
notice of intent to sue before filing her lawsuit). Alternatively, an ADEA plaintiff

“may [opt 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), (c)).

In the instant case, Defendants do not address whether Lawson actually provided

the EEOC with the requisite notice before seeking to obtain direct judicial review of her

ADEA claims in this Court, as would be required under the first of these two avenues.

Instead, Defendants frame their exhaustion and timeliness arguments solely in terms of

the deadlines applicable within the context of the EEOC administrative process, and

they note in passing that Lawson’s complaint “does not allege that Lawson relied on

any avenue other than the FBI’s administrative avenue for exhaustion of her alleged

ADEA claims.” (Defs.’ Mot. at 14.) But the burden of establishing exhaustion does not

lie with the plaintiff. That is, while it is true that Lawson’s complaint does not allege

that she provided an intent-to-sue notice to the EEOC within 180 days of the alleged

discriminatory acts, or that she waited at least 30 days after doing so to commence suit,

“untimely exhaustion of administrative remedies is an affirmative defense,” and thus

“the defendant bears the burden of pleading and proving it[.]” Bowden, 106 F.3d at 437

(emphasis added). Thus, at this early stage of the instant litigation, dismissal of the

action is only appropriate if the plaintiff’s failure to comply with established procedural

prerequisites is evident on the face of the complaint. See Horsey, 170 F. Supp. 3d at

265. In any event, Defendants here have not meaningfully addressed the separate

ADEA framework or the facts in the complaint that implicate it (if any); therefore, they

have not carried their burden of proving the lack of exhaustion or the untimeliness of

Lawson’s complaint for the purpose of supporting their motion to dismiss.

19
 It is also the case that, even if one accepts as true Defendants’ suggestion that

Lawson’s complaint demonstrates that she sought to invoke the second path to judicial

review (i.e., that she sued after filing an EEO complaint regarding her ADEA claims),

Defendants do not automatically prevail with respect to their argument that these claims

are unexhausted and/or untimely. The D.C. Circuit has expressly avoided deciding

whether, having filed an EEOC complaint, an ADEA plaintiff “must reasonably pursue

the process, as an exhaustion requirement would ordinarily entail.” Rann, 346 F.3d at

195 (emphasis in original); see also id. (remarking that the ADEA is silent on this

question). The Supreme Court has similarly declined to reach the issue of whether an

ADEA plaintiff like Lawson is required to press on with respect to any EEO complaint

she has filed and avail herself of all potential administrative remedies before bringing a

lawsuit. See Stevens, 500 U.S. at 9−10 (1991) (explaining that this issue was not

properly before the Court in light of the Solicitor General’s position that “a federal

employee who elects agency review of an age discrimination claim need not exhaust his

administrative remedies”).

In the absence of any argument from Defendants regarding these significant open

legal questions—or, for that matter, any argument tailored to the ADEA framework as

opposed to the procedures that Title VII prescribes—this Court declines, at this time, to

dismiss Lawson’s ADEA claims as unexhausted or untimely. Defendants are, of course,

free to reassert these defenses (along with the appropriate legal and factual support) at a

later stage in this case.

20
 b. Defendants Have Not Demonstrated That Lawson’s Age
Discrimination And Retaliation Claims Must Be Dismissed For
Failure To State A Claim

Defendants have also argued, as an alternative to the untimeliness and exhaustion

contentions, that each of Lawson’s ADEA failure-to-hire claims fails to state a claim

upon which relief can be granted. (See Defs.’ Mot. at 15−20.) For the reasons

explained below, this Court disagrees with Defendants’ view of Lawson’s failure-to-

hire claims that allege discrimination (Count II) and retaliation (Count III) in violation

of the ADEA, and it will allow Lawson to amend the complaint to clarify the basis for

the ADEA failure-to-hire claim that is set forth in Count I.

(i) Lawson has stated a discrimination claim under the
ADEA because she has alleged sufficient facts to
support the inference that age was a factor in
defendants’ refusals to reinstate her.

The ADEA requires that “[a]ll personnel actions affecting employees or

applicants for employment who are at least 40 years of age . . . in executive agencies

. . . be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). “The

Act’s protections for employees of the federal government” are “more expansive than

those for workers employed in the private sector,” Miller v. Clinton, 687 F.3d 1332,

1336−37 (D.C. Cir. 2012); that is, while a private sector employee must “show that the

challenged personnel action was taken because of age,” a federal employee can prevail

by “show[ing] that the personnel action involved ‘any discrimination based on age[,]’”

Ford v. Mabus, 629 F.3d 198, 205 (D.C. Cir. 2010) (quoting 29 U.S.C. § 633a)

(emphasis added). Accordingly, a federal employee alleging age discrimination must

demonstrate “that age was a factor in the challenged personnel action.” Ford, 629 F.3d

at 206 (emphasis in original). “[A]t the motion-to-dismiss stage, the guiding lodestar is

21
whether, assuming the truth of the factual allegations, . . . the inferences of

discrimination drawn by the plaintiff”—i.e., that age was a factor in the challenged

decision—“are reasonable and plausibly supported.” Townsend v. United States, 236 F.

Supp. 3d 280, 298 (D.D.C. 2017). 7

Notwithstanding Defendants’ arguments to the contrary, Lawson’s complaint

alleges sufficient facts, accepted as true, to state a plausible claim for age

discrimination based on a failure to hire in Count II. Lawson identifies herself as an

“applicant” to the federal government who “is at least 40 years of age” (Compl. ¶ 4);

hence, she is part of the class that the ADEA protects, see 29 U.S.C. § 633a(a).

Moreover, according to her complaint, Lawson previously served for over a decade as

an FBI special agent (see Compl. ¶¶ 10, 13), and was thus “qualified for the FBI SA

position” to which she applied (id. ¶ 19). Despite her record of service and other

qualifications, the FBI allegedly denied Lawson’s applications for reinstatement on four

separate occasions between May 31, 2007 and March 26, 2010. (See id. ¶¶ 20, 25, 28,

32.) And in lieu of reinstating Lawson, “between October 2009 and June 2010[,]” the

FBI purportedly “hired seven applicants who sought reinstatement in the FBI SA

7
To be sure, in order to be entitled to judgment on her failure-to-hire age discrimination claims
ultimately, Lawson might need to resort to the familiar three-part burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973), which requires, among other things, that
a plaintiff establish a prima facie case of discrimination. See id. at 802−05; see also Teneyck v. Omni
Shoreham Hotel, 365 F.3d 1139, 1155 (D.C. Cir. 2004) (listing elements to establish a prima facie case
of discrimination for failure to hire). But “an employment discrimination plaintiff is not required to
plead every fact necessary to establish a prima facie case to survive a motion to dismiss[.]” Jones v.
Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C. Cir. 2011) (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511 (2002)); see also Swierkiewicz, 534 U.S. at 511, 515 (holding that “under a notice
pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case
because the McDonnell Douglas framework does not apply in every employment discrimination case”
and “the Federal Rules do not contain a heightened pleading standard for employment discrimination
suits”); Brown v. Sessoms, 774 F.3d 1016, 1022–1023 (D.C. Cir. 2014) (“We have been clear, however,
that ‘[a]t the motion to dismiss stage, the district court cannot throw out a complaint even if the
plaintiff did not plead the elements of a prima facie case.’” (quoting Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008))).

22
position[,]” all of whom “were age 39 and younger[,]” and several of whom did not

possess “a unique or special skill, or ability.” (Id. ¶¶ 39−41.) Lawson’s complaint

further alleges that, in a denial “letter dated January 7, 2009, [Unit Chief] Carrico

advised [Lawson] that she had ‘reached the age’ where she could no longer be

reinstated in the FBI SA position.” (Id. ¶ 28.) This Court agrees with Lawson’s

contention that these facts together are more than sufficient to support a reasonable

inference that she “applied for and was not hired for the FBI SA position because of her

age” in violation of the ADEA. (Id. ¶ 84.)

Defendants’ response is to insist that Lawson’s complaint “fails to state any

disparate treatment claim because it does not show that the FBI treated Lawson’s

request for reinstatement differently because of her age[.]” (Defs.’ Mot. at 17.) This is

so, Defendants argue, because under the FBI reinstatement policy as described in

Lawson’s own complaint, “Lawson’s withdrawal from her FERS [retirement] account

automatically disqualified her from reinstatement.” (Id. (emphasis in original).) Thus,

say Defendants, it was Lawson’s retirement account withdrawal, and not her age, that

was the true cause for the FBI’s refusals to re-hire her. What Defendants overlook is

the fact that the allegations in Lawson’s complaint do not preclude a jury finding that

age was “a” factor in the FBI’s proffered rationale for refusing to reinstate Lawson,

which is all that is required for ADEA claims against federal government employers.

See Ford, 629 F.3d at 206.

Specifically, as alleged in the complaint, Lawson was told that the FBI’s policy

regarding FERS withdrawals and reinstatements turns on the age of the former agent.

(See Compl. ¶¶ 21–22 (asserting that the unit chief of the FBI’s Human Resources

23
Division told her that “a federal law prohibited [her] from repaying [the FERS] amount”

that she had been paid; that “she could not be credited with her prior law enforcement

service years” for retirement purposes; and that due to her age, she “could not earn

twenty years of federal law enforcement service credit by the mandatory separation age

of ‘57’”).) In addition, Lawson’s complaint plainly alleges that the FBI “denied

[Lawson] the FBI SA position because she was 41 years old.” (Id. ¶ 20; see also id.

¶¶ 16, 28, 34.) Therefore, in contending that Lawson’s complaint does not plausibly

allege that the FBI rejected her reinstatement because of her age (see Defs.’ Mot. at 17–

18), Defendants refuse to acknowledge the plain text of the very pleading that they

purportedly analyze.

This is not to suggest that Lawson’s complaint is a model of clarity. The

complaint does contain factual allegations that, if true, tend to indicate that Defendants

decided to forego reinstating Lawson because she had withdrawn money from her FERS

account or because of other reasons that do not relate to discrimination on account of

her age (see, e.g., Compl. ¶ 21 (discussing Lawson’s withdrawal from her FERS

account)), and it is true that, “[i]n some cases, it is possible for a plaintiff to plead too

much; that is, to plead himself out of court by alleging facts that render success on the

merits impossible[,]” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116 (D.C. Cir.

2000). But this Court’s “role is not to speculate about which factual allegations are

likely to be proved after discovery”; instead, “the only question . . . is whether [Lawson

has] alleged facts that, taken as true, render [her] claim of [discrimination] plausible.”

Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 70 (D.C. Cir. 2015). For the reasons

explained above, Lawson needs only to include facts that demonstrate that her age was

24
one factor in the FBI’s decisionmaking process, see Ford, 629 F.3d at 206, and in this

regard, this Court finds that she has “nudged [her] claims across the line from

conceivable to plausible,” Twombly, 550 U.S. at 570. 8

(ii) Lawson has stated a retaliation claim under the ADEA
because she has adequately alleged that defendants
failed to rehire her because she engaged in a protected
activity.

Defendants next insist that Lawson’s complaint fails to state a valid retaliation

claim under the ADEA (Count III) “because it fails to show the requisite causal link

between Lawson’s prior protected activity and the FBI’s denial of her reinstatement

request.” (Defs.’ Mot. at 19.) This argument presents a closer question than

Defendants’ contentions with respect to Lawson’s ADEA discrimination claim, but after

careful consideration of this contention, this Court concludes that Lawson has alleged a

sufficient causal connection between the FBI’s refusals to reinstate her and her 2006–

2007 EEO activity.

The ADEA prohibits an employer from retaliating against a federal-sector

employee because the employee engaged in protected activity by opposing unlawful

employment practices or bringing prior charges of age discrimination. See Gomez-

Perez v. Potter, 553 U.S. 474, 479 (2008). “In the absence of direct evidence of

retaliatory intent, to succeed on a claim for retaliation under . . . the ADEA, [Lawson]

8
Defendants’ contentions that Lawson’s complaint references an improper “comparator” with respect to
the ADEA discrimination claims (see Defs.’ Mot. at 17 (arguing that Lawson’s “alleged comparator is
not a proper comparator”)) and that that 36 of the 37 employees who were reinstated from 2001 to 2010
“did not take a refund from their FERS pension fund” (id. (internal quotation marks and citation
omitted))—even if true—do not demand a different result. The pleading standard at this stage is not
“onerous[,]” McManus v. Kelly, No. 14-1977, 2017 WL 1208395, at *5 (D.D.C. Mar. 31, 2017), and
while “[a]llegations regarding comparators . . . obviously strengthen a discrimination complaint,” this
evidentiary requirement is “inapplicable at the pleading stage.” Nanko Shipping, USA v. Alcoa, Inc.,
850 F.3d 461, 467 (D.C. Cir. 2017).

25
must show that [she] ‘1) engaged in a statutorily protected activity; 2) suffered a

materially adverse action by [her] employer; and that 3) a causal connection existed

between the two.’” Townsend, 236 F. Supp. 3d at 315 (quoting Nurriddin v. Bolden,

818 F.3d 751, 758 n.6 (D.C. Cir. 2016)). Notably, the requisite causal relationship may

be inferred through temporal proximity between the protected act and the adverse

employment action. See id. at 316. However, where causation is predicated on

temporal proximity alone, “the proximity in time must be very close.” Kwon v.

Billington, 370 F. Supp. 2d 177, 187 (D.D.C. 2005) (internal quotation marks and

citation omitted); see also Greer v. Bd. of Trustees of Univ. of D.C., 113 F. Supp. 3d

297, 311 (D.D.C. 2015) (“When relying on temporal proximity alone to demonstrate

causation, there is no bright-line rule, although three months is perceived as the outer

limit.” (citation omitted)). Nevertheless, “[a] large gap between protected activity and

retaliation is not necessarily fatal to a claim when the plaintiff can point to other factors

leading to an inference of causation.” Greer, 113 F. Supp. 3d at 311 (citation omitted).

In the instant case, Lawson alleges that she participated in the informal and

formal EEO complaint process throughout 2006 and 2007, and thereafter, the FBI

repeatedly denied her requests for reinstatement. (See Compl. ¶¶ 90, 94–96.)

Defendants do not dispute that the FBI’s refusal to hire Lawson is a materially adverse

action, nor do they dispute that Lawson’s prior EEO participation constitutes a

protected activity. Thus, the only pertinent disputed issue is whether Lawson’s

complaint alleges sufficient facts related to the causation element to render her claim

plausible. This Court concludes that it does, for at least two reasons.

26
 First of all, there is some temporal proximity between Lawson’s alleged

protected activity and the FBI’s decision not to reinstate her. According to the

complaint, Lawson “contacted an EEO counselor, initiated the informal discrimination

complaint counseling phase, and participated in the formal discrimination complaint

process” in “2006–2007[.]” (Id. ¶ 90.) After resigning from her position in July 2006,

and withdrawing her pending EEO complaint at some point in 2007 (see id. ¶¶ 13–14),

Lawson requested reinstatement (see id. ¶¶ 31, 93). Lawson alleges that, at the time she

requested reinstatement, human resources personnel “knew of [her] prior protected EEO

activity in 2006–2007” (id. ¶ 93), and conducted “routine EEO database check[s] to

determine whether an applicant for the FBI SA position had prior EEO activity

involving the FBI” (id. ¶ 92). The complaint says that, although Lawson “qualified for

the FBI SA position” (id. ¶ 91), the FBI denied her requests for reinstatement in letters

dated May 31, 2007, September 2, 2008, January 7, 2009, and March 26, 2010 (see id.

¶¶ 20, 25, 28, 32), and that a “causal connection” exists between her 2006–2007

protected activity and the denial letters “based on the close timing between” the two.

(id. ¶ 96.)

This Court finds that temporal proximity between the administrative processes

related to Lawson’s 2006 EEOC complaint and the FBI’s May 31, 2007 denial letter are

sufficiently close to support the causal inference. In particular, the complaint alleges

that Lawson “initiated the EEOC discrimination complaint process” at some point in

2006 (id. ¶ 12), and that she continued to participate in this process through an

unspecified period in 2007 (id. ¶ 90). “[D]raw[ing] all inferences in [Lawson’s]

favor[,]” Brown, 774 F.3d at 1020 (internal quotation marks and citation omitted), the

27
Court will construe the complaint to allege that Lawson was engaged in pursuing her

administrative EEO claim into at least the early part of 2007, shortly before she

received the May 31, 2007, denial letter. So construed, Lawson has alleged the

requisite temporal proximity between her protected activity and the FBI’s May 31,

2007, refusal to reinstate her. See, e.g., Hamilton v. Geithner, 666 F.3d 1344, 1358

(D.C. Cir. 2012) (holding that a two-month gap between the employee’s protected

activity and the employer’s adverse action was sufficiently brief to support an inference

of retaliation).

The Court recognizes that whether or not Lawson has alleged the requisite causal

link is a closer question with respect to the final three denial letters, dated September 2,

2008, January 7, 2009, and March 26, 2010, respectively. The FBI issued these letters

one to three years after Lawson’s latest protected activity, and “[b]ecause of the time

lapse, [Lawson] cannot rely solely on the time of [the denial letters] to show causation.”

Forman v. Small, 271 F.3d 285, 301 (D.C. Cir. 2001). However, Lawson offers more,

and her additional assertion is the second reason that the Court concludes the complaint

states a sufficient ADEA failure-to-hire retaliation claim.

Specifically, Lawson alleges that human resources personnel performed “an EEO

database check to determine whether an applicant for [the] FBI SA [position] had prior

EEO activity[.]” (Compl. ¶ 46.) This database check helps to bridge the one- to three-

year gap between Lawson’s 2006–2007 EEO activities and her subsequent employment

applications, because, if true, such a check would have alerted the employees to

Lawson’s prior protected activity when they processed her 2008, 2009, and 2010

applications one to three years later. Moreover, this Court is hard-pressed to imagine

28
any non-retaliatory justification for such an “EEO database check” as part of a re-hire

application review. (Id.) The Court notes further that there is nothing in Lawson’s

complaint regarding the FBI’s application process that would render this allegation

manifestly implausible. In other words, if it is true that the FBI conducts “database

check[s]” to determine whether applicants seeking to be reinstated to SA positions have

engaged in prior EEO activity against the FBI, and as a result of this check, the FBI

knew about Lawson’s 2006–2007 EEO complaint when it processed—and denied—her

2008, 2009, and 2010 reinstatement applications, then Lawson’s complaint plausibly

suggests that her applications for reinstatement were denied because she engaged in

protected activity.

Thus, although it presents a closer question, Defendants’ dismissal contentions

regarding causation as it pertains to Lawson’s ADEA retaliation claims are rejected

based on the Court’s conclusion that Lawson’s allegation regarding the FBI’s EEO

database check is sufficient to suggest a causal link between her protected activity and

the challenged conduct.

(iii) Lawson may amend her complaint to clarify what
type of ADEA claim she intends to raise in Count I.

Finally, this Court must evaluate Defendants’ dismissal arguments related to

Count I, and in doing so, it has observed that, unlike the other ADEA failure-to-hire

claims that are brought in the complaint, Lawson’s complaint is unclear regarding the

nature of the challenge that Lawson is making. That is, at times, Count I appears to

object to the FBI’s reinstatement policy as discriminatory on its face (see, e.g., Compl.

¶ 57, 58, 64, 67, 69 (making allegations that are in the nature of objections to the policy

itself)), but other allegations in Count I suggest that Lawson’s Count I challenge is, in

29
fact, a disparate treatment claim (see, e.g., id. ¶ 65 (alleging that the FBI’s

“discriminatory age-based policy was not applied to every over age 37 reinstatement

applicant who depleted the FERS pension account but was applied to disadvantage

Plaintiff because of her age”)). To make matters worse, Defendants perceive yet

another theory in the interstices of Count I’s allegations of fact; they apparently read

this cause of action “to allege claims of disparate impact” as well as disparate

treatment. (Defs.’ Mot. at 8.)

Until this Court has a better understanding of the theory (or theories) of liability

that Lawson seeks to advance in Count I, it cannot undertake to analyze the sufficiency

of this claim. The three aforementioned theories of liability (i.e., a facial challenge to

the FBI’s policy, a disparate treatment claim, or a disparate impact claim) represent

fundamentally different types of legal claims with different applicable standards. See,

e.g., Ross v. Lockheed Martin Corp., No. 16-cv-2508, 2017 WL 3242237, at *2−3

(D.D.C. July 28, 2017) (describing the differences between disparate treatment and

disparate impact claims). Therefore, Lawson will need to clarify the challenge she

intends to raise in this cause of action before the Court can adequately entertain

Defendants’ arguments in support of dismissing Count I. Accordingly, in the

accompanying Order, the Court permits Lawson to amend her complaint to clarify the

ground (or grounds) on which she seeks relief, and as a result, denies as moot

Defendants’ current motion pertaining to dismissal of Court I.

30
 B. Defendants Have Not Demonstrated That Lawson’s Complaint Fails
To State A Title VII and ADEA Claim For Retaliatory Interference
With The Administrative Processing Of Her EEO Complaint

In addition to the various failure-to-hire claims discussed above, Lawson has

also claimed unlawful retaliation, in violation of the ADEA (Count IV) and Title VII

(Count VII), based on her former supervisor’s alleged interference with, and improper

processing of, Lawson’s EEO complaint in 2010. (See Compl. ¶¶ 100–15; 141–55.) As

Part I.B (supra) explains, Lawson maintains that Enriquez, the Chief of her former FBI

Unit, “knew that [Lawson] filed an EEO complaint against him and other FBI

employees in 2006” (id. ¶ 107), and that when she “participated in the formal

discrimination complaint process in 2010” in connection with the FBI’s failure to

reinstate her as an SA (id.), Enriquez “appeared in” the office tasked with handling

Lawson’s complaint (id. ¶ 108), “supervised [Lawson]’s pending EEO case” (id.), and

“intentionally interfered with [Lawson] in the pending EEO discrimination complaint

process” (id. ¶ 109; see also id. ¶¶ 148–50). The complaint specifically asserts that

Enriquez interfered with the processing of Lawson’s 2010 EEO complaint by means of

“improper complaint processing, approv[ing] the incomplete investigation of Plaintiff’s

claims of discrimination and retaliation, and approv[ing] the omission of any

investigation of her claims of retaliation.” (Id. ¶¶ 109, 150.) And Lawson asserts that

these acts of intentional interference with the EEO-complaint process “establish

retaliation in violation of [Title VII and] the ADEA.” (Id. ¶ 113; see also id. ¶ 154.)

This Court concludes that Defendants have failed to demonstrate that Lawson’s

allegations are deficient in any manner that requires dismissal under Rule 12(b)(6). As

discussed above, to state a claim for retaliation under Title VII and the ADEA, a

plaintiff must plausibly allege that she “1) engaged in a statutorily protected activity;

31
[and] 2) suffered a materially adverse action by [her] employer; and that 3) a causal

connection existed between the two.” Townsend, 236 F. Supp. 3d at 315 (internal

quotation marks and citation omitted). Defendants do not attack Lawson’s retaliatory

interference allegations by reference to any of these three elements; instead,

Defendants’ sole argument is that Lawson’s allegations “are not actionable under Title

VII or the ADEA” (Defs.’ Mot at 21), because “Title VII and the ADEA create a cause

of action for discrimination, not ‘an independent cause of action for the mishandling of

an employee’s discrimination complaints’” (id. at 20 (quoting Douglas-Slade v.

LaHood, 793 F. Supp. 2d 82, 96 (D.D.C. 2011))). But Defendants’ argument

misperceives the retaliatory interference claims that Lawson makes in this complaint. It

is true enough that the mishandling of an EEO complaint, on its own, does not give rise

to an independent cause of action under Title VII or the ADEA. See Douglas-Slade,

793 F. Supp. 2d at 96 (dismissing Title VII claim because plaintiff had merely alleged

“errors and irregularities with respect to the investigation of her discrimination claims

at the administrative level”). But unlike the plaintiff in Douglas-Slade, Lawson alleges

that a supervisor intentionally interfered with the processing of her EEO complaint in

retaliation for prior protected activity. (See Compl. ¶¶ 109–10, 113–14, 150–51; 154.)

In other words, Lawson has not alleged an independent cause of action for the improper

processing of her EEO complaint, as Defendants suggest; rather, she has alleged a claim

of retaliation, which is of course an actionable species of discrimination under both

Title VII and the ADEA. See 42 U.S.C. § 2000e–3(a); see also Gomez-Perez, 553 U.S.

at 479.

32
 To the extent that Defendants’ assertion that that Lawson’s retaliatory

interference allegations “are not actionable” (see Defs.’ Mot at 21) is actually intended

to argue that interference with the processing of an EEO complaint is not the sort of

“materially adverse action” that can support a retaliation claim, see Townsend, 236 F.

Supp. 3d at 315, this argument fares no better. It is well established that the anti-

retaliation provisions of Title VII and the ADEA “extend[] beyond workplace-related or

employment-related retaliatory acts and harm[,]” and encompass any retaliatory acts

that “might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67–68 (2006)

(internal quotation marks and citation omitted). The standard for identifying actionable

adverse actions is objective, and it requires courts to “focus[] on the materiality of the

challenged action and the perspective of a reasonable person in the plaintiff’s position”

in order to identify “those acts that are likely to dissuade employees from complaining

or assisting in complaints about discrimination.” Id. at 69–70; see also id. at 68.

This Court has no doubt that, when properly understood, the adverse action

standard is satisfied under the circumstances presented in this case. Just as a reasonable

employee might refrain from filing a discrimination complaint out of fear that a

supervisor would retaliate by reassigning her to different duties or suspending her

without pay, see id. at 70–73, so too might a reasonable employee refrain from

engaging the EEO-complaint process out of a concern that a supervisor’s interference

with the EEO process would render her efforts futile. Thus, in both situations, the

employer’s conduct reasonably might “discourage an employee . . . from bringing

[EEO] discrimination charges” that she otherwise would bring, id. at 70–71; cf.

33
Mogenhan v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010) (holding that a jury

could find that adverse action occurred where a supervisor increased the plaintiff’s

workload in order “to keep [her] too busy to file complaints”).

Notably, although some prior decisions in this district have suggested that the

improper processing of an administrative complaint cannot constitute a materially

adverse action sufficient to sustain a claim of retaliation, see Briscoe v. Kerry, 111 F.

Supp. 3d 46, 59 (D.D.C. 2015); Diggs v. Potter, 700 F. Supp. 2d 20, 46 (D.D.C. 2010),

support for that proposition ultimately stems from Keeley v. Small, 391 F. Supp. 2d 30,

45 (D.D.C. 2005), which is a case that was decided prior to the view of the scope of

actionable retaliation that the Supreme Court clarified in Burlington Northern. See

Diggs, 700 F. Supp. 2d at 46 (relying on Keeley without addressing the Supreme

Court’s intervening decision in Burlington Northern); see also Briscoe, 111 F. Supp. 3d

at 59 (relying on Diggs). In Keeley, the judge reasoned that complaints regarding

interference with an EEOC investigation could not form the basis of a Title VII

retaliation claim because an EEOC investigation does not relate to “a condition of

employment[.]” 391 F. Supp. 2d at 45 (citation omitted). But the Supreme Court’s

2006 Burlington Northern opinion spoke definitively to that issue, holding that the

scope of “Title VII’s substantive provision and its antiretaliation provision are not

coterminous[,]” and the latter “is not limited to discriminatory actions that affect the

terms and conditions of employment[,]” id., 548 U.S. at 64, 67.

For the reasons explained above, and in light of Burlington Northern, this Court

concludes that interference with the processing of an EEO complaint plausibly

constitutes the sort of materially adverse action that can support a retaliation claim, and

34
thus Defendants’ motion to dismiss Counts IV and VII on the grounds that such alleged

retaliation is not actionable must be DENIED.

IV. CONCLUSION

This Court has carefully reviewed Lawson’s complaint and the arguments that

Defendants have raised in their motion to dismiss. While Lawson has failed to exhaust

her administrative remedies fully with respect to most of her failure-to-hire claims

under Title VII, and it is far from clear that Lawson will ultimately be able to prove the

remaining discrimination and retaliation claims she seeks to advance in this action, the

Court finds that Lawson’s complaint alleges sufficient facts to state a claim under the

ADEA for discrimination and retaliation based on the agency’s refusal to reinstate her.

In addition, the Court concludes that Lawson’s complaint states a claim for retaliation

under the ADEA and Title VII based on Defendants’ purported interference with the

processing of her administrative complaint. Finally, the Court will permit Lawson to

amend her complaint in three limited respects: first, Lawson may clarify the claim she

intends to raise in Count I; second, she may plead the date that she purportedly received

the right-to-sue letter that preceded the filing of the instant action; and third, she is

permitted to supplement the factual allegations that support her surviving Title VII

claims. Accordingly, as set forth in the Order accompanying this Memorandum

Opinion, Defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED IN

PART.

DATE: September 22, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

35